DECISION & ORDER Defendant stands indicted for criminal possession of a weapon in the second degree and related charges. In connection therewith, he moved to suppress a loaded firearm on the grounds that it was recovered as the result of his illegal arrest and the illegal search of his apartment mailbox without a warrant. Defendant also moved to suppress statements he made to officers and the DNA results obtained from a buccal swab, on the grounds that they also were the result of the illegal arrest and search. By decision and order dated October 15, 2021, the court directed a pre-trial Mapp/Dunaway/Huntley/Wade suppression hearing, over which this court presided on January 31, February 1 and 7, and March 25, 2022. This court also reviewed the following post-hearing submissions: Memorandum of Law in support of William K. Schwarz, Esq. dated 3/28/22 Post Hearing Memorandum of Law in opposition of Stephen J. Russo, Esq. dated 3/28/22 As explained herein, defendant’s motion is granted to the extent set forth below. Findings of fact The following findings are based on the hearing testimony of NYPD Officer Jose Rosa, Sergeant Eloise Walter, and Detectives Brian Cestare and Agon Pukaj.1 This court’s findings are also based on other submitted evidence, including video from the officers’ body cameras. Rosa testified that, on the morning of April 8, 2020, he and his partner, while patrolling, responded to a 911 call that a man had menaced construction workers with a firearm outside the apartment building located at 218 East 179th Street in Bronx County. Defendant resided with other family members in apartment # 3 in the building. When the officers arrived at the scene at about 10:00 a.m., Rosa interviewed several workers who reported that defendant had brandished a handgun and threatened them with it. According to the witnesses, defendant then entered the apartment building for a few minutes and exited from it shortly thereafter. Defendant was still in the vicinity, and workers pointed him out to Rosa. Rosa’s partner interviewed defendant, who denied the allegations. Defendant stated that the workers’ truck had hit and damaged his parked vehicle, and, after the workers had initially agreed to compensate defendant for the damage, they reneged and threatened to call the police. Defendant further claimed that he never had a firearm, and that the workers had mistaken his wallet for a handgun. Sergeant Walter, who was Rosa’s supervisor, arrived at the scene with other officers and spoke with the complainants. When defendant provided identification to Rosa at his request, he searched online and found that an NYPD detective had issued an “I-Card” (investigation card) indicating probable cause to arrest defendant for assault in the third degree in connection with an incident in February 2020. The I-Card was not offered into evidence. Rosa testified that, based on the I-card information, officers arrested defendant and brought him to the 46th precinct. On cross examination, Rosa testified that he knew nothing about the February 2020 incident other than what the I-Card indicated. In particular, Rosa did not know anything about the underlying circumstances which led a fellow officer to believe there was probable cause to arrest defendant. Rosa testified that he telephoned the Detective Squad to confirm that the I-Card was still active, but did not speak with the detective who issued it. Cestare testified that, on the morning of April 8, 2020, he was working as a Field Intelligence Officer at the 46th precinct. His duties included acting as a liaison with the Bronx County District Attorney’s office in obtaining search warrants. When Cestare was notified of a possible crime involving a firearm for which officers might need a warrant, Cestare traveled to the scene of the incident to assist in the investigation. When he arrived at about 10:30 a.m., defendant had already been arrested and removed from the location. Cestare spoke with Walter and other officers, witnesses and defendant’s sister. Cestare then contacted the Bronx County District Attorney’s office to seek a warrant to search defendant’s apartment for a firearm. According to Cestare, the ADA he spoke with told him that they were understaffed and that, in lieu of a warrant, the police should try first to obtain consent to the search. This court notes that these events occurred during the height of the COVID-19 pandemic, which undoubtedly disrupted the regular functioning of the District Attorney’s office and many other agencies. Cestare returned to the 46th precinct, where he and Detective Wilshire met with defendant in the precinct holding cell. After Wilshire read defendant his Miranda rights, Cestare and Wilshire asked him for consent to search his apartment. Defendant signed a consent form (People’s exhibit 1), but limited his consent to a search of his bedroom and not the other areas of the apartment. Cestare returned to the