INTRODUCTION

This was a Mapp-Dunaway-Ingle ^[FN1] hearing held before me on February 1 and 2, 2005. The evidentiary record consists of the testimony, in the following order, of the arresting officer, Jaime Arroyo ("Arroyo"), an NYPD plainclothes investigator then assigned to the 83rd Precinct, defense witness Robert Padilla ("Padilla"), defendant and, called in rebuttal by the prosecution, Detective Peter Shanhai ("Shanhai"), an NYPD detective assigned to work on a joint firearms task force with the federal unit known as Alcohol, Tobacco and Firearms ("ATF".) There were also exhibits received in evidence: several photographs of the subject vehicle and the seized contraband, as well as a street diagram of the area in question and an arrest photograph of defendant.

THE EVIDENCE

The Prosecution Witnesses

The People's case at this hearing was initially limited to the testimony of Arroyo, but later supplemented by rebuttal testimony given by Shanhai, to refute the evidence given by the defense witnesses and to corroborate Arroyo's testimony. Since the prosecution chose to proceed on the single theory of a valid traffic infraction stop to justify the initial police action in this case (see, People v. Robinson, 97 NY2d 341 [2001]) the threshold and most important factual issue in the hearing became the manner in which the Impala was stopped by the police. [*2]Even on direct examination Arroyo's testimony about the stop was somewhat halting and confusing. That said, it is my best understanding of his testimony that, along with his partner, Sergeant Clark ("Clark"),^[FN2] the driver, he proceeded in an unmarked police vehicle down Jefferson Ave. (a one-way street) from Irving Ave. to Wyckoff Ave. (a two-way street) shortly before 1:45 p.m. on March 18, 2004, and that he spotted and passed the Impala he and Shanhai were targeting for investigation,^[FN3] which was parked on that block. Arroyo made a left turn at the corner onto Wyckoff, made a u-turn on Wyckoff and parked at or just short of the corner on Wyckoff where it intersected with Jefferson. He stated he was not able from that vantage point to see the Impala. He knew Shanhai was in the vicinity with his own ATF vehicle, but he did not know exactly where. Arroyo could not see anyone enter or start the Impala, but he soon saw it approach the corner of Jefferson and Wyckoff, turn right without making the required signal and continue down Wyckoff two blocks to Weirfield, where it made a left turn - - again without the required signal. He could not see inside the vehicle during this time because of the closed heavily tinted windows. It is on that Weirfield block, according to Arroyo, that he and Clark stopped the Impala by turning on flashers and using a cherry light placed on the dashboard, allegedly for the two failures to signal, which were traffic infractions. In several police reports and his Grand Jury testimony Arroyo put the place of occurrence as the corner of Jefferson and Wyckoff, and made no reference to Weirfield, an "oversight" never explained.

At the stop, Arroyo went directly to the passenger side of the Impala, while Clark went to the driver's side. Now for the first time he saw the front windows on both the driver and passenger side of the car were all the way down. He smelled a strong odor of marihuana and saw defendant trying to stuff a bag of marihuana up his right sleeve. After alerting Clark,

Arroyo went to the driver's side and ordered defendant out of the car. He cuffed and frisked him, but found no weapons. He then placed defendant in the back seat of their unmarked police vehicle and returned to explore the source of the marihuana smell, which he determined came from a rather large red food bag closed with Velcro and resting on the back seat of the Impala. He opened it and found a black garbage bag loosely tied inside, which he also opened, leading to the discovery of 17 large bags of marihuana. Based on this discovery he then popped open the trunk and observed the handle of a handgun, a bullet proof vest and a locked safe. Arroyo then went back to his car, got his Polaroid camera and took some photos of the trunk and rear seat of the Impala. At some point while making these observations Arroyo radioed Shanhai to come to the scene on Weirfield. The Impala and defendant were then taken to the 83rd Precinct where the contents of the Impala, including the safe,^[FN4] were removed, photographed and vouchered.[*3]

