By petition filed on May 30, 2008, Respondent, Shon D., is alleged to have committed acts which, if committed by an adult, would constitute the crimes of Robbery in the Second and Third Degrees, in violation of Penal Law §§ 160.10(1) and 160.05, Grand Larceny in the Fourth Degree in violation of Penal Law §§ 155.30(4) and 155.30(5), Criminal Possession of Stolen Property in the Fourth Degree, in violation of Penal Law § 165.45(2), and other lesser crimes.

On June 20, 2008, Respondent moved to suppress his out-of-court identification on the grounds, inter alia, that it was the fruit of his unlawful arrest. The Presentment Agency filed opposition papers on June 23, 2008. This Court granted Respondent's motion for a Payton/Wade/Dunaway hearing, which proceeded on June 24, 2008 and July 16, 2008. Testimony was elicited at the hearing from Complainant and Police Officer Allen Avella.

Now, upon the motion filed, a review of all papers submitted in support and opposition thereto and after due deliberation thereon, and having heard the testimony, observed the demeanor and assessed the credibility of the witnesses, this Court hereby finds the following:

Complainant and Mr. Cruz returned to the school where they told Complainant's aunt what had transpired. Mr. Cruz indicated that the "kid with the lighter skin is Kevin," and that he lived across the street. Complainant's aunt then took him to look for the boys herself, eventually spotting them as they crossed a street. Complainant and his aunt followed the two boys for approximately two blocks.

The following day, on May 29, 2008, at approximately 10:30 p.m., Complainant and his mother went to the 44th Precinct to file a police report. The report was taken by plain-clothes Police Officer Allen Avella. Complainant provided the same physical description he had previously given his aunt and Mr. Cruz. Officer Avella, his partner and a Sergeant Fredes, together with Complainant and his mother, conducted a canvas of the area where the alleged incident had occurred. They started in the vicinity of 1133 Ogden Avenue, but left that area when, after approximately twenty minutes, Complainant was unable to positively identify anyone. The group then proceeded to 1087 Summit Avenue, the address Mr. Cruz had given Complainant. Sergeant Fredes remained in the police vehicle with Complainant and Complainant's mother while Officer Avella and his partner left the vehicle to conduct a "vertical" of the building in search of individuals who might fit the description of the alleged perpetrators.

Officer Avella entered the outer-front door to the lobby of 1087 Summit Avenue and stood in the vestibule. He observed, through a large glass window of an inner door, three males, one of whom matched the general description of the alleged perpetrators. He knocked on the window to get the boys' attention, while displaying his shield which hung from a chain around his neck. He pointed to the door and called out for the boys to open it. The boys turned away and headed towards the stairway, proceeding from a slow walk into a run. Officer Avella and his partner gained entry into the building and called out to the shorter of the three boys three or four times while identifying themselves as police officers. The officers chased Respondent up the stairs to the third floor where they saw him enter an apartment. Officer Avella was approximately eight feet away when Respondent entered the apartment and started to close the door behind him. The officers again identified themselves as police and directed Respondent to stop. Respondent did not comply, continuing instead to shut the apartment door behind him. Officer Avella's partner pushed the door from the hallway side to prevent it from closing. The door was thus pushed back and forth, with the officers trying to force it open from outside the apartment and Respondent trying to close it from inside. Officer Avella finally gave "one push," which caused Respondent to fall. Officer Avella stepped approximately one foot inside the apartment, with both feet over the threshold, picked up the Respondent, who was "flailing" his arms, and brought him out into the hallway where he obtained pedigree information. Respondent provided his name and told the officers that he lived in the apartment with his mother and brother. Officer Avella then re-entered approximately fifteen feet into the apartment, knocking on the walls as he went, to ascertain whether anyone else was inside. [*3]

Officer Avella and his partner informed Respondent there was a "problem in the street" and indicated they wanted to determine whether he was involved. They brought Respondent downstairs to the front of the building in handcuffs where he was positioned under the street lights for a show-up. Officer Avella stood beside Respondent and directed him to look at the light. Sergeant Fredas, who was still waiting with Complainant and his mother in the police vehicle, gave Officer Avella a "thumbs up," signifying that Complainant had positively identified Respondent. Officer Avella stepped back into the building vestibule and "placed Respondent under arrest."

Respondent argues that the identification procedure employed by the police should be suppressed as the fruit of an unlawful arrest. Specifically, Respondent posits that he was arrested in his home without an arrest warrant in violation of the Fourth and Fourteenth Amendments to the United States Constitution. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371 (1980). Respondent further argues that none of the three recognized exceptions to the Payton rule existed at the time of his arrest, to wit: (i) exigent circumstances, (ii) consent, or (iii) hot pursuit.

