[*1]
Matter of Robert S.
2008 NY Slip Op 52653(U) [22 Misc 3d 1120(A)]
Decided on September 23, 2008
Family Court, Bronx County
Merchan, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through February 24, 2009; it will not be published in the printed Official Reports.


Decided on September 23, 2008
Family Court, Bronx County


In the Matter of Robert S., A Person Alleged to be a Juvenile Delinquent.




D-17650-08

Appearances of counsel: Siobhan O'Grady, Esq., Assistant Corporation Counsel (Presentment Agency), Bahar Ansari, Esq., Legal Aid Society (Law Guardian for Respondent).

Juan M. Merchan, J.

Procedural History



By petition filed on August 6, 2008, Respondent is alleged to have committed acts which, if committed by an adult, would constitute the crime of Criminal Possession of a Weapon in the Second Degree in violation of Penal Law §265.03 and other lesser crimes.

Respondent has moved to suppress tangible property recovered from his person by the police on the date of his arrest and the statement obtained from him at the 42nd Precinct.

This Court granted Respondent a Mapp/Huntley/Dunaway hearing which was conducted on August 14, 2008 and August 18, 2008, wherein testimony was elicited from Police Officer Lauren Cinnante and Sergeant Larry Lopez. Now, upon the motion filed, a review of all papers submitted in support and opposition thereto, having heard the testimony, observed the demeanor and assessed the credibility of the witnesses and after due deliberation thereon this Court hereby finds the following:

Findings of Fact


On August 4, 2008, at approximately 12:50 a.m., police received an anonymous tip of a young man carrying a firearm in a backpack. The anonymous informant reported that he saw two individuals standing in-between two cars, one of whom placed the gun in the backpack. The tip described the perpetrator as a young black male, approximately fourteen years of age, wearing blue jeans, a black t-shirt, black backpack and silver sneakers, standing in front of 827 Freeman Street in the Bronx. At approximately 12:51 a.m., Police Officer Cinnante and her partner, Officer Luna, both of the 44th Precinct, responded to a radio run of the anonymous tip. Sergeant [*2]Larry Lopez, assigned to the 42nd Precinct, also responded to the radio run shortly thereafter at about 1:00 a.m.

When the officers arrived at 827 Freeman Street, they did not see anyone fitting the description although they did observe a large crowd of males, each approximately 15-20 years of age, across the street. The officers dispersed the crowd, returned to their patrol cars and drove a short distance down the street where they observed Respondent walking in front of 833 Freeman Street. This address is about three to four car lengths from 827 Freeman Street, the address provided in the radio run. Respondent was wearing blue jeans, silver sneakers, a white t-shirt, a dark blue backpack and headphones.

Officer Cinnante and Luna exited their patrol cars and approached Respondent from behind. Sergeant Lopez approached Respondent from the front. Officer Cinnante asked Respondent where he was coming from. Respondent pointed up the street in response. Sergeant Lopez told Respondent that he needed to look inside Respondent's bag. The Sergeant then lifted the backpack from Respondent's shoulders, took it closer to a streetlight and squeezed it with both hands. The Sergeant felt a hard object which he believed to be a gun. He placed the backpack on top of a patrol car, unzipped it, removed a black bag from within the backpack and retrieved a .22 caliber revolver from the black bag.

The entire incident, from radio transmission to recovery of the gun, took approximately 10-15 minutes. Sergeant Lopez arrested Respondent and placed him in a patrol car for transport to the 42nd Precinct. On the way to the precinct, Respondent was asked again where he was coming from to which he replied, "somebody from the hood put the gun in [my] backpack."

The officers waited for Respondent's mother to arrive at the 42nd Precinct before questioning him. At approximately 3:25 a.m., Sergeant Lopez administered Miranda warnings to Respondent in the Designated Juvenile Room and proceeded to interrogate Respondent, all in the presence of Respondent's mother and Officer Cinnante. Sergeant Lopez read the Miranda rights from a card, explained the rights and asked Respondent and his mother whether they had any questions. Neither Respondent nor his mother requested an attorney or asked any questions. Respondent indicated a willingness to talk to police, stating in substance that somebody from the neighborhood had placed the gun in his backpack and that Respondent did not know it was a gun at the time. The interview lasted approximately 10-15 minutes and was not memorialized.

