People v. Brown
| Decision Date | 12 June 2017 |
| Docket Number | No. 3107/2015.,3107/2015. |
| Citation | 61 N.Y.S.3d 192 (Table) |
| Parties | The PEOPLE of the State of New York v. Jonathan BROWN, Defendant. |
| Court | New York Supreme Court |
Addisa Gabbidon, Assistant District Attorney, Office of Bronx District Attorney Darcel D. Clark.
A grand jury charged the defendant with criminal possession of a controlled substance in the third degree and related charges. Defendant filed an omnibus motion to suppress any physical evidence recovered from the defendant on the grounds that the evidence was the subject of an illegal search and seizure as well as any statements he allegedly made to law enforcement. Pursuant to a decision by Judge Greenberg on August 17, 2015, this Court conducted a Mapp/Dunaway hearing on May 23 and 24, 2017. Prior to commencing the hearing, the People withdrew CPL § 710.30 statement notice. Based on the testimony of the People's witnesses, the defendant's motion to suppress is granted.
The People called as witnesses two detectives who were employed by the New York City Police Department for eleven and twenty-three years respectively. Both had received extensive training in street level narcotics enforcement. On August 11, 2015, the detectives were assigned to the Bronx Gang Squad and working the 10:00 p.m. to 6:33 a.m. tour in plain clothes in an unmarked police car. Detective Jose Rodriguez was driving, a lieutenant who did not testify was in the front passenger seat and Detective Jeffrey Scalf was a back seat passenger.
Detective Scalf was the arresting officer and testified first. He stated that while on patrol on August 11, 2015 at approximately 2:59 a.m., he observed a vehicle parked on the right side of Tiebout Avenue the street parked away from the curb. As the detectives' unmarked van passed by, Detective Scalf observed two occupants inside, a white male in the driver's seat and a white female in the front passenger's seat. Detective Scalf noticed that the white female passenger appeared to have what he suspected to be a glass pipe in her right hand. Detective Scalf relayed this information to his partners, and the team decided to observe further. Detective Rodriguez pulled up and parked at the intersection of East 180th Street and Tiebout Avenue.
After several minutes, the car approached the intersection where the detectives were parked. The driver of that vehicle rolled through the pedestrian cross walk past the "Stop" sign. At that point Detective Scalf noticed that the same two individuals were seated in the front of the car but also that the defendant was in the rear passenger seat behind the driver. The detectives began to follow this car. Detective Scalf testified that in the vicinity of 2103 Webster Avenue, the car crossed over a double yellow line into oncoming traffic and made a left into a gas station. The detectives pursued, initiated their emergency lights and made a traffic stop.
Detective Scalf testified that the rear seat passenger—later identified as the defendant Jonathan Brown—began nervously looking behind him and moving toward the car door to get out as the unmarked police car pulled them over. Detective Scalf stated that he approached the rear seat on the passenger side, and his lieutenant approached the front passenger while Detective Rodriguez went over the driver. Detective Scalf stated that he had no reason to be suspicious about the defendant prior to this point. As Detective Scalf approached, the defendant stated to him, Detective Scalf told him to relax. It was then that the defendant moved around, looking very nervous, and reached to the rear passenger door as if to get out of the car. Detective Scalf testified that Detective Rodriguez then came around the car and that "[I] wouldn't say pushed me out of the way but" he took control of the door. The defendant started to move towards the other door. Detective Scalf testified that Detective Rodriguez next reached inside the car and placed the defendant in handcuffs and pulled the defendant out of the car. As Detective Rodriguez was pulling the defendant from the car in handcuffs, Detective Scalf observed small blue pills falling onto the street coming from the defendant's shorts. Detective Scalf believed these pills to be controlled substances.1 Detective Rodriguez then searched the defendant and recovered packages of pills believed to be oxycodone and heroin in defendant's groin area of his shorts.
When asked why they pulled the defendant out of the car, Detective Scalf testified that it was the way the defendant was acting nervous and moving around in the car:
Just due to his—the way he was acting. He was a passenger in a vehicle. He was very nervous. During my experience on this job, I've seen the driver very nervous at times, but the passenger in a vehicle shouldn't be nervous. They're not the ones that are getting pulled over. As I stated, he was moving around. He was asking a lot of questions. And for my safety, I just felt like he was—maybe he had a weapon or some type of narcotic on him. So at that point, we decided to pull him out of the vehicle ....[i]n my training and experience, the car stops I pull over, do passengers act nervous? Very rarely, unless they're doing something wrong......
Detective Scalf further testified that the defendant had not done anything improper when he first observed him; had not committed any offense; and as the passenger had not committed a traffic violation.
Detective Rodriguez testified that he first saw the vehicle in which the defendant was passenger when it was parked at a hydrant with its rear sticking out. He stated that the car did not come to complete stop at 180th Street and crossed yellow lines to turn into a gas station against incoming traffic. When their van pulled up behind the car, the defendant2 was looking to see the officers, made eye contact with Detective Rodriguez, and turned his body toward the front of the car. Detective Rodriguez testified that the defendant moved his shoulder and lifted his right arm, and looked to him as if he were "doing something in front of his waist." Detective Rodriguez did not attempt to explain how he was even able to observe the area of the back seat passenger's waist from his vantage point in the police car behind the stopped car. He also said the defendant bent forward at one point. There was no description of the sequence of these motions, or how rapid they were. The detective did not say he observed the defendant to be holding or hiding anything. Detective Rodriguez did say that the manner in which the defendant was moving around made him very nervous. At one point he indicated he thought that the defendant had a firearm or weapon (Tr. 47) while at another he denied that he thought the defendant was reaching for a weapon. (Tr 49–50) On cross examination, Detective Rodriguez admitted that he never told the grand jury panel when asked about the circumstances of defendant's arrest that he observed the defendant moving his hands in a suspicious way toward his waist.
Detective Rodriguez said he approached the driver's side of the car to engage the driver and determine the reason why he did not stop at the stop sign and crossed the double lines. Detective Rodriguez testified he alerted Detective Scalf and the lieutenant several times to watch the defendant's hands, although Detective Scalf did not mention this in his testimony. The lieutenant went over to the female on the front passenger side while Detective Scalf went over to the defendant in the back seat. The defendant was not instructed in any way as to what to do or what not to do except to "relax" by Detective Scalf. According to Detective Scalf, the defendant reached for the handle of the rear passenger door and attempted to open the door.
Detective Rodriguez admitted that he then slammed one of the back doors shut, pushed the defendant further inside the vehicle and placed handcuffs on the defendant. Detective Rodriguez stated that he did so for his safety and for the safety of his partners. As the defendant was pulled from the car, both detectives said they saw small blue pills begin to fall to the ground from the legs of the defendant's pants. This was the first time either them saw any contraband.3
Outside the car while the defendant was cuffed, Detective Rodriguez frisked the defendant. Detective Rodriguez felt an object from the groin area of the defendant's shorts. Detective Rodriguez recovered a clear plastic bag of a powdery substance believed to be heroin and 339 pills believed to be oxycodone divided into four separate packages, one of which was opened. Detective Rodriguez also testified that he recovered a couple bags of what appeared to be marijuana from the defendant. These items were given to Detective Scalf who vouchered them. Detective Rodriguez also stated that prior to pulling the defendant out of the car, no one had identified the defendant as committing any illegal activity; he was not the subject of any investigation; he had not committed any violation of the law that the detective was aware of; he was not driving the car; and that the defendant was simply a back seat passenger in a car.
Neither detective identified the make or model of the car; whether the windows were tinted; whether they were open or closed during their observation; or what part of the interior of the vehicle could be observed at any point in time during their encounter. There was no testimony as to whether the driver or front seat passenger were ordered out or to stay in the vehicle and whether they were questioned. It is not clear whether the driver was issued a summons for the traffic infractions. The female passenger was arrested and charged with possession of a glass pipe.
In seeking to introduce the physical evidence attributed to the defendant on their direct case at trial, the People bear the burden of providing evidence of the legality of the...
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