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THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT A MAPP/DUNAWAY (PROBABLE CAUSE) HEARING ON THE GROUNDS THAT HE DID NOT HAVE STANDING TO CONTEST THE SEARCH OF THE BAG FOUND INSIDE THE LIVERY CAB

 

The defendant had standing to contest the search of the bag that he was holding in the back of a livery cab, and the trial court erred in its decision on the defense pre-trial motion for a suppression hearing on the bag and its contents.

Under Criminal Procedure Law 710.20, a person who is aggrieved by an illegal search and seizure is authorized to move to suppress any evidence seized as a result of the illegality. Both the Appellate Division, First Department and the New York Court of Appeals have held that a defendant, as a passenger in a cab, has standing to contest the probable cause of a search of a closed container located in the back of the cab even though he was not holding the container at the time of the search.

In the case of People v. Millan, 69 N.Y.2d 514516 N.Y.S.2d 168508 N.E.2d 903 (1987) the defendants were passengers in a yellow cab when it was stopped by the police. The police ordered them out of the cab, and a black bag was discovered inside the cab on the back seat. The police searched the bag and found a gun. All the occupants of the back seat were arrested and charged with possession of the gun.

The defendants moved to suppress the gun and the trial court denied the motion claiming that the defendants lacked standing to contest the search. The Court of Appeals reversed that decision and held that because the defendants were charged with constructive possession of the gun, it would violate fundamental tenets of fairness in New York criminal jurisprudence to deny them the right to contest the search.

Similarly, in People v. Knight, the defendant was a back seat passenger in a cab, which was stopped by police for a vehicle and traffic infraction. The police saw a paper bag between defendants legs and ordered him to open the bag. Upon opening the bag a number of glassine envelopes were discovered containing heroin.

The defendant was arrested and charged with criminal possession of a controlled substance. He moved to suppress the evidence and the trial court denied the motion claiming that he lacked standing as a passenger in a cab. On appeal, the Appellate Division, First Department found that while the defendant did not challenge the stop, he did challenge the search of the bag found in the back seat of the cab. And although the defendant asserted no claims or possessory rights to the bag, he still had standing to contest the search because a rule which would permit the prosecution to impute constructive possession of a weapon to a defendant automobile passenger, see, P.L. 265.15(3), and yet deny him the right to contest the search which yielded the contraband, offends fundamental tenets of fairness inherent in New York criminal jurisprudence. People v. Knight, 138 A.D.2d 294 526 N.Y.S.2d 102 (1st Dept. 1988) citing to People v. Millan, supra.

In this case, Mr. Encarnacion was in the back of a livery cab when the police approached the stopped vehicle. As he was exiting the vehicle, along with another passenger, Mr. Encarnacion was ordered out of the vehicle by the police officer, and it is disputed as to whether he placed the white Dunkin Donuts bag on the seat or dropped the bag on the floor of the cab.

The officer claims that he thought that the cab driver was being robbed, but did not explain why he perceived that as a possibility. The officer then spoke to the cab driver and confirmed that he was ok and that no robbery was taking place. The officer did not see any guns or weapons, did not hear any threats being made, saw no signs of physical violence, and saw no signs of any criminal activity at all.

Officer Holshek then proceeded to open the white Dunkin Donuts bag that was in Mr. Encarnacions possession. When he opened the bag he saw five metal juice cans inside. Each of the cans was hermetically sealed and the officer was unable to identify the contents of the cans even after he had opened the bag. He shook the cans and noted that they seemed heavier than normal for juice cans, but was still unable to identify the contents of the cans. He then obtained a knife, cut open one of the cans and found coffee grinds inside. Sifting through the coffee grinds he found cocaine in one can.

Mr. Encarnacion was charged with criminal possession of a controlled substance in the first degree under Penal Law 220.21(1). The People charged him with both actual and constructive possession, and the jury was instructed that they could find Mr. Encarnacion guilty whether he actually possessed or constructively possessed cocaine (T319 line 21-25 and T320).

