DECISION AND ORDER A Person Alleged to be a Juvenile Delinquent, BACKGROUND In the instant matter, the court held a Dunaway/Mapp/Huntley hearing on May 31, 2023, and June 12, 2023. The Presentment Agency called Police Officer Zachary Parker (“Officer Parker”) as its sole witness. Following the conclusion of Officer Parker’s direct examination, the Attorney for the Child (“AFC”) cross-examined Officer Parker. Subsequently both parties rested, and oral arguments were made. Thereafter, the court granted the AFC’s request to submit additional written summations. Following careful consideration of the testimony, evidence, and summations received by the court, Respondent’s request to suppress physical evidence and Respondent’s statements is granted for the reasons stated herein. LEGAL PRINCIPLES AND DISCUSSION In Dunaway v. New York, 442 US 200, 99 SCt 2248 (1978) and Mapp v. Ohio, 367 US 643, 81 SCt 1684 (1961), the United States Supreme Court held that evidence, including physical evidence, is inadmissible if it is the product of an arrest or seizure that is not supported by probable cause. Likewise, in accordance with People v. Huntley, 15 NY2d 72 (1965), statements made in an involuntarily manner or under duress are inadmissible at trial. Absent notable exceptions, the Court of Appeals has consistently rejected warrantless searches of vehicles performed at the scene of an arrest where the occupants have already been removed, frisked and restrained on grounds less than probable cause (see People v. Torres, 74 NY2d 224, 227 [1989]). To be sure, a report of a gun in a vehicle does not, by itself, give law enforcement cause to search that vehicle (id.). In Torres, officers responded to an anonymous tip that a man driving a black Eldorado was carrying a gun in his shoulder bag, and then saw a man matching that description (74 NY2d 224 at 227, supra). Based on that observation, the Court held that officers were permitted to pull him and another individual out of the vehicle and conduct a protective pat-down, but that once the men had been frisked and there was no longer an immediate threat to the officers’ safety, “there was, as a matter of law, no justification for conducting a further, more intrusive search extending to the removal of personal effects [including the shoulder bag] on the front seat of defendant’s car.” In holding as such, the Court remarked that “the detectives may have had a reasonable basis for suspecting the presence of a gun [but] [t]heir information plainly did not rise to the level of probable cause to search closed containers within the car’s passenger compartment for a weapon.” (id.). In a subsequent case decided several years after Torres, the Court of Appeals re-affirmed this principle by stating as follows: “absent probable cause, it is unlawful for a police officer to invade the interior of a stopped car once the suspects have been removed and patted down without incident and any immediate threat to safety thereby eliminated” (People v. Carvey, 89 NY2d 707, 710 [1997]). Numerous Appellate Divisions have followed this principle, and embraced the holding in Torres (see People v. Mercado, 165 AD2d 910, 911-12 [3d Dept 1990]; see also People v. Marcial, 211 AD3d 98, 105 [2d Dept 2022]). Likewise, even where additional facts support the inference that a gun may be found within a vehicle, New York courts have held that warrantless searches of vehicles are generally impermissible. For example, in People v. Snyder, 178 AD2d 757 (3d Dept 1991). the Appellate Division, Third Department, suppressed the seizure of a gun where officers had responded to a radio transmission regarding a possible gun, observed a holster on the seat of a vehicle, and subsequently recovered a gun from the closed center console of that vehicle. In reaching its holding, the court observed that, “Having stopped the car and having removed defendant and Wells and frisked them, nullifying any threat of danger to themselves, the police should have sought further verification as to whether the appropriate persons and car were being detained” (id. at 758). The Appellate Division, First Department, has remarked that even the exceptions to this general premise are necessarily narrow in scope. In People v. Omowale, 83 AD3d 614, 616-617 (1st Dept 2011), the Appellate Division, First Department, noted a narrow exception to the rule established by Torres and affirmed in Carvey where “facts revealed during a proper inquiry or other information gathered during the course of the encounter lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officer’s safety sufficient to justify a further intrusion.” Indeed, the Omowale court found that multiple case-specific factors justified a limited search — namely: 1.) the front