DECISION AFTER HEARING The defendant, Jamel Johnson, is charged with one count of each of the following crimes: Criminal Possession of a Weapon in the Second Degree [PL 265.03-3], Criminal Possession of a Firearm [PL 265.01-b(1)], Criminal Possession of a Controlled Substance in the Third Degree [PL 220.16-1], and Criminal Possession of a Controlled Substance in the Seventh Degree [PL 220.03]. By Decision and Order dated November 30, 2021, the defendant was granted a hearing to determine the admissibility of physical evidence seized by the police and statements allegedly made by the defendant. A hearing was held on December 7, 2021. Appearing for the People was Assistant District Attorney Michael Purcell, Esq. Appearing for the defendant was Joseph Gulino, Jr., Esq. The People called four witnesses: Stephanie Guzman, Police Officer Terrance Peterson, Detective Roman Scuadroni, and Police Officer Nicholas Guccione. The defendant did not call any witnesses. The following items were received into evidence: a Miranda form (People #1), a compact disc (People #2), a vehicle tow report (People #3), and a City of Newburgh Police Department General Order No. O-022 (People #4). FINDINGS OF FACT On August 24, 2021, the police were notified that there was an unconscious person, a possible overdose, in a motor vehicle at 51 Henry Avenue in the City of Newburgh, N.Y. Police Officer Terrance Peterson (“Peterson”) arrived at the location and observed a male standing outside a white van in the middle of the roadway. The van was blocking the free flow of traffic, but it was partially in/near a parking spot. There was no other occupant of the van and the keys were in the ignition. The male was standing at the front of the vehicle with the driver’s side door open, and he appeared to be in distress. When Peterson approached the man, Peterson recognized him as Jamel Johnson (“Johnson”). Peterson and Johnson are cousins. While Peterson was speaking to Johnson, Johnson was looking right through him, as if Peterson was not there. Johnson could not stand or walk properly, and he was non-responsive to Peterson’s questions. Based upon Peterson’s training and experience in identifying persons under the influence of drugs, he determined that Johnson was under the influence of narcotics. Out of concern for the safety and well-being of his cousin, Peterson confirmed the call for an ambulance. Stephanie Guzman (“Guzman”), who was working for Mobile Life, received a call that a person had a drug overdose and needed assistance. When she arrived at Henry Avenue, there were multiple police on scene, and there was a male sitting on the curb. Upon speaking to the man, Guzman ascertained that he was unable to answer questions, was following instructions sluggishly, and was incoherent. He could not even identify the day of the week. Guzman determined that the male needed to be placed on a stretcher and transported by ambulance to the hospital for treatment and for his own safety. Johnson did not have the capacity to refuse medical attention. When she advised the police that Johnson was going to be transported by ambulance to the hospital, Peterson conducted a safety search of the male. While Guzman did not feel threatened and did not specifically request that a safety search be performed, she testified it is customary for one to be done under these circumstances. Guzman observed Peterson recover a gun from Johnson’s waistband during the safety check. When Peterson was advised by Guzman that Johnson was being transported to the hospital by ambulance, Peterson performed a “pat down” on Johnson. He limited his pat down to “high risk areas”, which included Johnson’s waist and side. During the pat down, Peterson felt a bulge near Johnson’s hip. Peterson asked Johnson multiple times what the bulge was with no response from Johnson. It is a general policy of the City of Newburgh Police Department to conduct a safety search on anyone entering an ambulance to be transported to the hospital because the person is being “detained” under those circumstances. Neither Peterson nor Guzman indicated that they feared Johnson prior to the pat down, and Peterson did not request Johnson’s consent for him to perform the pat down. Peterson also confirmed that Johnson was not being arrested for driving under the influence of drugs or for any other crime at the time he performed the pat down. After the gun was recovered, Johnson was handcuffed to the stretcher and transported to the hospital where he received medical care. When Johnson was transported to the hospital, the white van had to be moved so the ambulance could get around it. Police Officer Nicholas Guccione (“Guccione”) was tasked with addressing the unattended vehicle. The van had the keys in the ignition, it’s driver’s side door was open, and it was partially blocking the road, thereby preventing the free flow of traffic. Guccione was having the car towed, so he was assigned to complete a tow/inventory report. The identification unit was called to conduct an inventory search of the van. Guccione observed the recovery of a bag of crack and an empty gun holster from the van. He documented the recovery of those items, as well as all other items that were inventoried. The inventory was conducted in conformance with the City of Newburgh Police Department General Order No. O-022, which sets forth the procedures required to be followed during an impound. The bag of crack and the empty gun holster were taken as evidence, but all the other property which was inventoried was kept for safe keeping while Johnson was being treated at the hospital. Upon his release from the hospital, Johnson was transported to the City of Newburgh Police Department where he met with Detective Roman Scuadroni (“Scuadroni”). Scuadroni read Johnson his Miranda warnings prior to interviewing Johnson. After being advised of his rights, Johnson agreed to speak with Scuadroni. The waiver of rights and entire interview was captured on a video recording. Essentially, Johnson admitted the gun was his gun. He