Cite as: People v. Alexandra Schmid, 1385/12, NYLJ 1202638482741, at *1 (Sup. QU, Decided January 9, 2013)

1385/12

Justice Robert Charles Kohm

Decided: January 9, 2013

DECISION AND ORDER

Mapp/Huntley/Dunaway/Wade Hearing

 

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The defendant is charged with grand larceny in the third degree (3 counts), criminal possession of stolen property in the third degree (3 counts), criminal possession of stolen property in the fourth degree, scheme to defraud in the second degree, and official misconduct (8 counts). After the defendant moved to suppress evidence, this Court conducted a Mapp/Huntley/ Dunaway/Wade hearing on March 25, November 14 and November 15, 2013. Detective Thomas Eddings and Special Agents Michael Mischler and Bill Meditz testified on the People's behalf. I find the testimony of these officers fully credible, and I make the following findings of fact and conclusions of law.

FINDINGS OF FACT

On February 1, 2012, at approximately 9:13 P.M., Detective Eddings, who was assigned to the Port Authority of New York and New Jersey, was investigating a complaint by an international traveler, Momin Lultan Ahmed Ullah, who alleged that $5,000.00 in U.S. currency had been removed from a jacket that he had placed on a Transportation Security Administration (TSA) screening belt, earlier that evening at Terminal 4 of JFK airport. The complainant had already departed on his scheduled flight,

 

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but Eddings spoke with another Port Authority officer, Officer Oipromalla, who had spoken to the complainant before he boarded his plane. Oipromalla told Eddings that Ullah had stated that fifty $100 bills had been taken from his jacket.

Eddings next spoke to a fellow TSA employee of the defendant's, who told him that at the relevant time she had observed the defendant place her hand into a jacket on the conveyor screening belt after requesting that it be stopped, and that she had then observed the defendant remove a white envelope from the jacket and pull her blue screening gloves over it. She also told Eddings that as soon as the passenger had claimed the jacket he said, "Where is my money? Somebody has taken my money." The co-worker also told Eddings that the defendant left her post after the incident.

Both the defendant and her co-worker were brought to the Port Authority precinct located within the airport. Eddings advised the defendant of her Miranda rights. The defendant acknowledged understanding her rights, but then declined to speak with the Detective. She was not questioned. At approximately 11:35 P.M., the defendant was arrested and searched. A cell phone and wallet, which contained five $100 bills, were recovered and vouchered. The vouchers were admitted into evidence at this hearing as People's Exhibit #s 1 & 2.

On February 27, 2012, a friend of the defendant's named Daphne came to the precinct to pick up an iPad that she had previously given to the Port Authority police, in connection with their broader investigation into thefts from international travelers. Daphne told Detective Eddings that she also wanted back a different computer that she had given them because it, in fact, belonged to the defendant. Eddings told her that the

 

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computer was still part of the investigation and that she could not have it back. Daphne then went outside but soon returned. Upon her return, she told Eddings that the defendant was in the parking lot and wanted to speak to him.

Eddings and his Sergeant went outside, where they observed the defendant sitting in a silver Hummer eating a potato. Eddings asked the defendant if she wanted to speak to him. The defendant told him that she wanted the computer returned because it was hers. Eddings told the defendant that if it was her computer she needed to provide them with a bill of sale or other ownership documentation. The defendant claimed that she had purchased the computer on Craigslist and would provide that documentation. Eddings told the defendant to contact her attorney and to have the attorney provide the documentation to the Assistant District Attorney in charge of the case.

Special Agents Mischler and Meditz were also involved in the broader investigation of thefts at JFK. Agent Mischler, who is assigned to the Department of Homeland Security, Office of the Inspector General, asked Detective Eddings to send him photos of female TSA employees who were working in Terminal 4 on December 9, 2011, when money had been taken from another complainant, Dr. Imrana Ali, who was traveling to India. Eddings sent Mischler an email containing eleven photos of TSA employees working on the checkpoint "A" side of Terminal 4. The photos that Eddings emailed to Special Agent Mischler were admitted into evidence as People's Exhibit # 3.

Mischler forwarded the photos to Dr. Ali in an email attachment on February 6, 2012. Before sending them, Mischler told her that he would be sending her some photos and that the person who was involved in the theft might or might not be among them. Dr.