It is a well-settled tenet of the Fourth Amendment to the U.S. Constitution that the interest in preserving the sanctity of the home is paramount in protecting against warrantless and forcible entries by the police. So, too, under the rubric of Payton v. New York and its progeny, are the police prohibited from making a routine felony arrest in a person's private residence without a warrant unless one of the three aforementioned exceptions exists.

Moreover, evidence recovered as a result of a Payton violation is generally suppressed as the fruit of an unlawful arrest. See, e.g. People v. Burden, 99 AD2d 552, 471 NYS2d 638 (2d Dept. 1984), stolen money derived from an armed bank robbery, and defendant's statements at the precinct, suppressed; People v. Middleton, 125 Misc 2d 634, 480 NYS2d 76 (Sup. Ct. Kings Co. 1984), statements made by defendant in his apartment suppressed. The Court of Appeals has, however, carved out an exception to this rule in the area of identification procedures. In People v. Jones, 2 NY3d 235 (2004), the Court of Appeals specifically addressed whether the exclusionary rule applies to an identification procedure conducted in the absence of counsel subsequent to an arrest made in violation of Payton. Jones at 239. The Court held that the New York "State Constitution does not require the suppression of evidence of a lineup identification made... in violation of Payton." Jones at 244-245. However, the Court was clear that its holding was predicated on the existence of probable cause at the time of the arrest. The Court reasoned that "[i]n Payton scenarios, however, the police have probable cause to arrest and, as such, it is only the means of effecting the arrest that are unlawful, not the detention itself." Jones at 239. Further, "...[w]hen the police arrest an individual on less than probable cause the authorities are unreasonably and unconstitutionally exercising custody over the person and may not lawfully force the individual to participate in a line-up. Jones at 244; See also, People v. Dodt, 61 NY2d 408 (1984); People v. Gethers, 86 NY2d 159 (1995).

Thus, in determining whether Respondent was unlawfully arrested, this Court must consider (i) where and when Respondent was, in fact, arrested and specifically, whether he was arrested in the vestibule of his building after the show-up identification, or earlier when the police apprehended him in his apartment, and (ii) whether the police had probable cause to effect that arrest and, if so (iii) whether one of the three exceptions to the Payton rule existed at the [*4]time of arrest.

First, in ascertaining the time and location of Respondent's arrest, the Court rejects the Presentment Agency's reliance upon Officer Avella's testimony that Respondent was not arrested until after the show-up was conducted on the street. Officer Avella's subjective belief is not determinative. It is well-established that an objective standard is applied to determine whether an arrest has been effected. Specifically, the test is whether a reasonable person, innocent of any crime, would have thought himself under arrest had he been in Respondent's position. People v. Yukl, 25 NY2d 585, 307 NYS2d 857 (1969); People v. Anderson, 218 AD2d 533 (2nd Dept. 1995). Moreover, when an "individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment." People v. Batista, 68 AD2d 515 (1st Dept. 1979), citing People v. Cantor, 36 NY2d 106, 111. Indeed, courts have held that certain police conduct can rise to the level of an arrest even in non-custodial situations, such as where, for example, a police officer physically grabs a suspect, holds him or throws him against a wall. People v. Batista; People v. Fripp, 85 AD2d 547 (1st Dept. 1981), aff'd, 58 NY2d 907 (1983).

In the instant matter, Respondent was pursued up three flights of stairs by two police officers. He ran to his home and tried to close the door behind him, but was prevented from doing so by the officers who forcefully pushed the door from the other side in an attempt to open it. Eventually, the police used such force that Respondent was knocked to the floor inside his own apartment. The officers then entered Respondent's home, physically lifted him off the floor, removed him, and detained him in the hallway where they proceeded to ask a series of questions. One of the officers even re-entered Respondent's home after Respondent had been removed. Respondent was handcuffed and escorted downstairs by the two officers where he was subjected to a show-up. Based on these facts, this Court is persuaded that Respondent was indeed in custody and under arrest prior to the identification procedure, the arrest having been effected in Respondent's own home.

Having determined that the police made a warrantless arrest of Respondent in his home, the Court may proceed to examine whether one of the three exceptions to Payton existed at the time of arrest. However, since the Presentment Agency has not presented evidence or argued persuasively in support of any exception, this Court declines to engage in this analysis.

Thus, because Respondent was subjected to a warrantless arrest inside his home and there is no basis upon which to apply any of the recognized exceptionsto Payton, the Court finds that Respondent's arrest was unlawful.

However, as mentioned above, the analysis does not conclude here because the New York "State Constitution does not require suppression of evidence of [an identification procedure] made after an arrest based on probable cause but in violation of Payton." Jones at 244-245. Thus, this Court must still determine whether probable cause existed at the time Respondent was arrested before ruling on the admissibility of the out-of-court identification.

