By Indictment 7292/2017, defendant Paul Moore is charged with rape in the first degree and other related charges. The People seek an order, pursuant to Criminal Procedure Law §240.40(2)(b)(v), permitting them to take from the body of the defendant a buccal swab sample for testing and analysis.Defendant opposes the motion for a buccal swab and cross-moves for an order suppressing any and all physical evidence recovered, including organic materials and DNA profiles generated. Specifically, defendant argues that the pseudo exemplar containing defendant’s DNA that was used to identify him as the perpetrator of the instant charges was unlawfully obtained by the police as the fruit of an unlawful arrest and must be suppressed. The People argue that the pseudo exemplar was abandoned by defendant.The Court initially granted the motion to compel the buccal swab; however, the Court held the decision in abeyance pending an “abandonment” hearing that was consented to by the People. A hearing was conducted before this Court on June 22, 2018.For all of the reasons set forth herein, the Court grants the People’s motion for a buccal swab and denies defendant’s cross-motion to suppress the cigarette, including the DNA profile generated from the cigarette.Background and Procedural HistoryThe People allege that on August 30, 2015, at approximately 12:15 a.m., a female complainant was walking home alone from work in Kings County when she was approached by an unknown male. This male had a shirt covering most of his face. The male put his arm around the complainant’s neck and shoulder and instructed her to follow him. He told the complaint that he had a gun and that he was going to shoot her. Complainant observed the outline of a gun in the male’s pocket. She tried to give him her property, but he stated that he wanted “pussy.”The male perpetrator led the complainant to the back of a house. Complainant felt what she believed to be the gun pressed against her back. The perpetrator removed the complainant’s clothing and inserted his penis into her anus and vagina. He also touched his hands to her breasts and vagina. The perpetrator instructed the complainant not to tell anyone or he would kill her. He fled and thereafter, the complainant called her brother who called 911.Complainant went to the hospital and a sexual assault evidence kit was collected and sent to the Office of the Chief Medical Examiner (“OCME”) for testing and analysis. A male profile, Male Donor A, was determined from the vagina swab and other evidence from the sexual assault collection kit. The profile, Male Donor A, was uploaded to both the local databank and CODIS. However, the identity of the perpetrator remained unknown.On June 9, 2017, the defendant was arrested on an unrelated gun possession case in which it was alleged that defendant threw a gun while running away from the police. Several hours after being arrested, and while still in custody in the precinct, the defendant interacted with a Detective from the New York Police Department Gun Enhancement Unit. During that interaction, defendant smoked a cigarette that was ultimately collected and sent to the OCME for testing. Defendant was subsequently indicted for gun possession under indictment 7129/2017.After defendant’s indictment on the gun case, the defendant’s DNA profile was generated from the cigarette and uploaded into the local OCME databank. Defendant’s DNA profile generated from the cigarette matched the DNA profile of Male Donor A generated from the evidence in the sexual assault collection kit.The Grand Jury voted to indict the defendant under Indictment Number 7292/2017, charging the defendant with rape in the first degree, criminal sexual act in the first degree, and other related charges. As part of the presentation, the prosecution presented the evidence of the DNA match described above. In preparation for trial, the People sought a buccal swab from the defendant to compare the defendant’s known DNA sample to the DNA profiles that were generated from the evidence recovered from the sexual assault kit. On January 9, 2018, the Court granted the motion, finding probable cause based upon the match between the defendant’s DNA profile generated from the cigarette and the crime scene evidence (Matter of Abe A., 56 NY3d 288, 291[1982]).This Court found the grand jury minutes to be sufficient on February 1, 2018.On February 21, 2018, a Dunaway, Huntley, and Mapp hearing was held in Part GP28 before the Honorable John T. Hecht on indictment 7129/2017. By decision dated March 9, 2018, the court granted