 

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Ali emailed back to Special Agent Mischler that "we" had reviewed the photos and that none of them "rang a bell." The following day, Mischler emailed Detective Eddings and requested a picture of the defendant and anyone else who met Ali's description of the person involved, i.e. "fair-skinned", "fairly tall," "30-ish," with a "Puerto Rican accent."

On February 8, Mischler emailed the defendant's photo to Dr. Ali and asked her to review it. Before he heard back from her, he emailed a photo of another TSA employee and asked her to review it. Dr. Ali called Special Agent Mischler the next day. He asked her to go over the incident one more time and then asked if she recognized anyone from the photos he had sent. Dr. Ali told him that the defendant's face looked familiar, but that she couldn't positively identify her. She told Mischler that the woman at the conveyor belt had longer hair. All of the photos that Special Agent Mischler sent to Dr. Ali were admitted into evidence as People's Exhibit #10.

Special Agent Meditz, who is assigned to the Department of Homeland Security, TSA Internal Affairs, conducted an identification procedure with another airport complainant, Mohammed Zamen, on May 9, 2012. Zamen told the Special Agent that a female TSA officer had taken two of his bags from the conveyor belt, told him that they had to be searched, and then took them out of sight before returning with them. When he complained of missing money, the TSA officer told him that she could call the police because he had been attempting to leave the country with so much money. He described the woman as Hispanic, with curly hair, tall, skinny and without glasses.

Meditz obtained the photos of twelve female TSA employees who were working in Terminal 4 on the day of the theft, January 5, 2012. He sat across from Zamen at a

 

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desk and told him that he would be showing him photos and that he should let him place them all down before he looked at them. After he had placed approximately six photos down on the desk, Meditz placed the defendant's photo down. As soon as he did so, Zamen said, "This is her." Meditz told Zamen to let him put the rest of the photos down. After he had done so, Meditz asked Zamen if he recognized anyone. Zamen replied that he did, picked up the defendant's photo and said, " This is the one." Meditz asked Zamen what the person had done. Zamen replied that she was the one who took their bags, brought their bags back, and with whom they had a conversation about the missing money. The photos that Meditz showed to Zamen were admitted into evidence as People's Exhibit #11.

On May 17, 2012, Detective Eddings conducted two lineups with complainants Zamen and Ali as the witnesses. The defendant, wearing a red t-shirt, had come to the precinct accompanied by her attorney. Since none of the fillers were wearing bright clothing, Eddings obtained black clothing for all of the lineup participants, including the defendant.

Mohammed Zamen was the first to view the lineup. He had no opportunity to see the defendant or the fillers beforehand. The defendant chose to stand in the number 5 position. Detective Eddings took a photo of the lineup to memorialize how it was constituted. The photo was entered into evidence as People's Exhibit # 4.1 Before Zamen viewed the lineup, Detective Eddings read him a police form containing instructions for viewing

 

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photo arrays, which Eddings had adapted for lineup use. The form that Eddings adapted was entered into evidence as People's Exhibit # 5. When Zamen viewed the lineup, Eddings asked him if he recognized anyone. Zamen identified number 5 as the person who took his bag at the airport security screening area. Eddings used a form to document the lineup and Zamen's answers. The form was admitted into evidence as People's Exhibit # 6.

Approximately one hour later, Dr. Ali viewed a reconstituted lineup. Before she viewed it, Detective Eddings provided her with the same form instructions that he had provided to complainant Zamen. Dr. Ali had no opportunity to see the defendant, the fillers, or Zamen before she viewed the lineup. The defendant, with her attorney present, chose to stand in the number 1 position. Eddings again took photos to memorialize the constitution of the lineup before it was viewed by the witness. The photos were admitted into evidence as People's Exhibit # 7. When Dr. Ali viewed the lineup, Detective Eddings asked her if she recognized anyone. Dr. Ali immediately pointed to number 1 and stated that she was the individual who took her bag. Eddings asked her what number 1 did to her. Dr. Ali replied that she took her money. The form that Detective Eddings used to document the lineup was admitted into evidence as People's Exhibit #8.

