The defendant is charged with Criminal Possession of a Weapon in the Second Degree, Criminal Possession of a Controlled Substance in the Seventh Degree, and other related charges. The indictment alleges that on September 4, 2023, the defendant possessed a loaded and operable firearm that was recovered from his left pants pocket by the NYPD after a traffic stop; it also alleges a quantity of cocaine was recovered from his shoe when the defendant was later placed in a cell at the precinct.

The Court conducted a Mapp/Huntley/Dunaway/Ingle hearing over three days. The defendant sought suppression of the firearm, the cocaine, and his statements made both at the time of his arrest and at the precinct. The People called Police Officers Ali and Toner to testify and introduced their body-worn camera footage as evidence, as well as that of Officer Abdallah, photographs of the firearm and cocaine, and a section of the NYPD Patrol Guide relating to general procedure for prisoners. The defendant called Detective Singh, cross-examined the People's witnesses, and introduced the body-worn camera footage of Police Officer Haynes, Sergeant Venditti, and Detective Sargent.

As set forth below, the defendant's motion to suppress the firearm, the cocaine, and the statement at the precinct is GRANTED.The motion to suppress the statement at the scene is DENIED, except where noted herein.

As a preliminary matter, the Court finds the testimony of the witnesses was credible. The testimony and body-worn camera footage establish the following facts.

On September 3, 2023, at approximately 12:55 p.m., Officer Ali was in an unmarked police car with Detective Sargent driving southbound on Rockaway Parkway near Rutland Road in Brooklyn. Officer Ali testified he and the other officers were working overtime given it was [*2]the weekend of the West Indian Day Parade, and he was driving the last of a three-car caravan.^[FN1]

Officer Ali testified that he saw a Model 3 Tesla sedan driving northbound on Rockaway Parkway as he neared the corner of Rutland Road. As the Tesla drove by his car in the opposite direction, he saw that the passenger in the rear seat behind the driver was not wearing a seatbelt: he testified that the rear window on the driver's side was halfway down, the windows were not tinted, both cars were moving slowly,^[FN2] and the car was less than ten feet away, giving him a clear view of the passenger as the car passed. The passenger in the seat behind the driver was later identified as the defendant.

Officer Ali communicated his observation to the other officers in the caravan,^[FN3] made a U-turn, and they pulled the Tesla and another vehicle ^[FN4] over on Prospect Place near Utica Avenue. As shown on Officer Abdallah's body-worn camera footage, the Tesla was stopped at 12:59:48 a.m. and boxed in by the police vehicles.^[FN5] Prospect Place is a one-way street with parked cars on either side. The through traffic on Prospect Place was entirely blocked by the stopped Tesla and the three unmarked police cars, as visible on the body-worn camera footage.

The body-worn camera footage shows Officer Abdallah approached the driver's side window of the Tesla and asked the woman driving for her license and registration. There were three passengers: a man in the front passenger seat, a woman in the rear on the passenger side, and the defendant in the rear behind the driver.

As Officer Abdallah spoke with the driver, Detective Sargent approached the defendant's window. On Detective Sargent's body-worn camera footage, the defendant is seen wearing a white t-shirt and it is apparent that he does not have his seatbelt fastened. Detective Sargent knocked on the window and asked the defendant for his ID: this request happens less than a minute after the Tesla was stopped (Sargent BWC at 1:00:36). The defendant reached into the pocket of his shorts, pulled out his wallet, and handed Detective Sargent his identification (Id.). The defendant then reached his left arm down in the direction of his thigh and rested his face on his left hand.

On Officer Abdallah's body-worn camera footage, the driver explained the car is a rental that she received through her insurance company and asked why she was pulled over. Officer Abdallah pointed to the defendant and stated he had a violation for not wearing a seatbelt. Two [*3]additional officers stand on the passenger side of the Tesla and speak with the other passengers.

Approximately two minutes after the initial stop, Officer Ali approached the Tesla and stood behind Officer Abdallah as Detective Sargent ran the defendant's information through his department issued phone (Ali BWC at 1:02:34).^[FN6] All eight officers from the convoy stood near the Tesla; five on the driver's side and three on the passenger (Sergeant BWC at 1:03:53). At this point of the footage, drivers of other cars stuck behind the Tesla began honking their horns repeatedly.