apartment building and told Walter about defendant’s consent. Walter and other officers then proceeded to defendant’s apartment and searched defendant’s bedroom, but did not locate any firearm. Cestare remained outside the apartment during the search. At some point, he requested and obtained a second consent to a search from Norm Washington, who told Cestare that he was defendant’s cousin and also resided in defendant’s apartment (People’s exhibit 11). Cestare testified that Washington orally consented to a search of the entire apartment and did not restrict the search to defendant’s bedroom. The consent form, however, does not specify what premises or items were to be searched. After Cestare informed Walter that the cousin had consented, Walter and other officers searched the entire apartment but did not find a firearm. Cestare further testified that, based on his experience and training, and the brief amount of time defendant had spent in apartment building after the altercation, he suspected that defendant may have hidden his firearm in the apartment’s mailbox in the building’s lobby. The mailbox in question was marked “[Apartment #] 3,” defendant’s last name (“Washington”) was written above it, and defendant’s first name and last initial (“Devante W”), along with other names, were written on a piece of paper attached to the front of the mailbox (Defendant’s exhibit G). Cestare testified that he touched the mailbox, saw that it was locked but “flimsy,” and then pried it partially open by wedging his finger, up to the first knuckle, into the top left corner between the mailbox’s door and its frame. He then bent the mailbox door away from its frame, shone his flashlight down into the opening, and saw what appeared to be a firearm inside the mailbox. It was then approximately 12:24 p.m. on April 8, 2020. Cestare again contacted the Bronx County District Attorney’s office and asked about obtaining a search warrant for the mailbox. He testified that he was again told that District Attorney’s office was short-staffed, and was informed that “if we got the lease owner or the leaseholder of the apartment to sign a consent and specify that we could search the mailbox, we didn’t need the search warrant.” Thereafter, Walter testified, she approached defendant’s grandmother, Ada Davis, in the apartment to seek a third consent. Davis was a 93-year-old woman, who Walter described in testimony as “bedridden.” Davis’s certified medical records were entered into evidence (Defendant’s exhibit H). She had been diagnosed with memory issues beginning in early 2015. In March of 2015, she was noted to have hearing loss and stable memory loss. In September 2015, she was diagnosed with dementia. In May and September, 2017, doctors’ notes indicated that Davis was disoriented. On April 9, 2020, one day after the incident, a doctor reported that her daughter, defendant’s mother, had recently died from COVID-19. Walter’s interaction with Davis was captured on two video clips from the officer’s body camera (People’s exhibit 6). While Walter and Davis spoke, Davis remained in her bed with a portable commode next to it; her home health aide alternately stood or sat next to her. In the first clip, Walter introduced herself, told Davis that “I think there may be a gun in the apartment,” and asked her “Will you let me look through the apartment?” Davis responded, “There’s no gun in there.” Walter never asked Davis whether the police could search the mailbox in the lobby. Walter began reading the consent to search form to Davis, and then stopped to ask her if she understood what Walter was saying. Davis did not answer and remained silent. Walter asked Davis three more times if she understood before she responded. Walter then finished reading the form, and explained to Davis that she was giving the police her consent to search “the apartment.” Again, Walter did not mention the mailbox. Walter again asked Davis if she understood and received no response. Walter then told Davis that by consenting she would be allowing the police “into her home” to look for a gun. Walter again asked Davis if she would consent; Davis responded, “No gun.” Walter again explained that she wanted permission to search for a gun and asked Davis if she understood. Davis did not reply, and Walter again stated that she was asking for Davis’s consent to a search of the home for a gun. After Davis finally agreed, Walter handed her the consent form and looked for a hard surface for her to write on. Once again, Walter told Davis that she was seeking consent to a search of her “home” and did not mention the mailbox. Walter then asked Davis to start completing the form by writing her name on it, but before she did, Walter asked the aide attending to Davis, “Do you think that she’s lucid enough to know what she’s signing?” The aide did not respond, but Walter stated that she herself thought Davis was lucid. Thereafter, Davis said she