The following constitutes findings of fact and conclusions of law as to a Huntley-Mapp-Dunaway Hearing held before me. The hearing raised numerous legal issues, including the distinction between primary and secondary evidence and its interplay with the inevitable disclosure exception to the exclusionary rule.^[FN1] Because the controlled substances at issue constitute primary evidence obtained as the result of an illegal search, they are suppressed. Suppression is denied as to the carton of allegedly untaxed cigarettes, as they were found in plain view, and not as a result of an illegal search. Suppression is also denied as to Defendant's statement, as it was made in response to investigatory questioning before a reasonable person in his position would have believed he was not free to leave.

The sole witness was Detective Steven Gordon, called by the People. The defense did not call any witnesses. The Court found Det. Gordon to be a credible witness, and further finds that his testimony was not tailored in any way. Det. Gordon testified that he has been a member of the NYPD for about 8 ½ years, assigned to Brooklyn South Narcotics for the past two-and-a-half years, and has made over 300 arrests, over 150 of which were for controlled substances, and has assisted in over 1000 arrests for controlled substances. (Hr'g Transcript ("Tr.") 17-18, October 24, 2012.) He has received training in identification and field testing analysis of narcotics. (Tr. 18.)

On November 16, 2011, he was working a night tour, approximately 3:30 PM to midnight, in plainclothes as the passenger using an unmarked car with his partner, Detective Donohue. (Tr. 19.) At that time, he was near the intersection of Avenue U and East 12th Street in Brooklyn, which he described as not a drug-prone location and not a location where he previously made arrests (Tr. 36), but one with which he was familiar solely because he lives "around there" (Tr. 20:21). The location was not on his tactical plan for the evening, and he could not give a definitive reason as to why he was there. (Tr. 20, 56-57.) [*2]

At about 9:40 on a rainy night, while his unmarked car was in motion (Tr. 30), Det. Gordon observed an unidentified man (hereinafter the "Cell Phone Man") walking back and forth along a portion of Avenue U with no street lights (Tr. 33-34, 45) but lit by vehicle headlights and commercial store lights such that he could "see everything." (Tr. 52-53.) Det. Gordon observed the man making several calls on his cell phone, looking up and down the street, as if for a car (Tr. 21, 38), for about ten to fifteen minutes (Tr. 53-54). Detectives Gordon and Donohue then split up, with Detective Gordon proceeding on foot to a bench in front of a laundromat across the street from the Cell Phone Man (Tr. 32), while Detective Donohue remained in the car, now parked on a side street facing Avenue U. (Tr. 31).

Shortly thereafter, the Defendant pulled up in an automobile, stopped his car, and was approached by Cell Phone Man. Defendant then exited his vehicle, opened the trunk and both men met at the trunk. At that time, Det. Gordon called Det. Donohue on his cell phone, and told him to meet at Defendant's vehicle. (Tr. 23.) Det. Gordon observed Cell Phone Man hand Defendant a sum of currency, and observed Defendant with his hand in his pocket (Tr. 23), at which time he frisked Defendant for weapons and found a jewelry box, which Det. Gordon opened and discovered to contain controlled substances. (Tr. 24, 27.) He also observed a carton of cigarettes in the open car trunk, and testified that after identifying himself as a police officer, in response to his inquiries "what's going on?" and what he was doing at the location (Tr. 44), Defendant allegedly responded that he was "selling the cell phone male cigarettes, untaxed cigarettes" (Tr. 25:17).

Perhaps not surprisingly, the precise order of events is somewhat ambiguous. It appears that Det. Gordon started across Avenue U towards the Defendant as soon as he saw Defendant exit his vehicle and walk to the vehicle's trunk ( Tr. 40), which was immediately upon Defendant pulling into the location. (Id.) It is unclear as to whether the Defendant and Cell Phone Man had started to converse before Det. Gordon began his approach (compare Tr. 40:21, with Tr. 40:24-41:3), but Det. Gordon testified that the exchange of money between the two occurred as the Detective approached. (Tr. 42:3-7.) Defendant put the money in his pocket and kept his hand in his pocket. Det. Gordon was then alongside Defendant, who remained with his hand in his pocket, as Det. Gordon identified himself. (Tr. 43-44.) At that point, Defendant removed his hand from his pocket, Det. Gordon frisked Defendant (Tr. 46), and recovered the jewelry box (Tr. 47). Asked to describe the recovery, Det. Gordon stated that he "felt the object, I removed it from his pocket, and I opened it up and I saw there were pills inside of it." (Tr. 48:18-19.)