This case is almost identical to both Millan and Knight. In both of those cases the defendant was travelling in the back of a cab, just as here. In both of those cases the police approached or stopped the cab for some vehicle and traffic violation, just as they did here. In both of those cases constructive possession was attributed to the defendant, just as the prosecution did here. In both of those cases the defendant was denied a suppression hearing because the trial court found that defendant had no standing to contest the search, just as the trial court did here. In both of those cases the Appellate Division and the New York Court of Appeals found that the defendant had standing where he is being charged with constructive possession, just as Mr. Encarnacion was charged with constructive possession here.

This Court should reverse the lower courts decision to deny Mr. Encarnacions motion to suppress the physical evidence for lack of standing. The one definitive factor in attributing standing to the defendants in the cases cited above was the fact that those defendants were charged with constructive possession of contraband. The reasoning in both Millan and Knight was that if by some operation of law or legal construction, possession of the contraband is attributed to the defendant, then it is unfair to say that he has no standing to contest the legality of the search. The facts of this case are identical to both Millan and Knight, Encarnacion was charged with constructive possession of the drugs. Therefore, it is unfair to say that he does not have standing to contest the legality of the search, and the trial court was in error when it denied Mr. Encarnacion a hearing to contest the constitutionality of the search based on standing.

This Court should vacate the conviction of Mr. Encarnacion and remand this case for a new trial, or as a minimum should stay the sentence and remand the case for a hearing on the issue of probable cause.

The Trial Court Erred When It Found That The Defendant Lacked Standing To Contest The Recovery Of The Property Found Inside The Cab Is Without Merit Because The Bag In Question Was Not Abandoned And The Defendant Did Not Purposely Divest Himself Of The Property.

The trial court erred when it denied the suppression hearing and found that the defendant lacked standing to contest the recovery of the bag from the back seat of the livery cab. New York courts have consistently held that where a defendant reacts spontaneously to unlawful police conduct, the defendant did not abandon property. Where the police were not justified in approaching a defendant to exercise their common-law right of inquiry, the defendants immediate act of throwing property as the officer approached was a spontaneous reaction to an unexpected confrontation with the police and the property was not deemed abandoned.

The New York Court of Appeals has consistently made the distinction between a spontaneous as opposed to a calculated act with regard to the issue of abandoning property.?? They refer to these as dropsy cases. The Court of Appeals and the Appellate Division, First Department have held that if the evidence was recovered as a direct consequence of the unlawful police action, the evidence is tainted and must be suppressed on defendants motion. People v. Boodle, 47 N.Y.2d 398, 418 N.Y.S.2d 352, 391 N.E.2d. 1329; People v. Baldwin, 25 N.Y.2d 66, 250 N.E.2d 62 (1969); see also People v. Grant, 164 A.D.2d 170, 562 N.Y.S.2d 22 (1st Dept. 1990).

In performing the difficult task of drawing a distinction between spontaneous and calculated acts, we must be guided?by the principle that a presumption exists against the waiver of constitutional rights.?(People v. Howard,?[50 NY2d] at p 593 [430 N.Y.S.2d 578, 408 N.E.2d 908].)?Courts, therefore, should conclude that an abandonment has occurred only in the clearest of cases. Indicative of a spontaneous response to unlawful police behavior are instinctual, rather than thought-out, reactions provoked by the coercive pressure of the illegal conduct. This coercion negates the ability to make a thoughtful decision involving the conscious assumption of a risk. People v. Grant, 164 A.D.2d 170, 562 N.Y.S.2d 22 (1st Dept. 1990) citing People v. Torres, 115 A.D.2d 93, 499 N.Y.S.2d 730 (1986).

The Actions Of Defendant Were Spontaneous And Not Calculated

The actions of Mr. Encarnacion were spontaneous and not calculated and there was no abandonment of the property in question. The trial court, therefore, erred when it held that Mr. Encarnacion did not have standing to contest the search of the bag found inside the cab next to defendants feet.

