Defendant Van Caffee (hereinafter: defendant) is charged with the crimes of Criminal Possession of a Weapon in the Second Degree (P.L. §265.03(3)), and other related charges arising from allegations that the defendant possessed a loaded firearm on September 27, 2020, in Kings County. On March 15, 2022, this Court conducted a combined Dunaway/Mapp hearing. The defendant sought to suppress physical evidence alleged to have been obtained from the defendant’s person, consisting of a firearm and marihuana, and a discarded marihuana cigarette from the ground. The People seek to admit said evidence during their case-in-chief. The People called one witness at the hearing: Detective Estharlin Lopez (hereinafter: Det. Lopez), a six-year member of the New York City Police Department (hereinafter: NYPD), assigned to the NYPD’s 70th Precinct (hereinafter 70 Pct.). I find the testimony of this witness to be credible, reliable and worthy of belief. FINDINGS OF FACT On September 27, 2020, Det. Lopez (then Police Officer Lopez) and his partner, Detective Gutierrez, as well as other members of the NYPD’s 70 Pct. Field Intelligence Unit, were on patrol in an area known for gang and drug activity, within the confines of the 70 Pct. The team consisted of a caravan of four unmarked police vehicles. Det. Lopez and Det. Gutierrez were in the second vehicle of the caravan and all members of the unit were in uniform. At approximately 1:50 AM, Det. Lopez observed the defendant with several other individuals on the East 25th Street. Det. Lopez further observed the defendant smoking, what the detective believed to be, based on his training and professional experience, a marihuana cigarette. Det. Lopez also noted that while the defendant’s attention was transfixed on the lead unmarked police vehicle of the caravan, the defendant threw the marihuana cigarette to the ground, then put his hand in the pocket of his jogging pants and moved an object into the crotch area, squeezing that object between his legs. The nature of that object was not readily apparent at that time. In addition, the detective recognized the defendant as a gang member who was previously the victim of an assault within the confines of the 70 Pct. Det. Lopez and his partner, Det. Gutierrez, got out of their vehicle and Det. Lopez approached the defendant. Det. Lopez “gave him a quick frisk in that area” (Hearing Transcript, page 13, line 15). As a result of the frisk, the detective felt what he believed to be, based on his training and experience, the handle and trigger guard of a firearm. Detective Lopez then reached into the defendant’s pants and removed a 25-caliber semiautomatic handgun from the defendant’s crotch area. After placing the defendant under arrest the detective also recovered a quantity of marihuana from the defendant’s pocket and the discarded marihuana cigarette from the ground where Det. Lopez observed the defendant throw it. CONCLUSIONS OF LAW Dunaway/Mapp Hearing At a suppression hearing, the People have the burden of providing evidence of the legality of the police conduct, the so-called burden of production (People v. Malinsky, 15 NY2d 86 [1965]; People v. Sanders, 79 Ad2d 688, 690 [2d Dept 1980]). The defendant has the ultimate burden to establish the illegality of the police conduct, the burden of persuasion (People v. Barrios, 28 NY2d 361, 367 [1971]). The defendant meets his burden by establishing, by a fair preponderance of the credible evidence, that the police conduct was illegal (People v. Spann, 82 AD3d 1013 [2d Dept 2011]). Specifically, at a Dunaway hearing, the People have the initial burden of going forward to show, by credible evidence, the lawfulness of the police conduct (People v. Moses, 32 AD3d 866 [2d Dept 2006]; see also People v. Wise, 46 NY2d 321 [1978]; People v. Whitehurst, 25 NY2d 389, 391 [1969]). In evaluating the police action, the Court must determine whether it was justified at its inception and whether it was reasonably related in scope to the circumstances at the time (People v. DeBour, 40 NY2d 210, 215 [1976]). In the instant case the police observed the defendant to be smoking a lit marihuana cigarette in public. At the time of this incident, this conduct was statutorily proscribed by Penal Law (hereinafter: P.L.) §221.05, Unlawful Possession of Marihuana in the Second Degree. See People