People v. Ransom
| Decision Date | 06 March 2015 |
| Docket Number | No. 2011BX045348.,2011BX045348. |
| Citation | 9 N.Y.S.3d 595 (Table) |
| Parties | The PEOPLE of the State of New York, v. Timothy RANSOM, Defendant. |
| Court | New York Criminal Court |
Robert T. Johnson, District Attorney, Bronx County, by Elizabeth Kamens and Adrienne Giunta, Assistant District Attorneys, for The People.
The Legal Aid Society, by Larissa Rouse and Lily Goetz, for Defendant.
Defendant is charged with the misdemeanor of Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01) and the violation of Unlawful Possession of Marijuana (PL § 221.05).
Defendant moves to suppress any and all physical evidence seized from defendant, including observations made by the police, and any and all statements made by defendant.
A combined Mapp/Dunaway/Huntley hearing was held before this Court on March 2, 2015. The People called Police Officer (“P.O.”) Daniel Nunez as their sole witness.
P.O. Nunez has been employed by the New York City Police Department for more than nine years and is currently assigned to the anticrime unit at the 47th Precinct. During his tenure as an officer, P.O. Nunez has participated in over 300 arrests. Out of those arrests, 75 arrests related to drugs and approximately 100 arrests related to firearms.
On August 14, 2011 at approximately 1:00 a.m., P.O. Nunez and his partner, P.O. Stockton, were conducting anticrime patrol in an unmarked vehicle within the confines of the 47th Precinct. While on patrol, P.O. Nunez responded at approximately 12:30 a.m. to 1:00 a.m. to a house located on Carpenter Avenue between East 226th Street and East 227th Street in order to assist in breaking up a party with over 100 people in attendance.
Shortly after 1:00 a.m., P.O. Nunez resumed his patrol and was traveling on White Plains Road, one block east of the location of the party. At 1:27 a.m., he heard a call come over the radio for a “10–10”, indicating the presence of males with a firearm at the previous location.
According to the Sprint Report, entered into evidence as defendant's exhibit B, the radio run indicated that there were four black males with a firearm driving a black vehicle bearing New York license plates at 4011 Carpenter Avenue. However, P.O. Nunez denied hearing the portion of the radio run which indicated that the four black males were driving a black vehicle bearing New York license plates. As he approached the intersection of East 226th Street and Carpenter Avenue, P.O. Nunez observed three individuals walking away from the location of the party. Specifically, the three individuals turned the corner of East 226th Street, immediately turned around, proceeded back on Carpenter Avenue, and approached a legally parked white Chevy van bearing Delaware license plate number PC231969 that was parked at the corner of East 226th Street and Carpenter Avenue. There was also an unmarked radio motor patrol vehicle directly ahead of P.O. Nunez's vehicle.
As the three individuals approached the legally parked van, one of the individuals walked to the far side of the vehicle out of sight. Out of concern for the presence of males with a firearm in the area, he and his partner stepped out of their vehicle and approached the vicinity of the legally parked van. P.O. Nunez approached the passenger side of the van while his partner approached the driver's side of the van, parked closest to the curb. By that time, one individual had already entered the van. A second individual, who was about to enter the van, was stopped by P.O. Nunez. The third individual, who, according to P.O. Nunez, had ducked down behind the van, was stopped by his partner, P.O. Stockton.
Upon first approach, P.O. Nunez was able to observe through the open sliding door to the van eight individuals seated inside the van. Of the eight individuals inside the van, he recognized two or three individuals who had been at the party earlier in the evening. P.O. Nunez approached the driver of the van and asked him if he owned the vehicle. The individual seated in the driver's seat answered in the negative. P.O. Nunez then asked this individual to produce a driver's license. This individual stated that he did not have a driver's license.
P.O. Nunez also observed “a lot of movement in the back of the vehicle.” Defendant, who was seated in the rear of the van1 , ducked down and out of P.O. Nunez' sight. The other individuals in the van were moving their heads down and shifting their weight. P.O. Nunez testified that these movements caused him to fear for his safety and he frisked the individual that he had initially stopped outside the van. P.O. Nunez also told the individuals in the van that they were being stopped and to keep their hands visible based upon his subjective belief that this would prevent them from reaching for anything dangerous, such as a firearm.
