Criminal Court of the City of New York, Bronx County
December 12, 2013
People of the State of New York,
Legare Kenyatta, a/k/a, KENYATTA LEGARE, Defendant
Julio Rodriguez, III, J.C.C.
Defendant is charged with Unlawful Possession of an Imitation Pistol, AC § 10-131(g)(1). Defendant moved to suppress the imitation pistol and statements that he allegedly made to law enforcement. On August 13, 2013, the Court (Saunders, J.) directed that a Mapp/Huntley/Dunaway hearing be held, and the hearing was held before me on November 7, 2013. After the hearing, the Court directed the parties to file memoranda of law. For the reasons set forth below, defendant's motion to suppress is denied.
Findings of Fact
The People called one witness, Police Officer Anderson Ortiz of the 44th Precinct. Officer Ortiz has been a police officer for three years. His duties include patrolling the neighborhood covered by the 44th Precinct looking for quality of life offenses, misdemeanors, and felonies. See Tr. at p. 6. I found his testimony to be his credible. The underlying facts are not in dispute.
On December 15, 2012, Officer Ortiz was in his marked police car patrolling a sector of the 44th Precinct when he saw the defendant walking on Wythe Place near East 171st Street in Bronx County. The defendant was drinking out of a foam cup, which, based upon Officer Ortiz's experience, was of the type people use to hide the fact they are drinking an alcoholic beverage. Officer Ortiz parked his car near the defendant to go speak with him. See Tr. at pp. 8-12, 26-27, 37-38.
When Officer Ortiz parked, the defendant placed the cup down on the street and continued walking. Officer Ortiz got out, told the defendant to stop, and asked him what was in the cup. Defendant told him it was Hennessy and Pepsi. Officer Ortiz smelled the cup to confirm that it contained an alcoholic beverage. Instead of taking him into custody for the offense, Officer Ortiz asked the defendant for his identification so that he could issue a summons for Consumption of Alcohol on the Street, AC § 10-125. See Tr. at pp. 11-13, 30-31.
While issuing the summons, Officer Ortiz also checked to see if defendant had any outstanding warrants, and learned that defendant apparently did have an outstanding warrant, number A-2012-104603. After learning of the warrant, Officer Ortiz went to take defendant into custody, and when he placed his arms behind his back to handcuff him, Officer Ortiz felt a hard object in the small of defendant's back. Thinking it might be a gun, Officer Ortiz removed the object and discovered the imitation pistol. Defendant asked for the officer to give him a chance, and stated that he had an open case for grand larceny. See Tr. at pp. 11-18, 34-41.
After the People rested, defense counsel and the People stipulated to the admission into evidence of a page from defendant's "rap sheet" that was generated in connection with defendant's arraignment. The page, which is called an "Alerts Sheet, " contains an entry that states, "Notes: No warrants found." See Tr. at pp. 45-47 and Def. Ex. A.The People chose not to offer any rebuttal evidence. The warrant itself was not put into evidence.
Conclusions of Law
For the Mapp/Dunaway portion of the hearing, the People had the burden of going forward with credible evidence tending to show that the police officer acted lawfully, and defendant had the burden of proving by a preponderance of the evidence that the police officer acted illegally. See People v. DiStefano, 38 N.Y.2d 640, 652 (1976); see also People v. Tuzinowski, 271 A.D.2d 556 (2d Dept.), appeal denied, 95 N.Y.2d 839 (2000). For the Huntley portion of the hearing, the People had the burden of proving beyond a reasonable doubt that the defendant's statements were voluntary. People v. Huntley, 15 N.Y.2d 72, 78 (1965).
Generally speaking, police encounters with an individual on the street are governed by People v. DeBour, 40 N.Y.2d 210 (1976). In People v. DeBour, 40 N.Y.2d at 223, the Court of Appeals set forth a four-part framework for determining the legality of such encounters, namely (1) a request for information, (2) the common law right to inquire, (3) forcible stop and detention, and (4) custodial arrest. The Court concludes that Officer Ortiz's actions were permissible under People v. DeBour.
Under the circumstances, Officer Ortiz was justified in approaching defendant and asking him about the cup. Level two of DeBour authorizes a common law inquiry when there is "a founded suspicion that criminal activity is afoot." See People v. DeBour, 40 N.Y.2d at 223. According to the undisputed testimony, Officer Ortiz observed defendant drinking from a cup in a way that, according to the officer, was indicative of drinking an alcoholic beverage, and so stopped his vehicle.  Defendant then set the cup down on the ground and continued walking. At this point, Officer Ortiz had a "founded suspicion that criminality was afoot, " and was justified in stopping the defendant and asking, "what is in the cup?" Cf. People v. Boyd, 91 A.D.2d 1045 (2nd Dept. 1983) (finding police had the right to ask defendant about bag that he tried to hide behind his back).
