[*1]
| People v Rosario |
| 2007 NY Slip Op 50766(U) [15 Misc 3d 1119(A)] |
| Decided on April 13, 2007 |
| Supreme Court, Bronx County |
| Newman, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Supreme Court, Bronx County
The People of the State of New York,
against
Samuel Rosario and Noel Torres, Defendants.
|
680/06
MARIKA MEIS, ESQ.
The Bronx Defenders
Attorneys for defendant Rosario
860 Cortlandt Avenue
Bronx, New York 10451
STEVEN EPSTEIN, ESQ.
Attorney for defendant Torres
930 Sheridan Avenue
Bronx, New York 10451
A.D.A. JOSHLYN FOREMAN
Office of the District Attorney, Bronx County
198 East 161st Street
Bronx, New York 10451
Barbara F. Newman, J.
On January 11, 2007, January 12, 2007, and January 24, 2007, this Court conducted a combined Dunaway/Wade/Mapp/Huntley (Dunaway v New York, 442 U.S. 200 [1979];United States v Wade, 388 U.S. 218 [1967]; Mapp v Ohio, 367 U.S. 643 [1961]; People v Huntley, 15 NY2d 72 [1965]) hearing on defendants' various pre-trial suppression motions. On January 24, 2007, after hearing testimony and oral argument the Court granted the attorneys leave to submit written briefs, which were fully submitted on February 27, 2007. By written Interim Decision and Order dated March 14, 2007, this Court determined defendants' motions and indicated that a full decision and order with findings of fact and conclusions of law would follow. This is that full decision and order.
The Court has reviewed the evidence presented at the combined hearing, the oral arguments of counsel, the applicable law and the following documents: (1) defendant Rosario's Post-Suppression Hearing Memorandum Of Law In Support Of Samuel Rosario's Motion To Suppress dated February 7, 2007; (2) defendant Torres' undated Post-Suppression Hearing Memorandum Of Law In Support Of Noel Torres' Motion To Suppress; and, (3) People's undated Memorandum Of Law In Opposition To Motion [sic] To Suppress.
Upon consideration of the foregoing, and for the reasons that follow, defendants' motions are disposed of as follows: defendant Samuel Rosario's motions to suppress the use at trial of evidence of his alleged statement and the out-of-court corporeal and in-court identifications by Rafael Ortiz are denied, and defendant Rosario's motion to suppress the use of evidence of the photographic identification is granted; defendant Noel Torres' motions to suppress the use of evidence of the show-up and in-court identifications by Rafael Ortiz are denied; the motions of both defendants to suppress the use at trial of tangible evidence seized during and as a result of the warrantless search of the basement apartment at 2859 Sampson Avenue, including the 2005 Dodge Caravan, are granted; and, the motions of both defendants to suppress the use in evidence of the piece of duct tape, which was recovered from the face of Rafael Ortiz, and the 1999 Ford Expedition are denied.
Findings of Fact
The Court credits the testimony of the four People's witnesses who testified at the hearing, Police Officers Migdalia Cortes, Kyle Cummings, Darrod Jemerson and Janelyn Lorenzana, finding each [*2]of them persuasive, frank, open and reliable.[FN1] Defendant Rosario testified on his own behalf and presented one witness, Ms. Luz Evita Diaz, whom the Court also found to be frank, open and reliable.
Officer Cortes is an eighteen-year veteran of the New York Police Department (hereinafter "NYPD") and has been assigned to the 45th precinct for four years. Officer Cummings has been with the NYPD for two and one-half years and assigned to the 45th precinct since January 2006. Officer Jemerson has been with the NYPD for three and one-half years, for the last three of which he has been assigned to the 45th precinct. Officer Lorezana is a seventeen-year veteran of the NYPD and has been assigned to the 45th precinct for her entire career.
On January 24, 2006, Officer Cortes was on patrol in a marked RMP; Officer Cortes was the recorder and her partner, Officer Baboolal, was the driver. Both were in uniform. At approximately 12:24 p.m., they received a radio run of an anonymous and unverified report of an assault in progress at 2859 Sampson Avenue. The radio run did not state that a weapon had been used or displayed. The officers arrived at that address at approximately 12:41 p.m., and knocked on the door on the first floor of the private house which was located there. A girl of approximately twelve or thirteen, who identified herself as Diane Swain and whom the officers later determined to be the source of the 911 call on which the radio run was based, answered the door. Ms. Swain was crying and visibly upset and told the officers that two men had dragged a black man into the basement apartment where they were beating him. Meanwhile, in keeping with departmental policy to send backup automatically on a report of an assault in progress, the supervising patrol officer, Lieutenant Colon, and his driver, Officer Cummings, had arrived at the scene.
Officers Cortes and Baboolal went to the basement apartment, where Officer Cortes began knocking on the door; Lt. Colon and Officer Cummings joined them there about five minutes later. At some point Steven Swain, the landlord of the premises, also arrived. Mr. Swain told the officers that the name of the tenant of the basement apartment was Samuel. While the officers were at the door, Mr. Swain telephoned Samuel's number but did not receive an answer. Officer Cortes continued to knock on the door for five to ten minutes until it was opened by a hispanic, light-skinned male, about 5' 6" and wearing eyeglasses, who was later identified as defendant Torres. When defendant Torres opened the door, he said, "What's going on?" (59).[FN2] Officer Cortes did not answer defendant Torres, but Mr. Swain said, "He's the cousin of my tenant that lives there. He's okay." (12).
