People v. Miller

Summary of the Court’s Decision: Defendant Miller: Motion to Suppress Physical Evidence Granted; Valid Waiver of Miranda; Statement Evidence a Direct Result of Unlawful Stop, and therefore, Suppressed. Defendant Brown: Motion to Suppress Physical Evidence Denied for Lack of Standing; People Failed to Establish that Defendant’s Arrest Was Based on Probable Cause; Valid Waiver of Miranda; Statement Evidence a Direct Result of Unlawful Seizure, and therefore, Suppressed. DECISION AND ORDER The defendants have moved to suppress evidence, arguing that the evidence obtained was due to unlawful police conduct. A Mapp/Huntley/Dunaway hearing was held before this Court on July 15, 2021 to determine the defendant’s motion to suppress. The People presented two witnesses: Officer Michael Fortunato and Officer Vincent Monteleone and video evidence. I find both witnesses to be credible, and based upon the evidence adduced at the hearing. I make the following findings of fact and conclusions of law: Findings of Fact Police Officer Michael Fortunato Officer Michael Fortunato is employed by the NYPD, presently assigned to the 106th Precinct. As an officer, he works in public safety, “enforcing the law.” (Tr at 9). He received six months of training at the police academy, which included basic firearms training. (Tr at 10). Since then, he has been involved in about two to three firearms-related arrests. (Tr at 10). On January 23, 2021, Officer Fortunato was set to work a 5:30 pm to 2:05 am shift, which is January 23 into the morning of January 24. (Tr at 10). He was working with two partners: Sergeants Cruz and Doheny, patrolling in an unmarked vehicle. (Tr at 11). He testified that the vehicle has no “NYPD” lettering on it but is still equipped with police lights and sirens. Sergeant Cruz was driving the vehicle, and Officer Fortunato was seated in the back seat, passenger side. (Tr at 11). At around 9:40 pm on January 23, Officer Fortunato was in the vicinity of 127th Street and 135th Avenue, in Queens County. (Tr at 11). At that time, he was assisting another officer, Officer Monteleone, in conducting a car stop. (Tr at 11). He testified that Officer Monteleone had reached out to his car¹ because he was attempting to pull over a vehicle that would not pull over. (Tr at 11). It took, at most, five minutes for Officer Fortunato’s vehicle to reach the location. When he arrived, he observed Officer Monteleone attempting to pull over a vehicle with lights and sirens. (Tr at 12). Officer Fortunato observed a dark blue BMW in front of Officer Monteleone’s vehicle. (Tr at 13). Officer Fortunato’s vehicle was behind Officer Monteleone’s vehicle. It was dark out, but there were streetlights and lights from houses on in the area. (Tr at 13). It was a clear night. Officer Monteleone cut in front of the blue BMW so that the BMW could come to a stop. (Tr at 13). Officer Fortunato’s vehicle had been behind Officer Monteleone’s vehicle for over a minute before the BMW came to a stop. (Tr at 14). When the BMW came to a stop, Officer Fortunato observed the defendant exit the vehicle. (Tr at 14). He testified that the defendant was Marcus Miller. He observed Mr. Miller coming from the backseat passenger side of the BMW. Officer Fortunato testified that as he was exiting his vehicle. Mr. Miller was exiting the BMW. (Tr at 43). Mr. Miller then ran, at which time Officer Fortunato used a “forcible takedown” on him. (Tr at 15). He described “forcible takedown” as a tackle. (Tr at 15). Sergeant Doheny assisted Officer Fortunato in subduing Mr. Miller. (Tr at 44). Mr. Miller was then placed in handcuffs. Officer Fortunato testified that Mr. Miller was placed in handcuffs because “he fled from a lawful car stop.” (Tr at 16, line 13). Office Fortunato then conducted a search as the defendant was under arrest, and the officer wanted to ensure that he didn’t have anything illegal on his person that could hurt someone or illegal contraband. (Tr at 17). At the time of the search, at least two other officers were present. (Tr at 44). He conducted a pat down first and felt one hard object down the defendant’s leg. Officer Fortunato kept asking the defendant what the hard object was, to which the defendant said, “my phone.” He eventually found two handguns inside his clothing. in between his legs. (Tr at 17). Officer Fortunato testified that the handguns were between Mr. Miller’s long Johns and his underwear. (Tr at 18). One handgun was a revolver, the other a semiautomatic pistol. (Tr at 18). Officer Fortunato testified that he also observed Shade Brown, the other defendant, seated in the back seat, and then later on the ground, handcuffed. (Tr at 19, 35). There were a total of five individuals in the vehicle. (Tr at 30). After Officer Fortunato retrieved the handguns from Mr. Miller’s person, he “unloaded” the semiautomatic pistol by ejecting the magazine and sliding out the chamber. (Tr at 19). He testified that the semiautomatic pistol was loaded; and that the revolver was later unloaded by the Evidence Collections Team (ECT) at the precinct. (Tr at 19). Officer Fortunato was wearing a body-worn camera, which was activated while his car with moving and before his vehicle came to a stop. He turned off the camera when he returned to the precinct. (Tr at 20). His body-worn camera footage was admitted into evidence as People’s Exhibit 1. Police Officer Vincent Monteleone Officer Monteleone has been employed by the NYPD for four years and is presently assigned to the 106th Precinct. (Tr at 55). He attended the police academy for six months, where he received his officer training. (Tr at 56). As an officer in the 106th, his duties include answering radio runs, “going to domestics” and pulling over cars for traffic violations. (Tr at 56). On January 23, 2021, Officer Monteleone was working a 5:30 pm to 2:00 am shift. He was working with two partners, Sergeant Sorentino and Officer Gazzey. They were traveling in an unmarked vehicle, which does not have “NYPD” listed on the side but is equipped with a “light package.” (Tr at 57). Sergeant Sorentino was seated in the front passenger seat, next to Officer Monteleone. (Tr at 74). At around 9:40 pm, Officer Monteleone observed a blue BMW in the crosswalk on 134th Street and Rockaway Blvd. (Tr at 57). The BMW was parked on the white lines where a pedestrian would cross the street and thus was blocking the crosswalk.² (Tr at 60). There was no driver inside the vehicle when he initially observed the BMW in the crosswalk. (Tr at 74).