Defendant is charged with Attempted Resisting Arrest (PL Sec. 110/205.30), and Criminal Possession of Marijuana in the Fifth Degree, both Class B Misdemeanors, as well as Unlawful Possession of Marijuana (PL Sec. 221.05), a violation.^[FN1]

On the consent of the People, a hearing was held in this matter on October 19, 2012 and November 13, 2012, pursuant to People v. Dunaway, 442 US 200, 99 S Ct 2248, 60 L Ed2d 824 (1979), Mapp v. Ohio, 367 US 643, 81 S Ct 1684, 6 L Ed2d 1081 (1961), and People v. Huntley, 15 NY2d 72, 255 NYS2d 838 (1965).

At the hearing, the People offered the testimony of two witnesses; Sergeant Robert Maloney, and Police Officer William Camacho. The Defense offered the testimony of one witness, Denisha Stamp. [*2]

The Court has also reviewed the Court file, Defendant's Memorandum of Law dated October 22, 2012, the People's Response and Memorandum of Law dated December 20, 2012, and Defendant's Reply Memorandum of Law dated January 7, 2013.

Based upon the testimonial evidence offered by the People at the hearing, this Court finds both the Sergeant and the Officer credible. However, the Court finds that the police lacked probable cause for the arrest of the Defendant, making the entry into the Defendant's apartment, and his subsequent arrest therein, illegal.

Therefore, the evidence seized by the police, that being the physical evidence recovered from the Defendant's person, and any statements made by the Defendant at the time of his arrest, must be suppressed.

The Court makes the following specific findings of fact:

Sergeant Robert Maloney testified that he is assigned to the 77 Precinct. See, Transcript of Hearing dated October 19, 2012, p 5. He has made approximately "a few hundred" arrests for criminal possession of marijuana in his ten and one half year career with the New York City Police Department, and has received training in the identification of marijuana. See, Transcript of Hearing dated October 19, 2012, p 5-6.

On May 5, 2011, he was assigned to an "Observation Point" to "watch drug locations for people exchanging money or currency for narcotics or narcotics use." See, Transcript of Hearing dated October 19, 2012, p 8. While engaged in that activity, "(w)e were given a radio transmission...that inside of an apartment building there was a group of people smoking marijuana in the lobby." See, Transcript of Hearing dated October 19, 2012, p 8. The location was given as 1018 Park Place, Brooklyn, New York. See, Transcript of Hearing dated October 19, 2012, p 8.

Having received this call at approximately 4:00 PM, the Sergeant arrived at the above-described location a short while later, and observed "a few people inside the lobby. There was a strong odor of marijuana and we spoke to these individuals." See, Transcript of Hearing dated October 19, 2012, p 9.

At this time, the Sergeant "went up the first few steps into the...first floor. I stood at the bottom of the stairs making sure I had vision to the top of the stairs and to my officers in part of the lobby." See, Transcript of Hearing dated October 19, 2012, p 10. He then observed "an individual come to the top part of the landing of the stairs...the individual had a plastic ziplock in his hand and when the individual saw me, he put his hands down near his side. I started to approach the individual, when I just asked him, hey, do you live in the building, because I wanted to get a closer look at the ziplock bag. At that point, the individual took off running." See, Transcript of Hearing dated October 19, 2012, p 10. The Sergeant identified this individual as the Defendant. See, Transcript of Hearing dated October 19, 2012, p. 11. [*3]

The Sergeant chased after the Defendant, who then "proceeded into an apartment, tried to close the door on me, but I was able to get to the door before it closed. So I kept pushing on the door to get it opened. He kept pushing on it to close it."See, Transcript of Hearing dated October 19, 2012, p. 13. After being joined by Officer Camacho, and a Lieutenant O'Keefe, the police gained entry to the apartment, and "attempted to place the defendant under arrest...the defendant fought with me, both my lieutenant and then my officer. Eventually we were able to place him under arrest."See, Transcript of Hearing dated October 19, 2012, p. 14.

A search of the Defendant's person was conducted at the location of his arrest, and he was "placed under arrest for possession of marijuana, resisting arrest."See, Transcript of Hearing dated October 19, 2012, p. 15.

On cross examination, the Sergeant described the ziplock bag he observed in Defendant's hand as "small. It wasn't like a sandwich bag," approximately "an inch by inch."See, Transcript of Hearing dated October 19, 2012, p. 17. He also confirmed that the Defendant resided in the apartment where he was arrested.See, Transcript of Hearing dated October 19, 2012, p. 20.

The People's next witness, Police Officer William Camacho, has been employed with the NYPD for approximately "eight and a half years." He has participated in "hundreds" of marijuana arrests, and has also received training in the identification of marijuana. See, Transcript of Hearing dated October 19, 2012, p 31. On May 5, 2011, he was assigned to the "catch car...when they put a description over, we go apprehend whoever they put over."See, Transcript of Hearing dated October 19, 2012, p. 33. Working with Sergeant Maloney and Lieutenant O'Keefe, "(w)e were in the vicinity of 1018 Park Place. We received a communication...to go into this particular building." See, Transcript of Hearing dated October 19, 2012, p. 33.