Lt. Colon entered the apartment followed by Officers Cummings and Cortes, wherein Cortes and Cummings saw a dark-skinned man, later identified as Rafael Ortiz, and a second light-skinned man who was later identified as defendant Rosario. Ortiz had come out of the bathroom with his hands in the air, saying that he was a hostage; his face appeared bloody and his mouth and forehead were wrapped with duct tape, which also partially covered his eyelids. Defendant Rosario had come out of a bedroom across the hall from the bathroom. At that point Officer Baboolal yelled that the man who had answered the door, defendant Torres, was running out of the apartment and Lt. Colon and [*3]Officer Cummings left the apartment to give chase. Defendant Rosario then tried to leave the apartment but Officer Cortes "grabbed him" and they struggled, eventually winding up outside the apartment. (14). Lt. Colon and Officer Cummings stopped chasing defendant Torres and returned to the area outside the apartment when they heard Officers Cortes and Baboolal calling for help. The four officers then subdued defendant Rosario. Ortiz then said to Officer Cortes, "Two of them, the guy that went running and defendant Rosario held me hostage and they tried to kill me and they're holding me hostage." (14). Officers Cortes and Baboolal transported defendant Rosario to the 45th precinct in their RMP. Neither of the officers said anything to defendant Rosario en route. At one point during the trip defendant Rosario, unasked, said "I don't know what this is about; I was just sleeping." (36).
Officer Jemerson, who was the recorder, and his partner Officer Lemp, the driver, were also on patrol in an unmarked RMP and in plainclothes when they received the radio run at approximately 12:22 p.m. of an assault in progress at 2859 Sampson Avenue. While en route to that address, they received a second radio run of a "1085," which means "[o]fficer needs assistance," and information that a "light skin male hispanic, burgundy shirt, blue jeans fled out door." (116-117). After they received the second radio run, Officer Lemp directed Officer Jemerson's attention through the window on the driver's side of their vehicle to an area about fifteen feet from the vehicle and said, "There he is." (117). Both officers exited their vehicle and said, "Police, don't move," but the person to whom they spoke was "[h]opping around the bushes." (119). At the hearing, Officer Jemerson identified defendant Torres as the person whom he "initially saw go around the bushes" and the person he ultimately apprehended. (126).
Officer Jemerson jumped over what he described as, "the bushes," into a backyard which defendant Torres had entered, where he temporarily lost sight of defendant Torres but found a burgundy tee-shirt on the ground. Officer Jemerson used his radio to request that the description of the tee-shirt which he had received previously be repeated; the description he received in reply was "[b]rown tee-shirt, blue jeans." (122). Officer Jemerson testified, "That's when I hopped the next fence and then I saw [defendant Torres] running with a white tee-shirt and blue jeans." (122). He saw defendant Torres cross a street to a bridge which was located at a construction site at East Tremont and Dewey Avenue. Defendant Torres became trapped as he attempted to descend from the construction site to an adjacent highway.[FN3] "He was hanging, hanging from some construction debris like trying to step down." (134). Jemerson and other officers pulled defendant Torres up from that position and handcuffed him. Ten to fifteen minutes elapsed from the time Officer's Jemerson and Lemp first saw defendant Torres to the time he was apprehended at the construction site.
Officer Lorenzana, who was the recorder, and her partner Officer Nick De Palo, the driver, were also on patrol at approximately 12:22 p.m. on January 24, 2006. They were in a marked RMP and in uniform when they received and responded to the radio run of an assault in progress at 2859 Sampson Avenue. Upon arriving at that location Officer Lorenzana spoke with Officer Cortes; she [*4]and her partner exited their vehicle, but re-entered it and left the scene shortly thereafter when Lt. Colon arrived. Then they received the second radio run reporting that an officer needs assistance at 2859 Sampson Avenue, and they returned to that address, where Officer Lorenzana saw two men in handcuffs lying face down on the ground. One of the men, whom Officer Lorenzana described as "the complainant" (i.e., Ortiz), had duct tape on his head and "had some injuries to his head and . . . bloodshot eyes." (161). Officer Lorenzana was assigned to accompany Ortiz in an ambulance to Jacobi Hospital.
En route to the hospital Officer Lorenzana received a radio run of "a possible perp [at]. . . . [t]he Cross Bronx Expressway and close to East Tremont Avenue." (162). Ortiz was not within "ear shot" when that communication came over the officer's radio. (172-173). The ambulance stopped near the construction site where defendant Torres had been apprehended. There were ten or more police cars, marked and unmarked, in the area. Defendant Torres was standing amongst "a whole bunch of officers," some in uniform and some in plainclothes, who "were right by him." (163). Officer Lorenzana told Ortiz to look out the rear window of the ambulance, which was facing the construction site and from which they could see defendant Torres; she said nothing else to Ortiz at that time. Defendant Torres looked out the window and "[h]e said that was the guy that assaulted him." (163). After the identification procedure was completed defendant Torres was brought back to Officer Jemerson's RMP, which was located about one block away from the construction site. After placing defendant Torres in the vehicle, Officer Jemerson removed the handcuffs. At "1410" (i.e., 2:10 p.m.), which was between ten and thirty minutes after defendant Torres had been apprehended, the officers transported him to the 45th precinct. (145).