³ He stated that the roads were well-lit, and it was a clear night, with nothing obstructing his view as he looked out the vehicle. (Tr at 57). Upon observing the blue BMW, his car drove further down the block and turned back around when it was safe to do so, at which point the BMW drove away down Rockaway Boulevard. (Tr at 58). He followed the car for about two blocks before activating his lights and siren because he wanted to “catch up safely” since activating them too early “would cause confusion” on the road. (Tr at 79). As he followed, he observed it run a stop sign on 131st Street and Sutter. (Tr at 58, 60). He stated that the BMW “drove straight through” the white solid line where a car should come to a complete stop. (Tr at 80). He was about two car lengths behind the BMW when he witnessed this traffic violation. (Tr at 80). The officer then activated his lights and siren. (Tr at 58, 81). On 135th Avenue and 131th Street, the car “failed to signal.” He testified that the car made a right, at which time he pulled in front of the blue BMW as another police car pulled up behind it. (Tr at 58). He testified that the other police car were the officers with the public safety team. (Tr at 58). The BMW was going over thirty-five miles an hour, although the officer did not attempt to measure its speed and could not estimate the speed of the vehicle. (Tr at 78). Officer Monteleone testified that it was about five minutes of him following the BMW with his lights and siren on before it finally stopped. (Tr at 59). He never lost sight of the vehicle, nor was there ever a car that drove between himself and the BMW. (Tr at 85). It stopped at 127th Street and 135th Avenue when Officer Monteleone stopped his vehicle in front of it. (Tr at 60). Officer Fortunato’s vehicle stopped behind the BMW. Officer Monteleone then observed a passenger exit the BMW from the rear passenger seat, who he identified as Mr. Miller. (Tr at 61). He testified that Shade Brown was seated in the middle passenger seat, rear. (Tr at 62). He exited his police car with his weapon drawn. (Tr at 88). He approached the driver of the BMW, Zasmor, and pulled him out of the car. (Tr at 89, 91). He placed the driver of the BMW in handcuffs and secured him. (Tr at 63). He then walked around the car, at which time he observed Shade Brown. He testified that he did not place handcuffs on Ms. Brown (Tr. at 91-91) and did not remove her from the vehicle (Tr. at 90). Also, he did not know how she got out of the vehicle (Tr. at 91). Officer Fortunato pull two firearms out of Mr. Miller’s pants. (Tr at 63). Officer Monteleone was a “few feet away” from Officer Fortunato. He testified that the two firearms recovered were a 9-millimeter Taurus semiautomatic and a 38 revolver. (Tr at 63). The officer took a picture of both firearms, and the photo was admitted into evidence as People’s Exhibit 2. (Tr at 65, 71). Both defendants were taken to the 103rd Precinct to be debriefed by detectives. (Tr at 65). He testified that the debriefing would normally have taken place at the 106th Precinct, but the audio and video equipment in the debriefing room at the 106th Pct did not work, so “it’s customary to bring them to a different detective squad.” (Tr at 99). In this case, the debriefing took place at the 103rd Precinct. (Tr at 100). The next morning, Officer Monteleone had a conversation with both Shade Brown and Marcus Miller. (Tr at 66). He spoke with each defendant separately, accompanied by Detective Brown. Shade Brown was interviewed first. (Tr at 67). Detective Brown administered her Miranda rights, and asked a few questions about the incident that occurred. (Tr at 67-68). She told the officer that the revolver was hers, that she found it in Brooklyn “somewhere” and that she kept it in her pants. (Tr at 68). It was uncomfortable so she put it on her lap while they were in the car; but when the lights and siren went on the car was stopped, Mr. Miller grabbed the gun off her lap and ran with it. (Tr at 68). Mr. Miller was also read his Miranda rights by Detective Brown. He told the officers that when he saw the lights and sirens of the police car, he got an anxiety attack and became nervous. (Tr at 68). When the vehicle stopped, he grabbed the revolver off Shade Brown’s lap as well as the black semiautomatic gun that was resting on the middle hump of the car floor. He placed both in his pants and ran. (Tr at 68). Both interviews were recorded and entered into evidence as People’s Exhibit 3 and 4, respectively. (Tr at 72). People’s Exhibit 1 People’s Exhibit 1 is a video of Police Officer Fortunato’s⁴ body camera footage from the night in question. Much of the video is slightly obscured by an object dangling from another part of Officer Fortunato’s uniform. The first sixty seconds of the video footage is silent, no audio, because of the way the body camera is set up. The video initially depicts from the back seat of a moving vehicle. There are reflections of red and blue lights visible through the front windshield. It appears to be a residential area based on the view from the right rear passenger window. At approximately the 19 second mark, the car makes a right turn. The audio turns on after sixty seconds when the camera is activated,⁵ virtually simultaneous with Officer Fortunato rushing out of the vehicle⁶ as he rushes to aid another unidentified officer who had detained an individual wearing a red coat. Officer Fortunato appears to get the individual in a red coat on the ground and proceeds to conduct a search. At the 1:35 mark, Officer Fortunato’s camera depicts a person on the ground to his upper left. That person is on the ground, face down, with their arms and hands behind their back. At that point in the video, the person is not identifiable. However, subsequent video and testimony establishes that the person is Ms. Shade Brown. At the 2:18 mark of the video, there are two people in the upper left portion of the video, one of whom is a male, is physically larger than the female, wearing a grey and green sweatshirt. He is also face down on the ground with his arms and hands behind his back. The person with the green and grey sweatshirt was subsequently identified by Officer Monteleone as the driver of the vehicle. Officer Monteleone also identified the female in the video as Ms. Brown during his testimony. From the video alone, it is not clear if either person is handcuffed. Officer Fortunato asks Mr. Miller, who is on the ground, about an object that he feels during the search to which he responds that the is his phone. Screaming is heard, as well, in the background and it appears to be Ms. Brown, saying “Are you okay?” At about two minutes and twenty-five seconds into the video, the camera moves to where Defendant Brown can be seen lying face down on the street towards the outermost left-hand portion of the screen. It appears that her hands are behind her back and she is face down on the ground. Officer Fortunato testified that the individual on the ground in the bottom right corner of the screen was Defendant Miller. (Tr at 22). The individual, who appears to be male, is in a sweater that says, “Just Do It.” He was not identified by Officer