While Det. Gordon initially testified that the jewelry box was "as big as my hand," and approximately five inches (Tr. 49), when it was introduced into evidence as People's Exhibit B, all parties stipulated that it actually measured two inches by one-and-a-half inches. (See Hr'g Transcript ("November Hr'g Tr.") 15, Nov. 20, 2012).^[FN2] After Det. Gordon opened the box and found pills, which, based on his training and experience, he recognized to be controlled substances, he placed Defendant in handcuffs (Tr. 49), but Cell Phone Man was not arrested because, in Det. Gordon's opinion, he had not committed any crime (Tr. 49-50). [*3]

Det. Gordon stated that the reason for the frisk was for his safety, as well as the Defendant's safety, based on his training that when someone's hand is in their pocket during an approach, the person should be told to take their hand out of their pocket and then be frisked. (Tr. 55.) He did not articulate any particularized suspicion that Defendant had a weapon, nor did he state that when he felt a bulge in Defendant's pocket, which upon removal proved to be a jewelry box, he suspected that it was a weapon.

Defendant was arraigned on narcotics felonies. The felonies were dismissed on the People's motion on February 23, 2012, leaving only the misdemeanor charge of Criminal Possession of a Controlled Substance in the Seventh Degree, PL § 220.03. At the commencement of the hearing, the People further reduced that charge to PL § 110/220.03, a Class B misdemeanor. However, after both sides rested on the hearing and submitted post-hearing memoranda, the People served a superseding information charging Tax Law § 1814, an unclassified misdemeanor, in addition to the drug charge. The Court then re-opened the hearing for additional testimony on Defendant's application for suppression of the allegedly untaxed cigarettes. The Court ruled that it would consider all of the prior testimony as well in regard to suppression of the untaxed cigarettes.

The People re-called Det. Gordon, who further testified that he had no training in the identification of untaxed cigarettes, although he had seen them around at the police precinct. The carton of "Newport 100's" as well as the jewelry box recovered from Defendant were introduced into evidence. Det. Gordon testified that he saw the cigarettes in plain view in the trunk of Defendant's vehicle only after he frisked Defendant and opened the pill box. (November Hr'g Tr. 16:14-18 (Q. "So it was only after you frisked him that you saw [the cigarettes]? A. Yes. Q. And it was only after you recovered this item that you saw those cigarettes? A. Yes.").) He further testified that the cigarettes were in the trunk of Defendant's car, and he could not ascertain whether there were tax stamps on the bottom of the carton, which rested on the trunk floor, until he reached into the trunk and removed the carton. (November Hr'g Tr. 25:23-26:1.)^[FN3]

Det. Gordon was questioned in some detail as to the timing of his seeing the cigarettes, and several times he reiterated that he did not see them until after he frisked Defendant. (See November Hr'g Tr. 16:9-18, 17:7-16, 26:16-20.) Also introduced into evidence was a voucher for $377, which Det. Gordon testified was recovered from Defendant, notwithstanding indications on the voucher that its contents were recovered from a person born in 1991, and therefore decades younger than Defendant. (November Hr'g Tr. 36:22-37:21.)

Relying mainly on People v. Hollman, 79 NY2d 181, 581 N.Y.S.2d 619 (1992) and its progeny,Defendant contends, in essence, that none of the police activity, starting with Det. Gordon's initial approach and questioning of Defendant, was supported by the requisite level of cause. The People argue that good grounds, as articulated by People v. DeBour, 40 NY2d 210, 352 N.E.2d 562 (1976), exist to support each level of Det. Gordon's actions, and further argue that even if the search was improper, the contraband should be admissible under the inevitable discovery doctrine as set forth in People v. Fitzpatrick, 32 NY2d 499, 300 N.E.2d 139, 346 [*4]N.Y.S.2d 793 (1973).