Next, the Court concludes that Officer Ortiz had probable cause to arrest defendant under level four of DeBour. There was probable cause to believe that defendant had committed the offenses of Consumption of Alcohol on the Street [AC § 10-125] and Littering [AC § 16-118]. Officer Ortiz observed defendant drinking from the cup, defendant admitted it contained an alcoholic beverage, the cup smelled of an alcoholic beverage, and defendant had placed the cup on the ground and walked away from it. This provided probable cause to arrest defendant for Consumption of Alcohol on the Street and Littering.
Under CPL Section 140.10(1), a "police officer may arrest a person for (a) any offense when he or she has reasonable cause to believe that such person has committed such offense in his or her presence." An "offense" is defined as any "conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state..." See PL § 10.00(1). Consumption of Alcohol on the Street is an offense, as it is punishable by a fine of $25 or a term of imprisonment of five days, and Littering is also punishable by a fine or a term of imprisonment.
Thus, courts have held that CPL Section 140.10 authorizes police officers to arrest individuals for various offenses, including Consumption of Alcohol on the Street [AC § 10-125]. See People v. Bothwell, 261 A.D.2d 232, 232-35 (1st Dept.) (upholding arrest under CPL Section 140.10(1) for violation of AC § 10-125), lv. denied, 93 N.Y.2d 1026 (1999); People v. Stevens, 39 Misc.3d 131(A), 2013 WL 1337289 (App. Term, 2nd, 11th, and 13th Jud. Dists. Mar. 25, 2013) (affirming conviction where defendant was arrested for offense of Consumption of Alcohol on the Street), lv. denied, 21 N.Y.3d 1010 (2013); People v. Lewis, 50 A.D.3d 595 (1st Dept.) (holding police had probable cause to arrest defendant for violation under CPL Section 140.10(1)(a)), lv. denied, 11 N.Y.3d 790 (2008). It should be noted that probable cause to arrest existed even though the officer could have issued, and did issue, a summons. See People v. Rodriguez, 84 A.D.3d 500, 501 (1st Dept.) (upholding arrest because a "police officer's authority to effect a custodial arrest for a violation, other than a minor vehicular offense, remains valid even where the officer has the option of issuing a summons instead ") (citations omitted; emphasis added), lv. denied, 17 N.Y.3d 861 (2011).
Although the People argue that the warrant also provided probable cause to arrest defendant, the Court concludes that the People did not meet their burden of going forward with evidence to demonstrate that a valid warrant existed and was still outstanding. Under the fellow-officer rule, a "police officer is entitled to act on the strength of a radio bulletin or a telephone or teletype alert from a fellow officer or department and assume its reliability." See People v. Lypka, 36 N.Y.2d 210, 213 (1975) (citation omitted). It follows that where this information "prima facie, furnishes probable cause, a reasonable search is permissible" and that in "such circumstances the sender's knowledge is imputed to the receiver and, when the receiver acts, he presumptively possesses the requisite probable cause to search..." See People v. Lypka, 36 N.Y.2d at 213 (footnote omitted). The Court of Appeals has stated that even though this information may be "unsubstantiated hearsay, " it is, as a practical matter, "far more reliable than the usual sort of hearsay upon which warrants may issue." See Lypka, 36 N.Y.2d at 213-14 (citation omitted). If, however, there is a challenge to the arresting officer's action on a motion to suppress, "the probable cause that originally cloaked that action disappears from the case" and "bare reliance on an unsubstantiated hearsay communication from the instigating officer or department will not suffice for probable cause." See Lypka, 36 N.Y.2d at 214 (citations omitted). Thus, "to sustain their burden at the suppression hearing, the People must demonstrate that the sender or sending agency itself possessed the requisite probable cause to act." See Lypka, 36 N.Y.2d at 214 (citations omitted); see also People v. Rosario, 78 N.Y.2d 583, 588-89 (1991).
If an officer learns of a warrant, and the warrant turns out to be invalid, the arrest is invalid, and any evidence seized as a result must be suppressed. See People v. Jennings, 54 N.Y.2d 518 (1981); People v. Miranda-Hernandez, 106 A.D.3d 838 (2nd Dept. 2013) (reversing conviction where evidence was seized based upon out-of-state probation warrant that could not be executed in New York); People v. Lent, 92 A.D.2d 941 (2nd Dept. 1983) (reversing conviction where warrant had been previously vacated). Notably, there is no "good faith" exception to this rule. See People v. Jennings, 54 N.Y.2d at 523.