Fortunato but was identified by Officer Monteleone. Defendant Brown continues to scream asking if the other passengers are “okay.” At the four minute and thirty-five second mark, Officer Fortunato continues to search the defendant, and at that point recovers the two firearms. The actual recovery cannot be seen as Officer Fortunato’s camera is obstructed. The recovery of the guns is discussed by the officers searching Defendant Miller. Defendant Miller’s pants and shoes are removed by the officers while the officers continue to search Defendant Miller. Defendant Miller is eventually handcuffed and placed into the backseat of the police vehicle. Officer Fortunato sits in the backseat with him. In the back seat, without being asked any questions. Mr. Miller repeatedly asks “what happened?” He continues to say, “what’s happening?” and saying “Shade.” Mr. Miller asks, “What I did do?” Officer Fortunato responds, “You know what you did bro, it’s over.” The defendant persists in asking “What happened?” Officer Fortunato asks him “how old are you?” Mr. Miller responds “eighteen”. Officer Fortunato tells him “you are an adult now.” Mr. Miller claims to not know why he is handcuffed and says the last thing he remembers is drinking and getting high. Officer Fortunato tells him he is being “breezy”⁷ now and to “shut up now.” Other than asking him how old he was, Officer Fortunato did not ask Mr. Miller any question nor initiate any conversation with Mr. Miller in the back seat en route to the precinct. People’s Exhibit 2 People’s Exhibit 2 is a color photograph of the two firearms said to have been recovered from Defendant Miller. Both firearms are black, with zipties woven into the firearm. There is one magazine, and three clear ziplock bags containing bullets. People’s Exhibit 3 People’s Exhibit 3 is a video of Defendant Brown’s interview with Detective Brown and Officer Monteleone. The video includes three different angles of the interview room, but only one angle is visible. The defendant is seated on the side farthest away from the door of the interview room. The detectives are seated on the opposite side, in two chairs, closest to the door. The interview with Detective Brown and Officer Monteleone begins at 9:48 am and ends at approximately 10:00 am, on January 24, 2021. At the beginning of the interview, Detective Brown asks Defendant Brown to confirm her name, date of birth and address. She then begins to administer her Miranda rights. She is instructed that she is to be read his Miranda rights and that she is going to be asked if she understands. Detective Brown makes the following statements, and asked Defendant Brown if she understands after making each statement: You have the right to remain silent; Anything you say may be used against you in a court of law; You have the right to consult an attorney before speaking to the police and have one present during any questioning, now or in the future; if you can’t afford an attorney, one will be provided without cost; If no attorney is present, you have the right to remain silent until you’ve had the opportunity to speak with one; Now that I have read you your rights, are you willing to answer questions? The defendant responded that he understood each statement with a verbal “yes” and answered that she is willing to answer questions. After her rights were read, and she indicated she was willing to proceed with questioning, she was asked about the incident the previous night. Defendant Brown states that the .357 revolver was hers. She stated that she was in Queens on her way to shoot a music video. She states that the 357 revolver is her own, that it was on her lap throughout the car ride, and that she had the gun all night. After she had left the video shoot, she got into the vehicle. The revolver was initially in her pants, but it got uncomfortable, so she put it on her lap. When the car was stopped, Defendant Miller grabbed the gun off her lap and tried to run. She reiterated that the revolver is her own but denied knowledge of the other firearm. People’s Exhibit 4 People’s Exhibit 4 is a video of Defendant Miller’s interview with Detective Brown and Officer Monteleone. The video includes three different angles of the interview room, but only one angle is visible. The defendant is seated on the side farthest away from the door of the interview room. The detectives are seated on the opposite side, in two chairs, closest to the door. The interview with Detective Brown and Officer Monteleone begins at 10:11 am and ends at approximately 10:18 am, on January 24, 2021. At the beginning of the interview, Detective Brown asks Defendant Miller to confirm his name, date of birth and address. She then begins to administer his Miranda rights. He is instructed that he is to be read his Miranda rights, and that he is going to be asked if he understands. Detective Brown makes the following statements, and asked Defendant Miller if he understands after making each statement: You have the right to remain silent; Anything you say may be used against you in a court of law; You have the right to consult an attorney before speaking to the police and have one present during any questioning, now or in the future; if you can’t afford an attorney, one will be provided without cost; If no attorney is present, you have the right to remain silent until you’ve had the opportunity to speak with one; Now that I have read you your rights, are you willing to answer questions? The defendant responded that he understood each statement with a verbal yes and answered that he is willing to answer questions. After his rights were read, and he indicated he was willing to proceed with questioning, he was asked about the incident the previous night. When asked why he was “here”, he said he was caught with two guns. He said that when the car was stopped, he had an anxiety attack, grabbed the gun off his girlfriend’s lap — Shade Brown — and another gun that was in the seat of the car. He placed the guns in his waistband, opened the door to the vehicle and tried to run. He said the .357 revolver was on Defendant Brown’s lap; and the other gun was on what he called the “middle hump.” He did not know where the other gun came from. Evaluation of Testimony/Evidence The reason for the stop was a traffic violation. In the Grand Jury, Officer Monteleone testified that the reason for the stop was the driver’s failure to signal. At the hearing, however, Officer Monteleone testified that the blue BMW was parked illegally at a crosswalk which is what first caught his attention. However, he did not attempt a car stop until he observed the BMW fail to stop at a stop sign. The testimony as to how many individuals were inside the vehicle is also inconsistent. Both officers testified that there were five individuals in the car at the moment of seizure. However, the video evidence seems