People v. DeBour articulates four distinct stages of police intrusiveness. Our analysis starts with the first two stages: first, a request for information, which must be supported by an objective, credible reason, albeit not necessarily indicative of criminality; and second, the common law right of inquiry, which requires "a founded suspicion that criminal activity is afoot." DeBour, 40 NY2d at 223, 352 N.E.2d at 572. The undisputed facts herein clearly are sufficient to meet the threshold for both Level 1 and Level 2 under DeBour. Det. Gordon, a trained and experienced narcotics officer, observed Cell Phone Man, walking up and down the street for a period of 10-15 minutes while making several calls on his cell phone and looking up and down the street, as though anticipating the arrival of a car, at 9:40 PM on a rainy Sunday night.

However, Det. Gordon did nothing more than observe until Defendant pulled up in his vehicle, opened the trunk, and was handed currency by Cell Phone Man. These actions were sufficient to support both a Level 1 request for information and a Level 2 common law right of inquiry, in that Det. Gordon now had a founded suspicion that criminal activity was afoot, whether a drug transaction, a common indicia of which is a hand-to-hand exchange, or, as turned out to be the case, something else.

Defendant argues that the moment in time that is relevant to determine the propriety of Det. Gordon's actions is when he arose from his seat on a bench across the street from Defendant. The Court disagrees. The Court knows of no law, and none is contained in Hollman or any other case cited by Defendant, so holding. Rather, the time relevant to determine whether Det. Gordon's actions were proper is that moment when he first interacted with Defendant after crossing the street, and thereafter during their interaction. Accordingly, Det. Gordon's approach of Defendant and inquiry as to what Defendant was doing was proper. Moreover, as Det. Gordon merely displayed his shield, and did not have his weapon drawn or make any promises or threats, a reasonable person in Defendant's position would not have then believed that he was in custody. The Court accordingly holds that the questioning of Defendant was investigatory, not custodial, so as not to require Miranda warnings, and denies Defendant's motion to suppress his oral statement to Det. Gordon to the effect that he was selling cigarettes.

The next relevant event is Det. Gordon's frisk of Defendant. The Court holds that in the circumstances set forth above, the frisk, which Det. Gordon stated was done for his safety, was proper, albeit unquestionably more intrusive than the request for information and common law inquiry permitted pursuant to Levels 1 and 2 of DeBour. See CPL § 140.50; DeBour, 40 NY2d at 223, 352 N.E.2d at 572.

From this point on, the actions of Det. Gordon become more problematical. The frisk revealed a hard object. Nevertheless, Det. Gordon did not testify that it felt like a weapon, or that he thought it might be a weapon. Moreover, while he initially testified it was the size of his hand, perhaps five inches (Tr. 49), it proved to measure only one-and-a-half inches by two inches, and upon being shown the jewelry box, he agreed that it was far smaller than his hand. (November Hr'g Tr. 15.) While there is no requirement that officers in the field be able to precisely estimate the size of objects found during a frisk, the determinative factor is the lack of any testimony that Det. Gordon believed the hard object to possibly be a weapon. The right to frisk does not automatically carry with it the right to remove any object located by the frisk; rather the right to [*5]remove requires a further basis, beyond that offered for the frisk. See People v. Montero, 149 AD2d 628, 540 N.Y.S.2d 294 (2d Dept. 1989). From the testimony, and the lack of testimony that the hard object might have been a weapon, the Court is constrained to conclude that there was no basis for Det. Gordon to have removed what turned out to be a one-and-a-half inch by two inchesjewelry box from Defendant's pocket. It follows that Det. Gordon lacked any legal basis to have opened the jewelry box at the time he did so, after removing it from Defendant's pocket. But that is not the end of our analysis.