needed her eyeglasses to read and complete the form. Walter asked about finding the glasses and then apparently turned off her body camera for some period. In the second video clip, Walter re-entered Davis’s bedroom, where the aide told Walter that they could not find eyeglasses for Davis. Walter said she would help Davis fill out the form. Walter told Davis to write her name, date of birth, and address on the form on the appropriate lines; Davis complained that she didn’t have her glasses and struggled to fill the form out correctly. As examples of Davis’s difficulties, Walter had to keep her from signing the form in the wrong place, and Walter acknowledged in testimony that some of Davis’s writings on the form were illegible “scribbles.” On the consent form which Davis signed (People’s exhibit 2), the words “Mail Box” are written on the line for “Vehicles or Items to be Searched.” The People did not proffer any evidence that Davis filled in this part of the form. Cestare testified that he was in the apartment while Walter spoke to Davis about obtaining her consent. After Davis signed the consent form, Cestare contacted the D.A.’s office for a third time, and told the office that, although consent had been given, the police required a search warrant for the mailbox because “we did not have a key to access the mailbox and we would have had to request…for the postal police to come and break into the mailbox.” Thereafter, however, a USPS mail carrier arrived at the premises to deliver the mail. The police asked the mailman to open the apartment’s mailbox in their presence. The mail carrier did not have to open the mailbox to deliver mail to the apartment occupants, because the only piece of mail he had to deliver was a large package addressed to defendant that obviously could not fit in the mailbox and would have to be left outside it. After unlocking the mailbox, the mail carrier informed the police that the package would not fit. Officers looked down into the unlocked mailbox and observed the firearm. The police asked the postal carrier to leave the mailbox open with the firearm inside it until the Evidence Collection Team arrived to recover it, but thee carrier refused; the officers then removed the gun from the mailbox and the mailman re-locked it. The officers placed the gun on a shelf below the mailboxes, along with defendant’s package. Pukaj testified that he responded to the radio report of the incident on April 8, 2020, and arrived at defendant’s apartment building at about 10:47 a.m. and assisted with defendant’s arrest. Thereafter, Pukaj participated in the firearm’s retrieval from the mailbox; his body camera footage captured the incident (People’s exhibit 5). After the firearm was recovered, defendant, already under arrest at the 46th precinct in connection with the February 2020 incident, was charged with possessing the weapon. Defendant’s video statement on April 8, 2020 was admitted into evidence (People’s exhibit 8). During the statement, officers again read defendant his Miranda rights, and, after defendant agreed to answer questions, asked him both about the alleged February 2020 assault and the new firearm possession charge. When confronted with a photograph of the firearm in the mailbox, defendant denied that it was and his and denied that he had put it there. Finally, when asked by officers, defendant consented in writing to giving a DNA sample (People’s exhibit 12). His cheek was then swabbed. Discussion: Defendant’s arrest At the suppression hearing, the People failed to meet their evidentiary burden to prove that the I-Card, which indicated that there was probable cause to arrest defendant for assault in connection with an earlier incident,2 constituted probable cause for arresting him on April 8, 2020. As Justice Barry Kamins (ret.) explains, when a defendant at a Mapp hearing challenges the reliability of I-Card information which gave rise to his arrest, the People are required to establish that the I-card’s issuer had probable cause: “Frequently, in an effort to meet its burden of establishing probable cause for an arrest, the prosecution will offer evidence at a suppression hearing that an officer made an arrest based on information received from a…bulletin…or some other official police source. In these cases, the arresting officer will normally not have any personal knowledge that the defendant committed a crime; thus, the arresting officer is relying entirely on what the “sending” officer tells him in the communication. … In the scenario described above, a police officer acts on the strength of a police communication through official channels…directing the officer to make an arrest. When this occurs, there is no recitation of the underlying facts and circumstances; the receiving officer is relying on the official communication, and not on the person who supplied the underlying information. In this situation, the officer or department