admitted the drugs recovered from the car and the gun holster were his as well. Johnson reasoned that he had fallen on hard times and was selling drugs. He claimed he possessed the gun for protection. LEGAL ANALYSIS/CONCLUSIONS OF LAW Defendant moves to suppress the gun recovered from his person, as well as any evidence recovered from the van on the grounds that such evidence was the product of an unlawful search and seizure. He further moves to suppress any statements made by him, as such statements were a product of the unlawful recovery of the gun from his person and, therefore, constitute fruit of the poisonous tree. Pursuant to Mental Hygiene Law §9.41, “Any…police officer who is a member of an authorized police department or force…may take into custody any person who appears to be mentally ill and is conducting himself or herself in a manner which is likely to result in serious harm to the person or others. Such officer may direct the removal of such person or remove him or her to any hospital.” With the prevalence of drug overdoses associated with the significant county-wide opiate crisis, officers frequently are called upon to act in their capacity as public servants to assist citizens in distress related to drug overdoses. Officer Peterson found himself in such a circumstance in this case. His suspicion that Johnson, his cousin, was under the influence of drugs was confirmed by Guzman, who determined that it was medically necessary to transport Johnson by ambulance to a hospital for treatment. Johnson was taken into custody for that purpose. Courts have upheld pat down searches for weapons in noncriminal custodial circumstances when it is designed to ensure the safety of third parties, the officer, and the person in custody (Matter of Bernard G., 247 A.D.2d 91 [1st Dept. 1998]; People v. Yaniak, 190 Misc.2d 84 [Yates County Court, 2001]). Here, Johnson was being put in an ambulance and being transported to a hospital. Both Peterson and Guzman testified that the pat down was a routine safety check. There is a legitimate state interest in ensuring that persons who are incoherent because they are under the influence of drugs receive treatment. There is uncontradicted testimony regarding Johnson’s pre-custodial behavior, including his incoherent speech and inability to identify the day of the week. Guzman even determined that Johnson lacked the capacity to refuse medical attention. These factors made it reasonable to take him into custody to transport him to the hospital for treatment. Moreover, although Johnson’s detention and placement into custody was not the result of any unlawful activity, the police were justified in conducting a pat down in order to ensure the safety of the EMTs, hospital staff, and Johnson himself. The noncriminal nature of Johnson being in custody does not eliminate the dangers inherent in a custodial situation. The minimally intrusive conduct of the pat down was reasonable and lawful under the totality of the circumstances. This Court recognizes that the “totality of the circumstances” analysis is often utilized by courts in determining whether police conduct in performing a protective frisk was reasonable and lawful in the context of criminal investigations. While Peterson testified that Johnson had not committed any crime, nor was he arrested for any crime prior to the pat down, the testimony does establish probable cause to believe that Johnson had driven the van while he was under the influence of drugs. The cumulative testimony of the witnesses establish that Johnson was standing at the front of the van with the driver’s side door open. This was a vehicle Peterson knew Johnson drove regularly in the past. There was no evidence there were any other occupants of the van. The keys were in the ignition and it was blocking the roadway. Further, Johnson clearly was under the influence of drugs. Certainly, these facts provide circumstantial evidence that Johnson had driven under the influence of drugs. Had Peterson not been so concerned about getting his cousin, Johnson, evaluated and treated, he may well have investigated Johnson for committing that crime. Failing to ask Johnson if he had been driving the van is further evidence that Peterson was acting in his public service function and that the pat down was done in good faith. As such, Johnson’s motion to suppress the gun is denied. The evidence recovered from the van was recovered pursuant to a lawful inventory search. An inventory search is a search designed to properly catalogue the contents of the item searched. The specific objectives of an inventory search, particularly in the context of a vehicle, are to protect the property of the defendant, to protect the police against any claim of lost property, and to protect police personnel and others from any dangerous instruments (Florida v. Wells, 495 U.S. 1, 4, [1990]). The facts and circumstances of this case clearly demonstrate that the inventory search was not a ruse in order to discover incriminating evidence. This inventory search was conducted pursuant to “an established procedure clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably” (People v. Galak, 80 N.Y.2d 715, 719 [1993]). The procedure was conducted pursuant to the standardized City of Newburgh Police Department General Order No. O-022, which properly limited the discretion of the officer in the field. Johnson’s motion to suppress the drugs and holster is denied, as these items clearly were discovered as a consequence of the inventory search, which was properly conducted pursuant to an established procedure (People v. Johnson, 1 NY3d 252 [2003]). The videotaped statement clearly demonstrates that the defendant made a knowing, intelligent and voluntary waiver of his rights under Miranda prior to making the statements contained on the video and that those statements were made freely and voluntarily without coercion or duress. As such, those statements are not suppressed. The foregoing constitutes the Decision and Order of this Court. Dated: December 17, 2021
