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What followed elevated their seizures to full arrests

Defendant moves to suppress statements that he gave to the police, physical evidence recovered from his apartment, as well as identification testimony of a witness who identified him from a photo array. Defendant R. moves to suppress statements.

A New York Criminal lawyer said that at a suppression hearing pursuant to defendants’ applications to suppress evidence. Six witnesses, all current or retired members of the New York City Police Department, testified on behalf of the People. The defendants called no witnesses. Defendants urge to reject certain material portions of the testimony as incredible and untruthful. They particularly, but not exclusively, focus on the testimony of a Detective, and the contradictions between the testimony in general and the information contained in the paperwork prepared by the police during the investigation. The detective repeatedly contradicted himself on significant points and was forced to retract earlier statements on several occasions. There were instances in which his contradictions were brought to his attention and he was at a loss to satisfactorily explain them. Several of his explanations for his and his fellow detectives’ actions fly in the face of common sense.

A New York Criminal attorney said that the detective was the lead detective in a police team that was investigating of the deaths of 2 individuals. Their bodies had been discovered in the bathroom of an apartment, which was located at West Street. Both men had been bound with duct tape and shot through the head. When the detective and his team went to the apartment in April 2004 they smelled a strong odor of marijuana and observed marijuana residue. The police later discovered that Ashton had been a low-level drug dealer.

The police utilized the information that the close friend of the decedent had given them to obtain his photograph. They put the photograph into a computer-generated photo array which they showed the friend. The latter identified the person pictured in the photograph as the son, the person he had seen with marijuana possession and purchase from the decedent. The police also obtained a number of addresses of locations that were linked to the decedent.

The three detectives ascended the stairway leading up to the apartment, which was located on the third or fourth floor. By the time they reached the five-by-five-foot landing immediately outside of Apartment 6 the detectives, all of whom had previously served in narcotics units, smelled the odor of marijuana. Benoit stood in front of the door of the apartment, his gun in his hand behind his back. Robbery was not involved.

The People do notargue that the detective and the detectives with him did not arrest defendants when they ordered them out of the apartment, had them transported in handcuffs to the station house, and interrogated them on and off for many hours, nor could they. The detectives acted reasonably in ordering the five occupants to exit the apartment. The fact that they were investigating the murder of a marijuana dealer, who is also committed a crime of marijuana possession, and their inability to see into the pitch-black apartment from which emanated a strong smell of marijuana were among the factors which justified their acting with extreme caution. The detective did not act excessively, therefore, by drawing his gun, ordering the occupants out of the apartment and having them frisked. What followed elevated their seizures to full arrests. The detectives placed the decedent and the other occupants against the wall, standing or on their knees, and handcuffed them. The five were handcuffed although the police had already determined that they did not have weapons. They kept them against the wall until additional personnel arrived to take them to the station house, still in handcuffs, where they were to be questioned. The defendants were never free to leave and were kept there for extended periods of time. In taking these actions the detectives arrested the defendants. No reasonable person, innocent of any crime, would have believed in those circumstances that he or she was free to leave.

Defendants also argue that the police lacked probable cause to arrest them. For this reason, they argue, their confessions must be suppressed as tainted fruit of illegal arrests. As the police had different quanta of information as to each defendant, I will deal with each criminal defendant separately.

The police had no information concerning the other defendant prior to their arrival at the apartment and if they had probable cause to arrest her, it could only have stemmed from information they learned at that location. The People argue in substance that the information gleaned from the friend, combined with the strong smell of marijuana present in Apartment provided probable cause to believe that “criminal activity involving marijuana had either just taken place, was taking place, or was about to take place.” However much that may be true as to the decedent, to whom the friend’s information solely pertained, it does not hold true as to the remaining occupants of the Apartment. All the police knew as to these others was that they were present in an apartment from which a strong smell of marijuana could be detected. That they were discovered in the company of the decedent did not provide probable cause to arrest them regardless of the quantum of evidence against him. The question then becomes whether the presence of a strong smell of marijuana in an apartment, without more, provided probable cause to arrest the criminal occupants of the apartment.

In the absence of probable cause to arrest, any statements which are the product of the exploitation of her arrest are inadmissible. If the causal connection between the arrest and the statements which follow it has been broken or sufficiently attenuated, however, the taint stemming from the illegal arrest is considered to have dissipated and there is no constitutional bar to admission of the statements.