CONCLUSIONS OF LAW

Probable cause for an arrest exists when the facts and circumstances known to the arresting officer would warrant a reasonable person possessing the same expertise as the officer to conclude that a crime is being, or was, committed and that the defendant is the

 

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perpetrator (see People v. Maldonado, 86 NY2d 631 [1995]; People v. Carrisquillo, 54 NY2d 248 [1981]; People v. McRay, 51 NY2d 594 [1980]). Probable cause "does not require proof to a mathematical certainty, or proof beyond a reasonable doubt" (People v. Mercado, 68 NY2d 874, 877 [1986 ], cert denied 479 US 1095 [1987]). Rather, it must appear "more probable than not" that the defendant is the perpetrator of a crime (People v. Carrisquillo, 54 NY2d at 254).

It is well-settled that information provided by private citizens who report crimes observed by, or perpetrated against, them may be relied upon by police officers to supply probable cause for an arrest (see People v. Hetrick, 80 NY2d 344 [1992]; People v. Mendoza, 49 AD3d 559 [2008], lv denied 10 NY3d 937 [2008]; People v. Griffin, 15 AD3d 502 [2005], lv denied 5 NY3d 789 [2005]; People v. Martin, 221 AD2d 568 [1995], lv denied 87 NY2d 1021 [1996]). Thus, Mohammed Ullah's account of the theft from his jacket, as conveyed to Detective Eddings by a fellow officer (see People v. Ketcham, 93 NY2d 416 [1999]; People v. Washington, 87 NY2d 945 [1996]; People v. Petralia, 62 NY2d 47 [1984], cert denied 469 US 852 [1984]), coupled with the observations and accusations of the defendant's co-worker, provided probable cause for the defendant's arrest. As the defendant's arrest was lawful, the search of her person incidental to the arrest, so as to prevent the destruction of evidence and injury to the officers, was proper (see People v. Landy, 59 NY2d 369 [1983]; People v. DeSantis, 46 NY2d 82 [1978], cert denied 443 US 912 [1979]; People v. Davis, 32 AD3d 445 [2006], lv denied 7 NY3d 924 [2006]; People v. Parker, 306 AD2d 543 [2003], lv denied 100 NY2d 644[2003 ]). Thus, the defendant's cell phone and wallet, including the $100

 

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dollar bills recovered therefrom, are admissible into evidence.

With respect to the Huntley portion of the hearing, the People met their burden of demonstrating that the oral statements that the defendant made outside the airport station house, in the parking lot, were voluntary beyond a reasonable doubt (see People v. Witherspoon, 66 NY2d 973 [1985]; People v. Anderson, 42 NY2d 35 [1977]; People v. Huntley, 15 NY2d 72 [1965]). Although the defendant's right to counsel had formerly attached upon the filing of the felony complaint (see People v. Samuels, 49 NY2d 218 [1980]), Detective Eddings did not interfere with that right. The defendant, who was not in custody, initiated the contact with the Detective, who merely inquired into the reason for the defendant asking to speak with him, and then explained in a simple, declarative manner why she could not have what she sought. Therefore, the defendant's statements were spontaneous or volunteered, since they were not "triggered by police conduct which should reasonably have been anticipated to evoke a declaration from the defendant" (People v. Lynes, 49 NY2d 286, 295 [1980]; see People v. Rivers, 56 NY2d 476 [1982]; People v. Lanahan, 55 NY2d 711 [ 1981 ]; People v. Maerling, 46 NY2d 289 [1978]). Detective Eddings "neither induced, provoked nor encouraged" the defendant's statements (People v. Harris, 57 NY2d 335, 342 [1982]) and was under no obligation " to take affirmative steps, by gag or otherwise, to prevent a talkative [defendant] from making an incriminating statement" (People v. Rivers, 46 NY2d at 479).

With respect to the Wade portion of the hearing, the People failed to carry their initial burden of demonstrating that the police conduct of Dr. Ali's photo identification of the defendant was reasonable and not compromised by undue suggestion (see People v.

 