v. Smith, 66 AD3d 514 (1st Dept 2009); lv denied 13 NY3d 942 (2010) (probable cause to arrest for the unlawful possession of marihuana exists where a police witness observed the odor of marihuana and a partially burnt marihuana cigarette). Notwithstanding the enactment of P.L. Article 222, as of March 31, 2022, the Appellate Division, Second Judicial Department, recently held that the legislative intent of Article 222 and specifically §222.05(3) is not to be applied retroactively to invalidate lawful police action which may result in violent felony convictions, that are not marihuana related. See People v. Babadzhanov, 2022 NY Slip Op 02273 (2d Dept 2022). Moreover, “as a general rule, when an individual is lawfully arrested, the police officer may conduct a contemporaneous search of his person” (People v. Marsh, 20 NY2d 98, 101 [1967]). A search of an arrestee’s person, incident to a lawful arrest is an exception to the warrant requirement (US v. Obinson, 414 US 218 [1973]; People v. Cruz, 131 AD3d 724 [3d Dept 2015]). When an individual is arrested for a violation of the Penal Law, the police may conduct a search incident to a custodial arrest. Such a search of a defendant’s person or property, including his clothing, is justified by one of two purposes. The first basis is to ensure the safety of the public or arresting officer, and the second is to protect against destruction or concealment of evidence by the defendant (Chimel v. California, 395 US 752, 762-763 [1969]; People v. Gokey, 60 NY2d 309, 312 [1983]; People v. Smith, 59 NY2d 454, 458 [1983]). The police were entitled to make a warrantless search of the defendant’s person as a search incident to a lawful arrest (Chimel, supra; People v. De Santis, 46 NY2d 82 [1978]). Recovery of the pistol from the defendant’s crotch area and marihuana from his pocket, at the time of his arrest in this case was lawful because the search was contemporaneous in time with the arrest (People v. Evans, 43 NY2d 160, 165 [1977]; People v. Williams, 273 AD2d 79, 80 [1st Dept 2000], lv denied 95 NY2d 940; People v. Terrero, 139 AD2d 830 [3rd Dept 1988]) and was limited to the area within the arrestee’s immediate control (People v. Temple, 165 AD2d 748, 750 [1st Dept 1990], lv denied 76 NY2d 944). As such, this Court finds that the police had probable cause to arrest the defendant and seize property from the defendant’s person, pursuant to the above-described exception to the warrant requirement of the Fourth Amendment. However, assuming arguendo, that the detective’s observations do not rise to the quantum of probable cause for a constitutional seizure of the defendant, the conduct of the police is no less lawful. In Terry v. Ohio, 392 US 1 (1968), the United States Supreme Court determined that a limited search for a weapon may, in certain circumstances, be conducted in the absence of probable cause, where the officer’s action “was justified at its inception, and was reasonable related in scope to the circumstances which justified the interference in the first place.” Id. at 20. In People v. Prochilo, 41 NY2d 759 (1977), the New York Court of Appeals set forth specific guidelines for evaluating frisks within New York’s four-tier structure for evaluating the propriety of police-public encounters (see People v. DeBour, 40 NY2d 210 [1976]). The Prochilo court offered specific guidelines for determining whether a predicate for police action would justify a frisk. These include, but are not limited to: 1. Whether there was proof of a describable object or describable conduct which provided a reasonable belief that an individual possessed a gun; 2. Whether the manner of the officer’s approach and seizure of the gun were reasonable; and 3. Whether there was evidence of any probative worth that the police were conducting a pretext stop or were otherwise motivated by improper or irrelevant purposes. (Prochilo, at 761-62). Our Court of Appeals has subsequently warned that “in this difficult area of street encounters between private citizens and law enforcement officers, [courts must not] attempt to dissect each individual act by the policemen; rather, the events must be viewed and considered as a whole, remembering that reasonableness is the key principle when undertaking the task of balancing the competing interests presented.” People v. Chestnut, 51 NY2d 14, 