Conclusions of Law


Respondent moves to suppress the physical evidence on the grounds that the gun was recovered pursuant to an illegal search and seizure. Respondent further argues that his statements should be suppressed as tainted fruit of the illegal arrest.

The Presentment Agency argues that Respondent's motion to suppress the physical evidence should be denied because the police intrusion was legal, both in terms of the initial encounter as well as the subsequent frisk.

The Presentment Agency acknowledges that the statement made on the way to the precinct was illegally procured, but argues that the motion to suppress the statement obtained at the precinct should be denied as that statement was made after Miranda warnings, which were fully and properly administered and that Respondent knowingly, intelligently and voluntarily waived his right to remain silent. [*3]

With respect to the tangible property, the Presentment Agency has the initial burden of going forward to show the legality of the police conduct. Once the prosecution meets its burden, Respondent has the ultimate burden, by a fair preponderance of the evidence, to establish the illegality of the police conduct. People v. DiStefano, 38 NY2d 640 at 652 (1976); People v. Pettinato, 69 NY2d 653 at 654 (1986); People v. De Frain, 204 AD2d 1002 (4th Dept 1994); People v. Ellis, 737 NY2d 232 at 237 (County Court, Cattaraugus 2001); In the Matter of Aliya M., 13 Misc 3d 1223 (A), 2006 NY Slip Op. 51952 (U) at 1 (Family Court, Queens 2006).

"[A]ny inquiry into the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions." People v. De Bour, 40 NY2d 210 at 223 (1976); see People v. Salaman, 71 NY2d 869 at 870 (1988); People v. Hensen, 21 AD2d 172 at 175 (1st Dept 2005). "The touchstone of any analysis of a governmental invasion of a citizen's person under the Fourth Amendment and the constitutional analogue of New York State is reasonableness." People v. Batista, 88 NY2d 650 at 653 (1996) (internal quotation marks omitted); see People v. Wheeler, 2 NY3d 370 at 374 (2004); People v. Alvarez, 308 AD2d 184 at 187 (1st Dept 2003). "[W]hether police interference is reasonable requires a weighing of the government's interest against an individual's right to privacy and personal security." People v. Wheeler at 374. The standard of reasonableness "contemplates and permits a flexible set of escalating police responses, provided only that they remain reasonably related in scope and intensity to the information the officer initially has." People v. Finlayson, 76 AD2d 670 at 675 (2d Dept 1980).

In People v. De Bour, the Court of Appeals set out a four-tiered framework representing the gradation of permissible police responses with citizens in public places. Each level of police intrusion must be accompanied by information reasonably related in scope and intensity.

The least intrusive police conduct under the De Bour framework permits police to approach an individual to request information, in the absence of any indication of criminality, provided that there is an objective and credible reason for doing so. De Bour at 223.

The next tier is "the common-law right to inquire" where the police may stop an individual upon 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." De Bour at 223; People v. Hollman, 79 NY2d 181at 184-185 (1992); People v. Spencer, 84 NY2d 749 at 753 (1993); People v. Battaglia, 86 NY2d 755 at 758 (1995); People v. Giles, 223 AD2d 39 at 40-41 (1996); People v. Sanchez, 8 AD3d 504 at 505 (2d Dept 2004). Neither of the first two levels under De Bour authorize the police to conduct a protective frisk. De Bour at 223.

Under the third tier of De Bour, the police may forcibly stop, detain or pursue an individual if there is reasonable suspicion that a crime has been, is being, or is about to be committed. De Bour at 223. The term "reasonable suspicion" is defined as that quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe that criminal activity is afoot. People v. Martinez, 80 NY2d 444 at 448 (1992); People v. William II, 98 NY2d 93 at 98 (2003); People v. Woods, 98 NY2d 627 at 628 (2002). A corollary of this police right to detain "is the authority to frisk if the officer reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed." De Bour at 223.[*4]Under the fourth tier of De Bour, the police may arrest and take into custody an individual where there is probable cause to believe that an offense has been or is being committed in the presence of the police. De Bour at 223.