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Delamota, 18 NY3d 107 [2011];People v. Jackson, 98 NY2d 555 [2002]; People v. Ortiz, 90 NY2d 533 [1997]; People v. Chipp, 75 NY2d 327 [1990], cert denied 498 US 833 [1990]). Special Agent Mischler was not present when Dr. Ali viewed the photos and, therefore, could exercise no supervision over the circumstances of her viewing, including, for example, the possibility of multiple viewers. Indeed, Dr. Ali's husband apparently viewed at least the first batch of photos with her. While Mischler attempted to deflect any allegation of suggestiveness with Dr. Ali's hearsay dismissal of her husband's ability to influence her selection, Mischler lacked any factual basis for accepting Ali's assessment. Under the circumstances, the People " failed in their threshold responsibility to call any witness who could testify to the circumstances under which defendant was actually identified" (People v. Ortiz, 90 NY2d at 538). Furthermore, the People's analogizing of Dr. Ali's viewing of the photos to a sequential lineup is unconvincing. Dr. Ali, under unknown circumstances, viewed a first batch of photos and recognized no one. She was then sent a single photo of the defendant and determined, again under unknown circumstances, that the defendant looked "familiar". This was a single-photo identification and, as such, unduly suggestive (see People v. Kairis, 37 AD3d 1070 [2007], lv denied 9 NY3d 846 [2007]; People v. Rockwell, 18 AD3d 969 [2005], lv denied 5 NY3d 768 [2005]; People v. Fuller, 71 AD2d 589 [1979]).

In today's age of modern and innovative technology, the internet is being utilized in ways unthinkable just a generation ago. Employers conduct employee interviews via "Skype", music concerts are uploaded in real time and are then transmitted from one continent to another, and grandparents view their grandchildren performing in school

 

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plays via the cell phone. In New York State, the criminal justice system has taken advantage of these new modes of communication: attorneys routinely communicate with incarcerated clients through video conferences, judges conduct video arraignments, sometimes in hospital settings, and calendar calls can be accomplished electronically with the consent of counsel.

The Court suggests that, in the future, where photo identification procedures are to be conducted with witnesses who reside in other countries, or in other states, the use of current video technology such as "Skype" or "Google Hangouts" would enable the People to better meet their threshold burden of proof. The officer conducting the procedure would be able to verify that the witness was viewing the photos alone and without suggestive prompting of any kind. The officer would also be able to confirm that the witness understood the officer's instructions and was indeed viewing all of the photos. Furthermore, the entire identification procedure could be recorded, much as the questioning of defendants is frequently videotaped, which would enable the hearing court to better apprise the facts and circumstances surrounding the identification.

Nevertheless, Dr. Ali's lineup identification of the defendant, which took place approximately three months after the photo identification, was sufficiently attenuated from it as to purge any possible taint (see People v. Ortiz, 84 AD3d 839 [2011], lv denied 17 NY3d 954 [2011]; People v. Nedd, 79 AD3d 1150 [2010]; People v. Leibert, 71 AD3d 513 [2010], lv denied 15 NY3d 752 [2010]).

Although the identification procedure conducted by Special Agent Meditz with Zamen was not a typical photo array in that the "fillers" were not selected because of

 

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their resemblance to the defendant, it was not unduly suggestive because the photo of the defendant was not highlighted in any manner (see People v. Dailey, 86 AD3d 579 [2011], lv denied 17 NY3d 902 [2011]; People v. Ortiz, 84 AD3d, supra; People v. Ferguson, 55 AD3d 926 [2008], lv denied 12 NY3d 783 [2009]; People v. Miller, 33 AD3d 728 [2006], lv denied 8 NY3d 925 [2007]).

With respect to the two lineups, the "fillers" utilized sufficiently resembled the defendant as to negate any likelihood that the defendant would be singled out for identification (see People v. Chipp, supra; People v. Marshall, 51 AD3d 926 [2008], lv denied 10 NY3d 961 [2008]; People v. McFadden, 36 AD3d 631 [2007], lv denied 8 NY3d 925 [2007]; People v. Johnson, 33 AD3d 939 [2006]; People v. Ragunauth, 24 AD3d 472 [2005], lv denied 6 NY3d 779 [2006]). There is no requirement that a defendant be surrounded by individuals whose physical characteristics are nearly identical to hers (see People v. Jean-Baptiste, 57 AD3d 5666 [2008], lv denied 12 NY3d 784 [2009]; People v. Jordan, 44 AD3d 875 [2007], lv denied 9 NY3d 1035 [2008]; People v. McFadden, supra). Furthermore, Detective Eddings took reasonable precautions to ensure that the defendant would not stand out by reason of her distinctive clothing and defense counsel made no objection to the way in which the lineup was constituted.

Accordingly, the defendant's motion is granted solely to the extent of suppressing potential trial testimony concerning the Ali photo array procedure, and denied in all other respects.

This constitutes the decision and order of the Court.

Dated: January 9, 2014

1. The photo was subsequently entered into evidence again as People's Exhibit # 12.

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