DECISION AND ORDER This indictment charges the defendants and one other, Jacquan Vaughn, with Attempted Murder and other crimes stemming from an incident that occurred on November 29, 2018. As part of their case, the People seek to introduce evidence originating from an unrelated car stop that had taken place two days earlier in the 75th precinct in Brooklyn. At that time defendants were together in a car that, the People contend was later used to escape from and wearing the same clothes worn by the perpetrators of the charged crime. At the conclusion of the November 27, 2018 car stop, Hassan was apprehended on an open warrant from the 24th precinct in Manhattan. He was taken back to the 75th precinct, then picked up by detectives from the 24th precinct. Defendants seek to suppress observations by police officers and photographs of them distilled from body camera footage of that car stop on the theory that the stop was unlawful. More specifically, they contend that the stop was racially motivated and that the articulated reasons for it were fabricated and pretextual. In the alternative, they claim that even if the initial stop was lawful, the police detained them for an excessive amount of time rendering the entire process unduly intrusive and necessitating suppression of any evidence gathered. Hassan also seeks to suppress video images of him at the 75th and the 24th precinct as fruit of the illegal stop. In addition to the motions based on the car stop, Defendant Daquan Folks (Daquan) moves to suppress a statement he made to his parole officer on November 26, 2018. Defendant Hassan Folks (Hassan) moves to suppress clothing and a cell phone that were taken from him when he was arrested on December 20, 2018. A combined hearing on these motions was held before this Court on February 23 and March 1, 2021. At the hearing the People introduced testimony of Parole officer Nicole Henry, Police Officer Giovanni Fini and Detective Ivan Cabotic. The People introduced the body camera footage of the November 27th car stop and the warrant authorizing Hassan’s arrest. Counsel for Hassan introduced minutes from the grand jury presentation of this case. Upon consideration of all the evidence, the Court makes the following findings of fact and conclusions of law. November 27, 2018: Car Stop Findings of Fact Police Officer Fini was assigned to patrol the 75th precinct from 11:15 p.m. on November 26th until 7:50 a.m. on November 27, 2018. Partnered with Police Officer Gudesblatt, a rookie officer, Officer Fini was the driver of a patrol car, dressed in uniform and outfitted with a body camera. At about 2 a.m. Officer Fini observed a grey Nissan Ultima bearing Vermont License Number GXE759 travelling west in the vicinity of Pitkin and Junius Avenues in Brooklyn with its headlights off. Officer Fini, who was travelling east, made a u-turn and activated his lights and sirens to pull over the car. He noticed “puffs of smoke” emerge from the exhaust pipe of the Nissan Ultima indicating to him that the car was trying to speed away, but within a few blocks the car came to a stop. Once the Ultima stopped, Officer Fini activated his body camera and he can be heard talking to his partner about how to conduct the stop safely. From that point on, every aspect of the car stop is recorded from Officer Fini’s perspective. The officers approached the car and encountered Daquan in the driver’s seat, Hassan in the passenger’s seat and a woman in the back seat. Officer Fini shone a flashlight into the car and asked Daquan for his license, registration, and insurance. Daquan answered that he had none of those; that it was his “mom’s car,” and that he was just driving his cousin home. Officer Fini asked for any form of identification and Daquan appeared to look through his wallet but did not turn over any documents and murmured something about having no paper for the car. Daquan asked Officer Fini why he had been stopped. Officer Fini explained that “first of all” the car had been driving with the lights off. Upon hearing this, Daquan looked down at the dashboard, nodded his head, looked back up and said “OK.” Officer Fini went on to explain that when he had tried to stop the car, it looked to him that Daquan started to speed away. Daquan answered that he had not seen the police car behind him. Officer Fini then looked into the car at Hassan in the passenger seat, asked Hassan if he had any form of identification; Hassan replied that he did not. Officer Fini asked his name and Hassan answered “Hassan.” Officer Fini asked his last name and Hassan answered “Jones.” At that point Officer Fini advised Hassan that he was on camera and that if Hassan lied to him, Officer Fini would “put [him] right in handcuffs and [he] will go to jail.” In the ensuing half hour, Officer Fini repeatedly expressed disbelief about Hassan’s name and told him several times that if he lied about his name he would be arrested for False Personation. Among other things, Officer Fini said that if Hassan wanted to “play that game” he would lose. As this conversation unfolded, Officer Fini calls for backup and appears to be checking various computer systems on his phone. Officer Fini repeatedly directed both Daquan and Hassan to keep their hands on the wheel and dashboard. Defendants mostly complied with that directive but occasionally moved their hands back toward