The threshold question this Court must answer is whether the police conduct in removing and searching Respondent's backpack constitutes a stop and frisk. This Court finds that it does. Courts have recognized that frisks are not limited just to people, but under certain circumstances may extend to items in their possession as well. In People v. Tratch, (104 AD2d 503 [2d Dept 1984]), the Second Department affirmed the trial court's designation of a permissible frisk to include a police officer's actions where he "essentially frisked' a shopping bag which was in defendant's possession at all times and which could have easily contained a gun." Tratch at 504.Likewise, the Second Department affirmed the trial court's holding that the police justifiably frisked a defendant's bag where defendant, upon being stopped by the police, dropped the bag causing it to make a metallic sound upon striking the pavement. People v. White, 549 NYS2d 492 {156 AD2d 741} at 494 (2d Dept 1989). Finally, the First Department has held that police were justified in "feel[ing] the outside of [a] bag which the defendant carried on his person." People v. Cartagena, 189 AD2d 67 at 72 (1st Dept 1993).

Here, Respondent was wearing a backpack which was strapped over each of his shoulders. The bag was lifted from his body and carried away from Respondent to a location with better lighting where it was squeezed by Sergeant Lopez with both hands before being opened. A black bag was removed from within the backpack and that bag was opened revealing the gun in question. This Court finds that Sergeant Lopez's actions constituted a stop and frisk.

Now the Court turns to the legality of the police conduct in stopping and frisking Respondent on the basis of the anonymous tip. The police must have possessed reasonable suspicion under the third tier of De Bour, that Respondent had been, was in the act of, or was about to commit a criminal offense, in order for this Court to find that the stop and frisk did not violate Respondent's Fourth Amendment right against unreasonable searches and seizures.

The Presentment Agency argues that the description provided in the anonymous tip was "so specific and congruous with that which was actually encountered that its reliability could be assumed." People v. Andrews, 243 AD2d 321 at 323 (1st Dept 1997). Specifically, the Presentment Agency emphasizes that Respondent matched eight out of the nine descriptors provided by the anonymous informant, including that Respondent is a black male, approximately 14 years of age and was wearing blue jeans, silver sneakers and what appeared to be a black backpack at the time he was arrested in the general vicinity provided by the informant. The Presentment Agency cites a litany of cases in support of its proposition. People v. Lypka, 36 NY2d 210 (1975); People v. Andrews, supra ; People v. Ayala, 265 AD2d 155 (2d Dept 1999); People v. Reyes, 234 AD2d 63 (1st Dept 1996); People v. Townsend, 144 AD2d 508 (2d Dept 1988); People v. Thornton, 139 AD2d 787 (2d Dept 1988); People v. Benjamin, 51 NY2d 267 (1981). This Court disagrees that the anonymous tip alone was sufficiently reliable so as to warrant the police frisk. That Respondent's backpack was actually dark blue and not black and that he was wearing a white t-shirt rather than a black one, are not particularly significant issues for purposes of this analysis. What is pertinent is that the cases cited by the Presentment Agency are plainly distinguishable from the case at bar in that in each case there existed an independent [*5]additional circumstance, which, when coupled with the anonymous tip, reasonably heightened their objective credible belief of criminal activity. In other words, the police did not perform a frisk in the cases relied upon by the Presentment Agency based only on information provided by the anonymous tip.

In People v. Andrews, the Appellate Division, First Department, found that a frisk of the defendant was justified when a gun was found on the co-defendant during a frisk by the other attending police officer at the scene. The Appellate Court reasoned that the co-defendant's gun provided additional confirmation of the report that the men were armed, heightening the possibility that the defendant too had a gun. Andrews at 324. In People v. Ayala, the First Department found the stop and frisk of the defendant based on an anonymous tip of shots fired from a described vehicle reasonable where the officer, upon approaching the defendant, noticed a bulge in defendant's pants pockets. Ayala at 155. Similarly, in People v. Reyes, the First Department again found that defendant's suppression motion was properly denied where, in addition to the anonymous tip, the police officer noticed a bulge in defendant's front left coat pocket, tapped the bulge, and felt a small, hard, and rectangular object which he thought could have been a gun. Reyes at 63. In People v. Benjamin, the Court of Appeals found that the stop and frisk of the defendant, which was based on a radio run that there were men with guns on a specific street, was justified where the police officers noticed that the defendant, who upon seeing the police officers, stepped backwards toward the curb while reaching beneath his jacket with both hands to the rear of his waistband. Benjamin, supra at 269. In People v. Townsend, police were alerted via a radio run and not by an anonymous tip. Police arrived at the location within a few minutes, "saw the defendant who fit the description...[and] acted prudently to insure their safety." Townsend at 508. Finally, in People v. Lypka, police in New York received a report from police in Pennsylvania that defendant was en route to a location in New York in a vehicle carrying a cache of weapons, stolen property and other contraband. New York State police waited until defendant arrived in the described vehicle at the indicated address whereupon a search was conducted of the vehicle and the contraband recovered. In remitting the case to County Court for further proceedings, the Court of Appeals noted that an "immediate and appropriate police response was called for" (Lypka at 215) under the circumstances and suggested that police acted appropriately in not waiting to obtain a search warrant. The Court recognized the "imminent danger to the public safety if the vehicles were tampered with and the veritable arsenal of weapons removed [by the defendant]...[and] that the vehicles were at the time parked and unattended [was] not determinative of the warrant issue in this case for it could not have been known with any certainty whether the stop" marked the end of the journey or merely a brief pause. Lypka at 215.