to suggest that there were only four individuals in the vehicle, but it is not conclusive. Indeed, Defendant Miller’s recorded statement suggests that the pistol he grabbed was on the seat, in between himself and the co-defendant, Shade Brown. The discrepancy in occupants of the car is de minimus and ultimately has no bearing on the defendants’ motion to suppress. Given the very fast-moving events and chaotic situation that ensued, the failure to recall the exact number of occupants in the vehicle does not impact the Court’s assessment of the witnesses’ testimony. Indeed, and through no fault of the officer, Officer Fortunato’s camera was blocked by his uniform during the initial portion of the video. Conclusions of Law The Court finds that the factual and legal analysis of the stop of the vehicle by the police is the same as to both defendants. However, beyond that, it necessary to analyze the facts and law as to Marcus Miller and Shade Brown separately. Stop of the Vehicle At a suppression hearing, the People have the initial burden of going forward, also known as the burden of production, and must establish either a lawful rationale for the conduct of government agents, or some other basis that requires a denial of suppression (People v. Wesley, 73 NY2d 351 [1989]; People v. Berrios, 28 NY2d 361 [1971].) Once the People have met that burden, the Defendant has the ultimate burden of persuasion, and must demonstrate the illegality of police conduct by a preponderance of the evidence. (Id.) Generally, a person has the right “to be let alone” absent a legally justifiable need by a police officer to necessarily intrude upon his or her person (People v. Holmes, 81 NY2d 1056, 1058 [1993]; People v. Martinez, 80 NY2d 444, 447 [1992]). At the same time, the police may always approach a citizen on the street to ask a question (People v. DeBour, 40 NY 2d 210, 219 [1976]; People v. Hollman, 79 NY2d 181 [1992]). In DeBour, (40 NY2d 210 [1976]), the Court of Appeals outlined the levels of suspicion a police officer must have to justify different levels of intrusions between officers and individuals for police-citizen street encounters. At a minimum, the police need only have an objective, credible reason, not necessarily indicative of criminality, to approach and request information, commonly referred to as a ‘Level One’ encounter (People v. DeBour, at 223). Furthermore, a police officer may ask a person to stop so that officer may approach to request information (People v. Reyes, 83 NY2d 945 [1994]; People v. Williams, 226 AD2d 750 [2d Dept 1996]). If that individual does not comply with the request to stop and flees, the police may not use force to stop that individual and may not pursue that person, (Holmes, supra p. 1058), absent other specific circumstances that the individual might be engaged in criminality (People v. May, 81 NY2d 725 [1992]; People v. Matienzo, 81 NY2d 778 [1993]). An officer’s common-law right to inquire, i.e., question in an accusatory manner, referred to as a ‘Level Two’ encounter, must be based on a “founded suspicion that criminal activity is afoot” (Id.). Where an officer has a reasonable suspicion that a person has, is, or is about to commit a crime, the officer is authorized to forcibly stop and detain that person for questioning, known as a ‘Level Three’ encounter (Id.; Martinez, 80 NY2d at 447). In addition to a forcible stop and detention, the officer can frisk the person if the officer “reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed” (Id.). Finally, where an officer has probable cause to believe that person has committed a crime in his presence, the officer may effect a lawful, albeit warrantless, arrest, referred to as ‘Level Four’. (Id.) The interference with a moving vehicle is a seizure requiring, at a minimum, reasonable suspicion of criminal activity, and at most, probable cause that a VTL violation has occurred (People v. Ocasio, 85 NY2d 982 [1995]; see also People v. Garcia, 20 NY3d 317[2012]). The four-level DeBour framework applies equally to street encounters and traffic stops. (Garcia, p. 324). The Court finds that Officer Monteleone had probable cause to stop the vehicle for a VTL violation that is blocking a cross walk and disobeying a stop sign. The inconsistencies elicited by defense counsel during cross examination were minor: specifically, the Court finds that Officer Monteleone’s testimony about how many people were in the vehicle when it was parked in the cross walk is less significant than the fact that the driver was not in the driver’s seat at his initial observation. Moreover, the driver of the BMW did commit at least two VTL violations, as observed by Officer Monteleone. In this case, the vehicle had been parked in the crosswalk, with no driver, and thus blocked pedestrian traffic.⁸ Second, the vehicle ran a stop sign, at which point Officer Monteleone attempted to stop the moving vehicle. Thus, the stop of the vehicle was lawful. Upon validly stopping a motor vehicle, an officer is authorized to direct the driver of the vehicle out of the car (Pennsylvania v. Mims, 434 US 106[1977]; People v. Robinson, 74 NY2d 773[1989]); and he may also order the passengers out of the vehicle (Maryland v. Wilson, 519 US 408[1997]; People v. Garcia, 20 NY3d 317[2012]) or may order them to remain inside the vehicle (People v. Forbes, 283 AD2d 92[2nd Dept 2001]) with no additional degree of suspicion required. These rules were established for officer safety and the courts have further reasoned that allowing the officer “unquestioned command” over this situation in this manner minimizes danger to both the officer and the occupants (Forbes, 283 AD2dat 95 [quoting Maryland v. Wilson, p 414]). In this case, however, based on the testimony and the Court’s review of Officer Fortunato’s body cam video. Officer Monteleone never had the opportunity to instruct the occupants to get out of or remain inside of the vehicle.⁹ Upon stopping the car. Mr. Miller attempted to flee. There is no testimony as to the actions of Ms. Brown, but video evidence shows that she was detained on the ground. People v. Marcus Miller In this case, the Court must determine whether Officer Fortunato had a lawful basis to pursue the defendant and forcibly restrain Defendant Miller. In order to detain a fleeing passenger-defendant during an otherwise valid car stop, Officer Monteleone (or Officer Fortunato) would have still needed some degree of suspicion of criminality, however minimal (see People v. May, 81 NY2d 725 [1992]; People v. Berberena, 264 AD2d 670 [1st Dept 1999]). Typically, an officer is authorized to direct the defendant to stop, whether during a street encounter or a passenger ordered out of the car during a car stop, and this will not ordinarily, standing alone, constitute a seizure (People v. Bora, 83 NY2d 531, 535 [1994]; People v. Couch, 104 AD3d 955, 956 [2d Dept 2013]). The police cannot pursue a fleeing defendant unless there are circumstances demonstrating criminality. (See, People v. Sierra, 83 NY2d 928 [1994] et. al, discussed below). However, “bearing in mind that reasonableness is the touchstone of our inquiry into the propriety of police conduct, we must weigh the degree and scope of the intrusion against the precipitating and attending conditions confronted” (People v. McLaurin, 70 NY2d 779, 781 [1987]).