Once Defendant stated that he was selling cigarettes, and, just a few seconds after he frisked and arrested Defendant, Det. Gordon observed a carton of cigarettes in plain view in the trunk of Defendant's automobile. (November Hr'g Tr. 17:10-11.) Leaving aside the drugs found in the jewelry box, Det. Gordon then had reasonable suspicion that Defendant was involved in a misdemeanor, to wit, selling untaxed cigarettes, therefore meeting the Level 3 standard under DeBour, permitting him to forcibly stop and detain Defendant, even had he not already done so. Although Det. Gordon lacked any training or experience in identifying untaxed cigarettes, other than seeing them around at the precinct, the totality of the circumstances were sufficient to support Det. Gordon's removal of the carton of Newport 100's from the trunk of Defendant's automobile. In addition to Defendant's statement, as testified to by Det. Gordon, that he was selling untaxed cigarettes, it is readily apparent that cigarettes are not commonly sold out of the trunk of an automobile at 9:40 PM on a rainy Sunday night by a person who appeared to have been brought to the location by a telephone call from the purchaser.

Defendant correctly notes that even crediting the testimony, Det. Gordon could not have ascertained whether the cigarettes bore the requisite tax stamps without first removing them from the trunk and checking the bottom of the carton, which was resting in plain view on the floor of the trunk and thus impossible for Det. Gordon to have viewed without removing the carton, if not also removing the individual packs of cigarettes from the car trunk.^[FN4] Defendant further notes that while Det. Gordon is a trained narcotics officer, he had neither training nor experience in identifying untaxed cigarettes. Nevertheless, the Court holds that Defendant's statement together with the highly irregular circumstances of the sale are sufficient to meet both Level 3 and Level 4 of DeBour and justify the arrest of Defendant for the sale of untaxed cigarettes.

Defendant argues that even after Det. Gordon examined the carton of cigarettes, he had no way of ascertaining that the individual packs did not contain the requisite tax stamps, as he did not open the carton. (November Hr'g Tr. 18.) This argument misses the mark because all that was needed for the arrest was probable cause, not proof beyond a reasonable doubt as will be required at trial. The Court holds that the totality of the circumstances — including Defendant's statement, Det. Gordon's observation of the carton of cigarettes, and the unusual time and place of the transaction — were sufficient to provide probable cause to arrest Defendant for violation of Tax Law § 1814.

However, Defendant was not arrested for sale or possession of untaxed cigarettes, but rather for narcotics felonies. The Tax Law charges were not added until after the hearing had [*6]commenced. Nevertheless, it is well settled that the Court is not bound by the subjective assessment of the officers at the time of arrest, as long as probable cause existed at the time of arrest, even if the officer did not intend to arrest on those grounds. People v. Reid, —- N.Y.S.2d ——, 2013 WL 28250, 2013 NY Slip Op. 00026 (1st Dept. Jan. 3, 2013), citing People v. Robinson, 271 AD2d 17, 711 N.Y.S.2d 384 (1st Dept. 2000) aff'd 97 NY2d 341 (2001).

The People's ultimate argument with regard to the controlled substances rests on the inevitable discovery rule; that is, even if the frisk and search of Defendant were illegal, the controlled substances would have been inevitably discovered upon a search incident to Defendant's arrest on Tax Law charges regarding the allegedly untaxed carton of cigarettes found in the trunk of his vehicle. Under this theory, had Det. Gordon not frisked Defendant before seeing the cigarettes in Defendant's trunk, once Det. Gordon saw the cigarettes, giving him probable cause to arrest Defendant for the Tax Law charges, he would have been justified not only in frisking Defendant, but in removing the contents of Defendant's pockets and opening the jewelry box, which would have led in turn to the discovery of controlled substances, albeit at a point in time later than that when he did so.

In response, Defendant argues that the drugs constitute primary as opposed to secondary evidence, see People v. Turriago, 90 NY2d 77, 659 N.Y.S.2d 183 (1997), in other words, evidence discovered as the direct result of an illegal search, not subject to the inevitable discovery rule, and which can never be admissible. See People v. Brandon, 149 AD2d 907, 540 N.Y.S.2d 43 (4th Dept 1989) (objects found during illegal search suppressed even though moments after search there was probable cause to justify arrest and full search which would have uncovered objects).

