Defendant, John L. Stupp, was indicted on One Count of Criminal Possession of a Controlled Substance in the Third Degree, in violation of Penal Law §220.16(1), a class B felony; One Count of Criminal Possession of a Controlled Substance in the Fifth Degree, in violation of Penal Law §220.06(1), a class D felony; Three Counts of Criminal Possession of a Controlled Substance in the Seventh Degree, in violation of Penal Law §220.03, a class A misdemeanor and One Count of Obstructing Governmental Administration in the Second Degree, in violation of Penal Law §195.05, a class A misdemeanor.

Defendant, previously moved for assorted forms of relief as requested in his Notice of Omnibus Motion dated January 9, 2007. Upon argument of said motion on February 8, 2007, certain branches and elements therein were decided and determined.

The Court also granted the defendant's application for hearings regarding "Huntley" (People v. Huntley, 15 NY2d 72);"Sandoval" (People v. Sandoval, 34 NY2d 371); validity of arrest and ensuing search.

The hearings were held, in the defendant's presence, on February 28, 2007. It was agreed that the Sandoval issues would be heard In Limine just prior to jury selection. The Court also afforded counsel the opportunity to submit any authority and the case was marked "submitted" on [*2]March 21, 2007.

The defendant claiming to be aggrieved by an unlawful arrest seeks suppression of any and all property seized by law enforcement resulting from the search of the defendant after his arrest on February 16, 2006.

Defendant also claims that his February 16, 2006 statement to law enforcement should be suppressed due to the same illegal arrest and involuntariness within the meaning of CPL §60.45.

Two witnesses testified, both on behalf of the People. After listening to their testimony and observing their demeanor on the witness stand, I give them full credence and hereby find the following essential facts and conclusions of law:

Michael C. Poole, a Patrolman for the Seneca Falls Police Department since November of 2005, became aware that there was an active arrest warrant (Exhibit 1) for one Michael R. Wheeler. On or about February 16, 2006, Seneca County Probation Officer Melanie Rhinehart told Officer Poole that she had seen Mr. Wheeler on the street and she had also been told, by a third party, that he could be located at 35 Mynderse Street, in the Village of Seneca Falls.

Officer Poole went to the Mynderse Street address. When he arrived he observed a woman approaching the house. He spoke with the woman and then followed approximately two feet behind her as she went into the house closing the door behind her. When Poole reached the door he heard some commotion going on inside and heard a woman say, "Mike the cops are here for you".

Poole did not go in initially because he did not have a warrant to enter the house and he only had a suspicion that Wheeler was inside.

Officer Poole then knocked on the door and the defendant, John Stupp, opened the door, about a foot. He was holding a barking dog. Poole stated that he was there to arrest Mr. Wheeler on the warrant. Defendant Stupp said that he wasn't there and he hadn't seen Wheeler in approximately one week. Officer Poole advised Stupp to secure the animal but Stupp shut the door in Poole's face.

Officer Poole knocked a second time. The defendant again opened the door about a foot, still blocking Poole's entry. Even though he had an active arrest warrant and the defendant was blocking the entry, Poole never asked him to get out of the way. However, at this time, Poole could see inside and he saw a male who he thought might be Mr. Wheeler. Defendant Stupp told Poole that it was not his house and he would not let Officer Poole enter.

As they stood at the door, Officer Poole heard, "Fuck it, I can't run for ever, here I am." and Mr. Wheeler appeared at the door. Stupp then stepped aside and Poole escorted Wheeler from the house, placed him in custody in the outside yard and then secured him in his patrol vehicle.

During this entire time Stupp just stood there. He only followed Poole and Wheeler from the house and did not interfere with Officer Poole in anyway during the short period of time that expired from Poole's arrival and Stupp's arrest.

Once Poole secured Wheeler in his patrol vehicle, he advised his supervisor, Sergeant Calabrese, who had arrived to assist, that he wanted to arrest the defendant for Obstructing Governmental Administration. They discussed what had happened and Calabrese felt there was enough, so defendant Stupp was placed under arrest and searched for officer safety on the sidewalk of 35 Mynderse Street. Contraband (Exhibit 4) was found on the defendant's person at [*3]this time. The defendant was placed into Calabrese's patrol vehicle and taken to the Seneca Falls Police Department and placed in Investigator Porretta's office.

Officer Poole's supplemental report did not show why he wanted the defendant arrested. It said nothing about a dog and Poole's Information for "Obstructing" alleged only that the defendant lied when he told Officer Poole that Wheeler was not in the house. Nothing was mentioned about the dog being in the way of the officer, the defendant blocking the door or otherwise impeding the officer's actions.