¹⁰ At the time of the stop of the vehicle, Officer Monteleone reasonably believed the operator of the motor vehicle, at a minimum, committed two traffic infractions: standing in a crosswalk and running a stop sign.¹¹ His vehicle requested assistance with the car stop but never relayed any specific information to Officer Fortunato or the other officers in his vehicle. Furthermore, Officer Fortunato did not testify about any degree of suspicion of criminality as to any of the occupants of the vehicle and reiterated that he was only assisting in a car stop. Immediately upon arriving, Officer Fortunato sees the defendant exit the back seat of the vehicle and start to run. Officer Fortunato very briefly chases and tackles the defendant and pats him down and searches him, at which point when he feels a hard object. It is clear from the testimony of both witnesses that the police possessed no degree of suspicion as to Mr. Miller, a passenger, at the time of the stop of the vehicle.¹² Therefore, his suppression motion turns on whether his attempt to flee escalated the encounter justifying his forcible detention and subsequent search. Based on case law from the Court of Appeals and the Appellate Divisions, the answer is no — the defendant’s flight from the vehicle, without any other information, does not justify police pursuit and forcible detention, however brief. (People v. Sierra, 83 NY2d 928, 930 [1994]["the officers knew only that, after exiting from the back seat of a livery cab that had been stopped for defective brake lights, defendant grabbed at his waistband and then fled, facts which provided them with no information regarding criminal activity"]¹³; People v. Campbell, 245 AD2d 191 [1st Dept 1997]["even crediting the officers' belief that defendant was attempting to flee, flight alone is an insufficient indication of criminality"]). In People v. Antelmi, 196 AD2d 658(2nd Dept 2001), the police validly stopped a car for a traffic violation. The defendant, who was the passenger, attempted to leave and was forcibly detained and searched, whereupon a weapon was recovered from his person. The Appellate Division held that since there was no showing of a reasonable suspicion of criminality by the defendant/passenger to justify the forcible detention and search, his physical detention was unlawful, and suppression of the weapon was required. In People v. Campbell, 245 AD2d 191(1st Dept 1997), police stopped a livery vehicle for going through a steady red light. They stopped the car and one of the occupants in the rear passenger seat exited the car. The officer believed he was trying to leave and pushed him up against the car. The defendant was carrying a bag and threw it back into the car. The police searched it and found narcotics. The Appellate Division found that the officers were not justified in subjecting the defendant/passenger to forcible detention, i.e., pushing him back against the car, and suppressed the narcotics. In People v. Furrs, 149 AD3d 1098(2nd Dept 2017), the police observed a car fail to signal and then roll through a stop sign. The defendant/passenger exited the car as it was still moving at about one mile per hour, police yelled “stop”, the defendant ran and was apprehended less than a minute later. The police chased the defendant, who discarded a weapon during the pursuit. The court held suppression of the weapon was required because the police had no indication of criminality by the passenger and his flight did not elevate the encounter to that of reasonable suspicion. Here, the only information known to the officers at the time of forcible detention of Mr. Miller was that the driver had committed two VTL infractions. Even in a chaotic, rapidly developing situation — which this clearly was as evidenced by Officer Fortunato’s body cam video — there must be some degree of information, however minimal, to justify any further physical intrusion of the fleeing passenger. There was no testimony regarding suspicious behavior by Mr. Miller that would justify detention, other than his running from the car. Indeed, when asked, Officer Fortunato testified that the reason the defendant was seized was because he “fled from a lawful car stop.” The People rely on People v. Hunter, 82 AD2d 893(2nd Dept 1981) for the proposition that the manner in which the car was driven in this case, and the defendant’s subsequent flight, provided probable cause to arrest Mr. Miller.¹⁴ In Hunter, a police officer observed a car driving with no lights. The officer pulled up alongside the driver and informed him about his lights. He then observed the driver look around for about twenty seconds for the headlight switch. Then the car began to drive off slowly, well below the speed limit, and the occupants stared straight ahead and stopped talking to each other. Based on his observations, he became suspicious that either (1) the car was stolen or (2) the driver may be drunk. Before leaving his authorized jurisdiction,¹⁵ the officer decided to pull the car over by turning on his lights and sirens. The defendant’s vehicle immediately accelerated and sped away at more than 65 mph. It subsequently crashed into a snowbank and the occupants fled. The officer found the car and also found a gun in the abandoned car. Another officer saw Hunter flee and found him in the snow in the woods and placed him under arrest. The Appellate Division, Second Department, found there was probable cause to stop and arrest Hunter. Hunter is distinguishable from this case because the officer had reason to suspect that Hunter, the passenger, may be in possession of a stolen vehicle based on his observations of the occupants looking for the headlights switch, regardless of the operation of the vehicle by the other defendant. Here, despite the multiple traffic violations committed by the operator of the BMW, Officer Monteleone did not provide any testimony as to any degree of suspicion as to any of the passengers. It is difficult to fathom any law enforcement officer not acting exactly as Officer Fortunato did in this case.