The inevitable discovery rule, recognized by the U.S. Supreme Court in Nix v. Williams, 467 U.S. 431 (1984) and by our Court of Appeals in People v. Fitzpatrick, 32 NY2d 499, 300 N.E.2d 139, 346 N.Y.S.2d 793 (1973), holds that where the People demonstrate a very high probability that evidence illegally obtained would have been inevitably lawfully obtained by means other than the illegal police conduct, the evidence will not be suppressed. The rationale sometimes offered for this rule is that the illegal police conduct should not be allowed to put the defendant in a position better than that if it had not occurred, or, as one commentator observed, for the defendant not "to receive an undeserved and socially undesirable bonanza." Wayne R. Lafave, Search and Seizure, § 11.4(a) at 269 (West 4th ed. 2004) (citing Robert F. Maguire, How to Unpoison the Fruit — The Fourth Amendment and the Exclusionary Rule, 55 J.Crim.L.C. & P.S. 307, 317 (1964)). In New York, the rule is " based on the perception that in certain circumstances the interest of society is better served by having relevant and material evidence admitted in criminal cases than by deterring police misconduct through the exclusion of evidence unlawfully acquired." People v. Stith, 69 NY2d 313, 318, 506 N.E.2d 911, 514 N.Y.S.2d 201, 203-4 (1987).

While the inevitable discovery rule is most frequently applied to secondary evidence — that is, evidence indirectly obtained as a result of the illegal police conduct — some jurisdictions also apply the rule to primary evidence — that discovered directly by the illegal search or other conduct. Lafave, Search and Seizure, § 11.4(a) at 265-66; see, e.g., United States v. Zapata, 18 F.3d 971 (1st Cir. 1994). New York has not gone so far, and applies the rule only to secondary evidence. Thus, in People v. Stith, the Court of Appeals noted that "our court has never applied [*7]the rule where, as here, the evidence sought to be suppressed is the very evidence obtained in the illegal search," 69 NY2d at 318, 514 N.Y.S.2d at 204, and in reversing the lower court's denial of suppression, noted that

when the inevitable discovery rule is applied to primary evidence, as was done [by the lower court] here, the result is quite different. It is the tainted evidence itself and not the product of that evidence which is saved from exclusion. Permitting its admission in evidence effects what amounts to an after-the-fact purging of the initial wrongful conduct, and it can never be claimed that a lapse of time or the occurrence of intervening events has attenuated the connection between the evidence ultimately acquired and the initial misconduct. The illegal conduct and the seizure of the evidence are one and the same. We hold that applying the inevitable discovery rule in these circumstances, and effecting what would amount to a post hoc rationalization of the initial wrong would be an unacceptable dilution of the exclusionary rule. It would defeat a primary purpose of that rule, deterrence of police misconduct.

Stith, 69 NY2d at 318-19, 514 N.Y.S.2d at 204 (citations omitted).

Our courts have been steadfast in maintaining the application of the inevitable discovery rule to only secondary, and not primary evidence. In People v. Turriago, 90 NY2d 77, 681 N.E.2d 350, 659 N.Y.S.2d 183 (1997), the Court of Appeals, citing Stith, noted that as a matter of State constitutional law, "primary evidence, i.e., the very evidence obtained during or as the immediate consequence of the illegal conduct, would still be subject to exclusion even if it would most likely have been discovered in the course of routine police procedures." The Court of Appeals modified the lower court's suppression and remanded for a new hearing because the suppression court could have found that "incriminating secondary evidence, i.e., evidence not obtained during or as the immediate consequence of the invalid search would have been obtained by the police," 90 NY2d at 87, 659 N.Y.S.2d at 189, noting that Stith would not preclude the introduction of secondary evidence under the inevitable discovery exception to the exclusionary rule.