passenger making eye contact with officers in a way that gave the impression that the passenger recognized that the officers were in fact police officers; 2.) the turning of a shoulder as if to place something in the center console; 3.) an illegal right turn from the left lane in front of the patrol car without signaling; 4.) failing to immediately stop after officers activated the patrol car’s emergency lights and siren and directed the car to pull over multiple times over the loud speaker; and 5.) once officers approached the stopped vehicle, the passenger leaning over the center console. Even so, the court found that these facts informed the prospect of a “very limited check” of the center console only. To be sure, the rest of the car had to be searched pursuant to an inventory search at the precinct (id. at 617). Notably, the court in Omowale also cited to People v. Fludd, 20 AD3d 351 (1st Dept 2005), where the Appellate Division, First Department, similarly observed that a narrow exception to a warrantless vehicle search was warranted where defendants did not comply with police officers’ directives to keep their hands where they could be seen multiple times and one defendant dropped his hands twice and moved something under a pile of laundry. Those specific acts justified a limited search under that laundry and inside a cigar box taken from underneath that laundry (id.). In the present case, Officer Parker testified that he responded to 563 West 187th Street located in New York City after receiving a radio message of a 911 caller that indicated that a male Hispanic, in his 20s, wearing a dark blue or black sweatshirt, had a firearm and was sitting inside of a blue minivan (see Transcript 5/31/2023, Pg. 14, Lines 6-15). Officer Parker further testified that he arrived at the location approximately two minutes from first receiving the radio run and that the 911 caller was still on the telephone with the 911 operator as he heard a sergeant asking for additional information (see Transcript 5/31/2023, Pg. 15, Lines 6 to 24). Officer Parker then testified that, when he was approaching the vehicle, he observed the occupants inside of the vehicle moving (see Transcript 5/31/2023, Pg. 20, Lines 1-25; see also Transcript 5/31/23, Pg. 21, Lines 1-25; Transcript 5/31/23, Pg. 22, Lines 1-25). Specifically, Officer Parker described that he observed the driver of the vehicle bending down as if he was leaning towards one side and was not at a normal position for driving (see Transcript 5/31/2023, Pg. 23, Lines 1-11). Notably, Officer Parker’s observations were limited to driver-side area and floorboard of the vehicle. To be sure, Officer Parker observed no furtive movements towards any other parts of the car, including the center console. At that time, Officer Parker testified that he believed the occupants of the vehicle were either grabbing a firearm or hiding a firearm (see Transcript 6/12/2023, Pg. 17, Lines 12-25 & Pg. 18, Lines 1-4). Officer Parker then demonstrated for the court the movements he observed, which included bending down at his seat and moving his arm from his waistband to the floor (see Transcript 6/12/2023, Pg. 18, Lines 5-9; see also Transcript 5/31/2023, Pg. 21, Lines 1-9). Officer Parker then testified that the movement was specifically the occupants having their hands by their side or moving around when they were ordered to show the officers their hand (see Transcript 5/31/2023, Pg. 26, Lines 5-13). The Presentment Agency submits that, taken together, this testimony by Officer Parker provides justification for searching the vehicle to secure a firearm, even with Respondent and other occupants outside of the vehicle. Indeed, the Presentment Agency argues that Officer Parker had a justifiable fear for the safety of himself and other officers present when certain movements of the vehicle’s occupants created a situation where a firearm that was previously reported to be seen could have been present in a grabbable area by an occupant of the vehicle. Notwithstanding, this court finds that although the testimony elicited from Officer Parker evinces that there was reasonable suspicion to approach the vehicle, order Respondent out of the vehicle, and subsequently frisk him, the Presentment Agency has not put forth any legal basis to justify the subsequent search of the vehicle.1 To be sure, as the AFC argues, unlike in Omowale, Officer Parker failed to articulate an “actual and specific danger to” his safety. Rather, he expressed a vague concern insufficient to justify a search of the center console. As set forth above, upon his approach Officer Parker testified that he saw silhouettes or shadows of people dipping down towards the floorboard, and that he saw Respondent dip down to the