Judge suppresses evidence in drug, gun case

Listen to this article

A judge in Ithaca has suppressed physical evidence and statements to law enforcement officers in a drugs and weapon case because of an illegal police encounter.

Defendant Breon Brooks was indicted on charges of second-degree criminal possession of a weapon, third-degree criminal possession of a controlled substance, and fourth-degree criminal possession of a controlled substance.

Brooks filed a motion seeking to dismiss the indictment based on alleged defects in the grand jury proceeding, and to suppress the physical evidence and statements.

In April, Tompkins County Court Judge Scott A. Miller denied the motion to dismiss the indictment, but granted a suppression hearing, which was held in May.

According to Miller’s decision, on Jan. 4, 2023, members of the Ithaca Police Department were conducting surveillance as part of a narcotics investigation targeting William Ellison at a home in Ithaca.

Investigators Benjamin Buck and Dana Haff were members of the surveillance and arrest team. A search warrant had been issued for Ellison and the premises.

Earlier that day, investigators saw Brooks visit the residence. Brooks and Ellison walked together to a nearby 7-Eleven store.

Ellison went inside the store while Brooks walked alone to his car in a parking lot behind the 7-Eleven.

About the same time, law enforcement officers executed the search warrant and arrested Ellison inside the 7-Eleven.

Brooks drove away, but Buck and Haff, traveling in an unmarked car, encountered him in a narrow alleyway.

After Brooks reversed into a parking space, Buck and Haff exited their vehicle and approached Brooks, who had just exited his own vehicle and was leaning against his car.

Buck testified that Brooks’ right pants pocket appeared slightly turned out, which he interpreted as indicative of recently removing an item, according to Miller’s decision.

According to the investigators, Brooks was asked whether he possessed any drugs or contraband on himself or in his car. Both investigators testified that Brooks voluntarily admitted to having narcotics and a handgun in the car.

Buck and Haff were not wearing cameras, but two other officers, who arrived moments later, were wearing cameras.

The BWC footage begins after Brooks allegedly made the admissions, but it captured his continued interaction with police.

“The footage clearly shows that Buck and Haff were wearing their firearms holstered at their sides and standing in close proximity to Brooks — one on either side of him — as he leaned against his vehicle,” Miller wrote.

Brooks testified that, while being approached by the investigators on both sides, he did not feel free to leave.

“Although the BWC does not capture the exact moment of the alleged admissions, it supports Brooks testimony that he was effectively detained almost immediately,” Miller wrote.

The officers arrested Brooks, obtained a search warrant based on his admissions, and found drugs and a weapon in Brooks’ car.

When evaluating police street encounters, judges in New York state must determine whether the interaction was justified.

People v. De Bour, the 1976 New York State Court of Appeals decision, laid out a four-level framework for assessing the legality of police-initiated street encounters.

• Level I permits an officer to approach an individual and request information, requiring only an objective, credible reason, not necessarily indicating criminality.
• Level II permits a greater intrusion and requires a founded suspicion that criminal activity is happening.
• Level III allows an officer to forcibly stop and detain an individual based on reasonable suspicion that the person has committed, is committing, or is about to commit a crime.
• Level IV involves arrest and requires probable cause to believe the person has committed a crime.

The detectives’ inquiry asking Brooks if he had any drugs or contraband constituted a Level II common-law inquiry, Miller ruled.

It required a founded suspicion that Brooks was involved in criminal activity.

“That standard was not met,” Miller wrote.

“Brooks was not named in the search warrant. Brooks was not a resident of the target’s home. Brooks had already departed the premises before the search warrant was executed. Brooks was not observed engaging in any conduct indicative of illegality. The fact that he visited the targets residence is not sufficient to establish a founded suspicion of criminality,” Miller wrote.

“Brooks slightly upturned pants pocket most certainly does not rise to the level of an articulable indicia of criminal conduct,” he wrote.

The admissions that Brooks made to police were the product of a Level II inquiry unsupported by a founded suspicion of criminality, Miller ruled.

Therefore, the search warrant obtained as a result was the fruit of an impermissible and unlawful intrusion, he ruled.

“Whether Brooks was formally detained, in custody, or advised of his Miranda rights is immaterial. The constitutional violation stems from the investigators lack of founded suspicion of criminality, which prohibited the immediate and accusatory inquiry of Brooks whether he possessed any illegal contraband,” Miller wrote.

Miller granted the motion to suppress all the physical evidence and Brooks’ statements obtained as a result of the impermissible Level 2 inquiry.

[email protected] / (585) 232-2035