furnishing that information presumptively possesses the requisite probable cause that justifies the warrantless arrest, and the prosecution always has the burden of going forward to establish the sufficiency of the information, i.e., that it is sufficient to establish probable cause. Once that occurs, there is a presumption that the receiving officer possessed probable cause to arrest. That presumption remains unless the defendant challenges the reliability of the information. Once the defendant makes that challenge, the presumption disappears, and the burden shifts to the prosecution to establish that the officer or agency imparting the information, in fact, possessed the probable cause to act. (Barry Kamins, New York Search & Seizure §7.03 [3] [iv] [A] at 7-91 to 7-93 [2021] [emphasis in original] [footnotes and citations omitted] [see also, e.g., People v. Rosario, 78 NY2d 583, 588 [1991], cert denied 502 US 1109 [1992]). Search of premises and mailbox Assuming for the sake of argument that defendant’s arrest was legal, the firearm, post-arrest statements, and defendant’s consent to a buccal swab must still be suppressed as the fruit of the illegal search of the mailbox. This court is satisfied that defendant validly consented to the search of his bedroom. The search of the rest of the apartment was legal because either Norm Washington had the authority to consent to a search or, under the apparent authority doctrine, Cestare reasonably believed, after inquiring about Norm Washington’s access to and control over the apartment, that he could consent to a search (see People v. Adams, 53 NY2d 1 [1981]). However, the warrantless search of the mailbox was illegal. Turning to a threshold issue, and contrary to the People’s argument, defendant established his standing to challenge the search. The evidence at the hearing showed that defendant lived in the apartment corresponding to the mailbox and that he received mail at that address which was delivered to that mailbox. Thus, he had a reasonable expectation of privacy in the mailbox (see People v. Lilly, 211 AD2d 428, 428 [1st Dept 1995] ["[t]he defendant’s legitimate expectation of privacy in [a] mailbox…and his resulting standing, were established by his assertion, in response to the officer’s question, that the mailbox was his and that he resided in the corresponding apartment”]). While defendant stated after his arrest that he lacked a mailbox key, that fact alone does not negate his expectation of privacy. Cestare’s manipulation of the locked mailbox to look into it constituted an illegal search. Cestare could not see into the mailbox, but theorized that a firearm could be in it. Instead of obtaining a warrant based on that theory, Cestare pried the mailbox partially open to search it. Clearly, the “plain view” exception to a search warrant requirement did not apply because the firearm was not plainly visible to Cestare and he did not view it from a lawful vantage point (see Minnesota v. Dickerson, 508 US 366, 375 [1993]). Further, a search warrant for the mailbox was required because the police never obtained a valid consent to search it. “When a search and seizure is based upon consent…the burden of proof rests heavily upon the People to establish the voluntariness of that waiver of a constitutional right” (People v. Whitehurst, 25 NY2d 389, 391 [1969]). The People must establish consent by “clear and positive evidence” (People v. Corbin, 201 AD2d 359, 359 [1st Dept 1994]). Here, the People do not claim that defendant or Norm Washington consented to have the apartment mailbox searched. And under the totality of the circumstances presented here, this court finds that any consent by Davis was not knowing and voluntary. The hearing adduced during the hearing, especially the videotapes, demonstrate that Davis was mentally and physically fragile, and did not understand that Walter was asking for access to the mailbox. In fact, during the recorded interaction between Walter and Davis, Walter kept referring to a search of Davis’s apartment, and never mentioned the mailbox once. Statements and DNA results Insofar as the People failed to prove at the suppression hearing that there was probable cause to arrest defendant for the assault charge arising from the February 2020 incident, his post-arrest statements and DNA results are suppressed as the fruit of an illegal arrest (see Dunaway v. New York, 442 US 200 [1979]). In any event, the statements and DNA results must be suppressed as the fruit of the illegal search of the mailbox. Conclusion Accordingly, it is ORDERED that the Bronx County District Attorney is restrained and precluded from using, upon the trial of the above-named defendant, (1) the physical evidence recovered in connection with this case, (2) post-arrest statements by defendant, and (3) DNA results from the buccal swab performed on defendant. The foregoing constitutes the order of the Court. Dated: May 4, 2022