their pants. Defendants remained calm during the encounter and answered all questions put to them, albeit with minimal information. Officer Fini’s tone was tough but clear and he calmly maintained control of the situation throughout. While waiting for backup Officer Fini asked Daquan questions about the car itself. Daquan repeated that he did not have any paperwork and said that the car was registered to his mother, Rose Geiger. Shortly thereafter, Officer Fini ordered Daquan out of the car, frisked him and directed him to sit on the rear bumper with his legs crossed. He then ordered Hassan out of the car, frisked him and looked at some receipts that had been in Hassan’s pocket. Officer Fini asked Hassan why he did not have any ID and again, for his name. Officer Fini warned “for the final time” that if Hassan provided a false name, he would be arrested. Hassan maintained that his name was Hassan F. Jones and provided Officer Fini with his date of birth and address. Hassan was then ordered to the back of the car where Daquan was sitting. It is a still photograph of the two defendants at the back of the car that the People seek to introduce into evidence at trial. Officer Fini then directed the female passenger to step out of the back seat of the car and asked her questions about the car owner and the drivers. Officer Fini explained to her that before he stopped the car, he had run the plate and determined that “it was not on file.” The passenger provided minimal information to Officer Fini and stated that she did not know the last names of the driver and front passenger; men she described as family. After speaking to the female passenger, Officer Fini conferred with his fellow-officers about running the address and date of birth of Hassan through various systems and reiterated to them that a search of the database had revealed that the license plate on the car was not “on file.” Officer Fini then entered the VIN number into a computer system on his phone and learned that it, too, was not on file. As he conducted these investigations, Officer Fini can be heard several times sharing with his fellow officers that the defendants had been driving with no lights had no paperwork and that his search of the license plate number produced no results. Officer Fini then got back into the car and continued his investigation of the car and its occupants. He called a representative from the Vermont Department of Motor Vehicles who reported that she also was unable to locate any registration in the database about the car, and she noted that the car had not been reported stolen. Officer Fini had one of his colleagues obtain a name and phone number for Daquan’s number. On the phone, Rose Geiger confirmed that she was Daquan’s mother and the owner of the car that Daquan was driving. Once that was confirmed, Officer Fini can be heard telling his partner that he was just going to give Daquan a summons for driving without lights. Less than one minute later, and approximately 37 minutes into the car stop, another officer on the scene reported to Officer Fini that he had determined both Hassan’s true identity and that there was an outstanding warrant for Hassan’s arrest. The unidentified officer asked Officer Fini if he planned to arrest the car’s occupants and Officer Fini replied that he did not. Hassan was then placed under arrest for the warrant. Conclusions of Law Defendants argue that PO Officer Fini’s testimony was incredible, that the car stop was motivated by racial bias, that the reasons proffered for it were false and pretextual and that therefore all evidence emanating from it must be suppressed. To the contrary, the Court finds that the incontrovertible evidence provided by body camera footage fully corroborates PO Officer Fini’s testimony, reinforces its credibility, and belies the defendant’s theory. For example, Defendants suggest that Officer Fini lied when he claimed he stopped the car because the headlights were off. But, as soon as PO Officer Fini told the defendants that he stopped them for that reason, Daquan looked down at the dashboard, nodded his head and said, “OK” indicating his acquiescence. Surely if PO Officer Fini had been lying and the lights to the car were on, Daquan would have immediately said so.1 Thus the Court credits the Officer Fini’s testimony that the lights were off and finds as a matter of law that stopping a car without headlights at 2 a.m. was entirely proper. People v. Ellis, 62 NY2d 393, 396 (1984); People v. Garcia, 221 AD2d 176 (1st Dept. 1995). Defendants argue that even if the stop of the car was lawful, the lengthy detention of the defendants following the stop was an improper intrusion and that all evidence gathered as a result must be suppressed. The Court disagrees. “The touchstone of any analysis of a governmental invasion of a citizen’s person under the Fourth Amendment to the U.S. Constitution and the constitutional analogue of New York State is reasonableness. A determination of reasonableness turns upon the facts of each case.” People v. Batista, 88 NY2d 650, 653 (1996). A close examination of the facts presented here demonstrates that at every stage of this encounter the police on the scene acted reasonably and within the scope of their authority. As noted above, the car was properly stopped for driving with its lights off. Once the police approached, they