Officer Ali testified that at that moment, he saw the defendant move his left hand toward the left-side pocket of his shorts and down the side of his thigh, as if moving something in that pocket. Officer Ali testified he believed the defendant was moving a weapon in his pocket and that he had "a major safety concern" as the defendant made this gesture when other officers were not looking in his direction and stopped when Office Ali shined his flashlight toward the defendant (Tr. 16-18). Officer Ali stated that he saw a single gesture. There was no evidence in the testimony or the body-worn camera footage that Officer Ali let other officers know about his concerns. Detective Sargent's body-worn camera footage captured the defendant moving his left hand from the top of his left thigh down and towards his left side.

The body-worn camera footage shows that as Detective Sargent returned the defendant's ID, Officer Ali shined his flashlight into the rear seat. The officer testified he saw a clear cup of brown liquid by the defendant's feet which he believed to be alcohol, and a bottle of Don Julio in a black plastic bag. Cars can again be heard honking for approximately thirty seconds and someone yelled out "yo, I wanna go home": at this point the Tesla had been stopped for about four minutes (Abdallah BWC at 1:04:04).

The officers ordered the driver to step out and come to the rear of the car, and she complied. Officer Abdallah told the defendant that having an open container in a vehicle was "no good" and directed the defendant to get out of the car (Abdallah BWC at 1:05:18). As the defendant exited, he asks why he had to get out of the car since he was just a passenger. Officer Abdallah asked the defendant if he has "anything on him," the defendant replied no and that he is not letting officers search him. Officer Abdallah then directed the defendant to the back of the Tesla and he complied. At approximately the same time, the body-worn camera shows that the passenger in the front seat is also directed out of the car, and he is patted down immediately after he exits.

Officer Ali testified that the defendant "bladed" the left side of his body away from the officers as he stood by the trunk — meaning, he turned his left side away from the officer — and that he refused to face him directly when asked (Tr. 21-23). The body-worn camera footage shows four or five officers around the rear of the vehicle with the defendant resting his left elbow on the trunk of the Tesla, leaning slightly to the left, while facing directly toward some officers and away from others (Abdallah BWC at 1:07:15). Officer Ali testified the defendant's posture at the back of the Tesla, coupled with the earlier movement of his hand in the car, made him concerned that the defendant was concealing a firearm on his left side (Tr. 22-23). There was no testimony from Officer Ali, or any other officer, that an outline of a firearm or any kind of bulge was observed in the left pocket of the defendant's shorts. Nor is there any indication from the body-worn camera footage of an item in the defendant's pocket.

Officers spoke with the driver at the rear of the Tesla for a number of minutes, and throughout the discussion the defendant stood next to the driver, leaning his left side on the trunk. On Sergeant Venditti's body-worn camera, stopped traffic appears to increase behind the officers down much of the street: cars start honking their horns again, holding them down for approximately thirty-seconds as the Tesla had been blocking the road for approximately eight minutes (Venditti BWC at 1:08:40).

Approximately ten minutes after the initial car stop, Sergeant Venditti said something unintelligible to Officer Abdallah as Officer Abdallah stood to the defendant's right (Venditti BWC at 1:08:58). Officer Abdallah asked "just one" and Sergeant Venditti stated "yeah, 96 him" (Id.). Officer Ali testified "96" means to issue a summons in police code.

Following this interaction, Officer Abdallah attempted to put handcuffs on the defendant (Abdallah BWC at 1:09:22). The defendant asked why he is being handcuffed, he didn't do anything, he is just the passenger, and to give him a summons. An officer repeatedly told the defendant to put his hands behind his back, that he will "get tased" if he doesn't, and the defendant repeatedly yells no. As approximately five officers held the defendant, Detective Sargent reached into the defendant's left shorts pocket and recovered a firearm (Sargent BWC at 1:10:25). Detective Sargent called out "I got it, I got it, it's in my pocket" and again told the defendant he is going to get tased (Id.).