¹⁶ He was called to assist in a car stop with no additional information. Immediately upon his arrival, he sees one of the occupants of that vehicle start to run away. His quick actions led to the recovery of two illegal firearms. Moreover, his body cam video aptly demonstrates that due to Mr. Miller’s actions, Officer Fortunato had no time at all to confer with other officers to obtain further information about why the car was stopped and if there was any basis to detain any of the passengers because he acted immediately upon exiting his police car and tackled defendant Miller. It is axiomatic that the original purpose of the Exclusionary Rule was to deter unlawful police conduct. This Court is of the opinion that, in general, society would not view Officer Fortunato’s as unreasonable,¹⁷ despite the present rules in New York under DeBour/Hollman. The appellate courts have not established an exception that allows a law enforcement officer in Officer Fortunato’s position to act as he did, i.e., briefly detain a person who is fleeing a car stop so as to gather information from a fellow officer to determine if he or she is the basis for the stop or if another officer has a basis to detain any of the passengers. Officer Fortunato had to instantaneously make a Hobson’s Choice: decide to physically stop the defendant, who was starting to run away, or instead seek out Officer Monteleone (or another officer) and ask him if there was any reason to hold the passengers before detaining Mr. Miller, if he was to comply with New York Search and Seizure law. Clearly, opting to do the latter would have permitted the defendant to very likely avoid apprehension, as the video evidence shows a chaotic situation. The Court of Appeals has established the Fellow Officer Rule,¹⁸ which allows an arresting officer to (1) arrest (or detain) a person on the basis of information supplied to him by another officer, which, by itself or taken together with other information known to the arresting officer, constitutes probable cause, or (2) authorizes an officer to arrest a person at the direction of another officer who does have probable cause. However, that does not apply here because Officer Monteleone had no information related to Mr. Miller, nor did he convey any information to Officer Fortunato prior to his forcible stopping of the defendant. Second, the Court of Appeals has also “sought to provide and maintain ‘bright line’ rules to guide the decisions of law enforcement and judicial personnel who must understand and implement our decisions in their day-to-day operations in the field” (People v. Garcia, 20 N.Y.3d 317, 323 [2012]). Assuming this Court is correct — that every law enforcement officer would have acted exactly as Officer Fortunato did in this case in forcibly stopping Mr. Miller, it may be necessary to create an exception to the DeBour/Hollman paradigm to allow an officer to detain a person very briefly, by force if necessary, to determine if another officer has any articulable basis to detain that specific passenger. This is not meant to suggest that flight adds to the degree of suspicion; but rather the narrow exception would permit an information gathering function to relieve the officer from having to make a split-second choice between allowing a person to escape or possible suppression of evidence. Those factors that should be relevant are the number of officers on the scene, the ability of the officer to obtain information from another officer, the length of time it takes to obtain that specific information as to that passenger relative to how long the passenger was detained, and any conduct toward that particular passenger. A brief pat down of the person should be permitted for the safety of the officer. Absent such an exception, this Court is constrained to grant the motion to suppress the two firearms as to Mr. Miller. Statements of Mr. Miller The Court finds that the Mr. Miller knowingly, voluntarily, and intelligently waived his Miranda rights. Generally, statements made involuntarily and/or pursuant to a “custodial interrogation” without the issuance of an accused’s Miranda warnings are suppressible (CPL 60.45[2]; Dickerson v. US, 530 US 428, 434 [2000]; People v. Guilford, 21 NY3d 205, 208 [2013]; People v. Paulman, 5 NY3d 122, 129 [2005]). The question of custody concerns “what a reasonable person, innocent of any crime, would have thought had he or she been in the defendant’s position” (Id.) At a hearing to determine the admissibility of such statements, the burden of proof is on the People to establish voluntariness beyond a reasonable doubt (People v. Huntley, 15 NY2d 72, 78 [1965]; People v. Diaz, 291 AD2d 409 [2d Dept 2002]). People’s Exhibit 4 shows that Mr. Miller was clearly and directly read all the required Miranda warnings, answered “yes” to all the questions, and indicated that he was willing talk with the detective. Additionally, there is no evidence of any trickery, coercion, or duress on the part of law enforcement to procure the waiver of Miranda rights. Mr. Miller’s statements to Officer Fortunato in the vehicle on the way to the precinct were clearly spontaneous statements and were not made pursuant to any questioning by Officer Fortunato. In fact; Officer Fortunato had to tell Mr. Miller to “shut up” at one point. Attenuation Since the officers had no lawful basis to pursue and forcibly seize Mr. Miller, all evidence, including his statements, that directly flow from his detention must also be suppressed, unless sufficiently attenuated from the original unlawful taint (Wong Sung v. US, 371 US 471[1963]; People v. Martinez, 37 NY2d 662[1975]. As stated above, this Court finds the defendant was properly advised of his Miranda rights and knowingly and voluntarily waived those rights, as evidenced by People’s Exhibit 4. This statement evidence, however, must be suppressed if it is causally related to the unlawful police conduct; specifically, the forcible stop of the defendant, which led to his arrest after the police recovered the two firearms, unless it is sufficiently attenuated from the unlawful arrest. (Martinez, supra.) A subsequent knowing voluntary, and intelligent waiver of Miranda rights by the defendant does not “alone and per se” serve to create attenuation. (Brown v. Illinois, 422 US 590, 603[1975]). Attenuation is determined by applying the facts of the case to a three-part test: “(1) the temporal proximity of the arrest and confession; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.” (Brown v. Illinois, p. 603-604); Here, the evidence introduced at the hearing shows Mr. Miller forcibly stopped while fleeing a car during a lawful traffic stop. This seizure was determined to be unlawful because there was no information elicited that justified the detention and or search of Mr. Miller. He was then handcuffed, arrested, place in a police vehicle and transported to the precinct where he was interrogated. Based on the testimony and other evidence, the stop of the vehicle and arrest of the occupants occurred at approximately 9:30-10 PM on January 23, 2021. The arrest involved between four and five defendants; however, after an investigation and the statements