An anonymous tip, without more, does not provide the reliability and basis of knowledge necessary for a court to find reasonable suspicion. "An anonymous tip that a person is carrying a gun is not, without more, sufficient to satisfy a police officer's stop and frisk of that person." Florida v. J.L., 529 US 266 (2000). "An anonymous tip [standing alone], cannot provide reasonable suspicion to justify a seizure " People v. Moore, 6 NY3d 496 at 499 (2006). "A tip must be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." People v. William II, 98 NY2d 93 at 98 (2002). An anonymous report of the "visible attributes" of a certain person claimed by an unaccountable informant to be present at a certain [*6]place at a certain time, accompanied by the assertion that th[is] person ha[s] a gun is not a sufficient basis upon which to stop and frisk a suspect who, as the police later confirm, matches the description." People v. Ballard, 279 AD2d 529 at 530 (2d Dept 2001). "[T]he radio run of an armed man wearing a black hat and blue jacket with the word Crimson' on the back in red writing, coupled with the police observation of the defendant, a male wearing a black doo-rag and a black jacket with the word Crimson' on its back in red writing, a half block from the location described in the radio run less than a minute after its receipt, did not on its own provide the necessary prerequisite to frisking the defendant." People v. McCall, NYLJ, Aug. 28, 2008, at 27, col 3.

Here, the police had a legitimate reason to stop and inquire, per De Bour, but not to frisk Respondent. Upon stopping Respondent, Police Officer Cinnante asked where he was coming from. Respondent replied, albeit with a gesture, by pointing up the street. This exchange between the police and Respondent was lawful. Unlike the cases relied upon by the Presentment Agency, however, Respondent did not exhibit any furtive or threatening behavior, nor were any other aggravating factors present, such as a "bulge" near the waistband. There were no exigent circumstances or reports of shots fired or other acts of violence linking Respondent to a gun. Respondent did not flee or resist in any way. Armed solely with an anonymous tip, Sergeant Lopez removed the backpack and searched it even though Respondent had answered the only question posed of him and had not otherwise displayed any furtive or suspicious behavior.

It is this Court's ruling that the police had a common law right to approach Respondent and inquire in order to refute or confirm their suspicions. People v. Benjamin, 51 NY2d 267 at 270 (1981). This Court is cognizant that "police-citizen encounters are dynamic situations during which the degree of belief possessed at the point of inception may blossom by virtue of responses or other matters which authorize and indeed require additional action." People v. McCall, NYLJ, Aug. 28, 2008, at 27, col 3. "Certainly it would [have been] absurd to require the officer[s] to wait for the glint of steel before [they could] act to preserve safety." People v. Benjamin, 51 NY2d 267 at 271 (1981). However, in this case, there was nothing suggestive that violence was imminent. Indeed, the information provided was that the firearm was contained inside the backpack, which as Sergeant Lopez observed, was securely on Respondent's back. Sergeant Lopez was facing Respondent and the two other officers were standing behind him. It would appear, therefore, that there was no immediate threat to the safety of any of the officers and that there was no need to impose a greater intrusion upon Respondent in order to advance the criminal investigation. Accordingly, this Court finds that the police did not possess reasonable suspicion to frisk and the motion to suppress the physical evidence is granted.