learned that the Daquan had no license to drive or papers demonstrating ownership of the car. At that point it was not only proper but incumbent upon them to begin investigating the status of the car to determine if it was stolen. To do otherwise would have been an abrogation of their responsibilities. With every step of the investigation, Officer Fini’s basis for suspicion intensified. Defense counsel contends that defendants were “cooperative” and answered questions politely, but in fact their cooperation was no more than superficial. In addition to lacking any proof of authority to drive the car, Daquan answered PO Officer Fini’s questions in a voice that was barely audible — a fact confirmed by the Court’s independent review of the video — and Officer Fini was forced to ask him the same questions numerous times. It was certainly reasonable for Officer Fini to conclude that Daquan was biding his time and delaying disclosing information about the car. Daquan’s failure to present relevant paperwork authorized Officer Fini to ask for identification from the passenger, Hassan. See People v. Jones, 8 AD3d 897, 898 (3rd Dept. 2004). And once the questioning turned to him, Hassan was also evasive. He supplied only his first name, hesitated before giving the false last name Jones, and claimed not to have any identification. At that point, confronted with two evasive individuals with no paperwork, headlights off, appearing to speed away, with a preliminary search indicating the license was not registered, Officer Fini had reason to suspect that the car was stolen. Officer Fini’s next steps, asking the defendants to get out of the car and detaining them during additional investigation, was legally supported by reasonable escalating suspicion that the car was stolen. See People v. Robinson, 74 NY2d 773, 774 (1989); People v. McLaurin, 120 AD2d 270, 275 (1st Dept. 1986). Indeed, by that time the officers had reasonable suspicion to believe that Hassan was not only committing the crime of unlicensed driving but, under the totality of the circumstances, a solid basis to suspect that the car was stolen. The escalating chain of events justified the continued detention of the defendants for conduct further investigation. See People v. Taylor, 104 AD3d 431, 433 (1st Dept. 2013).2 From then until Hassan was arrested on an open warrant, Officer Fini and his fellow officers properly continued a reasonable and thoughtful investigation into the car’s origin, ending with Officer Fini’s conclusion that Daquan was actually an authorized driver. Within moments of hearing from Daquan’s mother one of Officer Fini’s colleagues learned that there was a warrant for Hassan’s arrest justifying his seizure. To be sure, the tone and manner of Officer Fini toward the defendants may not have lived up to the highest standards of politeness. But defendant’s claims that the reasons he gave for his actions were pretextual lacks a scintilla of support in the record. Moreover, the tone or demeanor of a police officer on patrol cannot guide this Court’s inquiry into the legality of the events that unfolded. In examining the difficult area of street encounters between private citizens and law enforcement, courts must not “attempt to dissect each individual act by the policemen; rather, the events must be viewed and considered as a whole, remembering that reasonableness is the key principle” when balancing the competing interests presented. People v. Chestnut, 51 NY2d 14, 19 (1980). The actions of Police Officer Fini upon encountering and investigating a possible stolen car and the evasive, undocumented occupants was eminently reasonable and the motion to suppress evidence flowing from that car stop is denied. November 26, 2018: Statement by Daquan Folks Parole Officer Henry visited Daquan — a parolee assigned to her supervision on November 26, 2018. When asked general questions about his well-being, Daquan told Henry that he was thinking about moving to Vermont to be with his mother and pregnant girlfriend. Defendant’s contention that his statement was the product of custodial interrogation is entirely baseless. Defendant was not in custody, nor were the questions asked by the parole officer ones that she should have known were “reasonably likely to elicit an incriminating response from” from Daquan. People v. Kollar, 305 AD2d 295, 297 (1st Dept. 2003). The motion to suppress his statement is therefore denied. December 20, 2018: Seizure of Property On November 29, 2018, Detective Ivan Cobotic was assigned to be the lead investigator on the shooting that underlies this indictment. On December 20, 2018, he learned that a grand jury had indicted both defendants that a New York State Supreme Court warrant was issued for their arrest.3 Hassan was apprehended by the violent felony warrant squad on that same day while he was visiting his girlfriend at Rikers Island. Hassan was brought to the 25th precinct and his arrest was processed by Det. Cobotic. A shirt, jacket and cell phone were recovered during the arrest process. Since this property was recovered during a search incident to an arrest authorized by a valid warrant, the motion to suppress it is denied. Conclusion For the reasons stated above, defendants’ motions to suppress are denied in their entirety. This shall constitute the decision and order of the Court. Dated: March 8, 2021