defendant’s motion to suppress physical evidence, specifically the gun and some clothing that defendant discarded while fleeing from the police. The Court held that “without reasonable suspicion that defendant was committing or about to commit a crime, the officers’ pursuit of him was unlawful and defendant’s disposal of the gun and clothing during the pursuit was precipitated by, and not attenuated from, the illegal police action” (People v. Moore, Sup Ct, Kings County, March 9, 2018, Hecht, J., Indictment No. 7129/2018 at 2). The Court also suppressed, as a fruit of the unlawful arrest, a statement made by the defendant immediately upon his arrest.The circumstances surrounding defendant’s interaction with the NYPD Gun Enhancement Unit and the retrieval of the cigarette defendant smoked in the precinct were not the subject of the suppression hearing conducted as part of indictment 7129/2017. By motion dated March 16, 2018, defendant moved to suppress the cigarette and the DNA profile generated from the cigarette before this Court.Hearing TestimonyThe People responded to defendant’s motion to suppress the cigarette and the DNA profile by letter dated April 16, 2018 in which the People consented to a hearing regarding the abandonment of the cigarette containing defendant’s DNA. This “abandonment” hearing was conducted on June 22, 2018. Detective Matthew Doherty (“Detective Doherty”) of the NYPD Gun Violence Suppression Division testified for the prosecution. The Court finds Detective Doherty credible and reliable, and makes the following findings of fact and conclusions of law based upon that testimony.Detective Doherty is a member of the New York Police Department assigned to the Gun Enhancement Unit (tr at 5-6). His responsibilities include assisting precinct detectives with gun arrest investigations and interviewing suspects (tr at 7). During an interview, Detective Doherty presents suspects with the opportunity to partake in a proffer agreement (tr at 7). Specifically, Detective Doherty advises suspects that they may avail themselves, through their lawyer, of the opportunity to proffer information regarding firearms, narcotics and other crimes (tr at 7-8). Detective Doherty testified that, generally, he will offer suspects food, drink and cigarettes during the interviews (tr at 8).On June 9, 2017, at approximately 11:30 a.m., Detective Doherty was assigned to defendant’s gun arrest (tr at 8-9). Detective Doherty spoke to Police Officer Vargas of the 73rd Precinct (tr at 9). Officer Vargas advised that defendant was arrested at approximately 1:00 a.m. on that same day for possessing a gun (tr at 10). Officer Vargas further advised that defendant refused to speak to police, but had not requested counsel (tr at 10, 15-16).Shortly thereafter, Detective Doherty went to 73rd Precinct with his team member, Detective Salas (tr at 14). They arrived at approximately 12:30 p.m. and met with Officer Vargas (tr at 14). Officer Vargas advised them that defendant refused an offer of food, water or a cigarette and he refused to leave the cell (tr at 10). Detective Doherty went to see defendant in the cells (tr at 11). He called out his name and defendant stood up. Detective Doherty introduced himself and asked defendant if he wanted to speak (tr at 11). Defendant agreed and Detective Doherty handcuffed him and brought him up to 73rd Precinct detective squad interview room (tr at 11).The room was empty except for a table, chairs and an ash tray on the table (tr at 12). Detective Doherty was alone in the room with defendant. Detective Salas waited outside (tr at 18). After they were seated, Detective Doherty introduced himself again and asked defendant if he wanted to speak about the gun arrest (tr at 12). Defendant declined (tr at 12). Detective Doherty began to explain to defendant that a proffer agreement is an opportunity to speak about any knowledge of firearms, narcotics or any other crimes (tr at 12). During this time, Detective Doherty had a box of cigarettes in his pocket (tr at 12). Defendant, without any prompting by the detective, asked for a cigarette (tr at 12-13). Defendant took the cigarette and smoked it (tr at 12).In response to the detective’s proffer explanation, defendant stated that “He can’t snitch” (tr at 13). The conversation ended and Detective Doherty asked defendant if he had any questions. Defendant stated “no.” He was placed back in handcuffs and returned to the cells (tr at 13). Defendant left behind the cigarette that he had just smoked (tr at 13). Detective Doherty placed the remaining cigarette in a paper security envelop and vouchered it for testing and analysis (tr at 13).Detective Doherty testified that he brings cigarettes for suspects to make them feel comfortable (tr at 21). He stated that suspects are not required to leave behind what has been offered to them but rather could bring a drink back to the cells or finish a cigarette and keep it (tr at 22). Detective Doherty stated that he knew defendant was under 21years of age but thought he was 18 years old at the time (tr at 21).Conclusions of Law(1) No Reasonable Expectation of Privacy/Abandoned PropertyThe underlying purpose of the exclusionary rule is to “deter future unlawful police conduct” and to “effectuate the Fourth Amendment’s proscription against unreasonable searches and seizures” (People v. Young, 55 NY2d 419, 424, 434 N.E. 2d 1068, 1071, 449 N.Y.S. 2d 701, 704 [1982]). The exclusionary rule is not a personal constitutional right of the party aggrieved, but rather “a judicially created remedy designed to safeguard Fourth Amendment rights generated through its deterrent effect” (Id. at 425 citing United States v. Calandra, 414 US 338, 348). In this context, the Court considers all of defendant’s arguments for exclusion herein.In order to invoke the exclusionary rule, a defendant must establish standing by showing a reasonable expectation of privacy in the object searched (People v. Ramirez-Portoreal, 88 NY2d 99, 108, 666 N.E.2d 207, 211, 643N.Y.S.2d 502, 506[1996]; People v. Wesley, 73 NY2d 351, 538 N.E.2d 76, 540 N.Y.S. 757[1989]; People v. Ayler, 5 Misc 3d 1020 (A), 799 N.Y.S. 2d 162 [Sup Ct Kings Ct. 2004] (Sullivan, J)). A reasonable expectation of privacy is established if defendant can show that he “seeks to preserve something as private” and that “society generally recognize[s] defendant’s expectation of privacy as reasonable.” (Ramirez-Portoreal, at 108). If an expectation of privacy is established, the burden shifts to the People to show that defendant voluntarily discarded or abandoned the property seized and thus waived a legitimate expectation of privacy (Id.)Here, the Court finds that defendant had no reasonable expectation of privacy in the cigarette obtained by police while defendant was detained in the 73rd Precinct interview room. First, the evidence at the hearing did not establish that the defendant subjectively exhibited an expectation of privacy in the cigarette by seeking to preserve it as private. Defendant asked the detective for a cigarette while in the interview room of the 73rd precinct. Defendant smoked the cigarette and left the remainder of the cigarette in the interview room when his interaction with the detective was over. None of defendant’s actions indicated that he had any expectation of privacy in the cigarette. Moreover, it is clear from the case law that society does not generally recognize, as reasonable, a defendant’s expectation of privacy in the cigarette, or the DNA derived therefrom, when a defendant is in custody (People v. Sterling, 57 AD3d 1110, 869 N.Y.S. 2d 288 [3d Dept 2008](no expectation of privacy in milk carton or genetic material collected while incarcerated); People v. Ayler, 5 Misc 3d 1020 (A), 799 NYS 2d 162 [Sup Ct Kings Co. 2004] (Sullivan, J.)(no reasonable expectation of privacy in cigarette left in interview room); People v. Barker, 195 Misc 2d 92, 757 N.Y.S. 2d 692 [Sup Ct Monroe Co. 2003](Connell, J.)(no reasonable expectation of privacy in spoon and results of DNA testing on the spoon provided to defendant with meal while detained by police)).Even if it could be argued that the defendant had an expectation of privacy in the cigarette and the DNA profile obtained, the People have met their burden to show that defendant voluntarily discarded or abandoned the cigarette and waived a legitimate expectation of privacy (People v. Ramirez-Portoreal, 88 NY2d 99, 108, 666 N.E.2d 207, 211, 643N.Y.S.2d 502, 506[1996]; People v. Wesley, 73 NY2d 351, 538 N.E.2d 76, 540 N.Y.S. 757[1989]). The evidence at the hearing clearly established that defendant asked the detective for a cigarette, smoked the cigarette and left the remainder of the cigarette in the interview room when he left. Further, defendant’s decision to abandon the cigarette was not due to any police misconduct (People v. Ramirez-Portoreal, at 110). There was no evidence at the hearing that the detective forced defendant to relinquish the cigarette before leaving the room and the detective testified that, generally, suspects are not required to leave behind what has been offered to them when being interviewed.Defendant’s argument that the Court should suppress the cigarette, and any analysis of DNA recovered from it, because the police acted unlawfully in giving defendant (who was 17-years old at the time) a cigarette is without merit (see People v. Cardona, 42 Misc 3d 194, 973 NYS 2d 915 (Crim Ct Bronx Co 2013 (Wilsson, J.). The Second Department has held that the police may engage in a ruse even with respect to a juvenile offender as long as it is “not coercive or so fundamentally unfair as to deny due process” (People v. LaGuerre, 29 AD3d 820, 822, 815 N.Y.S. 2d 211, 213 [2d Dept 2006] citing People v. Amador, 11 AD3d 473, 474, 782 N.Y.S.2d 371 [2004]). Here, the detective’s actions in permitting defendant to smoke a cigarette while being interviewed at the police precinct was not so fundamentally unfair as to deny him due process of the law.Accordingly, the Court finds that defendant had no reasonable expectation of privacy in the cigarette or the DNA derived therefrom; and alternatively, even if a reasonable expectation of privacy existed, defendant abandoned the cigarette. Thus, the exclusionary rule does not apply.(2) Fruit of the Poisonous TreeCiting Wong Sun v. United States (371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 [1963]), defendant further moves to exclude from evidence the cigarette, and the DNA profile derived therefrom as fruit of the poisonous tree since it was obtained by the police during defendant’s unlawful detention on an unrelated gun arrest. By decision dated March 9, 2018, in defendant’s unrelated gun case, Judge Hecht granted defendant’s motion to suppress physical evidence, including the gun, and defendant’s statement based upon a finding that the police lacked reasonable suspicion that defendant was engaged in criminal conduct.As defendant correctly asserts “even where abandoned…if the abandonment is coerced or precipitated by unlawful police activity, then the seized property may be suppressed because it constitutes ‘fruit’ of the poisonous tree” (People v. Ramirez-Portoreal ay 110). However, evidence obtained through illegal police action is not automatically subject to exclusion (see People v. Bradford, 15 NY3d 329, 333, 937 N.E.2d 528, 910 N.Y.S.2d 771 [2010]).”The application of the exclusionary rule requires a commonsense appraisal of whether the suppression of the challenged evidence will remove in the future the motive for similar improper police conduct” (People v. Rogers, 52 NY2d 527, 535, 421 N.E.2d 491, 439 N.Y.S.2d 96 [1981], cert denied 454 U.S. 898, 102 S. Ct. 399, 70 L. Ed. 2d 214 [1981]).Here, the Court does not find that the cigarette and DNA sample are subject to automatic exclusion since the “chain of causation leading from the illegal activity to the challenged evidence” is so attenuated that the taint of the original illegality is removed (People v. Palmer, 161 AD3d 1291, 77 NYS3d 557 [3d Dept 2018] citing People v. Rogers, 52 NY2d at 532-533; People v. Richardson, 9 AD3d 783, 788, 781 N.Y.S.2d 381 [2004], lv denied 3 NY3d 680, 817 N.E.2d 836, 784 N.Y.S.2d 18 [2004]). In order to determine whether attenuation exists, the court must “consider the temporal proximity of the arrest and [the evidence at issue], the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct” (People v. Bradford, 15 NY3d 329, 333, 937 N.E.2d 528, 910 N.Y.S.2d 771 [2010] quoting People v. Conyers, 68 NY2d 982, 983, 503 N.E.2d 108, 510 N.Y.S.2d 552 [1986]).Defendant was arrested on a gun possession charge at approximately 1:00 a.m. on June 9, 2017. He was held at the 73rd Precinct where he refused to speak to officers from that precinct about the circumstances surrounding his arrest. Detective Doherty, of the Gun Violence Suppression Division, met with defendant at 12:30 p.m., approximately eleven and one half hours after defendant’s arrest. Defendant again refused to discuss the underlying gun case. According to Detective Doherty, his role was to advise defendant of an opportunity in the future to provide the police with information, or a proffer, once defendant was represented by counsel. During this interaction, defendant requested and was given a cigarette to smoke. Defendant had no reasonable expectation of privacy in the cigarette and, in fact, abandoned the cigarette in the interview room. Thus, the Court finds that these intervening circumstances sufficiently attenuate the taint of the unlawful arrest (see People v. Rong He, 156 AD3d 907, 68 NYS 3d 130 [2d Dept 2017] (attenuation from illegal arrest found when defendant made a statement four hours after arrest, was interviewed in a different location than the arrest, and interview conducted by police personnel who were not involved in the arrest).Defendant’s contention that “but for” his illegal detention he would not have been linked to the instant sexual assault charge does not compel suppression. “While such a ‘but for’ finding is a prerequisite to exclusion of evidence as a ‘fruit,’ it does not follow that evidence is automatically a fruit of the poisoned tree because it would not have come to light “but for” the illegal police actions; rather, the dispositive inquiry is whether the challenged evidence is come at by the exploitation of that illegality so as to make it the product of that illegality” (People v. Richardson, 9 AD3d 783, 789, 781 NYS 2d 381, 386 [3d Dept 2004]). In the instant sexual assault case, the cigarette and the DNA evidence were not obtained by the exploitation of the illegal arrest and are not a product of that illegality. Rather, the fruits of that illegal arrest were the gun, clothing and statement made by the defendant at the time of his arrest. For this reason, defendant’s reliance on Davis v. Mississippi, 394 US 721, 724, 89 S Ct 1394, 22 L Ed 2d 676 [1969]), and Hayes v. Florida, 470 US 811, 815, 105 S Ct 1643, 84 L Ed 2d 705 [1985]) is misplaced. The defendants in those cases were illegally stopped for the sole purpose of obtaining fingerprints to connect them to crimes under investigation. These cases are distinguishable because the officers here did not intentionally and knowingly stop and arrest the defendant unlawfully for the sole purpose of obtaining his DNA to link him to an unsolved crime. Thus, this Court finds that the purpose of the exclusionary rule has already been satisfied by the suppression of the gun, clothing and defendant’s statement in the gun case.Moreover, the Court also finds that the societal cost of applying the exclusionary rule in this matter is far too great. “The exclusionary rule is not a fundamental right of constitutional dimensions requiring automatic application whenever the Fourth Amendment has been violated. Rather, it has always been incumbent upon the courts to balance the societal cost of losing reliable and competent evidence against the probable effectuation and enhancement of Fourth Amendment principles” (People v. Young, 55 NY2d 419, 425, 434 N.E. 2d 1068, 1071, 449 N.Y.S. 2d 701, 704 [1982]. The Court must balance the deterrent effect of the exclusion rule against the “detrimental impact upon the truth-finding process” (Id. citing People v. McGrath, 46 NY2d 12, 21 [1978]). Here, defendant seeks to use the exclusionary rule as a way to avoid detection, through his DNA, as the perpetrator of the instant sexual assault case. However, suppression of this evidence would have a detrimental impact upon the truth-finding in this case. At the time of the interview, there was no way for Detective Doherty to know that defendant’s DNA from the cigarette would match the DNA sample already in possession of the OCME obtained from the sexual assault evidence collection kit in the instant case. As stated above, the complainant was unable to identify her attacker as he had a shirt covering most of his face. After the sexual assault, a male profile was determined, Male Donor A, from the swabs in the sexual assault kit and the profile was uploaded to both the local databank and CODIS. The identity of the perpetrator remained unknown until defendant’s arrest on the gun case two years later. Since as discussed below, the defendant’s identity is not a suppressible fruit of an unlawful arrest, the Court finds that suppression of the cigarette and DNA profile is not warranted under the exclusionary rule in these circumstances.(3) “Identity” Is Not A Suppressible FruitFurther, the Court denies defendant’s suppression motion based on the fact that in seeking to suppress the cigarette and DNA profile defendant is really seeking to suppress his identity. It is generally held that the body or identity of a defendant is not itself suppressible as a fruit of an unlawful arrest (INS v. Lopez-Mendoza, 468 US 1032, 104 S.Ct 3479 [1984]). The Court of Appeals has held that “a defendant may not invoke the fruit-of-the-poisonoustree doctrine when the only link between improper police activity and the disputed evidence is that the police learned the defendant’s name” (People v. Tolentino, 14 NY3d 382, 900 N.Y.S. 2d 708 (2010)).In Tolentino, defendant moved to suppress his preexisting DMV records, which indicated 10 prior suspensions, based on an alleged illegal stop. The defendant, therein, argued