of the defendants, weapon charges as to the two weapons found on Mr. Miller were filed against only Mr. Miller and Ms. Brown. The interrogation of Mr. Miller began the next day, approximately at 10:08 AM. There was no testimony or other evidence as to any substantive intervening factor(s) relative to this case that purged the initial unlawful activity. (See, Martinez, supra; People v. Clark, 149 AD2d 720[2nd Dept 1989]). As to third factor under Martinez, the Court does not find Officer Fortunato’s conduct to be a flagrant violation of the law; and the purpose of his police actions toward Mr. Miller were reasonable under the very specific circumstances of this case, even though ultimately deemed to be unlawful. Nonetheless, applying the three-part test to Mr. Miller’s subsequent interrogation, the Court finds there was a causal connection between his unlawful arrest and interrogation and there were no intervening factors that would purge the taint of the unlawful stop. Therefore, the defendant’s statement must also be suppressed as the fruit of the unlawful arrest. (Wong Sung, 371 US 471[1963]; People v. Jones, 21 NY3d 449[2013]; People v. Nichols, 117 AD3d 881[2nd Dept 2014]; People v. Isaac, 101 AD3d 1152[2nd Dept 2012]). People v. Shade Brown Defendant Brown was an occupant in the same vehicle as Mr. Miller. As discussed above, the stop of that vehicle was lawful. (People v. Ocasio, 85 NY2d 982 [1995]; see also People v. Garcia, 20 NY3d 317[2012]). Also, pursuant to a lawful traffic stop, she could lawfully be ordered out of the vehicle. (Maryland v. Wilson, 519 US 408[1997]; People v. Garcia, 20 NY3d 317[2012]). The two issues relevant to her suppression motion are (1) her standing to assert a violation of Mr. Miller’s Fourth Amendment rights as her own; and (2) when exactly she was forcibly detained in handcuffs. First, the Court finds that the recovery of the two firearms from Mr. Miller provided the probable cause to arrest Ms. Brown as they both had just occupied and exited the same vehicle that contained two firearms. As a result, Ms. Brown and every other passenger was arrested and taken to the precinct. No tangible property was recovered from Ms. Brown. After her arrest, Ms. Brown made incriminating statements as to the revolver only, including her ownership of it and her actual possession of it throughout the evening of the arrest up to when Mr. Miller took it off her lap and exited the vehicle. When the People charge a defendant with PL 265.03 and where they rely on the presumption contained in PL 265.15 to establish the element of possession, the defendant has standing to challenge the stop and search of the vehicle (People v. Millan, 69 NY2d 514[1987]). In People v. Mosley, 68 NY2d 881(1986), the Court of Appeals expanded a defendant’s standing to allow a defendant to challenge the probable cause for his arrest based on the recovery of property recovered from another person, under certain circumstances. As Judge Kamins[ret.] aptly stated in his seminal treatise, New York Search & Seizure: Mosley permits defendant A to suppress what was seized from A by attacking the sufficiency of the information or evidence supporting B’s arrest. If B’s arrest was illegal, A’s arrest for joint possession becomes illegal and the fruits of A’s arrest can be suppressed. If nothing was seized from A, then A has nothing to suppress, since there are no “fruits” of the illegality. It should be remembered, however, that even if A has standing to contest the sufficiency of B’s arrest, A would have standing only to suppress what was taken from A; if evidence was seized from B, A would have no standing to suppress that evidence. Thus, in Mosley, if the starter’s pistol taken from B had ultimately been used as evidence against A, defendant A would not have had standing to challenge the seizure of that evidence from defendant B.¹⁹ Clearly, as to the revolver, which is the basis of Count 4 in the indictment, the People are not relying on the presumption in PL 265.15. Ms. Brown’s statements during her interrogation indicate that: (1) she owns the revolver; (2) she had it all night in the studio while she was making the video; (3) it was in her pants while driving in the car, but she took it out because it was uncomfortable; (4) it was on her lap while driving in the car; and (5) her co-defendant, Mr. Miller, took it off her lap once the car was stopped. The statement evidence therefore indicates that she had actual possession of the revolver up until the moment Mr. Miller grabbed it from her. The standing afforded to the defendant under Millan is limited to that which the presumption permits, in this case a permissible inference that the defendant constructively possessed a weapon while in a vehicle. Here, her statements indicate that the presumption is wholly inapplicable to the recovery and prosecution of the revolver. Therefore, this Court finds that Ms. Brown does not have standing to challenge the recovery of the revolver from the person of Mr. Miller and her motion to suppress that weapon is denied. Count 3 in the indictment charging Ms. Brown with possession of the pistol is less clear. Her statement disclaimed any knowledge, ownership and, by inference, knowing possession of that firearm. Therefore, the People would have to establish her possession through some other direct evidence (e.g., testimony of another occupant of the vehicle or video evidence) indicating her actual possession or through constructive possession, either physical dominion and control or the statutory car presumption contained in PL 265.15. However, there is no indication that the People are relying on the presumption in PL 265.15 to establish her constructive possession of the pistol, Count 3. Therefore, as to Count 3, the pistol, Ms. Brown does not have standing to challenge the search of Mr. Miller and her motion to suppress that weapon is also denied. (People v. Wesley, 73 NY2d 351[1989]; People v. Mosley, 68 NY2d 881[1983]). Should the People attempt to use the presumption in PL 265.15 to establish constructive possession of the pistol by Ms. Brown, then Ms. Brown has leave to reargue this motion to suppress the pistol, as charged in Count #3 within the indictment. Determining the timing of Ms. Brown’s arrest is the more complicated issue related to her motion to suppress statement evidence. In order to place someone under arrest, the police must have probable cause to arrest (People v. Carrasquillo, 54 NY2d 248, 254[1981]). Probable cause²⁰ means more likely than not that a crime has been committed and the person being place under arrest is the person who committed that crime. (CPL 70.10[2]; Carrasquillo, at 254[1981]). Courts should not engage in a frame-by-frame analysis of an incident and instead should consider the totality of the circumstances in assessing whether probable cause or reasonable