The Court now turns to the admissibility of Respondent's statement to Sergeant Lopez and Officer Cinnante at the police station. The Presentment Agency argues that the statement was made by Respondent after he was properly advised of his Miranda rights and after he knowingly, intelligently and voluntarily waived those rights. The Presentment Agency is not seeking to introduce the statement made in the patrol car on the way to the 42nd Precinct. It acknowledges that police had not administered Miranda warnings prior to eliciting the statement and it is thus, inadmissible. However, it asserts that any taint from the earlier unwarned conversation was purged by attenuation, since Sergeant Lopez and Officer Cinnante waited for [*7]Respondent's mother to arrive at the precinct before properly administering Miranda warnings.

Respondent counters that he was interrogated inside the police vehicle on the way to the precinct while he was clearly in custody and under arrest, thus, he argues that the Mirandized statement must be suppressed as tainted fruit of the unlawful police intrusion.

The fruit of the poisonous tree doctrine stands for the proposition that evidence obtained as the result of an illegal search and seizure is subject to suppression where it was clearly the product of the illegal search and seizure. Wong Sun v. United States, 371 U.S. 471 (1963). Such evidence includes statements. People v. Thomas,164 Misc 2d 721 at 724 (Criminal Court, New York 1995), see Mapp v. Ohio, 367 U.S. 643 (1961). Oral admissions obtained from a defendant are subject to suppression where they are clearly the product of an illegal search and seizure and are barred under the "fruits of the poisonous tree" doctrine. People v. Gorsline, 47 AD2d 273 at 277 (3rd Dept 1975).

At a Huntley hearing, the Presentment Agency has the burden of proving the voluntariness of a statement beyond a reasonable doubt. People v. Huntley, 15 NY2d 72 (1965); People v. Witherspoon, 66 NY2d 973 (1965). The voluntariness of an inculpatory statement must be evaluated by examination of the totality of the circumstances under which it was made. People v. Thomas, 20 Misc 3d 1108(A) (Supreme Ct., Bronx 2008).

Having found that the police lacked reasonable suspicion to frisk Respondent's backpack and that, therefore, the subsequent search of the inner bag and seizure of the gun inside that bag were illegal, this Court concludes that Respondent's statement while inside the police vehicle was also illegal. While the Presentment Agency does not seek its admissibility, this Court's determination that it was obtained unlawfully is relevant to its analysis of the admissibility of the post-Miranda statement and its determination that the subsequent post-Miranda statement was the fruit of the illegal police intrusion.

Respondent was 14 years of age when he was arrested at approximately 1:00 o'clock in the morning. He was placed in a police vehicle and interrogated without being advised of his rights while being transported to a police precinct where he was processed and placed in a juvenile detention room until his mother's arrival at approximately 3:25 in the morning, he was then administered Miranda warnings and asked to make additional statements. The Presentment Agency argues that any taint was purged by the break in time between Respondent's first statement in the patrol car and the second, post-Miranda statement. This Court disagrees. That police waited for Respondent's mother to arrive at the precinct before administering Miranda warnings is of little consequence. The Miranda warnings and the statement that followed were links in a "continuous chain of events" without a "definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who [was] not under the influence of questioning." People v. Thomas, 20 Misc 3d 1108(A) (Supreme Ct., Bronx 2008), citing People v. Chapple, 38 NY2d 112 (1975) and People v. Bethea, 67 NY2d 364 (1986). Further, having already made inculpatory statements earlier, Respondent may well have felt that the proverbial cat was out of the bag and thereby pressured to waive his rights after they were finally read to him. As the Court of Appeals has noted, "[a] man who makes admissions under duress or in violation of his constitutional right to warnings and advice may feel so committed by what he has then said that he believes it futile to assert his rights after he [*8]has been later advised of them before new questioning begins. This state of mind may have an effect on the waiver leading to the later admissions; or on the voluntary nature of those admissions." People v. Tanner, 30 NY2d 102 at 105 and 106. That Respondent was only 14 at the time of these events and that they transpired in the early morning hours rendered him particularly susceptible to the pressure from the illegal police intrusion. Accordingly, the statement made by Respondent at the police station is suppressed.

The above constitutes the decision and order of this Court.

E N T E R: