DECISION AND ORDER OF THE COURT The Court conducted a Mapp/Huntley/Dunaway hearing on July 24, 2019 and July 29, 2019 on defendant’s motion to suppress physical and statement evidence. After hearing the testimony and reviewing the evidence in the above case, the Court makes the following factual findings and legal conclusions. Findings of Fact The People called two witnesses. The first witness, Detective Ernest Hemans, a twenty- five year veteran of the New York City Police Department, testified that on July 11, 2018 he was assigned to the Enterprise Operation Unit in the Intelligence Bureau and was monitoring night club violence. Detective Hemans stated that on July 10, 2018 he began his tour at 8:00 pm which continued until 4:33 am on July 11, 2018. He was in an unmarked vehicle and in plain clothes with a NYPD polo shirt and his shield. At approximately 2:30 am he was in front of Angels Gentlemen’s Night club at 32-17 College Point Boulevard, Queens County and testified that he smelled an odor of marijuana and observed smoke coming from a Toyota Camry that was approximately four to five car lengths away from where he was standing. Detective Hemans approached the driver’s side of the vehicle, with this flashlight on, and observed four individuals in the car. Detective testified that he observed the right front passenger appear to be hunched down and his arm was moving. He then went to the front passenger’s window, which was partially rolled down, and testified that he observed a portion of a bag under the front passenger seat. Detective Hemans asked the front passenger what was in the bag, but the individual did not answer. The detective asked him again what was in the bag, but he still refused to answer. The detective testified that he then asked all of the occupants whose bag is it, to which the defendant, who was seated in the rear seat behind the driver replied it was his bag. Hemans then asked what was in the bag and the defendant stated a weapon. All of the occupants were then directed to get out of the vehicle and were handcuffed. Detective Hemans went back to the front passenger side of the vehicle and testified that the bag was partially open and that he observed the handle or the butt of a firearm. Hemans removed the bag from the vehicle and confirmed that there was a firearm in the bag. Detective Hemans stated that he arrested the defendant and the individual in the front passenger seat. Defendant was transported to the 109th Precinct and Detective Hemans testified that he interviewed the defendant and that said interview was videotaped. The detective testified that when the defendant was brought into the interview room, he read him his Miranda rights and the defendant agreed to make a statement. This was recorded and the videotape was admitted into evidence. On cross examination, Detective Hemans testified that he initially smelled an odor of marijuana and then he observed smoke coming from a vehicle. The detective further testified that he approached the vehicle, and as he approached the vehicle he did not see anyone smoking marijuana; did not see anyone drop marijuana; did not see any smoke in the vehicle; did not observe any marijuana in the vehicle; did not make any notations in his memo book regarding an odor of marijuana; did not include smelling the odor of marijuana in the complaint report or in any report completed regarding defendant’s arrest; and that no marijuana was recovered. The People called Assistant District Attorney Matthew Regan as their second witness. ADA Regan was assigned Central Booking Questioning (CBQ) on July 11, 2018, and testified that he interviewed the defendant, and that said interview was videotaped. ADA Regan stated that the defendant was read his rights prior to the interview, that he agreed to speak with him, all of which is depicted on the videotape and was admitted into evidence. Conclusions of Law At a suppression hearing, the People have the initial burden of presenting evidence of probable, or reasonable cause to show the legality of police conduct (People v. Berrios, 321 NYS2d 884; People v. Spann, 918 NYS2d 588; People v. Blinker, 80 AD3d 619). Once this burden is met, the burden shifts to the defendant to prove the illegality of the police conduct (People v. Berrios, supra). Further, it is clear that the hearing court’s determination of the credibility of a witness must be accorded great weight (People v. Prochilo, 395 NYS2d 635). As to the Mapp/Dunaway portion of the hearing, the well settled law set forth in People v. De Bour provides a four-level analysis to be applied to police-citizen encounters, as well the requisite suspicion necessary to justify each level. The police-citizen encounter must be evaluated at each level to determine whether there is a violation of the search and seizure law, that is each level of police intrusion was justified by a factual basis (People v. Grunwald, 29 AD3d 33). As to a level one encounter, prior to an arrest, a police officer may approach a civilian to request information when there is some objective credible reason for that interference not necessarily indicative of criminality (De Bour, 40 NY2d at 223; see Hollman, 79 NY2d at 185). The request may “involve [] basic, nonthreatening questions regarding, for instance, identity, address or destination” (Hollman, 79 NY2d at 185). The second level, or common-law right to inquire, allows police to interfere with a citizen’s freedom, short of seizure, “to the extent necessary to gain explanatory information,” provided the police have a founded suspicion that criminal activity is afoot (People v. De Bour, 40 NY2d at 223). Under this common law right of inquiry a police officer can ask pointed questions that would reasonably lead one to believe that he is a suspect of criminality, but only where they have an articulable good faith reason to suspect criminal activity is taking place. It has been held that where an officer asks questions that would lead a person to reasonably believe that he or she is suspected of wrongdoing, this is no longer a level one request for information, but rather activates the common-law right of inquiry which must be based on a founded suspicion of criminal activity (People v. Garcia, 20 NY3d 317). In the case at bar, Detective Hemans testified that he smelled the odor of marijuana and observed smoke coming from a Toyota Camry that was approximately four to five car lengths away. It is well settled that approaching an occupied stationary vehicle is a minimal intrusion and not the equivalent of a stop (People v. Harrison, 57 NY2d 470). A police officer approaching a parked vehicle is analogous to an officer approaching a citizen on the street and the four-tiered analysis set forth in De Bour is applied (People v. Ocasio, 85 NY2d 982). Applying the De Bour analysis, it is clear that the approach by Detective Hemans in this case was a wholly justified level one encounter. To determine whether the further actions of Detective Hemans constituted a proper level two common-law right of inquiry, there must be evidence indicating that the detective had an articulable good faith reason to suspect that criminal activity was afoot. While the testimony indicates that Detective Hemans smelled an odor of marijuana and observed smoke from a vehicle that was four to five car lengths away from where he was standing, there is no testimony from when the detective reached the subject vehicle that would confirm a suspicion of criminal activity. Specifically, the record is devoid of any evidence that there was any smoke in the vehicle; that any of the individuals threw anything out of the vehicle; that there were any marijuana cigarettes, burnt marijuana, ashes, a lighter or clips in the vehicle; there was no rolling paper or other paraphernalia in the car; nor that any of the individuals had red watery eyes or displayed any indication that they were under the influence of marijuana. Detective Hemans further testified that when he arrived at the passenger side of the vehicle and was shining his flashlight inside, he observed a portion of a bag under the seat. The detective then proceeded to question the right front passenger “what’s in the bag?” When the individual chose not to answer, the Detective again demanded to know what was in the bag. The individual again did not respond, at which time the detective turned his questioning to all the occupants and asked, “whose bag is it?” and “what’s in the bag?”. These questions clearly go beyond identity or destination and rise above a level one inquiry without a founded suspicion of criminal activity, notwithstanding the testimony regard the movements of the front passenger. Based upon the evidence adduced at the hearing, this Court finds that the search and seizure of the defendant was not proper, and therefore the arrest was not lawful. Accordingly, defendant’s motion to suppress the gun is granted. As to the Huntley portion of the hearing, defendant seeks to suppress three statements made by defendant to law enforcement officials. It is clear that the People have the burden of demonstrating, beyond a reasonable doubt, that the defendant’s statements were voluntary (People v. Anderson, 42 NY2d 35; People v. Huntley, 15 NY2d 72; People v. Loucks, 125 AD3d 890) and that the defendant knowingly, intelligently, and voluntarily waived his or her Miranda rights (Miranda v. Arizona, 384 US 436) prior to making the statements (People v. Williams, 62 NY2d 285). If the People meet their burden, the defendant then bears the burden of persuasion (People v. Santos, 112 AD3d 757; People v. Aveni, 100 AD3d 228; People v. Johnson, 139 AD3d 967). The first statement made by the defendant, “There’s a weapon in the bag. It’s my bag. It’s my gun”, was made before defendant was in custody and in response to Detective Hemans’ questions. As this Court has held that the search and seizure in this matter was an improper under De Bour, the defendant’s statement in response must be suppressed as the fruit of the illegal search and seizure (People v. Pearson, 59 A.D.3d 743, 744, 875 NYS2d 109; People v. Perez, 88 AD3d 1016). As to the second statement made to Detective Hemans at the 109th Precinct, as well as the third statement made to ADA Regan at the CBQ Interview room, these statements were made post-arrest. While there is no dispute that the defendant was advised of his Miranda rights, inasmuch as the seizure and arrest of the defendant has been found to be unlawful, these statements must also be suppressed as fruit of the poisonous tree (Brown v. Illinois, 422 U.S. 590; People v. Stewart, 41 NY2d 65). This constitutes the decision and order of the Court. Dated: January 23, 2020