At the hearing, Officer Ali testified that the decision was made that the summons for the seatbelt and open alcohol violation could not be issued to the defendant on scene, so the defendant was placed into custody in order to take him to the precinct and "address the two violations we had on him" (Tr. 25).^[FN7] Officer Ali explained this decision was based on "how the layout was with the amount of people on the sidewalk, the cars that were honking, the people that were continuing to honk their horn telling us they need to leave, they need to go home. So because of that safety reason, of our safety and everybody else's safety. We decided that we're going to take him back to the precinct" (Tr. 25). Officer Ali testified that there were other people present aside from the remaining passengers from the car, specifically "people on the sidewalks, people honking their horns, people in cars, a large pile-up of cars behind us" (Id. 47). Officer Ali was not able to estimate the number of people present. He testified there "were enough people there for me to not feel safe to issue a summons on scene," explaining that he would not feel safe when the number of civilians outnumber the officers present (Id.) He testified the bystanders were not interfering with the officers in any way, but that some of them were "speaking to members of [his] team" (Tr. 49). Apart from the Tesla's occupants, bystanders on the sidewalk or in the street are not visible on body-worn camera footage prior to the defendant's arrest. Officer Ali testified that it was the Sergeant's decision to issue a summons, and that he did not convey his safety concerns to his Sergeant at any time during the stop. Officer Ali also testified that it is standard police protocol to search an individual before placing them in a police car (Tr. 28).

Officer Toner testified in his experience issuing a summons would take approximately [*4]ten minutes. There was no testimony at the hearing to establish how much longer the issuance of a summons would have taken during this traffic stop, given the officers had obtained the defendant's ID, checked it against the NYPD database, returned it to the defendant, and identified the traffic violations at issue. There is no evidence or testimony to indicate that any officer started to issue a summons before the defendant was placed in handcuffs.

As the officers struggled to handcuff the defendant, approximately three or four pedestrians on the nearby sidewalk yelled and cursed at the officers. After the defendant was handcuffed, approximately three or four additional passers-by can be seen in the street (Venditti BWC at 1:13:24). After approximately a minute, the defendant stopped struggling with officers and was transported in cuffs to the 67th Precinct.

The defendant arrived at the precinct at approximately 1:25 a.m. and was escorted to a holding cell by Officer Toner. Officer Toner testified that the defendant smelled strongly of alcohol and was so unsteady on his feet he was unable to remain standing. The officer directed the defendant to take off his sneakers, then uncuffed him and placed him in a holding cell. Officer Toner removed the laces from the defendant's sneakers, searched them and found a bag of cocaine inside the defendant's right sneaker.^[FN8]

At approximately 4:30 a.m., the defendant was brought to an interview room by Officer Ali and Detective Singh. Detective Singh read the defendant his Miranda warnings from a card, and the defendant stated he understood each of the individual rights. Detective Singh then asked the defendant if he was willing to answer questions now that he had been advised of these rights, and the defendant replied yes.

At a suppression hearing, the People carry the initial burden of going forward to prove the legality of police conduct, and the defendant bears the ultimate burden of proving that the evidence should not be used against him (see People v. Berrios, 28 NY2d 361, 367 [1971]; People v. Washington, 107 AD3d 4, 15 [2d Dept 2013]; People v. Popko, 33 Misc 3d 277, 281 [Crim Ct Kings County 2011]). As set forth below, the Court makes the following conclusions of law.

A traffic stop is lawful when there is probable cause to believe a traffic violation has occurred, whether by the driver or a passenger (see People v. Hinsaw, 35 NY3d 427 [2020]; People v. Robinson, 97 NY2d 341 [2001]; People v. Spencer, 84 NY2d 749 [1995]; see People v. Taylor, 57 AD3d 1504 [4th Dept 2008](observation of passenger not wearing a seatbelt was sufficient reason to stop vehicle); People v. Mikel, 152 AD2d 603 [2d Dept 1989]).

The Court credits Officer Ali's testimony that the defendant was observed without a seatbelt while sitting in the rear passenger seat: the Tesla's windows were not tinted, the window was partially rolled down, and both cars passed each other at slow speed. The body-worn camera footage also corroborates these facts, as the defendant is visible in a white t-shirt not wearing a seatbelt. Accordingly, the Court finds the People have established that the officers [*5]had probable cause to believe a traffic infraction had been committed, and the stop was therefore lawful (see Hinshaw, 35 NY3d at 434; People v. Romero, 199 AD3d 715 [2d Dept 2021]).