Compare this scenario with the People's rebuttal testimony given by Shanhai. His testimony appeared much less hesitant than Arroyo's and more self-assured, and seemed to be based on a reasonably good memory of the events. Although it was his investigation and his (or his unit's) confidential informant that specified that the Impala in question contained a firearm and marihuana, he stated that it was determined in advance that Arroyo would take the arrest, if one was made. Shanhai was very clear that his vehicle also passed through the block on Jefferson shortly before 1:45 p. m. on March 18, 2004 and that he too made a left turn from Jefferson onto Wyckoff and parked on Wyckoff in the direction of and about 20 yards from the corner of Jefferson. He knew Arroyo's car was in the vicinity but he did not know exactly where until a little later. From his location, Shanhai could not see the Impala parked on Jefferson, but he soon saw it approach the intersection of Jefferson and Wyckoff, hesitate a few seconds and turn right. He could not see the rear signal lights of the Impala as it made the turn and never testified that the Impala violated any rules of the road. He immediately alerted Arroyo by radio that the Impala was moving and gave its direction. He next saw Arroyo's car, which he then realized must have been parked not far behind his own car, pass him on Wyckoff and proceed to get behind and follow the Impala. Shanhai then pulled out and drove in the same direction as the other two cars, but pulled over to his right on Wyckoff, just past Jefferson, so as not to raise suspicion, because his car looked too much like a police vehicle, although it was unmarked.^[FN5]

He lost sight of both other vehicles, and then received a radio transmission from Arroyo that they were stopping the Impala on Weirfield. Shanhai drove to the scene of the stop immediately and arrived there as Arroyo was in the process of taking defendant out of the driver's side of the Impala, which would have been just after the initial stop had occurred,

in time to observe most of Arroyo's actions, and to make some observations of his own, for instance, that the windows were up, not down, and that he only smelled marihuana when the door was opened. Arroyo, on the other hand, led the Court to believe that he called Shanhai for back up only after things were well underway, while he was observing or photographing the contraband in the trunk.

The Defense Case

Padilla, an acquaintance of defendant, stated that he was walking around the corner of Wyckoff Ave. onto Jefferson St. at approximately 1:45 p. m. on March 18, 2004, on his way to visit Ivan (the owner of the subject vehicle, a gray Impala, in which defendant was arrested) when he saw the Impala come to a screeching halt as another car (described as a red [*4]Lumina) came rushing toward it head on against traffic, while a third (brown) car pulled up behind the Impala. Men he assumed to be police jumped out with guns drawn. The one from the red car motioned to lower the driver's side window, while another took the car keys and gave them to the third officer, who opened the Impala's trunk and signaled to his colleague, who then proceeded to pull defendant out of the Impala, cuff him, frisk him and put him in the brown car. As Padilla was leaving the scene, he looked back and saw all three cars leaving the area. He never made it to Ivan's, even though he was going to pay his respects for the death of Ivan's brother a day or two earlier. Padilla admitted that he was convicted of drug dealing twice and had also been a drug user, but he claimed he did not sell drugs any more, and now only used marihuana on a daily basis.

Defendant testified that he had been at Ivan's that same day to mourn his brother's death, and that he borrowed one of Ivan's vehicles, the gray Impala parked right outside on Jefferson St., to rush to a realtor's office to make a payment of approximately $2000 and sign an apartment lease for the mother of one of his babies. As he pulled out of the parking space on Jefferson and drove five or six car lengths toward Wyckoff Ave., he was startled by a red car charging toward him, going the wrong way on Jefferson. He stopped short and then saw a brown car pull right behind him, and plainclothes police emerge with their guns drawn and shields displayed around their necks. He froze with fear and followed their instructions carefully, by lowering the heavily tinted driver's side window half way, turning the motor off, giving over the keys and keeping his hands on the steering wheel. He next heard the trunk being opened and then he was dragged out of the car and handcuffed. He admitted to a felony conviction in 2003 for criminal possession of a controlled substance in the fourth degree, during which a firearm was recovered from his hotel room. He also admitted to smoking marihuana every day, but denied possession or knowledge of marihuana or any other contraband taken from the Impala. He further denied possessing a key to the safe, which Arroyo testified he recovered from defendant's person at the precinct. The key fit the safe found in the Impala's trunk, but the safe also had a combination lock, which, as previously noted, had to be forced open by police at the precinct.