left, towards the driver’s side door. Given this testimony concerning movement towards specific areas of the vehicle, the exception in Omowale justified a limited check of the left driver’s side floor and door, and perhaps even the floorboards. However, Officer Parker’s testimony does not give rise to a sufficient predicate for a search of other areas of the vehicle and did not give rise to a sufficient predicate for a search of the center console. As the AFC highlighted in her summation, as in People v. Jones, 39 AD3d 1169, 1171 (4th Dept 2007) “the police were justified in conducting a limited search of those parts of the vehicle in which they had observed defendant’s furtive movements, i.e., the front passenger area and center console. The search should have ended, however, when the police found no weapon or contraband in the front passenger area and center console.” Similarly, here there are no facts in the record that would support the limited exception articulated in Omowale being used to justify a search of an unrelated area — as the limited exception in Omowale requires there to have been substantial movement towards a particular area of the car, and here nothing within the records supports a search of the center console specifically. Furthermore, as articulated by the AFC, “the kind of ‘noncompliance’ that factors into the limited exception in Omowale was not present here.” To be sure, In Omowale, the defendant did not comply with officer’s commands to pull over for a block and a half while movements were being made towards the center console. Likewise, in Fludd, one defendant was seen sliding something under a pile of laundry in the back seat after having been commanded repeatedly to keep their hands where police could see them. Conversely, here, there was no similar noncompliance, and any perceived non-compliance observed by Officer Parker is de minimis at best. Indeed, the court received no testimony that any of the four individuals tried to evade the officers in any material way. Specifically, Officer Parker testified that Respondent put his hands up and stepped immediately out of car as commanded (see Transcript 5/31/2023, Pg. 7). And while Officer Parker did initially allude to the other three people in the car not complying, when asked by the Presentment Agency who was not complying or moving around, Officer Parker clarified that he did not personally observe any non-compliance; “[t]hat was on the passenger side. The other officers were ordering them to stop moving. So, I’m not sure” (see Transcript 5/31/2023 Pg. 26, lns. 7-13). The Presentment Agency articulated no other exception to the warrant requirement that would justify the search of the vehicle, and specifically of the center console. For instance, the warrantless search here is not justified by the Automobile Exception, which is stricter than the federal exception, and requires that a valid arrest (see Torres, 74 NY2d at 229, supra). Finally, neither People v. Anderson, 17 AD3d 166 (1st Dept 2005), nor People v. Fludd, 20 AD3d 351 (1st Dept 2005), both of which are cited by the Presentment Agency, require a different determination by this court as Officer Parker merely had vague concerns and no basis for a search of the center console that would justify a narrow exception to the Court’s ruling in Torres. Accordingly, this court finds that the physical evidence obtained from Respondent is inadmissible, and is therefore suppressed. As Respondent was seized without probable cause, his alleged statements are also inadmissible, and are therefore suppressed. Likewise, the Presentment Agency failed to prove that Respondent’s statement that it seeks to introduce at trial was not taken in violation of Miranda v. Arizona, 384 US 436 (1966) insofar as Respondent, a 17-year-old, was surrounded by multiple police officers, handcuffed, and held against a car at the time that he spoke. A reasonable person, and particularly a reasonable person of Respondent’s age, would have understood in this situation that they were not free to leave. As such, Respondent’s statements were involuntary made under the specific circumstances present here and are therefore suppressed. In view of the court’s suppression of physical evidence and statements made herein, it is axiomatic that the Presentment Agency cannot prove the charges contained within Dkt. D-1925- 23, and cannot seek to restore Dkt. D-1878-22, as Respondent has not sustained a new arrest premised on a finding that officers had probable cause. Accordingly, Dkt. D-1925-23 is dismissed with prejudice, and Respondent’s motion to preclude restoration of Dkt D-1878-22, is granted and that matter is dismissed and sealed. This constitutes the decision and order of the court. Dated: July 7, 2023