Officer Cortes did not re-enter the basement apartment after defendant Rosario was placed under arrest at approximately 1:00 p.m., but some time later she returned to 2859 Sampson Avenue after transporting defendant Rosario to the 45th precinct. Officer Cortes was present at 2859 Sampson Avenue when officers from the Crime Scene Unit (hereinafter, "CSU") arrived, and she vouchered several items that were removed from the apartment by those officers. No evidence was presented at the hearing, however, as to who recovered what item(s) or when or from where in the apartment specifically it was recovered, nor when CSU gave the items to Officer Cortes or whether those events occurred before Officer Cortes left the scene with defendant Rosario or after she returned. The vouchered items included a loaded Khar .380 caliber handgun, a baseball cap, a sweatshirt, a pair of blue jeans, a filter from a Parliament cigarette, a white tee-shirt, gray socks, a gray sweatshirt, blood samples, a piece of duct tape which was recovered from Ortiz's face, a roll of duct tape and a pair of boxer shorts. (16-17). The keys to a 2005 Dodge Caravan were found in the apartment, which discovery led the police to seize a 2005 Dodge Caravan allegedly belonging to defendant Torres from outside in front of 2859 Sampson Avenue. (56). A 1999 Ford Expedition belonging to Ortiz was also parked outside in front of 2859 Sampson Avenue. Both vehicles were vouchered by Officer Cortes. For the purpose of the hearing, the People stipulated that defendant Torres has standing to challenge the seizure of the vouchered items. However, the People did not stipulate that defendant Rosario has such standing, so evidence which defendant Rosario presented at the hearing was proffered to establish that he has standing.
Ms. Diaz, who is employed as an Intake Coordinator by United Bronx Parents, a substance abuse program, has known Samuel Rosario for approximately eleven years and Noel Torres for about ten years. Defendant Rosario is Diaz's boyfriend. Between December 2005 and January 2006 defendant [*5]Rosario was living principally with Diaz in her apartment. Defendant Rosario testified that during that period he occasionally stayed overnight at his sister's house and his grandmother's house and, on as many as ten occasions, at the basement apartment of his friend Samuel Lopez at 2859 Sampson Avenue. Diaz testified that on those occasions during that period when he had not spent the night at her apartment defendant Rosario told her that he had stayed overnight at those other locations, though she herself had never been inside Lopez' apartment at 2859 Sampson Avenue." Defendant Rosario testified that he kept a change of clothing and a toothbrush at Lopez's apartment and, when staying there overnight, he slept on the couch until Lopez left for work in the morning, at which time defendant Rosario would move to the bedroom. Defendant Rosario also testified that he spent the night of January 23, 2006, to January 24, 2006, at Lopez's apartment arriving there after midnight on January 24, 2006.
Conclusions of Law
Defendant Rosario moves to suppress the use at trial of evidence regarding two out-of-court identification procedures, the first corporeal and the second photographic, in which Ortiz allegedly identified defendant Rosario as one of his assailants to Officer Cortes, and an in-court identification of him by Ortiz at trial. These are identifications noticed to defendant Rosario pursuant to section 710.30(1)(b) of the Criminal Procedure Law. Defendant Rosario also moves to suppress evidence of a statement which he allegedly made to Officer Cortes, which statement was noticed to him pursuant to C.P.L. § 710.30(1)(a). Defendant Torres moves to suppress the use at trial of evidence regarding a show-up identification procedure in which Ortiz allegedly identified defendant Torres as one of his assailants to Officer Lorenzana, and an in-court identification of him by Ortiz at trial, also noticed pursuant to C.P.L. § 710.30(1)(b). Both defendants move to suppress the use at trial of tangible evidence which was allegedly seized from the basement apartment at 2859 Sampson Avenue on January 24, 2006. Each defendant argues that all of the evidence which he seeks to suppress was the product of his unlawful warrantless arrest. Each also argues that evidence regarding the identifications must be suppressed because they were the product of unlawful police conduct which rendered the identification procedures unduly suggestive and that the tangible evidence must be suppressed because all of the items were seized during and consequent to an unlawful warrantless search. The People oppose all of defendants' motions. They argue that defendant Rosario lacks standing to challenge his warrantless arrest in and the warrantless search of the basement apartment, that the police had probable cause to arrest defendant Rosario and defendant Torres and that in any event, both the arrests and the search were justified under the "emergency" exception to the warrant requirement which the Court of Appeals enunciated in People v Mitchell, 39 NY2d 173 (1976).[FN4]
[*6]They also argue that the identification procedures did not entail any unlawful police conduct, nor were their circumstances unduly suggestive.
Standing
At a suppression hearing the defendant has the burden of establishing standing by demonstrating a personal, legitimate expectation of privacy in the evidence he seeks to suppress or the place from where the evidence was seized. See People v Carter, 86 NY2d 721 (1995). Since defendant Rosario has established by a preponderance of the credible evidence that on January 24, 2006, he was an overnight guest in the basement apartment at 2859 Sampson Avenue, he has standing to challenge his warrantless arrest in and the warrantless search of that apartment.[FN5]People v (Lionel) Williams, 181 AD2d 474, 475 (1st Dep't 1992) ("An overnight guest has . . . a legitimate expectation of privacy and, therefore, standing to challenge a warrantless search or arrest on the premises.") Officer Cortes testified that the landlord of the building at 2859 Sampson Avenue told her that the lawful tenant of the basement apartment was named Samuel. Along with the testimony of Ms. Diaz, this evidence bolstered defendant Rosario's unrefuted testimony at the hearing that he had frequently stayed overnight in the apartment as the guest of its tenant Samuel Lopez, and that he had done so during the night and morning immediately preceding the arrival of the police. See People v Whitfield, 81 NY2d 904, 906 (1993) (a defendant's burden to establish standing may be satisfied by evidence educed from the People's case); People v (Antonio) Gonzalez, 115 AD2d 73, 78 (1st Dep't 1986) (the operative facts needed to demonstrate a sufficient expectation of privacy "may be gleaned from the record as a whole, including the account of events offered by the police officer"). Moreover, defendant Rosario kept a change of clothes and a toothbrush at the apartment, and regularly remained in the apartment and moved to sleep in the bedroom when Lopez left for work. Thus, the record as a whole contains sufficient indicia that defendant Rosario was a frequent overnight guest rather than a mere casual visitor on the day the police entered. Therefore, defendant Rosario has established that he has standing to challenge his arrest in and the subsequent search of the apartment. Cf. People v Ortiz, 83 NY2d 840 (1994); People v Geraghty, 212 AD2d 358 (1st Dep't 1995).