The testimony of the police officer was that as soon as Mr. Encarnacion looked up from his seated position in the cab, he dropped the white bag. And the police officer then conducted the search of the bag while Encarnacion was still inside the cab. This is analogous to the kind of spontaneous action both the Court of Appeals and the Appellate Division, First Department have found does not constitute abandonment of the property in question. The actions described here in the testimony of Officer Holshek are a spontaneous reaction to the illegal actions of the police officer and do not constitute abandonment of the property. The trial court was, therefore, in error when it found that the defendant lacked standing to contest the recovery of the property because it was not abandoned as the property lay at the defendants feet inside the cab.

The Statements Of Encarnacion Were Evoked As A Spontaneous Reaction To Illegal Police Conduct And Cannot Supply The Basis For Denying Standing.?

 

The trial court erred when it denied Mr. Encarnacion a suppression hearing and citing as one of its reasons that the defendant denied ownership of the bag. The police recovery of the bag and the statements elicited from the defendant were the product of an improper police encounter and the trial courts denial of a suppression hearing was erroneous.

Where an individual makes a disclaimer of a physical item in response to an unlawful exercise of police conduct, the abandonment will be deemed involuntary. The officers illegal conduct is deemed to have led to a forced relinquishment of the defendant property and the defendants disclaimer was a spontaneous provoked reaction to illegal police conduct. People v. Martinez, 206 A.D.2d 693, 614 N.Y.S.2d 787 (3d Dept. 1994); People v. Smith, 181 A.D.2d 802, 581 N.Y.S.2d 240 (2d Dept. 1992).

Based on the very limited information that Officer Holshek had when he approached the cab, there was nothing unusual about a person in the back of a cab with a white bag. Officer Holshek had no objective credible reason to approach Encarnacion under a level 1 Debour analysis (People v. Debour, 40 N.Y.2d 210, 352 N.E.2d 562 (1976) right to approach and request information). However, in this case the officer blocked Mr. Encarnacions path to exit the cab and the encounter started as a level 3 Debour encounter (stop and seizure):

(T171)

QUESTION: Where were you when you first saw the defendant moving over toward the passengers door?

ANSWER: I was in the opened door of the back passengers door where the first passenger exited.

QUESTION: So at that point you had made your way the back passengers door?

ANSWER: Correct.

QUESTION: And just describe your body position with respect to the opened door.

ANSWER: The door was opened, and I was right in the middle of the door.

QUESTION: And at that point, did you have your badge out?

ANSWER: Yes.

QUESTION: Did you have anything in your hand at that point?

ANSWER: I had my flashlight.

The encounter quickly turned into a level 3 Debour encounter (Right To Forcibly Stop And Seize An Individual) when the officer blocked Mr. Encarnacions exit from the cab by standing in the middle of the door where the other passenger had just exited. This was the side of the cab closest to the curb, and now Mr. Encarnacion could not exit the cab because of the officers position in the doorway. The officer, by showing his badge and standing in the center of the open door, blocked Mr. Encarnacions exit, and, for however brief a period, he was seized by the police.

The encounter started as a stop and seizure, which, on the facts, was unsupported by a suspicion that such person was committing, had committed or was about to commit a felony or misdemeanor. Although there was no factual support for a robbery taking place (i.e. there were no weapons in sight, the cab driver was not asking for police assistance, the police officer had not seen anything suspicious at all), the police officer then spoke with the cab driver to determine if he was being robbed. After confirming that no robbery was taking place, Officer Holshek decided to search the bag while Encarnacion was still in the cab and the bag was on the floor next to Encarnacions feet.

The initial police encounter was illegal. All statements and tangible evidence were, therefore, illegally obtained. The statements attributed to Mr. Encarnacion were spontaneous and the product of the illegal police activity; they cannot, therefore, be used as the basis for finding that he lacked standing to contest the legality of the search.

 

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