The Court notes that, prior to arresting Respondent, the police had information that Complainant had been robbed by one light skinned and two dark skinned boys, approximately fourteen years of age. They were also informed that two of the boys might live or hang out in the subject apartment building. Officer Avella testified that upon arriving at the building he observed three males, one of whom fit the description of one of the alleged perpetrators. The [*5]officer knocked on the door, displayed his badge and motioned for the boys to open the door. Respondent and the two other boys turned, initially walked and then ran away. Upon gaining entry to the building, the officers chased Respondent up to the third floor where the events described above ensued.

Simply stated, Officer Avella gave chase and arrested the first young, dark-skinned male he observed in the lobby of 1087 Summit Avenue, a multi-story, multi-family apartment building. He did this on the basis of a very general physical description and an address, which was provided by an individual, Mr. Cruz, with whom Officer Avella had never spoken and who merely said that one or two of the alleged perpetrators might live or hang out in the subject premises. The information did not specify which one, or two, of the alleged perpetrators it might be. Further undermining any contention that the officers possessed probable cause to arrest Respondent is the complete absence of evidence or testimony at the hearing that either of the two other boys in the lobby matched the description of either of the two other alleged assailants.

Insofar as Respondent fled when Officer Avella gestured for him to open the vestibule door, this Court recognizes that "[f]light, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit." People v. Holmes, 81 NY2d 1056 at 1058 (1993). Examples of "other specific circumstances" include a defendant observed exchanging a small plastic bag for money, (see People v. Matienzo, 81 NY2d 778 (1993)), and a defendant observed passing a manilla envelope resembling "three dollar bags." See People v. Leung, 68 NY2d 734 (1986). By contrast, the Court of Appeals has held that narcotics recovered from an individual who exited a livery cab, grabbed at his waistband and then fled, should be suppressed as defendant's actions provided the police with "no information regarding criminal activity." People v. Robbins, 83 NY2d 928 at 930 (1994). "Flight alone, however, or even in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit because an individual has a right " to be let alone'" and refuse to respond to police inquiry." Holmes at 1058, quoting People v. May, 81 NY2d 725 at 727-728 (1992).

The totality of the circumstances surrounding Respondent's apprehension leaves little doubt that the police lacked the "other specific circumstances" necessary to justify pursuit of the Respondent up three flights of stairs and into his residence. "If these circumstances could combine with flight to justify pursuit, then in essence the right to inquire would be tantamount to the right to seize, and there would, in fact, be no right " to be let alone.'" That is not, nor should it be, the law." Holmes at 1058, quoting People v. May.

Indeed, Officer Avella did not try to convince the Court that he had probable cause to arrest Respondent in his home. Rather, the Officer testified on direct examination that Respondent was not placed under arrest until he was positively identified by Complainant. Specifically, the testimony was elicited as follows:

Q."Based on the [positive identification] what action did you take at that point?

A."We stepped back in the vestibule and we placed [Respondent] under arrest."

As previously discussed, Officer Avella's subjective belief that Respondent was placed under arrest subsequent to the identification procedure is not dispositive. However, it is certainly significant that the officer, as inferred from his testimony, recognized the absence of probable cause at the time Respondent was lifted out of his apartment, handcuffed, questioned and brought [*6]downstairs for a show-up.

Unlike the circumstances in Jones, where "...the identification of the defendant [was] not the product of' the Payton violation...but of the police having probable cause to believe that the defendant was the perpetrator..." (Jones 2 NY3d at 243-244) , here, the identification of Respondent was effectuated precisely due to the causal link' between the Payton violation and the show-up. People v. Gethers, 86 NY2d 159 at 162.

In Gethers, the Court of Appeals addressed this very issue, whether an identification procedure should be suppressed as the product of an unlawful arrest. The Court therein recognized that illegally obtained evidence which " has been come at by exploitation of that illegality'" should be suppressed. Gethers at 161-162, quoting Wong Sun v. United States, 371 U.S. 471 at 488 (1963). In suppressing the identification procedure, the Gethers Court found that "the identification of defendant ... immediately following the illegal arrest and detention of defendant, was a product of the illegality ... The causal link between the arrest and identification is obvious and unattenuated the illegal seizure and detention of defendant not only made the identification possible, but was done for the purpose of displaying him to [the complainant] thereby securing a pretrial identification to be used to bolster [the] in court identification[.]" Gethers at 162-163.

Likewise, because Respondent herein was arrested inside his home, in violation of Payton and without probable cause, this Court finds that the show-up identification that followed must be suppressed since it was the direct product of the illegal seizure and detention. United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244 (1980); People v. Brnja 50 NY2d 366, 406 NE2d 1066 (1980); People v. Butler 90 AD2d 797, 455 NYS2d 647 (2nd Dept. 1982).

In view of the foregoing, Respondent's motion to suppress is granted and the matter is hereby adjourned for the commencement of an independent source hearing.

The above constitutes the decision and order of the Court.

E N T E R:

____________________________Juan M. Merchan, J.F.C.

Dated: August 1, 2008

Bronx, New York