The Warrantless Entry into the Basement Apartment
The police lawfully entered the apartment without a warrant. Generally, the police may not enter a suspect's home or premises in which he has a legitimate expectation of privacy in order to make an arrest unless they have a warrant to arrest that person. Payton v New York, 445 U.S. 573 (1980). Here, however, the police did not enter the basement apartment in order to make an arrest. Rather, they were investigating a creditable report from a witness at the scene that two men had moments ago abducted a third man and were beating him inside the apartment. In those circumstances, the police did not have to suspend their efforts while they applied for a warrant, but were justified under the emergency exception in acting as they did in order to protect and assist the victim. See People [*7]v Mitchell, supra ; People v Coppin, 202 AD2d 279 (1st Dep't 1994). Furthermore, defendants' contentions to the contrary notwithstanding, the fact that the officers chose to knock on the apartment door for five to ten minutes rather than break it in does not defeat the argument that this was an emergency. See People v Molnar, 98 NY2d 328, 332-333 (2002) (the fact that "the police spent about an hour exploring alternatives before forcing their way in [was a] measured response [that] does not remove the situation from the realm of emergency");People v Salazar, 290 AD2d 256 (1st Dep't 2002) ("the danger [which created the emergency] did not abate during the period that the officers waited to gain entry into [defendant's] apartment"). Therefore, the police entered the apartment lawfully.
The Arrest of Rosario
Discussion of the lawfulness of the arrest of defendant Rosario must commence with a legal determination by the Court as to when and where he was arrested, or his person "seized," within the meaning of the Fourth Amendment to the United States Constitution. The Court finds as a matter of law that defendant Rosario was arrested inside the apartment. Although he was physically outside the apartment when he was finally subdued by the police, the evidence at the hearing established that defendant Rosario attempted to run from the apartment in response to the entry and presence of the police and that Officer Cortes first grabbed him while they were both inside the apartment. Therefore, for the purpose of Fourth Amendment analysis the encounter inside the apartment constituted an arrest.[FN6] See People v Cantor, 36 NY2d 106 (1975); People v Fripp, 85 AD2d 547 (1st Dep't 1981).
The arrest of defendant Rosario inside the apartment without a warrant was lawful. Ms. Swain's statements to Officers Cortes and Baboolal about an abduction and beating by two men had established reasonable grounds to believe that criminal activity was afoot inside the basement apartment. Once the officers were lawfully inside that apartment Ms. Swain's report, along with their own observations of Ortiz emerging from the bathroom, bound and bloodied and reporting his victimization, coupled with defendant Torres running out the front door provided them with probable cause to believe that defendant Rosario had committed a crime when he also attempted to leave the apartment moments later. Therefore, the arrest was authorized and lawful. C.P.L. § 140.10(1)(b); People v. Bigelow, 66 NY2d 417, 423 (1985) ("Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed.")
Rosario's Statement
Defendant Rosario moves to suppress the use at trial of evidence of the oral statement, which he allegedly made to Officers Cortes and Baboolal while they were transporting him to the 45th precinct [*8]in their RMP, on the grounds that it was "involuntarily made" under C.P.L. § 60.45(2) in that it was the product of an unlawful arrest and custodial interrogation and that he had not been given the Miranda (Miranda v Arizona, 384 U.S. 436 [1966]) warnings before the statement was taken. At a pre-trial hearing on a motion to suppress the People's use of evidence of a statement which the defendant contends was involuntarily made the People have the burden of going forward; "[o]nce the prosecution has established the legality of the police conduct and the defendant's waiver of rights, the burden of proof at the suppression hearing shifts to the defendant (see, People v Love, 57 NY2d 998, 999)." People v Guillery, 267 AD2d 781 (3rd Dep't 1999). While the People have established the legality of the police conduct herein, defendant Rosario has failed to show that his statement was involuntarily made. Thus, defendant Rosario's motion to suppress evidence of the statement must be denied.
Defendant Rosario was lawfully arrested (see The Arrest of Rosario, supra ) and his statement was not the product of custodial interrogation. Although defendant Rosario was clearly in custody while in the RMP (see People v Yukl, 25 NY2d 585, 589 [1969]), his statement was not made in response to anything the officers said or did. Rather, the statement was made with genuine spontaneity and without invitation, prompting or coaxing; in short, there was no interrogation. Therefore, the fact that the Miranda warnings were not administered to him before he allegedly made the statement did not render the statement involuntary under C.P.L. § 60.45(2)(b)(ii), despite that he was in custody in the RMP at the time. See People v More, 283 .D.2d 715, 717 (3rd Dep't 2001) (affirming denial of motion to suppress statements which defendant "blurted out" while being transported to police station; "spontaneous statements made while in custody which are not the product of questioning or its functional equivalent are clearly admissible regardless of whether Miranda warnings were given"); People v Sloan, 242 AD2d 760, 761 (3rd Dep't 1997);People v Finn, 180 AD2d 746 (2nd Dep't 1992).
