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Defendant Contends That Dendants


On September 24, 2005, Police Officer Frantz Demorin of the 47th Precinct was on uniformed patrol with his partner, Police Officer Merritt, traveling southbound on Bronx Boulevard in the Bronx. Officer Demorin was driving the patrol car and his partner was seated in the front passenger seat. As he approached the vicinity of 3308 Bronx Boulevard, Officer Demorin observed a parked vehicle with two individuals inside of it. Officer Demorin testified that the neighborhood was a “high prostitution and narcotics” area. Officer Demorin pulled up alongside the vehicle, with the passenger side of the patrol car next to the driver’s side of the vehicle, and asked the occupants what they were doing and whether they lived in the area. Officer Demorin had this conversation with the occupants “through his partner through the other car”. Officer Demorin testified that he did not recall “exactly what the answer was”.

A New York Criminal Lawyer said that, after making this initial approach and inquiry, Officer Demorin and his partner exited their patrol car and approached the vehicle on foot. Officer Demorin testified that they approached the car on foot “just to make a common inquiry”. When asked the nature of this inquiry, Officer Demorin replied, “as to what they were doing in the area, if they lived in the area”. Officer Demorin testified further that he made this inquiry “because of the nature of the area it’s a high prostitution and drug crime prone location”. He added that he was trying to find out “if any illegal activity was afoot”.

Officer Demorin walked around to the passenger side of the vehicle where a female passenger was seated and his partner approached the driver’s side. Officer Demorin testified that from where he was positioned on the passenger side of the vehicle, he was able to observe the driver, subsequently identified as the defendant, make a sudden “downward” gesture with his hand.

Officer Demorin then used his flashlight to look inside the vehicle and observed a firearm on the floor behind the front passenger seat. A New York Criminal Lawyer said after making this observation, Officer Demorin ordered the female passenger out of the vehicle and directed his partner to place the defendant in handcuffs.

After he was handcuffed, defendant stated that he had been previously shot in the back and needed the gun for protection. He stated that the gun belonged to his father and asked if Officer Demorin could help him out in any way. Defendant’s statements were not preceded by Miranda warnings.

A Bronx Drug Crime Lawyer said that, defendant was then placed under arrest and transported to the precinct. After arriving at the precinct, Officer Demorin searched the vehicle and recovered a plastic bag containing marijuana from the back seat.

During the second day of his testimony, Officer Demorin acknowledged that he had failed to give the prosecutor a complete copy of his memo book entries after he processed the arrest. He testified that the copy of the third page of the memo book, which was only half full when turned over to the prosecutor, was incomplete because he continued to make entries regarding the arrest after providing copies of his memo book to the prosecutor.

A Bronx Criminal Lawyer said that, defendant was indicted for criminal possession of a weapon in the third degree (Penal Law § 265.02[4]), criminal possession of marijuana in the fourth degree (Penal Law § 221.15) and possession of ammunition (Administrative Code § 10-131[i][3]). A Bronx Criminal Lawyer said that, defendant filed a motion to suppress the evidence obtained against him.

The issue in this case is whether defendant is entitled to the suppression of evidence against him on the ground that it was illegally obtained by the police.

Upon reviewing the hearing testimony and the post-hearing submissions, the Court concludes that defendant’s motion to suppress should be granted since the People did not meet their initial burden of establishing the legality of the police.

The Court held that, where the police initiate an encounter with private citizens, the propriety of that encounter must be assessed under the four-tiered analytical framework articulated in. A Brooklyn Criminal Lawyer said the justification for a level I inquiry is an “objective, credible reason not necessarily indicative of criminality”. Although the informational inquiry is merely a limited intrusion on a citizen’s right to privacy, it cannot be used arbitrarily by the police. Thus, while the police have “fairly broad authority” to approach and pose questions, they may not do so on mere “whim or caprice”; the request must be based on “some articulable reason sufficient to justify the police action”.

In this case, the Court said that, the police did not have an articulable reason for approaching defendant’s vehicle. The sole basis for approaching the vehicle was the fact that it was parked in a supposedly “high prostitution narcotics” area. A high drug crime area by itself, however, is not sufficient justification for informational requests.

In the case at bar, however, there was no “nexus” providing a particularized reason to request information from defendant or his front passenger. The car was parked legally and no suspicious activity was observed. Officer Demorin observed no prostitutes in the area on the night of defendant’s arrest nor did he observe any behavior indicative of drug crime activity. Defendant and the front passenger were not engaged in sexual activity. In the absence of any conduct or other basis giving rise to a particularized reason to request information, the initial approach did not meet the DeBour standard for a level I inquiry. Even assuming that the initial approach was lawful, the officers’ decision to exit their vehicle and approach defendant’s vehicle on foot is not supported by an objective, credible reason. Officer Demorin was unable to recall how defendant and the front passenger responded to his inquiry during the first encounter when the officers were inside the patrol car. Notably, Officer Demorin did not testify that the occupants refused to respond or that he could not hear their response. He merely testified that he could not recall the response. Thus, there is no basis for concluding that their response was evasive or raised the officers’ suspicions. Since there was no articulable reason for approaching defendant’s vehicle a second time on foot, Officer Demorin’s observation of the gun, allegedly in plain view gun on the floor behind the front passenger seat, was not made from a lawful vantage point. The result of approving the police conduct in this case would be that any person seated in a vehicle parked in a high- crime neighborhood would be subject to indiscriminate police inquiry. Because the police conduct was unlawful in its inception, the gun and marijuana possession recovered from the vehicle and defendant’s statements to the police constitute the fruit of the poisonous tree.

In concluding that the People did not meet their initial burden of establishing that the police conduct was lawful, the Court notes that the credibility of their sole witness was significantly undermined during the hearing. Most notably, during Officer Demorin’s direct testimony, he inexplicably failed to mention anything about the first encounter with the defendant and front passenger which occurred when he and his partner were still in the patrol car. Officer Demorin’s direct testimony that the officers approached on foot to ask the occupants of the vehicle what they were doing and whether they lived in the area is not credible when evaluated in light of his testimony on cross-examination that he made the identical inquiry when he pulled up next to the vehicle. Officer Demorin’s credibility was weakened further on his second day of testimony when he testified that defendant’s vehicle was a 2005 Pontiac and not a 1998 Honda as he previously claimed. Officer Demorin’s explanation for his erroneous testimony, i.e., that his description of the vehicle was based on the license plate number, is also questionable. The inconsistency in Officer Demorin’s testimony about whether a voucher was prepared in connection with the inventory search also casts doubt on his credibility. Demorin’s reliability as a witness was damaged further by his failure to furnish all of his memo book entries to the prosecutor, as well as his explanation for why only half of the third page of memo book page was photocopied.

A final basis for questioning Officer Demorin’s credibility is the obvious tailoring which occurred during his testimony. For example, Officer Demorin testified that he approached defendant’s vehicle “just to make a common inquiry” and to find out “if any illegal activity was afoot”. Officer Demorin’s apparent attempt to meet constitutional objections must be considered in conjunction with his inexplicable testimony that he asked the identical question during both encounters and his inability to recall what the defendant and front passenger said in response to his inquiry during the first encounter.

Accordingly, the Court held that, defendant’s motion to suppress physical evidence and his statements to law enforcement authorities is granted.

Any evidence obtained which constitutes fruit of a poisonous tree must be suppressed. If you are involved in a similar situation, you need to seek the advice of a Bronx Drug Crime Attorney. At Stephen Bilkis and Associates, our Bronx Criminal Attorneys will help you with your case. Call us for free consultation.

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