When Calabrese spoke with Officer Poole regarding charging Stupp, Poole indicated that Stupp wouldn't let him in. Although Calabrese did not document what Poole told him, he felt there was enough to charge defendant Stupp with Obstructing Governmental Administration.

Calabrese indicated in his arrest report that Poole's reason for the Obstructing charge was that Stupp had lied to Poole; not because Stupp had used a dog , blocked or otherwise impeded Poole in carrying out his duties.

In fact, Sergeant Calabrese indicated that he was not as complete in his narrative as he should have been. He noted that Poole was a new officer with little experience and it was Calabrese's responsibility to supervise Poole.

Calabrese read Stupp his so-called Miranda warnings from a card (Exhibit 2) while they were in Porretta's office. The defendant indicated that he understood his rights and was willing to speak to Calabrese. Although defendant was under arrest, the handcuffs were removed. No promises or threats were made to the defendant. The defendant was not under the influence of any drugs or alcohol and he understood what Sergeant Calabrese said.

During the interview, Stupp was given water. The defendant never said that he wanted to stop talking nor did he request an attorney.

Sergeant Calabrese prepared a written statement (Exhibit 3) which was signed by the defendant and witnessed by Calabrese and Porretta.

New York Courts have recognized: [A] n arrest need not be supported by information and knowledge which at the time, excludes all possibility of innocence and points to the defendant's guilt beyond a reasonable doubt, in short, probable cause depends upon probabilities, not certainty." People v. Bigelow, 66 NY2d 417; People v. Sanders, 79 AD2d 688. Furthermore, [*4]probable cause does not even require proof that establishes a prima facie case. People v. Horsman, 152 AD2d 859.

For probable cause to exist, the conclusion must be one that would be reached by a reasonable person possessing the same expertise as the arresting officer (see People v. Silas, 220 AD2d 467). Probable cause is a synthesis of all the information known to the police officer, including what he has seen, learned, and heard. People v. Belo, 240 AD2d 964. In essence, it is the "totality of the chain of information" that links an individual to a crime. People v. Poventud, 300 AD2d 223. Therefore, the suppression court must make a probable cause determination after viewing all the facts together, rather than focusing on individual factors. See, People v. Shulman, 6 NY3d 1, 26, cert den. 126 S. Ct. 1623, 164 L.Ed.2d 339, 74 USLW 3543 (U.S. NY Mar 27, 2006) (No. 05-877).

In determining whether probable cause exists for an arrest, the Courts will apply an objective, rather than a subjective, test. Thus, the legality of an arrest must be determined upon the actual facts and circumstances known to the officer(s); and these facts are tested by objective criteria, rather than an officer's subjective view of his right to make an arrest. People v. Bandera, 204 Ad2d 340. As a result, if an officer objectively possesses enough information to establish probable cause, but mistakenly believes that he lacked probable cause for an arrest, the arrest will still be valid. People v. Peters, 136 AD2d 750. In addition, if probable cause exists, that fact does not change based merely upon the fact that the police filed an incorrect charge against the defendant. (In re William H., 264 AD2d 676) or if the defendant was ultimately acquitted of the crime (People v. Conway, 280 AD2d 313). In fact, probable cause does not even necessitate awareness of a specific consummated crime, but only that some crime may have been consummated. Wallace v. City of Albany, 283 AD2d 872. Also, if probable cause exists for a specific crime, it is not fatal that the crime is not actually charged. People v. Butler, 203 AD2d 584.

For example, in People v. Gustafson, 110 AD2d 1055, the Court noted that the officer had probable cause to arrest the defendant for Criminal Possession of a Forged Instrument. However, he arrested him for Obstructing Governmental Administration for which there was no probable cause. The Fourth Department ruled that the statements resulting from the arrest need not be suppressed, since at the time of the apprehension, there was "ample ground to arrest for Criminal Possession of a Forged Instrument." Id., 1056.

In the case at bar, while the initial accusatory instrument and supporting affidavits accusing the defendant of the crime of Obstructing Governmental Administration were weak, in reviewing the totality of the circumstances, and the facts as developed during the hearing, there was probable cause for Poole to arrest Stupp for that crime.

The facts at bar include that Poole was attempting to execute (CPL §120.80) a valid arrest warrant for Michael Wheeler when he went to the dwelling. Officer Poole had met a woman outside the house, spoke to her, and from outside the closed door heard her say, "Mike the cops are here for you." Then when the officer knocked on the door, the defendant answered, holding a barking dog which Poole requested be secured. Stupp denied that Wheeler was there, then shut the door in the officer's face. When Poole knocked again, the defendant opened the door a foot and while blocking the entry, told the officer that it was not his house and he would not let the officer enter. [*5]

It is clear that a lawful arrest justifies a full search of the defendant's person (People v. Watts, 3 AD3d 425; People v. Anderson, 111 AD2d 109) and evidence of other crimes (here, possession of cocaine and other controlled substances) found during an incidental search reasonably limited in scope may be used as the basis of additional charges against a defendant. People v. Valo, 92 AD2d 1004.