The Arrest of Torres
Clearly, the same objective circumstances which provided probable cause to arrest defendant Rosario would also have authorized the arrest of defendant Torres had the officers who gave chase as he ran from the apartment been able to apprehend him before they were compelled to return to the apartment to aid in the arrest of defendant Rosario. Defendant Torres argues that, whatever information the officers at the apartment were privy to, the officer who actually apprehended him at the construction site did not have probable cause to believe that he had committed a crime because the color of the shirt he was wearing when that officer first saw him was allegedly burgundy, while according to the description which was given in the second radio run the suspect was wearing a brown shirt. However, whether or not Officer Jemerson had sufficient cause to place defendant Torres under arrest before Ortiz identified him, the stop and temporary detention of defendant Torres for the purpose of conducting a show-up was lawful and the police had probable cause to arrest defendant Torres after Ortiz identified him.
In People v De Bour, 40 NY2d 210 (1976), the Court of Appeals identified four general categories of police conduct involving escalating levels of governmental interference with a citizen's personal security, and the nature of the objective facts available to a police officer which are required to justify each successive level of greater intrusion.
[*9]
The minimal intrusion of approaching to request information is permissible when there is some objective credible reason for that interference not necessarily indicative of criminality. The next degree, the common-law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure. Where a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor, the CPL authorizes a forcible stop and detention of that person. . . . Finally a police officer may arrest and take into custody a person when he has probable cause to believe that person has committed a crime, or [an] offense in his presence.
40 NY2d at 223 (internal citations omitted).
The police-citizen encounter involving defendant Torres began when Officers Lemp and Jemerson observed a person who fit the broadcast description of a suspect who was reportedly fleeing the scene of an assault which had recently taken place at a nearby location. Assuming, arguendo, that the radio run which prompted the officers' actions described the suspect's shirt as brown and that defendant Torres' shirt was burgundy, defendant Torres nonetheless fit the overall description. He was a light-skinned, hispanic male wearing blue jeans, and he was in close temporal and spatial proximity to the scene of the reported assault. Thus, even if defendant Torres "did not perfectly match the description in the radio run, there were enough similarities to provide the police with, at a minimum, the right to make a common-law inquiry." People v Cintron, 304 AD2d 454 (1st Dep't 2003); see also, e.g., People v (Michael) Williams, 30 AD3d 980 (4th Dep't 2006) (police had right to make common-law inquiry where suspect described as wearing eyeglasses and a striped shirt, but defendant was not wearing eyeglasses and his shirt was not striped); People v Cook,179 AD2d 572, 572-573 (1st Dep't 1992) (police had right to make common-law inquiry; "[t]he discrepancy . . . concerning the description of his shirt color[, i.e., "red" versus "pinkish-red,"] was minimal").
However, when the officers said, "Police, don't move," so that they could make such an inquiry, defendant Torres fled. The additional circumstance of defendant Torres' flight from the officers' lawful directive created a reasonable suspicion that he had committed a crime, which justified Officer Jemerson's pursuit. See People v Cintron, supra ("When defendant then attempted to avoid the police and fled after the police said stop,' the police had reasonable suspicion to pursue him"). Therefore, the stop and temporary detention of defendant Torres for the purpose of conducting a show-up was authorized and lawful. See C.P.L. § 140.50(1); People v (Michael) Williams, 30 AD3d at 981 ("defendant fled before the police had the opportunity to approach defendant to make [common-law] inquiry and, based on his flight, his temporal and spacial proximity to the scene of the crime, and his similarity in appearance to the description of the suspect . . . the police had the requisite reasonable suspicion to justify their pursuit of him . . . . [and] to transport him . . . to the scene of the crime for a showup identification procedure" [internal citations omitted]); People v (John) Gonzalez,13 AD3d 465 (2nd Dep't 2004) (show-up identification at the scene of the stop).[FN7]
[*10]
Nor did the fact that defendant Torres was handcuffed and surrounded by police officers when they pulled him from the construction debris transform that encounter into an arrest requiring probable cause. In light of defendant Torres' demonstrated propensity for flight from the police, even to the point of placing himself in so precarious a position that he required rescue, such "precautionary measure[s were justified] during the brief period in which the police awaited the arrival of the victim" for the show-up. People v Gatling, ___ AD3d ___, 831 NYS2d 157, 158 (1st Dep't 2007). Of course, once Ortiz identified defendant Torres as his assailant the police had probable cause to place defendant Torres under arrest. See People v (Michael) Williams, supra ; People v (John) Gonzalez, supra .
The Identification Evidence
At a hearing on a motion to suppress identification evidence, the People have the initial burden of establishing the reasonableness of the police conduct and the lack of undue suggestiveness, while the defendant bears the ultimate burden of showing that a witness's potential testimony is the product of an impermissibly suggestive police-arranged identification procedure. See People v Jackson, 98 NY2d 555 (2002); People v Chipp, 75 NY2d 327 (1990). The People have failed to satisfy their initial burden with respect to the identification of defendant Rosario from a photograph, so defendant Rosario's motion to suppress the use at trial of evidence regarding such identification is granted. However, the People have satisfied their initial burden and established the reasonableness of the police conduct with respect to the corporeal identification of defendant Rosario and the show-up identification of defendant Torres. Since neither defendant Rosario nor defendant Torres has shown that Ortiz's potential identification testimony is the product of an impermissibly suggestive police-arranged identification procedure, both of their motions to suppress such testimony are denied.