suspicion exist (People v. Stephens, 47 AD3d 586[1st Dept 2008]). Placing a person in handcuffs may be authorized even though full probable cause does not yet exist (People v. Moore, 6 NY3d 496[2006][gunpoint stop required reasonable suspicion]; People v. Swain, 168 AD2d 1130[2019][handcuffing a person and placing into back of a police vehicle requires at a minimum reasonable suspicion]). However, placing someone in handcuffs is considered a forcible detention, requiring reasonable suspicion that a criminal activity is afoot, or some other justification requiring interference with a detainee’s movement (Swain, at 1131). Similar to Mr. Miller, there was no testimony as to any degree of suspicion against Ms. Brown, as a passenger in the vehicle, prior to the discovery of the firearms on Mr. Miller’s person. After viewing the body cam video and comparing it to the testimony of Officer Monteleone, it is difficult to determine when exactly Ms. Brown was handcuffed. As stated above, Officer Fortunato’s body cam video and his testimony indicate that his vehicle was right behind Officer Monteleone’s vehicle immediately prior to the stop. The video shows him opening his rear passenger door before his vehicle even comes to a stop and he immediately exits and physically encounters Mr. Miller in less than five seconds. During his struggle on the ground with Mr. Miller, Officer Fortunato’s body cam video shows Ms. Brown belly down on the ground, with her arms and hands behind her back, consistent with being handcuffed. However, based on the video alone, the Court cannot conclusively determine if she is actually handcuffed, at this time. Officer Monteleone testified that Ms. Brown was handcuffed at some point; he did not handcuff her; he does not know why she was handcuffed; and speculated that it was probably a female officer who did it, (Tr. at 94) but did not provide the name or identity of that officer. Notably though, it appears based on his testimony that he noticed she was handcuffed before he walked over to Mr. Miller and Officer Fortunato. While it seems unlikely that all occupants of the vehicle could have been taken out of the vehicle and handcuffed between the time Officer Fortunato exited his car and the time Ms. Brown is first seen on the ground in his body cam video; it seems equally unlikely that they would be holding their hands behind their backs unless they were handcuffed.²¹ Based on his testimony together with the video footage of Ms. Brown with her arms and hands behind her back, the Court is unable to determine when exactly Ms. Brown was handcuffed. The most reasonable inference from the testimony and video footage is that Ms. Brown was handcuffed before the discovery of the two firearms on Mr. Miller. As stated above, the stop of the vehicle and subsequent police engagement with the passengers was very fast-moving and chaotic; however, in this case, there is no exception that authorizes the use of handcuffs on Ms. Brown before the discovery of the firearms on Mr. Miller. Nonetheless, the People have failed to meet their initial burden of going forward to show the legality of the police conduct, specifically (1) that Ms. Brown was handcuffed only after the guns were recovered on Mr. Miller and (2) her arrest at that time was based on probable cause. (See, Wesley, supra; Berrios, supra). Huntley At the time the defendant made her videotaped statements, the defendant was in custody and made subject to police interrogation. The video does show that Detective Brown administered Miranda warnings prior to questioning the defendant. The defendant did indicate that she understood her rights, and when asked if she wanted to answer questions, she definitively responded “Yes.” The defendant then responds to the detective’s questions, explaining that the 357 revolver found on Mr. Miller was in fact hers, that she found it in Brooklyn, about two weeks ago, and that it was in her possession for the entire evening up until the moment Mr. Miller grabbed it off her lap and ran. The Court finds that the Miranda warnings were properly administered to Ms. Brown and she thereafter knowingly, voluntarily, and intelligently waived her rights. Attenuation Since the People have not met their burden of going forward showing the legality of Ms. Brown’s seizure, all evidence, including her statements, that directly flow from her detention must also be suppressed. As stated above, this Court finds the defendant was properly advised of her Miranda rights and knowingly, voluntarily, and intelligently waived those rights, as evidenced by People’s Exhibit 4. This statement evidence, however, must be suppressed if it is causally related to the unlawful police conduct, specifically, an arrest without sufficient probable cause, unless it is sufficiently attenuated from the unlawful arrest. (Wong Sung v. US, 371 US 471[1963]). A subsequent knowing, voluntary, and intelligent waiver of Miranda rights by the defendant does not “alone and per se” serve to create attenuation. (Brown v. Illinois, 422 US 590, 603[1975]). Attenuation is determined by applying the facts of the case to a three-part test: “(1) the temporal proximity of the arrest and confession; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.” (Brown v. Illinois, p. 603-604); People v. Martinez, 37 NY2d 662(1975). The three-part test in Brown and Martinez is also applied to Ms. Brown’s statements: base on the testimony and other evidence, the stop of the vehicle and arrest of the occupants occurred at approximately 9:30-10 PM on January 23, 2021. The arrest involved four to five defendants; however, after an investigation, charges as to the two weapons recovered from Mr. Miller were filed against only Mr. Miller and Ms. Brown. The interrogation of Ms. Brown began approximately at 9:48 AM and ended at 10:00 AM, the next day, January 24, 2021. There was no testimony or other evidence as to any substantive intervening factor(s) relative to this case that purged the initial unlawful activity. (See, Martinez, supra, People v. Clark, 149 AD2d 720[2nd Dept 1989]). As to third factor under Martinez, the Court cannot assess the degree of official misconduct as to Ms. Brown, given the paucity of information of who handcuffed her, when and why. Nonetheless, applying the three-part test to Ms. Brown’s subsequent interrogation, the Court finds there was a causal connection between her unlawful seizure and interrogation and there were no intervening factors that would purge to the taint of the unlawful seizure. Therefore, the defendant’s statement must be suppressed as the fruit of the unlawful arrest. (Wong Sung 371 US 471[1963]; People v. Jones, 21 NY3d 449[2013]; People v. Nichols, 117 AD3d 881[2nd Dept 2014]; People v. Isaac, 101 AD3d 1152[2nd Dept 2012]). This constitutes the decision and recommendation of the Court. Dated: October 12, 2021