23 (1980). In this case, while patrolling an area well-known for gang and drug activity, Detective Lopez, a trained and experienced police officer, observed the defendant, known to the detective as a gang member, make several furtive movements, as described by moving an object into his groin area and squeezing that object between his knees, as the defendant’s gaze was locked on the first unmarked vehicle of the police caravan. Courts have consistently held that furtive behavior, in combination with other factors, can create reasonable suspicion of criminal activity. See People v. Anderson, 94 AD3d 1010 (2d Dept 2010); People v. Washington, 81 AD3d 991 (2d Dept 2011); People v. Stephenson, 89 AD3d 872 (2d Dept 2011). See also People v. Thurman, 81 AD2d 548 (1st dept 1981); lv denied 54 NY2d 767 (1981) (stop of defendants justified based on furtive behavior of the defendants, as observed by experienced officers in neighborhood with high rate of crime). Moreover, the defense in their oral argument at hearing concede the police had the common law right of inquiry, pursuant to DeBour, supra. As such, defendant’s conduct gave rise to reasonable suspicion under the above-described circumstances to stop the defendant and conduct a limited investigation. It is well settled that pursuant to Terry v. Ohio, supra, a police officer is authorized to conduct a frisk of an individual when the officer has reasonable suspicion to believe that criminality is afoot and reasonable cause to believe the individual may be armed. Criminal Procedure Law (hereinafter: C.P.L.) §140.50(3), codified Terry in a somewhat broader sense, authorizing a frisk when the officer “reasonably suspects that he is in danger of physical injury.” Based on the credible testimony of the witness at hearing, his actions were based upon a reasonable suspicion that criminality was afoot and that there was a reasonable belief that safety was at issue. As such, the frisk which led to the tactile identification and subsequent discovery of a gun were constitutional. This discovery thereby resulted in probable cause to believe the defendant was in violation of the Penal Law for the Criminal Possession of a Weapon, pursuant to Article 265. Finally, in regard to the recovery of the discarded marihuana cigarette, “a defendant seeking suppression of evidence has the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises or object searched.” People v. Ramirez-Portoreal, 88 NY2d 99, 108 (1996). “A legitimate expectation of privacy exists where a person has demonstrated an actual expectation of privacy and that expectation is one that society is prepared to recognize as reasonable. If such expectations of privacy are lacking, no Fourth Amendment violation occurs.” People v. Diaz, 33 NY2d 92, 98 (2019) (internal citations omitted). This actual expectation of privacy is a subjective belief which is established through conduct, or a course of action, manifested as a result that expectation. By virtue of discarding property, the subject signals that he does not have an actual expectation of privacy, which fails to satisfy the subjective prong of this test. It must be determined that a “defendant’s action in discarding the property searched was a voluntary and intentional act constituting waiver of the legitimate expectation of privacy.” Ramirez-Portoreal, at 108. “Property is deemed abandoned when the expectation of privacy in the object or place searched has been given up by voluntarily and knowingly discarding the property. The result is a waiver of the constitutional protection.” Id at 110. “Property which has been abandoned is outside the protection of the constitutional provisions.” People v. Howard, 59 NY2d 583, 592 (1980). Here, the defendant threw the marihuana cigarette to the ground, after smoking said cigarette, prior to being approached by the police. As such, this Court finds that the defendant abandoned his interest in the above-described marihuana cigarette, depriving him of standing to challenge the collection of same by law enforcement and further failed to establish a reasonable expectation of privacy in said cigarette. CONCLUSION For the reasons stated above, the defendant’s motion to suppress the above-described physical evidence is hereby DENIED. This constitutes the decision, opinion and Order of this Court. Dated: April 8, 2022