The officers' direction for the defendant to exit the passenger seat was also lawful. Once the vehicle was properly stopped, the officers were permitted to direct the occupants of the vehicle out of the car without any particularized suspicion that the defendant or any other person was armed (see People v. Garcia, 20 NY3d 317, 321 [2012]; Robinson, 74 NY2d at 775). This precaution is permitted in light of the "unique danger of a partially concealed automobile occupant" for the officers: by ordering them out of the car, the officers can readily observe their movements (Garcia at 323).

B. Recovery of the Firearm

The People contend the police lawfully recovered the firearm from the defendant's pocket because the search of his person was conducted as a safety measure before he was put in the police car after the officers decided to take the defendant to the station to issue the summonses for traffic violations. As the Fourth Department stated in People v. Solivan, "although a police officer may reasonably pat down a person before he or she places that person in the back of a police vehicle, the legitimacy of that procedure depends on the legitimacy of placing the person in the police car in the first place" (156 AD3d 1434, 1436 [4th Dept 2017]). The issue here is whether the decision to detain the defendant in order to issue a summons for traffic violation was lawful.

There is no dispute that riding as a passenger in a motor vehicle without a seatbelt and having an open container of alcohol in a vehicle are both traffic violations (see VTL 1227[1]; 1229-c[3]). Further, an officer is empowered to arrest a person without a warrant when an offense has been committed in his or her presence, and a traffic infraction constitutes an offense under that statutory provision (see CPL 140.10; VTL 155). However, there is a line of cases from the Court of Appeals that has narrowed the circumstances when an officer may properly exercise that statutory authority to take a traffic offender into custody (see People v. Marsh, 20 NY2d 98, 101 [1967]("the Legislature never intended to authorize a search of a traffic offender unless ... there are reasonable grounds for suspecting that the officer is in danger or there is probable cause to believe that the offender is guilty of a crime"); People v. Howell, 49 NY2d 778, 779 [1980] (officers could not draw weapons and frisk defendant after observing erratic driving as "[a]n arrest . . . was neither called for nor the preferred procedure"); see also People v. Troiano, 35 NY2d 476, 478 [1974](noting a search from an 'arrest' for a traffic violation might not be justified where "an arrest was not necessary because an alternative summons was available or because the arrest was a suspect pretext")).^[FN9]

The Second Department granted suppression in People v. Carvajales, where officers stopped the defendant's car for driving at a high speed, approached his car with weapons drawn and immediately searched him: "[s]ince no showing [was] made as to why an arrest was deemed necessary or inevitable, we conclude that the arrest herein was a pretext and that an alternative [*6]summons was probably available" (152 AD2d 675, 676 [2d Dept 1989]). Similarly, the Fourth Department held in People v. Solivan that a defendant observed committing a parking violation could not be detained and transported in a police car without any factors making summons on the scene impractical (156 AD3d at 1436; see also People v. Rodriguez, 84 AD3d 500, 501 [1st Dept 2011]("a police officer's authority to effect a custodial arrest for a violation, other than a minor vehicular offence, remains valid even where the officer has the option of issuing a summons instead") (emphasis added)).

When is it impractical or impossible for an officer to issue a traffic summons on scene? Lower courts have agreed that taking a traffic violator into custody is warranted when they have fled from officers by car or on foot (see People v. Henry, 181 Misc 2d 689 [Sup Ct Queens County 1999]; People v. Bradford, 28 Misc 3d 1220[A] [Onondaga County Ct 2010]); or when they refused or were unable to provide identification, or when the officer suspected the driver of operating a car while intoxicated (see People v. Ellis, 62 NY2d 393 [1984]; People v. Dom, 63 AD3d 550 [1st Dept 2009]).

In this case, none of those conditions were present. The traffic violations observed by the officers were of a rear passenger not wearing a seatbelt and having an open container of alcohol. When asked, the defendant promptly provided his identification to officers. The defendant remained on the scene and obeyed instructions up until the point that he was handcuffed: the defendant did question the officers' directions to exit the car, but he did not refuse to do so. All of the occupants also exited the vehicle and were compliant with the orders given by the officers.