P.O. Nunez testified that he felt unsafe and called for additional units to respond. Once additional units arrived, P.O. Nunez ordered each individual out of the van one-by-one to be frisked. P.O. Nunez walked back to the van and observed a silver firearm located underneath the center of the first bench in the van through the open door. P.O. Nunez took a photograph of the firearm, recovered the firearm, and brought it back to the precinct for processing.
At approximately 1:40 a.m., the eight individuals in the van and two individuals standing outside the van were placed under arrest and taken to the precinct, where they were placed in holding cells. At the precinct, a small amount of marijuana was recovered from defendant's front pants pocket and vouchered.
P.O. Nunez is unaware if defendant was given anything to eat or drink while he was in the holding cell from approximately 1:40 a.m. to 2:30 p.m. Instead of taking defendant directly to booking after being processed, P.O. Nunez was instructed to await the arrival of the detective squad later in the morning for questioning.
P.O. Nunez was present in the room when defendant made a written statement at 2:35 p.m. The written statement was completed at 2:50 p .m., approximately 13 hours after his arrest. Detective Regnier advised defendant of his Miranda rights prior to the making of the statement. Defendant was not handcuffed during questioning. Neither P.O. Nunez nor Detective Regnier had any weapons on their person during questioning. P.O. Nunez denies making any promises or threats to defendant prior to or during questioning. He is unaware if anyone else made any promises or threats to defendant. In his statement, defendant stated that he found the firearm in a park. Defendant admitted that he had the firearm but he had no intention of using it to cause harm.
Eight hours later, at approximately 10:30 p.m., defendant made a video statement at the request of an assistant district attorney. P .O. Nunez explained that a long wait in the complaint room caused the delay in time between the making of the written statement and the video statement. P.O. Nunez denied that any promises or threats were made to defendant prior to the making of the second statement. Defendant received his Miranda warnings prior to the making of the video statement. Defendant's video statement was consistent with his prior written statement.
Five of the individuals were released from the precinct after their arrests were voided at approximately 4:00 a.m. The remaining five individuals, including defendant, were charged with possession of a firearm. After defendant made the video statement, the District Attorney's Office declined to prosecute the other four individuals that had remained in police custody after five of the initial 10 arrestees were released.
“It is a basic premise of the law of search and seizure that police-initiated intrusions must be justified at their inception.” People v. Packer, 49 AD3d 184 (1st Dept.2008). In People v. De Bour, 40 N.Y.2d 210 (1976), the Court of Appeals set forth four levels of encounters initiated by the police. Level one, “a request for information”, is permissible “when there is some objective credible reasons for that interference and not necessarily indicative of criminality.” Id. at 223. Level two, “the common-law right of inquiry” is “activated by a founded suspicion that criminal activity is afoot.” Id. Level three encompasses forcible and constructive stops and requires an officer to have “reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or a misdemeanor.” Id. (emphasis added). Level four provides that an arrest is justified when an officer has “probable cause to believe that person has committed a crime, or offense in his presence.” Id. An individual is seized for constitutional purposes when his liberty to move has been significantly interrupted. People v. Cantor, 36 N.Y.2d 106 (1975).
Both the People and defendant concede and this Court agrees that the stop of the three individuals seen walking on the street constitutes a level three stop. “Reasonable suspicion has been aptly defined as the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand.” Id. at 112–113. Innocuous behavior, standing alone, does not constitute reasonable suspicion to believe that criminal activity is afoot. De Bour, 40 N.Y.2d at 216. “[W]here the officer entertains nothing more than a hunch or vague suspicion, virtually no interference with the citizen is permissible.” People v. Finlayson, 76 A.D.2d 670, 675 (2d Dept.1980).
A review of the testimony adduced at the hearing and the exhibits entered into evidence reveal the lack of any objective evidence of criminal activity prior to the stop of the three individuals on the street to the arrest of all 10 individuals by the van. The radio run indicating the presence of four black males in the area, akin to an anonymous phone tip, in conjunction with one individual ducking behind a van does not generate reasonable...
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