Upon arrival and entry, he observed "two individuals there who I was speaking to and my sergeant proceeded to go up to the top of the steps...as I am speaking to them, I see my sergeant running."See, Transcript of Hearing dated October 19, 2012, p. 35. Officer Camacho "took off right behind him. I went up the stairs and we came to the next floor where he was trying to - he was pushing the door from this apartment...someone was pushing it from the inside. My sergeant was pushing it from the outside."See, Transcript of Hearing dated October 19, 2012, p. 35.-36.

After gaining entry to the apartment, Officer Camacho stated that he "got into a struggle" with the defendant, who was located in the living room of the apartment, "because he wouldn't give me his hands. Didn't want to give me his hand. At one point I brought him down to the ground. He was cuffed. That was the end of it."See, Transcript of Hearing dated October 19, 2012, p. 37. At that point, the Defendant was arrested, and the Officer recovered a "ziplock of marijuana" from the Defendant's "pants pocket."See, Transcript of Hearing dated October 19, 2012, p. 38. The Officer also noted that "before we left the location (Defendant) kept making the [*4]statement, it was only marijuana, it was only marijuana."See, Transcript of Hearing dated October 19, 2012, p. 39.

Based upon these substantially uncontroverted facts, the Court makes the following findings;

In this matter, both the Sergeant and the Police Officer were credible. However, while the credibility of the testimony of the People's witnesses is not in dispute, the legality of their actions is subject to question.

Sergeant Maloney testified that he observed an item in the Defendant's hand. Significant to our analysis, the Sergeant never stated that he knew, or even believed, that the bag contained any contraband. In fact, Sergeant Maloney clearly stated that he approached and questioned the Defendant "because I wanted to get a closer look at the ziplock bag." See, Transcript of Hearing dated October 19, 2012, p 10 (emphasis added).

The People assert that Sergeant Maloney had probable cause to stop the Defendant, based upon the Sergeant's observation of the Defendant "holding the common packaging of marijuana, in a building where people were using marijuana shortly before, and in a building which smelled of marijuana." See, People's Memorandum of Law, attached to their Response dated December 20, 2012, p 10. This argument depends on several assumptions which are not supported by the facts.

Sergeant Maloney and Officer Camacho both testified that they went to 1018 Park Place, Brooklyn, New York to answer a report that individuals were smoking marijuana in the lobby of that location. See, Transcript of Hearing dated October 19, 2012, p 8, 33. Upon arrival, they observed two individuals in the lobby, and the smell of marijuana. See, Transcript of Hearing dated October 19, 2012, p 9.

However, Defendant was not observed in either the lobby, or in association with these two unidentified individuals, who were apparently not arrested for any offense. Defendant was reportedly at the top of the stairs leading to the first floor, and not in the lobby at the time the Sergeant first observed him, holding a bag the contents of which the Sergeant could not identify.

On this basis, at best, Sergeant Maloney had an objective credible reason to approach and "inquir(e) as to (Defendant's) identity...the attendant circumstances were sufficient to arouse the officers' interest" in the Defendant. See, People v. DeBour, 40 NY2d 210, 220, 386 NYS2d 375 (1976). Under this level of inquiry, the Sergeant was permitted to ask the defendant whether or not he resided in the building.

At this stage of the Sergeant's investigation, however, "the notion that behavior which is susceptible of innocent as well as culpable interpretation" applies to the facts of this case. 40 NY2d at 216. Thus, while the ziplock bag observed in Defendant's hand may be commonly used in the packaging of marijuana, it can also be used for the packaging of many non-contraband [*5]substances.

Further, at this level of inquiry, a defendant has the right to refuse to cooperate, and can walk, or even run away. "Police pursuit of an individual significantly impede(s)' the person's freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed." See, People v. Holmes, 81 NY2d 1056, 1057-1058, 601 NYS2d 459 (1993) (citation omitted); People v. Hollman, 79 NY2d 181, 190, 581 NYS2d 619 (1992).

In an effort to ascertain the contents of the ziplock bag, Sergeant Maloney chased the Defendant, an action without support in the law. "While the police may have had an objective credible reason to approach defendant to request information...those circumstances, taken together with defendant's flight, could not justify the significantly greater intrusion of police pursuit." See, Holmes, 81 NY2d at 1058.

Without probable cause for an arrest, the police then had absolutely no authority to chase the Defendant, nor to enter his apartment. See, Payton v. New York, 445 US 573, 100 S Ct 1371, 63 L Ed2d 639 (1980); Welsh v. Wisconsin, 466 US 740, 104 S Ct 2091, 80 L Ed2d 732 (1984).

Therefore, in the absence of probable cause for the warrantless entry into the defendant's home, the evidence collected by the police must be suppressed. See, Wong Sun v. United States, 371 US 471, 488, 83 S Ct 407, 9 L Ed2d 441 (1963).

All other arguments advanced by the People and Defendant have been reviewed and rejected by this Court as being without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Brooklyn, New YorkFebruary 25, 2013

_______________________________Hon. John H. Wilson, JCC