The Corporeal Identification of Rosario
This branch of defendant Rosario's motion was made in response to a notice filed by the People pursuant to C.P.L. § 710.30(1)(b) of their intent to offer at trial evidence regarding an out-of-court corporeal identification procedure in which Ortiz allegedly identified defendant Rosario to Officer Cortes at 1:03 p.m., on January 24, 2006, at 2859 Sampson Avenue. Although defendant Rosario was in police custody at the time, the circumstances in which Ortiz made that identification did not constitute an impermissibly suggestive police-arranged identification procedure. Defendant Rosario and Ortiz were both inside the basement apartment at 2859 Sampson Avenue when the police lawfully entered and defendant Torres ran out the door. When defendant Rosario attempted to leave the apartment seconds later he was arrested and Ortiz spontaneously told the officers that defendant Rosario and defendant Torres had tried to kill him. There is no evidence whatsoever which would indicate that the police arranged for Ortiz to view defendant Rosario, orchestrated the circumstances in which he would do so or did or said anything suggestive. Therefore, defendant Rosario's motion [*11]to suppress evidence regarding the out-of-court corporeal identification is denied. People v Ruiz, 28 AD3d 398 (1st Dep't 2006).
The Photographic Identification of Rosario
This branch of defendant Rosario's motion was made in response to a secondC.P.L. § 710.30(1)(b) notice filed by the People of their intent to offer at trial evidence regarding an out-of-court identification procedure in which Ortiz allegedly identified defendant Rosario to Officer Cortes from a single photograph on January 24, 2006, at 9:00 p.m. The People did not present any evidence at the hearing that a photographic identification procedure was conducted at all, much less any evidence concerning the circumstances under which the noticed procedure was conducted. Consequently, the People have failed to satisfy their initial burden and defendant Rosario's motion to suppress evidence regarding this identification is granted. Cf. People v Truesdale,299 AD2d 289 (1st Dep't 2002) ("the People had a threshold responsibility to produce a witness who could testify to the circumstances under which defendant was identified [during the photographic identification procedure]").
The In-Court Identification of Rosario
In general, a finding that evidence of an out-of-court identification from a single photograph must be suppressed would require the suppression of any in-court identification by the same witness, unless the People are able to establish that the in-court identification is founded upon a source(s) which is independent of the tainted out-of-court procedure. See Manson v Brathwaite, 432 U.S. 98 (1977). However, the People need not demonstrate independent source where the problematical identification procedure did not create a danger of an irreparable misidentification because it was preceded by a distinct and presumptively reliable identification by that witness. See People v Cascoigne, 189 AD2d 714 (1st Dep't 1993); People v Bonilla, 163 Misc 2d 822, 824 (S. Ct. Bx. Co. 1994) ("where a constitutionally permissible identification . . . takes place and there is presumptive evidence of reliability as to the identification, a subsequent improper identification will be regarded as harmless or merely confirmatory and no independent source hearing need be held"). Therefore, since Ortiz's spontaneous on-scene identification of defendant Rosario, made under non-suggestive circumstances, was presumptively reliable (see People v Cascoigne, supra ) and distinct from the improper photographic identification procedure conducted eight hours later, that branch of defendant Rosario's motion in which he seeks to suppress an in-court identification because of such impropriety is denied.
The Show-Up and In-Court Identifications of Torres
The use of a show-up identification procedure was permissible since it was conducted within forty to sixty minutes after defendant Torres ran from the nearby crime scene.[FN8] "Showup identifications, by their nature suggestive, are strongly disfavored but are permissible if . . . the suspect[ is] captured [*12]at or near the crime scene and can be viewed by the witness immediately." People v Riley, 70 NY2d 523, 529 (1987) (internal citations omitted); see also, e.g., People v Brisco, 99 NY2d 596 (2003) (upholding show-up one hour after crime); People v Gatling, supra (upholding show-up about forty-five minutes after crime).
The circumstances under which the show-up was conducted were not unduly suggestive. Officer Lorenzana, who accompanied Ortiz in the ambulance, was certain that Ortiz did not hear the radio run concerning "a possible perp," and she did not say anything to Ortiz which suggested to him that he would be viewing a person whom the police suspected as his assailant. Cf. People v Gatling, 831 NYS2d at 158-159 ("Although an officer advised the victim that he would be asked to identify a possible' suspect, and although while riding in a police car the victim may have overheard radio communications about the pursuit and detention of a suspect, these factors did not render the ensuing [show-up] identification suggestive.") Nor did the fact that defendant Torres was handcuffed and surrounded by police officers when Ortiz viewed him render the identification unduly suggestive. See People v Davila, 37 AD3d 305 (1st Dep't 2007) ("[t]he fact that defendant was in handcuffs and in the presence of police officers did not render the victim's show-up identification, made in close temporal and spatial proximity to the crime, unduly suggestive"); People v Gatling, supra (fact that defendant was in handcuffs and "guarded" by police officers did not render show-up unduly suggestive); People v Kirk, 27 AD3d 383, 384 (1st Dep't 2006). Therefore, defendant Torres' motion to suppress evidence regarding the show-up identification and an in-court identification by Ortiz is denied.