that if not for the unlawful stop the police would not have learned his name and would not have been able to access his driving record. Relying on Lopez-Mendoza, 468 US 1032, 104 S.Ct 3479 [1984], the Court of Appeals held that the identity of a defendant is never suppressible as fruit of an unlawful arrest. Further, the Court held that even though defendant’s identity led to the discovery of his DMV records, those records were not suppressible (People v. Tolentino, 14 NY3d 382, 900 N.Y.S. 2d 708, 710 [2010]). The court noted that the DMV records were compiled independently of defendant’s arrest. (Id). “A contrary holding would ‘permit[] a defendant to hide who he is [and] would undermine the administration of the criminal justice system” (Id. citing United States v. Farias-Gonzalez, 556 F3d 1181, 1187 [11th Cir 2009]).Under the rationale of Lopez-Mendoza and the above federal circuit court decisions, defendant’s DMV records were therefore not suppressible as the fruit of the purportedly illegal stop. In short, ‘there is no sanction when an illegal arrest only leads to discovery of the man’s identity and that merely leads to the official file or other independent evidence.(People v. Tolentino, 14 NY3d 382, 900 N.Y.S. 2d 708, 710 [2010] citing United States v. Guzman-Bruno, 27 F3d 420, 422 [9th Cir 1994]).The Court of Appeals distinguished the DMV records as public records already in the possession of the government as different from other records: “(t)he exclusionary rule enjoins the Government from benefitting from evidence it has unlawfully obtained; it does not reach backward to taint information that was in official hands prior to any illegality.” (People v. Tolentino, 14 NY3d 382, 900 N.Y.S. 2d 708, 710 [2010] citing United States v. Crews, 445 US 463, 475 — 477[1980]). In further support of the ruling, the Court referenced People v. Pleasant (54 NY2d 972, 430 N.E.2d 905, 446 N.Y.S.2d 29 [1981]), in which the Court rejected defendant’s claim that a photo identification should be suppressed as fruit of an illegal arrest. In Pleasant, the defendant was illegally arrested in Suffolk County for weapons possession and police discovered that one of the guns recovered had been used in a robbery in the Bronx (Id.). This information was passed to the police in the Bronx who then obtained a photo of defendant from the Bureau of Criminal Identification. The photo was used to positively identify defendant in the robbery (Id.).Here, defendant is seeking to suppress as the fruit of the poisonous tree his identity as it is connected to the DNA profile generated from the cigarette and matched to the previously existing DNA profile derived from the sexual assault collection kit. These facts are analogous to Tolentino, in that just like the DMV records, here, defendant’s DNA profile previously existed in the OCME database and had been lawfully obtained from the victim’s sexual assault kit independently of his unlawful arrest on the gun case. Defendant’s attempt to suppress his DNA profile generated from the ciagarette fails for the same reasons as stated in Tolentino. The defendant’s DNA profile from the cigarette did not provide law enforcement with any evidence that did not already exist in the OCME databank. All that was missing to connect defendant as the suspect in the sexual assault case was his “name” or “identity” as linked to “Male Donor A”.To the extent that defendant cites People v. Augustus, 2018 NY App Div LEXIS 5354, 2018 NY Slip Op 05480 [2d Dept 2018], for the proposition that suppression of the cigarette vitiates the probable cause to grant the swab under Abe A, this court disagrees. Simply put, defendant’s identify as Male Donor A has now been determined and cannot be unnamed. Furthermore, should this Court have granted the relief defendant seeks, the prosecution could have easily obtained another piece of physical evidence containing defendant’s DNA profile. “Even if a defendant in a criminal prosecution successfully suppresses all evidence of his identity and the charges are dropped, the Government can collect new, admissible evidence of identity and reindict him. This is so because identity-related evidence is not unique evidence that, once suppressed, cannot be obtained by other means” (United States v. Farias-Gonzalez, 556 F3d 1181, 1188-1189 [2009]).ConclusionThe defendant’s motion to suppress is denied.The People’s motion for a buccal swab is granted and defendant’s motion for a protective order is denied.This constitutes the Decision and Order of the Court.SO ORDERED:October 2, 2018