DISCUSSION AND FINDINGS OF FACT

Despite what appeared to have been thorough preparation of each of the two People's witnesses for the hearing, they gave substantially different versions of how the stop was made and what role Shanhai played in that investigation. As any comparison of the two police versions illustrates, they are in fact irreconcilable. They cannot both be truthful and accurate.

Arroyo related a series of remarkable coincidences that fit too nicely into constitutional justifications for each more intrusive step he took, but it was not until the defense evidence and the People's rebuttal testimony was analyzed that the contrived nature of Arroyo's testimony became obvious to the Court. Unsupported by Shanhai or even by his own written police reports or Grand Jury testimony regarding the place of occurrence, and contradicted by two defense witnesses, I find his testimony was implausible, unconvincing and, in the final analysis, incredible.

Because I have focused on the initial car stop, I have not made specific findings about the precise observations Arroyo made immediately after the stop regarding the marihuana [*5]bag up defendant's sleeve and the presence of the red food bag on the back seat, with its strong odor. Suffice it to say, since I found this testimony of Arroyo to sound contrived and his credibility pointedly shaken in other ways already identified, I cannot accept these observations as reliable either.

Neither can the prosecution afford to rely on Shanhai's testimony. If Shanhai were correct about the positions of their vehicles, then it would have been virtually impossible for Arroyo to have seen the Impala's first failure to signal, thereby causing the prosecution's Robinson "house of cards" (the justification for the stop allegedly independent of the informant) to begin to collapse. Furthermore, to note the obvious, Shanhai, having distanced himself from all of Arroyo's key observations, has supplied no factual or legal basis himself for the car stop or for any of the searches and seizures in this case.

On the other hand, I must be mindful that defendant, if not his friend Padilla, was an interested witness, and both were convicted felons. Accordingly, I take with more than "a grain of salt" both defense witnesses' reasons for visiting Ivan, and I have my doubts about defendant's claimed total lack of knowledge of the presence of contraband in the Impala. Nevertheless, both because of the way the testimony of each was given on their direct and cross-examinations concerning the stop and subsequent police action, and because of the nature and specificity of the confidential information possessed by the police concerning the Impala, I found their testimony regarding the stop was far more plausible than that given by the police witnesses and had a distinct ring of truth.

It makes sense that both unmarked police cars would do their best to keep in their sights the targeted Impala, which they believed to be carrying a firearm as well as other contraband. Moreover, it makes no sense that Shanhai would drop back and let the stop be carried out by only one of their cars, especially for the flimsy reason he gave. It seems more sensible and more likely that they would position both of their cars to prevent the Impala's escape. Each of these objectives was achieved by the police in this case, according to the defense witnesses, whom I credit in this regard. If the police were concerned for some reason about relying in court upon the confidential information, or feared, rightly or wrongly, its unauthorized disclosure, it may still have been quite possible, if not easy, for the police to wait for a traffic violation to use as the legal basis for the car stop, and then see what observations could be lawfully made during the stop. However, I find they did not do so in this case. Having been presented with a far more plausible and credible scenario by defense witnesses of how the stop and arrest was affected, I have determined that both police accounts were deliberately and falsely tailored to meet constitutional requirements, perhaps out of a misguided effort to insulate or otherwise protect a confidential source, which the courts themselves are charged with vigilantly protecting.

Both sides agree that People v. Robinson, 97 NY2d 341 (2001), is controlling in the first instance to the extent that police observation of a Vehicle & Traffic Law violation would justify this car stop, regardless of the main purpose of the investigation. On the other hand, the prosecution has conceded that, if the Court disbelieves that Arroyo saw a VTL [*6]violation before the stop, then all the subsequent observations made by the police and all the contraband seized from defendant and the Impala become the fruit of the poisonous tree (Wong Sun v. United States, 371 U.S. 471 [1963]) and must be suppressed.^[FN6] Based upon my findings of fact, this conclusion of law is therefore inescapable. All the evidence seized by the police in this case must be and hereby is suppressed.

IT IS SO ORDERED.

ENTER,

_____________________

JOSEPH KEVIN McKAY