This is a proceeding wherein the defendant is charged with Attempted Resisting Arrest and Criminal Possession of Marijuana in the Fifth Degree, both Class B Misdemeanors, as well as Unlawful Possession of Marijuana, a violation.
On the consent of the People and pursuant to People v Dunaway, Mapp v Ohio and People v Huntley, a hearing was held in this matter on 19 October 2012.
At the hearing, the People offered the testimony of two witnesses: Sergeant and Police Officer. The defense offered the testimony of one witness, A.
The Court has also reviewed the Court file, Defendant’s Memorandum of Law dated 22 October 2012, the People’s Response and Memorandum of Law dated 20 December 2012, and Defendant’s Reply Memorandum of Law dated 7 January 2013.
Based upon the testimonial evidence offered by the People at the hearing, the court finds both the Sergeant and the Officer credible. However, the court finds that the police lacked probable cause for the arrest of the defendant, for making the entry into the defendant’s apartment, and his subsequent arrest therein, illegal.
Therefore, the drug evidence seized by the police, that being the physical evidence recovered from the defendant’s person, and any statements made by the Defendant at the time of his arrest, must be suppressed.
The Court makes the following specific findings of fact:
Sergeant testified that he is assigned to the 77 Precinct. He has made approximately a few hundred arrests for criminal marijuana possession in his ten and one half year career with the New York City Police Department, and has received training in the identification of marijuana.
Sergeant was assigned to an Observation Point on 5 May 2011 to watch drug locations for people exchanging money or currency for narcotics or narcotics use. While engaged in that activity, he was given a radio transmission that inside of an apartment building there was a group of people smoking marijuana in the lobby. The location was given as 1018 Park Place, Brooklyn, New York. When he arrived at the location at approximately 4:00 p.m., there was a strong odor of marijuana and observed a few people inside the lobby and decided to speak to them. Before doing so, he went up the first few steps into the first floor and stood at the bottom of the stairs making sure he had vision of the stairs and other officers in the lobby. He then observed an individual come to the top part of the landing stairs that had a plastic ziplock in his hand. When the individual saw him, he put his hands down near his side. Sergeant, in his desire to get a closer look at the bag, started to approach the individual and asked him if he lives in the building. The individual, however, took off running. He chased after the defendant who proceeded to an apartment and resisted his entrance. Sergeant was eventually joined by Police Officer and Lieutenant so they were able to gain entry to the apartment. The defendant fought with him and the other officers in their attempt to put him under arrest. A search of the defendant’s person was conducted. He was placed under arrest for marijuana possession and for resisting arrest.
On cross examination, Sergeant described the ziplock bag he observed in defendant’s hand as small- approximately “an inch by inch. He also confirmed that the defendant resided in the apartment where he was arrested.
The People’s next witness, Police Officer, has been employed with the NYPD for approximately eight and a half years and has participated in hundreds of marijuana arrests. He has also received training in the identification of marijuana. On 5 May 2011, he was assigned to the catch car and as a practice, when they put a description over, he goes to apprehend whoever they put over. Working with Sergeant and Lieutenant, they were in the vicinity of 1018 Park Place. They received a communication to go into this particular building. Upon arrival and entry of said building, he observed two individuals there. While he was speaking, Sergeant proceeded to go up to the top of the steps. As he was speaking to the individuals, he saw Sergeant running. Police Officer took off right behind him. He went up the stairs and as he came to the next floor where Sergeant was trying to push the door from the apartment. Someone was pushing it from the inside. Sergeant was pushing it from the outside.
After gaining entry to the apartment, inside the living room, Police Officer stated that he got into a struggle with the defendant because he wouldn’t give me his hands. He says that the defendant didn’t want to give him his hand. At one point he brought him down to the ground. He was cuffed and that was the end of it.
At that point, the defendant was arrested, and the Police Officer recovered a ziplock of marijuana from the defendant’s pants pocket. Police Officer also noted that before they left the location defendant kept making the statement,” it was only marijuana, it was only marijuana.”
Based upon these substantially uncontroverted facts, the Court makes the following findings;
In this matter, both the Sergeant and the Police Officer were credible. However, while the credibility of the testimony of the People’s witnesses is not in dispute, the legality of their actions is subject to question.
Sergeant testified that he observed an item in the Defendant’s hand. Significant to our analysis, the Sergeant never stated that he knew, or even believed, that the bag contained any contraband. In fact, Sergeant clearly stated that he approached and questioned the Defendant “because I wanted to get a closer look at the ziplock bag.
The People assert that Sergeant had probable cause to stop the Defendant, based upon the Sergeant’s observation of the defendant “holding the common packaging of marijuana, in a building where people were using marijuana shortly before, and in a building which smelled of marijuana.” This argument depends on several assumptions which are not supported by the facts.
Sergeant and Officer both testified that they went to 1018 Park Place, Brooklyn, New York to answer a report that individuals were smoking marijuana in the lobby of that location. Upon arrival, they observed two individuals in the lobby, and the smell of marijuana. However, defendant was not observed in either the lobby, or in association with these two unidentified individuals, who were apparently not arrested for any offense. Defendant was reportedly at the top of the stairs leading to the first floor, and not in the lobby at the time the Sergeant first observed him, holding a bag the contents of which the Sergeant could not identify.
On this basis, at best, Sergeant had an objective credible reason to approach and inquire as to defendant’s identity. The attendant circumstances were sufficient to arouse the officers’ interest in the defendant as was held in People v. DeBour. Under this level of inquiry, the Sergeant was permitted to ask the defendant whether or not he resided in the building.
At this stage of the Sergeant’s investigation, however, the notion that behavior which is susceptible of innocent as well as culpable interpretation applies to the facts of this case. Thus, while the ziplock bag observed in Defendant’s hand may be commonly used in the packaging of marijuana, it can also be used for the packaging of many non-contraband substances.
Further, at this level of inquiry, a defendant has the right to refuse to cooperate, and can walk, or even run away. Based on People v Holmes and People v Hollman, police pursuit of an individual significantly impedes the person’s freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed.
In an effort to ascertain the contents of the ziplock bag, Sergeant chased the Defendant, an action without support in the law. As held in the Holmes case, while the police may have had an objective credible reason to approach defendant to request information those circumstances, taken together with defendant’s flight, could not justify the significantly greater intrusion of police pursuit. Also, it was held in Payton v New York and Welsh v Wisconsin that without probable cause for an arrest, the police had absolutely no authority to chase the defendant or to enter his apartment.
Therefore, in the absence of probable cause for the warrantless entry into the defendant’s home, the evidence collected by the police must be suppressed as held in Wong Sun v. United States.
The court finds that all other arguments advanced by the People and defendant have been reviewed and rejected by the court as being without merit.
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