Here, the People did not sustain their burden at the suppression hearing with respect to the warrant. Although the arrest pursuant to the warrant was presumptively valid, the defendant effectively challenged the reliability of that warrant with documentary evidence showing that he did not have an active warrant when he was arrested. See Def. Ex. A. Essentially, the evidence at the hearing was in equipoise as to whether there was a warrant and it was still active. The warrant was not put into evidence, and no testimony was adduced about the nature of the warrant. The Court does not know who issued it, when it was issued, why it was issued, what type of warrant it was, what jurisdiction issued it, or whether it was still active. Under these circumstances, the Court finds that the People did not meet their burden of going forward with evidence to show that the warrant provided probable cause to arrest defendant. See People v. Lee, 126 A.D.2d 568, 569 (2nd Dept. 1987) (reversing conviction where defendant had been arrested pursuant to warrant, but the People "never produced a warrant... nor elicited testimony to establish that such a warrant had been validly issued and was outstanding at the time of the defendant's arrest").
In support of their argument that the testimony regarding the warrant was sufficient, the People cite to People v. Boone, 269 A.D.2d 459 (2nd Dept.), lv. denied, 95 N.Y.2d 961 (2000). Boone, however, is distinguishable for two reasons. First, the defendant in Boone "failed to challenge the reliability" of the warrant, and therefore "the presumption of probable cause remained and the People were not required to make a further evidentiary showing by producing the arrest warrant." See People v. Boone, 269 A.D.2d at 459 (citations omitted). Here, by contrast, defendant introduced documentary evidence showing that he did not have an outstanding warrant. Second, the officer in Boone testified "in detail" about the warrant; no such showing was made here. See Boone, 269 A.D.2d at 459.
Ultimately however, as noted above, the Court concludes that there was probable cause to arrest defendant, regardless of whether the officer thought it was for the warrant, or for the offense of Consumption of Alcohol on the Street [AC § 10-125]. The officer's subjective intent is irrelevant to a Fourth Amendment analysis. See People v. Robinson, 97 N.Y.2d 341, 349 (2001). Thus in People v. Wheeler, 123 A.D.2d 411, 412 (2nd Dept.), app. denied, 68 N.Y.2d 1005 (1986), the Court held that "the validity of the arrest of the defendant was not affected even if the arresting officer mistakenly believed that he did not have probable cause to arrest the defendant for murder and did have probable cause to arrest him for an unrelated arson." (Citations omitted). Similarly, in People v. Rodriguez, 84 A.D.3d at 501, the Court stated that the "officer's subjective state of mind would not invalidate the arrest because it was justified by the circumstances, viewed objectively, " and that the "subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause." (Citation and internal quotation marks omitted). Here, the testimony at the hearing showed that Officer Ortiz had objective evidence before him that defendant had committed the offenses of Consumption of Alcohol on the Street, and Littering, and the law is clear that such offenses provide probable cause to arrest. That the defendant was arrested for a different reason is irrelevant. See People v. Rodriguez, 84 A.D.3d at 501; People v. Wheeler, 123 A.D.2d at 412; see also People v. Lopez, 95 A.D.2d 241, 241-42 (2nd Dept. 1983) (stating that "officer's mistaken belief that he lacked probable cause for arrest" when the arrest was supported by probable cause "provides no basis for suppression" because "judicial evaluation of police action must be based on objective criteria") (citations omitted).
As there was probable cause to arrest defendant, it follows that the recovery of the imitation pistol was conducted pursuant to a search incident to a lawful arrest. See People v. Rodriguez, 84 A.D.3d at 501.
In response, defendant contends that, but for the warrant, he would not have been arrested and would have only received a summons, and therefore the issue of whether the violation of Administrative Code § 10-125 gave probable cause to arrest is moot. In support, defendant cites to three cases, People v. Howell, People v. Jennings, and People v. Oliver. All of these cases are distinguishable.
First, in People v. Howell, 49 N.Y.2d 778, 779 (1980), the Court of Appeals invalidated a search of a driver who had been pulled over for erratic driving and then frisked by the police. The Court found the search unjustified because even though defendant might have been arrested for reckless driving, an arrest "was neither called for nor the preferred procedure" and because "an alternative summons was available." (Citations and internal quotation marks omitted.) The problem, however, is that Howell and the cases upon which it relied, People v. Troiano, 35 N.Y.2d 476 (1974), People v. Marsh, 20 N.Y.2d 98 (1967), and People v. Adams, 32 N.Y.2d 451 (1973), have been interpreted to apply only to traffic infractions. See Kamins, New York Search and Seizure, § 3.03 at pp. 3-15 to 3-16 (Lexis Nexis 2013). Thus, in People v. Rodriguez, 84 A.D.3d at 501, supra, the Court stated that "a police officer's authority to effect a custodial arrest for a violation, other than a minor vehicular offense, (See People v Marsh, 20 N.Y.2d 98 ), remains valid even when the officer has the option of issuing a summons." (Emphasis added; italics in original.) Thus, Howell, the progeny of Marsh, does not apply to this situation.