The rule was applied recently by the Appellate Division, Second Department, in People v. Julien, 100 AD3d 925, 954 N.Y.S.2d 201 (2d Dept. 2012), to suppress stolen credit cards recovered as the result of an illegal search. There, somewhat similar to our case, the defendant was searched based upon the officer's observation of a bulge in a back pocket of his tight-fitting pants, at a time when he had not yet been arrested. In reversing the defendant's convictions for larceny and criminal possession of stolen property based on the stolen credit card, the court held: "Moreover, despite the People's contention to the contrary, the card was not admissible pursuant to the inevitable discovery exception to the exclusionary rule, since the card constituted primary, rather than secondary evidence." Julien, 100 AD3d at 927; see also, People v. Crespo, 29 Misc 2d 1203(a), 2010 WL 3808691 (Sup. Ct. NY Co. 2010) (suppressing primary evidence found as result of illegal search, but denying suppression as to secondary evidence).

In our case, there is little doubt that had Defendant not been illegally searched, but rather arrested only after Det. Gordon saw the cigarettes in the trunk of Defendant's car, he would have then been searched incident to arrest, and there is a very high probability, if not a certainty, that the drugs in his jewelry box would have been discovered. Nevertheless, under our law, the drugs must be suppressed as constituting primary evidence obtained as a result of the search that was [*8]illegal at the time it was made. As in Stith, here the "illegal conduct and the seizure of the evidence are one and the same," and "permitting its admission in evidence effects what amounts to an after-the-fact purging of the initial wrongful conduct." Stith, 69 NY2d at 319, 514 N.Y.S.2d at 204.

Moreover, the Court notes that Defendant was arrested immediately, and only upon Det. Gordon opening the jewelry box and finding pills. (Tr. 49:20-22.) Thus, the Court finds the pills seized from the Defendant to constitute primary evidence, which must be suppressed. However, the cigarettes, which were in plain view, and the seizure of which was unrelated to the illegal search of Defendant, need not be suppressed.^[FN5] Suppression is also denied as to Defendant's alleged statement, for which CPL § 710.30(1)(a) notice was timely served.

One final issue remains. Defendant was not arrested for possession of untaxed cigarettes, but only for possession of controlled substances. Moreover, he was not charged with possession of untaxed cigarettes until the filing of a superseding information after both sides rested on the hearing, and the Court was about to hear closing arguments by counsel. As noted above, upon service of the superseding information, the Court re-opened the hearing for further testimony regarding suppression of the cigarettes, followed by closing arguments.

It is well-settled that the People may file a superseding information at any time prior to trial. CPL § 100.15. While their timing in this case has undoubtedly led to extra expenditure of judicial resources, given that there has been no reason set forth as to why they did not charge the Tax Law misdemeanor in the original complaint, or in the many months the case was pending before proceeding to hearing, the addition of the Tax Law count does not appear to be frivolous or to have been added for delay or any other improper purpose, although the supersede appears to put the People in a better tactical position than they would be without it. In view of the wording of the statute, allowing the People to supersede at any time prior to trial, the court accepted the supercede, albeit made during the hearing, notwithstanding the complications it caused.

It is also well-settled that it is not necessary for the People to charge every matter for which an arrest is made. It is within the discretion of the prosecutor as to the charges which are brought once a person is arrested. See CPL § 30.10(3)(d); People v. Di Falco, 44 NY2d 482, 406 N.Y.S.2d 279, 377 N.E.2d 732 (1978); People v. Bowman, 88 Misc 2d 50, 387 N.Y.S.2d 982 (Crim. Ct. NY Co.1976). For whatever reason the prosecutor chose not to initially charge violation of the Tax Law regarding untaxed cigarettes, the facts as found by the Court justified Defendant's arrest for that charge.

Defendant's motion is DENIED, in part, and GRANTED in part. Suppression is denied as to: a) Defendant's statement to Det. Gordon for which CPL § 710.30(1)(a) notice was served; and b) the carton of cigarettes recovered from the trunk of Defendant's automobile. Suppression is granted as to the jewelry box and pills from inside the jewelry box recovered from Defendant's person. Probable cause is found for the arrest of Defendant. Defendant's right to make future [*9]motions pursuant to statute is reserved.

This constitutes the decision and order of this Court.

Dated:January 16, 2013

Brooklyn, New York

______________________________

MICHAEL GERSTEIN, J.C.C.