The Tangible Evidence
The search of the basement apartment at 2859 Sampson Avenue and the seizure of items of tangible evidence therefrom without a warrant by CSU officers after all of the occupants had vacated it or been removed by the police was unlawful. At a pre-trial hearing to determine the admissibility of tangible evidence seized by the police, the People have the initial burden to demonstrate the legality of the police conduct and the defendant bears the ultimate burden of proving by a preponderance of the credible evidence that the evidence seized should not be used against him because his rights were contravened in some manner. See People v Berrios, 28 NY2d 361, 367 (1971); People v Thomas, 291 AD2d 462, 463 (2nd Dep't 2002). With the exception of Ortiz's 1999 Ford Expedition and the piece of duct tape which was allegedly recovered from his face, the People have failed to demonstrate the legality of the police conduct in seizing those items of tangible evidence and a preponderance of the credible evidence presented at the hearing establishes that such seizure contravened the defendants' rights under the Fourth and Fourteenth Amendments to the United States Constitution.
"A warrantless search by the police is invalid unless it falls within one of the narrow and well-defined exceptions to the warrant requirement." Flippo v West Virginia, 528 U.S. 11, 13 (1999). The emergency which justified the initial warrantless entry by Officers Cortes, et al, dissipated when Ortiz, the last of the three occupants, was removed from the apartment. SeePeople v Cohen, 87 AD2d 77, 83 (2nd Dep't 1982) ("Once [the] preliminary [crime-scene] investigation[, which was limited by and related to the exigencies of the initial entry,] has come to an end . . . no further searches for evidence may be conducted on the premises unless authorized by [*13]a warrant.") And there is no exception to the warrant requirement which justifies a subsequent re-entry by the police regardless of whether the officers who re-enter are patrolmen, detectives or forensics specialists to conduct a warrantless search merely because the premises in question was the scene of a recent crime.Flippo v West Virginia, 528 U.S. at 14; see also Mincy v Arizona,437 U.S. 385, 395 (1978) ("the warrantless search of Mincy's apartment was not constitutionally permissible simply because a homicide had recently occurred there"); People v Cohen, supra .
Moreover, in the instant case the re-entry to conduct a warrantless search was not otherwise justified. For example, aside from Officer Cortes' testimony that she saw duct tape on Ortiz's face, no evidence whatsoever was presented at the hearing that any of the items which the CSU officers later seized had been discovered in plain view upon the initial entry or during any protective sweep for suspects, weapons or contraband conducted contemporaneously therewith. See, e.g., People v Paez, 202 AD2d 239 (1st Dep't 1994) (since police lawfully entered bedroom to determine whether woman therein was safe, discovery in plain view of weapons and contraband therein was not illegal, "and the ensuing search of the room and security check of the premises, resulting in the discovery of additional weapons and contraband, was not violative of defendant's Fourth Amendment rights.") Nor was any evidence presented that such items had been observed or discovered by any police officers who may have remained inside the apartment from the time that Ortiz was removed until the CSU arrived (see, e.g., People v George, 7 AD3d 810, 811 [2nd Dep't 2004] ["The subsequent entry and seizure were proper, even though . . . the emergency had abated, because a continued police presence was maintained, the items seized were in plain view, and the seizure was within several hours of the initial entry"]), or while the police were lawfully inside the apartment for a reasonable period of time awaiting the signing of a search warrant (see, e.g., People v Chumbley, 10 Misc 3d 1051[A] at 3 [West. Co. Ct. 2005]). Nor did any other emergency or exigency arise after Ortiz was removed. See, e.g., People v Freidman, 95 AD2d 862, 863 (2nd Dep't 1983) (warrantless re-entry of apartment following conclusion of burglary investigation was justified because police were "subsequently presented with reasonable cause to believe that the premises . . . may also have been the situs of . . . a kidnapping.")
Indeed, no evidence was presented that a protective sweep was conducted at all, that there was any police presence inside the apartment after Ortiz was removed, that any attempt was made to apply for a warrant, or even when or from where in the apartment the items were eventually seized by the CSU officers. Consequently, since the People have failed to satisfy their burden to demonstrate the legality of the police conduct, defendants' motions to suppress the use in evidence at trial of the items seized pursuant to the warrantless search of the apartment including the 2005 Dodge Caravan, but excluding the !999 Ford Expedition and the piece of duct tape which was allegedly recovered from Ortiz's face are granted.
Defendants' motions to suppress the Dodge Caravan are granted because the discovery and seizure of that vehicle from outside in front of 2859 Sampson Avenue was a direct and proximate consequence of the unlawful search of the apartment. "The exclusionary rule generally bars from trial all physical, tangible materials obtained either during or as a direct result of an unlawful invasion' [Wong Sun v United States, 371 U.S. 471, 485]." People v Millan, 69 NY2d 514, 521 (1987). It may be reasonably inferred from the record herein that the police would not have [*14]discovered the Dodge, the identity of its owner, or its significance to their investigation assuming it was significant in some way but for the unlawful search. Compare with People v Bero,139 AD2d 581, 586 (2nd Dep't 1988) (allegedly stolen television discovered by police in common area of building in which witness resided not suppressed because "[t]he record does not support an inference that the television would not have been discovered but for the illegal entry into [defendant's] apartment").[FN9] Particularly since, according to Officer Cortes' unrefuted testimony, the keys to the Dodge, which were discovered during the search, led the police to seize it. See People v Spencer, 157 AD2d 906, 908 (3rd Dep't 1990) (items seized from defendant's truck should have been suppressed because only evidence as to how police acquired keys to truck was uncontradicted testimony of defendant's wife that she involuntarily relinquished them in compliance with officers' unlawful, warrantless demand). Therefore, to the extent defendants seek suppression of the use in evidence at trial of the Dodge Caravan,[FN10] their motions are granted.