Second, defendant's reliance on People v. Jennings, 54 N.Y.2d 518 (1981) is similarly misplaced. In that case, a search of a vehicle was invalidated because the warrant relied upon had been previously vacated, and the Court of Appeals, in a footnote and without citation to authority, made the following statement, "The People argue inevitable discovery through an inventory search, but that overlooks Officer Enright's concession that until he learned of the warrant he was not going to arrest defendant, who had been given tickets for the traffic violations." See People v. Jennings, 54 N.Y.2d at 522 n. 3. Plainly, this statement refers to the rule articulated in Howell, Troiano, Marsh, and Adams that a motorist who has committed a traffic infraction ought not to be arrested, or subjected to a search. In this regard, the language in Jennings refers explicitly to "traffic violations." Thus this dicta has little to do with the case at bar, where the law is clear that the police may arrest, and search incidentally, an individual on the street for committing an offense in an officer's presence. See CPL § 140.10(1); People v. Bothwell, 261 A.D.2d 232, 232-35 (1st Dept. 1999); People v. Stevens, 39 Misc.3d 131(A), 2013 WL 1337289 (App. Term, 2nd, 11th, and 13th Jud. Dists. Mar. 25, 2013); People v. Rodriguez, 84 A.D.3d 500, 501 (1st Dept. 2011); People v. Lewis, 50 A.D.3d 595 (1st Dept. 2008).
Moreover, Jennings helps the People's case because it also states that an "assessment of probable cause turns on what was reasonably and objectively in the mind of law enforcement authorities." See Jennings, at 523. Here, there was reasonable and objective evidence in the mind of Officer Ortiz that provided probable cause to arrest defendant. Officer Ortiz's subjective decision not to arrest defendant for those offenses, but to arrest him based on the outstanding warrant, is irrelevant as to whether probable cause objectively existed. See People v. Rodriguez, 84 A.D.3d at 501; People v. Wheeler, 123 A.D.2d at 412; see also People v. Lopez, 95 A.D.2d 241 (2nd Dept. 1983). An "arrest is constitutionally valid when, at the moment the arrest was made, the officer had probable cause to make it." See People v. Feingold, 106 A.D.2d 583, 585 (2nd Dept. 1984). That was the case here.
Finally, the case of People v. Oliver, 12 Misc.3d 1168(A), 2006 WL 1594439 (Sup. Ct. Queens Co. Jun. 9, 2006) is also unavailing to defendant, although it is most similar to the case at bar. In Oliver, the defendant was stopped for riding a bicycle on the sidewalk, and while being issued a summons for the offense, a warrant check was done, showing an active warrant. After defendant was taken into a custody, a search revealed various items of contraband, including two firearms. The warrant, however, turned out to be invalid, and the Court granted defendant's motion to suppress, citing Jennings. The court also rejected the People's contention that probable cause to arrest existed because of the "traffic infraction" of defendant riding his bicycle on the sidewalk. Citing Howell, discussed supra, the Court held that probable cause to arrest did not exist, and that a summons should have been issued. See People v. Oliver, 12 Misc.3d 1168(A) at ** 2-5. By relying on Howell, and calling this a "traffic infraction, " it is clear that the Oliver court considered this situation to fall within the "traffic infraction" exception to the general rule that a person may be arrested for committing an offense. In any event, Oliver was reversed on appeal, albeit on grounds relating to standing, but, in light of that history, it makes it difficult to discern whether Oliver has any precedential value. See People v. Oliver, 39 A.D.3d 880 (2nd Dept.), lv. denied, 9 N.Y.3d 868 (2007).
In conclusion, defendant's motion to suppress physical evidence is denied.
As to the Huntley portion of the hearing, the Court concludes that the People have met their burden of proof. The Court concludes that defendant's first statement, "It's Hennessy and Pepsi, " was voluntary, as it was made in response to a lawful, investigatory, pre-custodial question. See People v. Bennett, 70 N.Y.2d 891, 893-94 (1987). The Court also concludes that defendant's second statement, "Give me a break, I have an open grand larceny case, " was voluntarily made, was not in response to custodial interrogation, and was spontaneous. See People v. Kaye, 25 N.Y.2d 139, 144-45(1969).
One other issue should be addressed, although it is moot given the decision of this Court. In their post-hearing memoranda of law, the People annexed a copy of the warrant, and asked the Court to re-open the hearing so that it may be moved into evidence. The Court denies the application. The Court of Appeals recently held that a trial judge is precluded "from reopening a suppression hearing to give the People an opportunity to shore up their evidentiary or legal position absent a showing that they were deprived of a full and fair opportunity to be heard"). See People v. Kevin W., —— N.Y.2d —, 2013 WL 6096129 at * 1 (Nov. 21, 2013). No such showing has been made.
For the reasons set forth above, defendant's motion to suppress is denied.
The foregoing constitutes the Decision and Order of the Court.