What other conditions existed at the time the officers decided to detain the defendant for his two traffic violations? The record did establish that traffic was backed up on the street and cars had been honking repeatedly over a ten-minute period, but the Court is not persuaded that the presence of irritated motorists alone renders the issuance of a summons so impractical that it justifies taking a traffic violator into custody and conducting a search of his person. This is especially true where the officers appeared to have obtained all the necessary information to issue the summons, and there was no indication of why the blocked traffic could not have been resolved in another way.

There was also testimony at the hearing that there were "safety concerns" both for the officers and the civilians present, that it was the weekend of the West Indian Day parade, that officers were on "higher alert," and that the area of Prospect Place as a "hotspot." There were, however, no facts elicited specific to this incident that would substantiate these concerns. The body-worn camera footage does not show a crowd gathering or an unruly scene. There was no testimony that the officers had received information from another source to suggest the scene might erupt such that issuing a summons would be impossible or impractical. Officer Ali testified to perhaps eight people present in the immediate area and admitted that none of the passers-by interfered with the traffic stop. The officers appeared to be fully in control of the situation and the occupants of the car, including the defendant, were fully compliant.

The People also elicited testimony from Officer Ali that he suspected the defendant was concealing a weapon: this was based on two observations, the surreptitious movement of his left hand towards his pocket while the defendant was inside the vehicle and the defendant "blading" or leaning on his left side when he was standing against the trunk. There was no evidence at the hearing that Officer Ali conveyed his observations or concerns to any of the other officers present, either before the defendant got out of the car or when he was at the trunk of the car before he was handcuffed. Yet Officer Abdallah asked the defendant if he "had anything on [*7]him" as soon as he ordered him out of the vehicle. At that moment, Officer Abdullah only knew that the defendant was not wearing his seatbelt and had an open container of alcohol; without a founded suspicion that the defendant was armed, the question was improper (People v. Graves, 142 AD3d 559, 560 [2d Dept 2016]).

Even if Officer Ali had conveyed his observations to his colleague, his testimony of a "concerning movement" by the defendant towards his left thigh and leaning away from the officers does not provide founded suspicion that the defendant was armed.^[FN10] And the People do not contend otherwise. However, the evidence of Officer Abdullah's pointed question to the defendant as he exited the car and of Officer Ali's assertions regarding the significance of the defendant's gesture and positioning undermine the People's contention that the search of the defendant was merely incidental to the officers' decision to detain the defendant as a traffic offender.

The reasonableness of the officer's decision to take the defendant into custody in lieu of issuing a summons on scene is weighed by looking at the totality of the circumstances of the specific case (see Ellis, 62 NY2d 393; Henry, 181 Misc 2d 689). The Court recognizes that officers are in the best position to assess the feasibility of issuing a summons on scene and to assess risks to their own safety. However, the record at the hearing failed to establish that it was impractical or impossible for the officers to issue a summons for a seatbelt and open container traffic infraction on scene in this case: the car was stopped, the defendant provided his identification, exited the car, remained on scene and followed the officers' directions; and there were no facts presented to suggest that some other circumstances, beyond the mundane occurrence of some stalled traffic, honking horns, and presence of bystanders, indicated that an arrest was warranted (see Howell, 49 NY2d at 779).

As the People have failed to establish the legality of the defendant's custody for the traffic infractions, the firearm which was recovered at the scene and the cocaine recovered at the precinct subsequent to that arrest must be suppressed. Accordingly, the defendant's motion to suppress the firearm and cocaine is granted.

C. Huntley

A statement made to any individual cannot be used against a defendant at trial unless the People carry their burden of showing it was "voluntarily" made (CPL 60.45[1]; People v. Witherspoon, 66 NY2d 973, 974 [1985]). A statement is deemed to be "involuntary" if it was coerced by the use or threatened use of physical force, improper conduct, or undue pressure [*8]"which impaired the defendant's physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement" (CPL 60.45 [2][a]; accord People v. Jin Cheng Lin, 26 NY3d 701, 719 [2016] ("[s]tatements must not be products of coercion, either physical or psychological, meaning that they must be the result of a free and unconstrained choice by their maker").