Several factors bear on attenuation. There is a threshold requirement that the defendant be apprised of her rights under Miranda doctrine. Similarly, the few questions that the Detective asked defendant at 8:00 p.m. preceded Miranda warnings and are inadmissible. All of the subsequent statements that she gave the police, however, followed her knowing and voluntary waiver of Miranda rights.

The three determinative factors to be explored in analyzing whether an illegal warrantless arrest has tainted a subsequent admission are the temporal proximity between the arrest and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. The most ambiguous of these is temporal proximity. There is no per se rule as to what period of time will sufficiently attenuate prior taint. This factor can only be weighed in conjunction with the other factors in the case. A period of several hours, during which the person arrested was left completely alone, has been held sufficient to attenuate the taint flowing from an illegal arrest, while in other circumstances a period of approximately the same duration has been held insufficient.

No intervening event sufficient to remove the taint of illegal arrest occurred between the time she was taken into custody and her statement that same evening. Defendant gave this statement approximately an hour after she was arrested. Although she waived her Miranda rights at that time, the administration of Miranda warnings alone will not dissipate the taint stemming from an illegal arrest. In view of the lack of intervening circumstances and the exceedingly short temporal proximity of this statement to the time of the arrest, it is suppressed.

The next statement at issue is the one given by defendant after the detective returned from her interview gave this statement approximately five hours after her arrest. The Court rejected the People’s argument that the discovery by the police that criminal defendant had given them a false alibi was an intervening factor which cleansed the taint of her illegal arrest, as the statement in which she provided that alibi was itself tainted by the same illegal conduct. There were no other intervening factors applicable to this statement.

The lead detective in the police investigation, was in charge of the investigation and the actions taken by the police on the landing at West Street. His testimony, as well as the other testimony in this case, forces the conclusion that he was aware that the police did not have probable cause to arrest defendant for either the murders or for a marijuana-related offense. He and Detectives were not newly minted police officers, but experienced detectives with sixty years of experience on the police force between them. At the time of these events the detective had been a detective for almost fifteen years.

In light of the fact that the police arrested and interrogated criminal defendant despite their knowledge that their actions were improper, that the videotaped statements were given more than eighteen hours after she was taken into custody and after the prosecutor re-administered Miranda warnings are insufficient to attenuate the taint flowing from the arrest. Accordingly, her application to suppress her statements is granted in its entirety.

The police went to the apartment only to question him about the murders of 2 individuals. He was not arrested in connection with the murders, but because the police believed that he, along with everyone else in the apartment, was “possibly” engaged in drug activity. As discussed above, the Court found that the there was insufficient predicate to arrest the occupants on this basis. Nevertheless, if probable cause to arrest Tyrell existed, it is irrelevant that the arrest cannot be justified by the reason stated by the police, or that they may not have believed that they had probable cause to arrest him for any other crime. Whether probable cause to arrest in fact existed does not turn on the subjective intentions or beliefs of the police. When it objectively appears that the police possessed sufficient information to arrest a defendant for a specific crime, the arrest is lawful even if the police may not have realized at the time that such a predicate existed.

The Court found that despite the short period of time between the un-Mirandized statement and the 12:30 a.m. statement, suppression of the 12:30 a.m. statement and the written statement is not required These statements were made knowingly and voluntarily. Moreover, “defendant was not subjected to relentless custodial interrogation’ without benefit of Miranda warnings, as is contemplated cases”. His statements prior to being Mirandized were innocuous, as they did not incriminate him in any crime. I therefore find that they did not constitute “the first in a continuous chain of events'”. I also note that there is no reason to believe that defendant’s un-Mirandized remarks committed him to confessing to either the murders or a drug offense.

The Court likewise found that the police lawfully entered the apartment on April 14. Five people had just exited from the apartment and the police had just made a lawful arrest. The occupants had straggled out of the apartment in one’s and two’s as the Detective repeated his commands to come out. He had no way to be sure that others did not remain hiding inside ignoring his commands. The detective intended to apply for a warrant to search the apartment for the marijuana that he suspected was inside. If others in fact remained in the apartment, there was a possibility that they would destroy the evidence before the warrant arrived. In addition, it appeared that some of those who exited were minors. It was therefore prudent to send in officers, both to protect the contraband from anyone who remained inside and as a precaution in case other minors remained in the apartment. As the Court found that the entry of the police was permissible for these reasons, I do not reach the issue whether it was lawful for the police to go into the apartment to retrieve clothing for defendant, who was arrested in the absence of probable cause.

Accordingly, defendant’s applications to suppress physical evidence, statements and identification testimony are denied, except as indicated. The application of defendant R. to suppress statements that she gave to the police is granted.

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