Defendants' motions to suppress the Ford Expedition and the piece of duct tape are denied because, unlike the Dodge Caravan, the seizure of those items was not tainted by the unlawful search. Despite the illegality of police conduct, suppression is inappropriate where the police discover and seize evidence "in response to . . . untainted information gained from [an] independent source." People v Coste, 272 AD2d 205, 206 (1st Dep't 2000). Although no evidence was presented at the hearing as to precisely when or how either of those items was ultimately recovered, it is reasonable to infer that Ortiz identified the Ford Expedition to the police as his own vehicle and that he consented to the seizure of the duct tape since it was allegedly recovered from his person. Additionally, the seizure of the piece of duct tape was not a product of the unlawful search since it was initially discovered in plain view by Officer Cortes while she was lawfully inside the apartment prior to the search. See People v White, 259 AD2d 400 (1st Dep't 1999). Thus, neither the discovery of the Ford nor the piece of duct tape was causally connected to the unlawful warrantless search of the apartment and each item would have been discovered even without the search. Therefore, to the extent defendants seek suppression of the use of those items in evidence at trial, their motions are denied. See People v Arnau, 58 NY2d 27, 33 (1982) ("In cases where this causal nexus is lacking, the exclusionary rule simply does not apply.")
Accordingly, for all of the foregoing reasons, defendant Samuel Rosario's motions to suppress the use at trial of evidence of his alleged statement and the out-of-court corporeal and in-court identifications by Rafael Ortiz are denied, and defendant Rosario's motion to suppress the use of evidence of the photographic identification is granted; defendant Noel Torres' motions to suppress the use of evidence of the show-up and in-court identifications by Rafael Ortiz are denied; the motions of both defendants to suppress the use at trial of tangible evidence seized during and as a result of the warrantless search of the basement apartment at 2859 Sampson Avenue, including the 2005 Dodge Caravan, are granted; and, the motions of both defendants to suppress the use in [*15]evidence of the piece of duct tape, which was recovered from the face of Rafael Ortiz, and the 1999 Ford Expedition are denied.
The foregoing constitutes the decision and order of the Court.
Dated: Bronx, New YorkE N T E R:
April, 2007
HON. BARBARA F. NEWMAN
Acting Justice of the Supreme Court
Footnotes
Footnote 1:Police Officer Nellie Baboolal was also called and gave testimony on direct examination by the People. However, Officer Baboolal's testimony was stricken upon the People's application when she was unable to return to court the following day to complete direct examination and submit to cross-examination.
Footnote 2:Numbers in parentheses refer to the page number of the transcript of the minutes of the combined suppression hearing, at which the referenced material may be found.
Footnote 3:Officer Jemerson called this highway "the Bruckner, Bruckner Highway" (133), while Officer Lorenzana testified that she was informed that a possible perpetrator was being held at the "Cross Bronx Expressway" (162). However, it is clear from the testimony that both officers were referring to the same construction site, whatever the actual name of the highway to which that site was adjacent.
Footnote 4:The Court said:
The basic elements of the [emergency] exception may be summarized in the following manner:
(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
(2) The search must not be primarily motivated by intent to arrest and seize evidence.
(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.
39 NY2d at 177-178.
Footnote 5:During the hearing the People stipulated that defendant Torres has standing to challenge the search on this basis.
Footnote 6:Nor do the People contend that this encounter did not constitute an arrest. Indeed, in arguing that defendant Rosario lacks standing to challenge his warrantless arrest as a Payton violation the People implicitly concede that he was arrested inside rather than outside the apartment; the constitutional principle with which Payton is concerned would not be implicated if the police conduct of which defendant Rosario complains had not occurred within a residence, in which case there would be no reason to question his standing to complain.
Footnote 7:That defendant Torres was wearing a white, rather than brown or burgundy, shirt when stopped is of no moment. Indeed, the fact that during the pursuit Officer Jemerson retrieved a discarded burgundy shirt, then immediately observed that defendant Torres was wearing a white shirt, which defendant Torres was still wearing when the officer stopped him, only supports the finding that the officer's actions were justified. See, e.g., People v (John) Gonzalez, supra (Police received a report that a suspect in a robbery was wearing a gray suit and carrying a green bag. Seven minutes later a named citizen informed the police that she saw a man in a gray suit with a green bag enter a basement and come out wearing a white shirt and black pants. Held, that the police were justified in stopping and detaining defendant, who was wearing black pants and carrying a white shirt, one minute later.)
Footnote 8:After the show-up, defendant Torres was placed in Officer Jemerson's RMP at 2:10 p.m., which was ten to thirty minutes after defendant Torres was apprehended. Thus, the show-up, which was obviously conducted after defendant Torres was apprehended, occurred between 1:40 p.m. and 2:00 p.m., or forty to sixty minutes after defendant Torres ran from the crime scene at or shortly after 1:00 p.m.
Footnote 9:For example, the record would not support such an inference if there had been evidence that Ortiz, defendant Torres or defendant Rosario identified or spoke of the Dodge to the police.
Footnote 10:Of course, though the People did not present any evidence at the hearing that the police recovered any tangible property from inside the Dodge Caravan, the use in evidence at trial of any item so discovered would also be precluded. See People v Spencer, supra .