A statement obtained by law enforcement may also be deemed involuntary if obtained by certain improper promises or statements of fact, or in violation of the State or Federal constitution (CPL 60.45[2][b][i] and [ii]). One of those constitutional rights, the privilege against self-incrimination, is protected by the Miranda rule (see People v. Berg, 92 NY2d 701 [1999]). "Because the privilege applies only when an accused is 'compelled' to testify, the safeguards required by Miranda are not triggered unless a suspect is subject to 'custodial interrogation'" (Id. at 704).

1) Statements on Scene

During a traffic stop, officers are permitted to ask vehicle occupants to provide identification, where they are going, and direct them to wait for a reasonable amount of time pending further investigation (see People v. Garcia, 20 NY3d 317, 322 [2012]; People v. Leiva, 33 AD3d 1021, 1023 [2d Dept 2006] (officers may ask occupants of a vehicle basic nonthreatening or accusatory questions during a traffic stop). A temporary detention during a routine traffic stop is usually considered to be non-custodial (see People v. Tandle, 71 AD3d 1176 [2d Dept 2010]; People v. Parris, 26 AD3d 393 [2d Dept 2006]; People v. Myers, 1 AD3d 382 [2d Dept 2003]).

Here, the defendant was not physically restrained until the end of the traffic stop when officers placed him in handcuffs. Before that moment, the officers asked the defendant for his identification, explained why they were directing him out of the car, and identified the traffic infractions they believed he had committed. These statements were not threatening or accusatory and were reasonably related to the purpose of the stop, thus the defendant's responses to those questions were not involuntary. However, as discussed supra, Officer Abdullah did not have the requisite founded suspicion that the defendant was armed when he asked him "what do you have?" as he exited the car. His answer to that question is therefore suppressed.

Accordingly, the defendant's motion to suppress the statements made at the scene prior to his placement in custody is denied, with the exception of his response to Officer Abdullah's question "what do you have?" as he exited the car.

2) Statements Made in the Debriefing Room

It is not disputed that the defendant was subject to custodial interrogation by Detective Singh and Officer Ali at the 67th Precinct following his arrest. The testimony at the hearing, as corroborated by the video recording of the interview, also established that the defendant was properly advised of his Miranda rights. The issue here is whether the Mirandized statement was sufficiently attenuated from his unlawful arrest and search at the scene.

Mirandized statements may be suppressed as the unattenuated fruit of an unauthorized arrest depending on the time between the arrest and the statement, the presence of intervening circumstances, and the flagrancy of official misconduct (see People v. Bradford, 15 NY3d 329, 333 [2010]; People v. Martinez, 37 NY2d 662, 667 [1975]; Brown v. Illinois, 422 US 590, 603 [1975]). Attenuation from an unauthorized arrest has been found where different officers [*9]interrogated a defendant after Miranda warnings after a significant gap of time (see People v. Alexander, 63 AD3d 1166 [2d Dept 2009](defendant's statements to Queens NYPD officers eleven hours after unrelated arrest in Nassau County sufficient for attenuation); People v. White, 230 AD3d 1036 [1st Dept 2024]; People v. Palmer, 161 AD3d 1291 [3d Dept 2018]; Maritnez, 37 NY2d at 668). Additional evidence, separate from any recovered as a result of a defendant's unlawful detention, further supports attenuation (see People v. Jones, 21 NY3d 449, 456 [2013]; People v. Divine, 21 AD3d 767 [1st Dept 2005]; People v. Buchanan, 136 AD3d 1293 [4th Dept 2016]).

Here, Officer Ali was present for both the defendant's arrest and his interrogation that took place approximately four hours later with Detective Singh. There was no evidence of a significant intervening event during that four-hour interlude, aside from the recitation of Miranda warnings. The subject of his interrogation was the firearm recovered at the scene. There was no testimony that the officers obtained any other information, separate from the unlawful search, to provide probable cause for an arrest for possession of the firearm. On this record, the People have failed to demonstrate the defendant's statement to Detective Singh and Officer Ali was attenuated from his unlawful arrest. Accordingly, the defendant's motion to suppress his statement at the precinct is granted.

For the reasons stated, the defendant's motion to suppress the firearm, the cocaine, and the statement at the precinct is GRANTED.

The foregoing constitutes the opinion, decision, and order of the court.