Based on the foregoing, the defendant's arrest for Obstructing Governmental Administration was lawful and the seizure of illegal drugs taken in the ensuing search of his person was also proper. Therefore, the seized contraband need not be suppressed at trial.

II. STATEMENTS

A confession or admission is admissible at trial in this state only if its voluntariness is established by the People beyond a reasonable doubt. People v. Witherspoon, 66 NY2d 973.

Then, if the prosecutor in the first instance establishes the legality of the police conduct in obtaining a statement, the defendant has the burden of persuasion in seeking suppression. People v. Love, 85 AD2d 799, affd 57 NY2d 998.

In determining the voluntariness of a confession, the Court must look to all relevant factors, and all facts and circumstances must be weighed and considered. People v. Carbonaro, 48 Misc 2d 115, affd 21 NY2d 271, remittitur amended 21 NY2d 971, re-argument denied 20 NY2d 1040.

Custodial interrogation is defined as "express questioning [or its functional equivalent]...any words or actions on the part of the police...that the police should know [are] reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 300-01, 64 L.Ed.2d 297; 100 S.Ct. 1682.

Custodial interrogation occurs when a suspect is in custody, ie., not free to leave or reasonably believes he/she is not free to leave. However, Miranda warnings require both custody and interrogation and must be given, with certain exceptions, to all people subjected to custodial interrogation "regardless of the nature or severity of the offense". Berkemer v. McCarty, 468 U.S. 420, 82 L.Ed.2d 317, 104 S. Ct. 3138.

Under the facts in this case the defendant was clearly in custody on February 16, 2006 and he was properly given his Miranda warnings.

Therefore, the issue before this Court is whether or not the defendant knowingly, voluntarily and intelligently waived his right to counsel when he spoke with Investigator Porretta and Sergeant Calabrese.

A defendant can waive the rights secured by Miranda, if the waiver is knowingly, voluntarily and intelligently made. People v. Williams, 62 NY2d 285.

Voluntariness of a custodial statement must be determined by examination of the totality of the particular facts surrounding its making. People v. Smith, 107 Misc 2d 615. And the Court is entitled to view the evidence in the light most favorable to the prosecution. People v. Huber, 144 AD2d 585, app den. 73 NY2d 922.

"In determining the totality of the circumstances as to whether an alleged waiver is knowing, intelligent and voluntary, the Court may consider a defendant's prior involvement with the law (People v. Harris, 79 AD2d 615)." Here the defendant did not refuse to speak with the police and he had numerous prior contacts with the criminal justice system as shown by his criminal history.

There are other factors that can be considered, under the circumstances of a particular case, in [*6]determining voluntariness. Those factors pertinent to the case at bar may include threats (see, People v. Davis, 55 NY2d 731) or promises (see, People v. Diaz, 77 AD2d 523, affd 54 NY2d 967). Additional factors may be trickery or coercion. However, mere trickery without threat or promise does not render a confession involuntary. People v. Tarsia, 67 AD2d 210, affd 50 NY2d 1. Lengthy questioning (see, People v. Holder, 45 AD2d 1029 and People v. Padilla, 133 AD2d 353, app. den. 70 NY2d 1009) may also be considered. However, none of these factors were proven to exist in the case at bar.

The Court may also inquire into such factors as age, intelligence, education, ability and mental capacity to determine whether a waiver was voluntarily given. People v. Bevilacqua, 45 NY2d 508. This defendant was thirty-one years of age, a high school graduate and no evidence of any mental incapacity was presented.

Applying these principles to the February 16, 2006 written (Exhibit 3) and oral statements to law enforcement, the Court concludes that the defendant was properly given his Miranda warnings before any questioning began. And at no time did the defendant request to speak with an attorney or to stop talking.

Clearly, the waiver was voluntary and there was no proof presented that the defendant was coerced or threatened in any way to waive his rights or that his waiver was nothing but knowingly, voluntarily and intelligently made.

Therefore, based upon the record, the Court has examined the totality of the circumstances as to voluntariness and after measuring the credibility of the witnesses, finds that the defendant's written (Exhibit 3) and oral statements made to law enforcement on February 16, 2006 should not be suppressed.

The defendant's suppression motion is in all respects denied.

The foregoing constitutes the Opinion, Decision and Judgment of this Court.

SO ORDERED.

Dated: March 22, 2007.

____________________________________

W. Patrick Falvey

Acting Seneca County Judge