People v. Hernandez

Decision Date13 July 1998
Citation177 Misc.2d 882,679 N.Y.S.2d 790
Parties, 1998 N.Y. Slip Op. 98,454 The PEOPLE of the State of New York, Plaintiff, v. Tony HERNANDEZ, Defendant.
CourtNew York Supreme Court

Goldstein, Weinstein & Fuld (David Goldstein of counsel), New York City, for defendant.

Robert T. Johnson, District Attorney of Bronx County (Eli Moore of counsel), for plaintiff.

CAESAR D. CIRIGLIANO, Justice.

Defendant, who has been indicted for criminal possession of a controlled substance in the first degree, criminal possession of a weapon in the third degree and related crimes, has moved to suppress the drugs and weapon which were recovered from the vehicle in which he was a passenger upon the grounds that the stop and search were illegal. He has also moved to suppress a statement he made to the police after his arrest based on both the asserted illegality of the stop and a violation of his Miranda rights.

FINDING OF FACT

On July 5, 1996, Detective Joseph Nelon responded to West 190th Street and Davidson Avenue in the Bronx based on an anonymous report of shots having been fired. Upon arriving at this location, the detective interviewed several witnesses, two of whom reported to him that they had seen shots fired at a 1995 Isuzu Rodeo 4X4 with tinted windows, that someone in the Isuzu had been shot in the right knee, and that the Isuzu had left the scene. No one reported to the detective that anyone in the Isuzu had committed a crime. Without getting these witnesses' names, at approximately 9:50 p.m., the detective broadcast a report that a green Isuzu Rodeo truck with tinted windows was wanted with regards to a shooting that occurred in the area of 190th Street. He then left the scene looking for this vehicle.

Within ten minutes, Police Officer Starr spotted a green Isuzu Rodeo truck with tinted windows stopped at a traffic light at Mosholu Parkway and Jerome Avenue which is approximately a half mile from 190th Street and Davidson Avenue. Officer Starr stopped the Isuzu by pulling in front of it.

                He and his partner then approached it with guns drawn.  As they approached, the driver, Brenda McNeal, began yelling, "He's shot, he's shot."   Officer Starr then observed Dwayne Jones in the front passenger seat with a gunshot wound to the leg and the defendant, Tony Hernandez, in the back seat.  Officer Starr ordered all of the occupants out of the vehicle while asking co-defendant Jones if there were any weapons in the Isuzu.  Jones responded, "There's a gun in the glove box.  It's registered to Ms. McNeal."
                

A .38 caliber handgun was then recovered from the glove compartment, the Isuzu was searched and several ounces of cocaine and a large bag containing a green leafy material were found in the front passenger area. All of the occupants were then taken to the 52nd precinct and Detective Nelon read the defendant his Miranda rights. The defendant then stated to Officer Starr that the green leafy substance was oregano and that it was used to throw dogs off the scent of the crack. 1

CONCLUSIONS OF LAW

As stated above, the defendant has moved to suppress the handgun, the drugs and the statement. The defendant argues that the stop was illegal and that all of the evidence and the statement must therefore be suppressed as the fruit of that tree. Alternatively, the defendant argues that even if the stop were legal, the officers' approach with guns drawn was unreasonable under the circumstances thereby tainting the encounter; that the police had no basis to search the Isuzu after all the occupants and the handgun had been removed; and that the defendant had not been read his full Miranda rights.

Addressing these seriatim, the defendant has standing to challenge the stop of a vehicle in which he was no more than a passenger (People v. May, 81 N.Y.2d 725, 593 N.Y.S.2d 760, 609 N.E.2d 113; People v. Matthew, 228 A.D.2d 260, 643 N.Y.S.2d 578) and the burden, in the first instance, is on the People to prove that the stop comported with constitutional limitations. (People v. Baldwin, 25 N.Y.2d 66, 302 N.Y.S.2d 571, 250 N.E.2d 62.) Moreover, if it were illegal, any evidence obtained thereby must be suppressed. (People v. Matthew, supra.)

Here, Officer Starr stopped the Isuzu based on a report that it was wanted with regards to a shooting. Clearly, this was a seizure under the Fourth Amendment. (Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d 1; People v. Ocasio, 85 N.Y.2d 982, 629 N.Y.S.2d 161, 652 N.E.2d 907.) Equally clear is that Officer Starr could rely on such information as was possessed by Detective Nelon. (People v. Lypka, 36 N.Y.2d 210, 366 N.Y.S.2d 622, 326 N.E.2d 294.) The problem, however, is that Detective Nelon had not been informed by the witnesses that the people in the Isuzu were suspects of any crime. Rather, the information he received was only that they were the victims of (and therefore presumably witnesses to) a shooting. The defendant argues, therefore, that under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 and People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 the stop of the Isuzu was illegal.

The typical Terry stop involves the temporary seizure of a person who is himself suspected of being directly involved in criminal activity (4 LaFave, search and Seizure § 9.2[b] [3d ed 1996] ), and the issues involved turn on whether the police had sufficient information to justify the intrusion, i.e., a founded suspicion that criminal activity is afoot, to detain (People v. Cantor, 36 N.Y.2d 106, 114, 365 N.Y.S.2d 509, 324 N.E.2d 872) or information that supports a reasonable suspicion that the detainee has himself committed, is committing, or is about to commit a felony or a misdemeanor, for a forcible stop. (People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562.) "The role of the police in our society [however] is a multifaceted one[,]" involving, in addition to the investigation of crime, the maintenance of order and "the obligation ... to render emergency assistance to those in distress." (De Bour, supra, at 218, 386 N.Y.S.2d 375, 352 N.E.2d 562.) As a consequence the classifications that Terry and De Bour have derived in order to characterize and analyze police-suspect encounters have only an indirect application where, as here, the defendant was stopped not as a suspect but rather as a victim and/or witness to a crime. (See, De Bour, supra, at 219, 386 N.Y.S.2d 375, 352 N.E.2d 562; accord, Williamson v. United States, 607 A.2d 471 [D.C.App.] cert denied 510 U.S. 829, 114 S.Ct. 96, 126 L.Ed.2d 63 [Schwelb, J., concurring].) The issue therefore becomes when, and under what circumstances, may the police stop a moving vehicle when they lack a reasonable suspicion that any of the occupants was a perpetrator in a crime but do possess reasonable cause to believe that all of the occupants are victims and/or witnesses to a recent serious crime?

Not surprisingly this issue has received little attention in the reported case law because victims and witnesses have little reason to challenge in court their detention. It is only when evidence leading to that person's arrest develops as the result of the encounter that the courts will become involved. (4 LaFave, search and Seizure § 9.2[b]; see People v. De Bour, 40 N.Y.2d 210, 219 n. 1, 386 N.Y.S.2d 375, 352 N.E.2d 562, supra.)

This Court's research has revealed only two cases in this jurisdiction which have addressed this issue: People v. John BB., 56 N.Y.2d 482, 453 N.Y.S.2d 158, 438 N.E.2d 864, cert denied 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400 and People v. Spencer, 84 N.Y.2d 749, 622 N.Y.S.2d 483, 646 N.E.2d 785, cert denied 516 U.S. 905, 116 S.Ct. 271, 133 L.Ed.2d 192. 2 In John BB the police, attempting to investigate a series of burglaries discovered that day in rural upstate New York, made a determination to stop all vehicles in the geographical area in order to acquire information concerning the crimes. When the defendant's vehicle was stopped, fruits of the burglary were spotted in open view leading to his arrest. While conceding that this stop was a seizure under the Fourth Amendment without reasonable suspicion of the defendant's criminality, the Court of Appeals upheld it. The test, that tribunal said, was whether the police conduct was reasonable after balancing the intrusion upon the detainee's right to be left alone against the State's interest in solving these crimes. The John BB Court then concluded that the stopping of all vehicles in the area of the burglaries the same day as the crimes to gather information was reasonable where there was no other viable alternative. (People v. John BB., supra, at 487-88, 453 N.Y.S.2d 158, 438 N.E.2d 864.)

To be distinguished from this is the case of People v. Spencer, 84 N.Y.2d 749, 622 N.Y.S.2d 483, 646 N.E.2d 785, supra. In Spencer the victim, who had been assaulted by her boyfriend the previous day, was being driven around her neighborhood by the police canvassing for her assailant when she pointed out the defendant as being a friend of her assailant. The police then stopped the defendant, who was in a moving car, in order to make inquiry of him concerning the whereabouts of the victim's assailant. Drugs where then observed in open view leading to the defendant's arrest. The Court of Appeals held the stop to be bad. The test, that tribunal reiterated, was "reasonableness" and held that a vehicle stop in order to obtain information concerning the whereabouts of a suspect is unreasonable absent exigent circumstances such as to freeze an ongoing or dangerous situation and prevent the disappearance of witnesses. Moreover, the Spencer Court stated: "We need not and do not hold today that police officers may never stop a vehicle in order to request information of its occupants." (People v. Spencer, 84 N.Y.2d at 757, 622 N.Y.S.2d 483, 646 N.E.2d 785, supra.)

Thus, the Court of Appeals has left open the precise issue that is before this Court...

To continue reading

Request your trial
8 cases
  • State v. Fair
    • United States
    • Oregon Supreme Court
    • 31 Mayo 2013
  • Doucette v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 30 Mayo 2008
    ... ... Deputy Powell said that he drove into the service station with the intent to identify the people in the Taurus in connection with his investigation into who had knocked over the mailboxes. He said that he drove up behind the parked Taurus and ... Hernandez, 177 Misc.2d 882, 679 N.Y.S.2d 790, 795 (Sup.Ct.1998) (vehicle stop to question a witness to a recent violent crime under exigent circumstances was ... ...
  • State v. Watkins, 1 CA-CR 03-0197.
    • United States
    • Arizona Court of Appeals
    • 4 Mayo 2004
    ... ... a material witness to allow the police to investigate a crime is permissible, even if the police do not suspect the person of wrongdoing."); People v. Hernandez, 177 Misc.2d 882, 679 N.Y.S.2d 790, 795 (Sup.Ct.1998) (vehicle stop to question a witness to a recent violent crime under exigent ... ...
  • State v. Pierce, 01-100.
    • United States
    • Vermont Supreme Court
    • 16 Noviembre 2001
    ... ... It's routine for officers investigating an offense to ask people at the scene what they saw, what they know. And the request to speak with the defendant, conceivably about what he saw or what he knew, is a ... Hernandez, 177 Misc.2d 882, 679 N.Y.S.2d 790, 794 (Sup.Ct.1998). As suggested by LaFave, the Model Code authorization of seizure of witnesses is narrower than ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT