On September 19, 2023, October 10, 2023, October 11, 2023, and October 16, 2023, this court conducted a Mapp/Huntley/Dunaway/Refusal hearing. The following constitutes the court's findings of fact and conclusions of law.

At the hearing, the People called three witnesses, NYPD Officer Tyler Harper, NYPD Officer Brian Christen, and an interpreter named Mariann Hernandez. The court generally credits their testimony. The People also admitted two body-worn camera videos. Having reviewed all the evidence presented, the court makes the following findings of fact.

Officer Tyler Harper has worked for the NYPD for three years. He is a public safety officer assigned to the 103rd Precinct. He believes that common signs of intoxication include slurred speech, poor balance, or an odor of alcohol on a person's breath.

On December 30, 2022, Officer Harper was on patrol with his partner, Officer Petrone, in a marked police vehicle. Both officers were in uniform. At approximately 9:30 a.m., the officers received a radio run for a motor vehicle accident. The radio transmission told them to respond to 144th Place and Archer Avenue in Queens County.

Upon arriving at 144th Place and Archer Avenue, Officer Harper observed a man wearing a tan jacket—Mr. Saquijxol—standing on the sidewalk corner. He also saw a black Dodge Challenger facing southbound on 144th Place. That road only runs northbound. The Challenger appeared to be off. It was positioned on the road in a lane of traffic, though there was no traffic on the road at the time. The vehicle was about one-car length into the 144th Place from the intersection. Officer Harper never saw Mr. Saquijxol inside of the car.

From Officer Harper's body-worn camera footage, there appear to have been at least [*2]three officers who were already at the scene.^[FN1] Two of these officers were Sergeant O'Brien and Officer Marzillo. Their marked police car was blocking the street facing Mr. Saquijxol's vehicle and had its turret lights on. Another marked police car was parked parallel to the perpendicular street. It, too, had its turret lights on. There was a fourth person present and interacting with the officers, as well. It is unclear whether he was a police officer, a security guard, or some other civilian.^[FN2]

When Officer Harper and his partner arrived, the officers already present were interrogating Mr. Saquijxol on the sidewalk. Officer Harper approached them mid-questioning. As he approached, he heard Sergeant O'Brien ask Mr. Saquijxol, "Where were you driving? What direction were you headed?" Mr. Saquijxol—who spoke with a heavy accent and broken English—said, "I was going from here to here and stop right here, that's it." His gestures were not specific. Sergeant O'Brien then left to go look at the Challenger. As Mr. Saquijxol started to move, Officer Harper directed him to, "Hang out right here." Mr. Saquijxol then started to move again, twice, and each time Officer Harper repeated, "Hang out right here, don't move." Officer Harper stayed with Mr. Saquijxol.

After a few minutes, Officer Petrone came up to Mr. Saquijxol and said, "Be honest with me, be honest with me, okay, were you drinking tonight, did you have anything to drink?" Mr. Saquijxol responded that he had two Modelos and two tequila mixed drinks. During this questioning, Officer Harper observed that Mr. Saquijxol's speech was slurred and that he was having trouble balancing. The officer also smelled alcohol on Mr. Saquijxol's breath.

Officer Petrone continued his questioning about where and when he drank alcohol, along with other questions about what had happened. He asked, "So you were driving down the wrong side?" Mr. Saquijxol answered, "No, I wasn't driving down the wrong side." He said, "I parked there because this guy told me, 'Stop over there.'" "Because this guy told me, 'Stop over there,'" Mr. Saquijxol explained, "I stop over there." Officer Harper followed up, "So why is your car facing the wrong side of the road?" In response, Mr. Saquijxol repeated, "Because this guy say stop over there, I stop over there."

Officer Harper then placed Mr. Saquijxol under arrest for driving while intoxicated. After arresting him, Officer Harper transported Mr. Saquijxol to the 112th Precinct to conduct intoxicated driver tests.^[FN3] There, an officer from the NYPD Highway Patrol named Brian Christen asked Mr. Saquijxol to submit to a chemical breath test. He then played a video in Spanish. Mr. Saquijxol responded, "No." Officer Christen then read the standard V.T.L. § 1194 refusal warnings in English and played a video in Spanish. Mr. Saquijxol again responded, "No."

At the hearing, the People called an interpreter named Mariann Hernandez as a witness. She works for the Queens District Attorney's Office and is currently assigned to Grand Jury proceedings. Ms. Hernandez speaks both Spanish and English and she has been speaking Spanish her entire life. She has a master's degree in Spanish and Latin American Literature and in Linguistics. That involved two years of study. Her profession as an interpreter involves translating between Spanish and English.

The People played the video that Officer Christen had played for Mr. Saquijxol and asked Ms. Hernandez to translate, one line at a time, from Spanish to English. She testified that the video, translated into English, said:

You have been arrested for driving a vehicle in a deteriorated state. I would appreciate it if you do a breath test. Will you take this test, yes or no?

This is a notice to let you know what happens if you do not take this breathalyzer test. If you do not comply with taking this breathalyzer test, it will result in a suspension of your driver's license or your privileges to drive for a period of one year whether or not you are declared guilty of the charges that you have been arrested for.

Also, if you deny taking a test, it could be presented as evidence against you in any proceedings regarding this arrest.

Once again, will you take the breathalyzer test, yes or no?

The police never read Miranda warnings to Mr. Saquijxol.

At a Mapp/Dunaway hearing, the People bear the burden of production, "at the outset," to "go forward and demonstrate the legality of the police conduct." (People v. Rojas, 163 AD2d 1, 2 [1st Dep't 1990]). In doing so, the People are required to establish that the police's "encounter with the defendant was justified [from] its inception" and at every subsequent stage. (People v. Broughton, 163 AD2d 404, 405 [2d Dep't 1990]; see also People v. Joyette, 219 AD3d 628, 630 [2d Dep't 2023] ["The court must consider whether or not the action of the police was justified at its inception."]). Seizures must be related in scope and length to the [*3]circumstances which justify it in the first instance. (E.g., People v. Banks, 85 NY2d 558 [1995]).

When analyzing the legality of a police act, what matters is what the intruding officer knew. (E.g., People v. Sanchez, 38 NY2d 72, 76 [1975] [noting that reviewing courts must look to "the facts available to the officer at the moment of the seizure"]; Farquharson v. United Parcel Service, 202 AD3d 923, 926 [2d Dep't 2022] [noting that reviewing courts must look to "the sum of the [objective] information known to the police at the time" of the intrusion]; United States v. Arvizu, 534 U.S. 266, 273-74 [2002] ["[W]e have said repeatedly that [reviewing courts] must look at the 'totality of the circumstances' of each case to see whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing."]; People v. Lanier, 8 Misc 3d 1017[A], at *2 [Sup. Ct., Bronx County 2005] [Farber, J.] ["What matters . . . is what the officers who actually apprehended defendant knew at the time of the apprehension, not what the 'arresting' officer learned after-the-fact."]).

Thus, when justifying a temporary detention for instance, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion." (Terry v. Ohio, 392 U.S. 1, 21 [1968]; see also People v. Brannon, 16 NY3d 596, 602 [2011] ["A stop based upon reasonable suspicion will be upheld so long as the intruding officer can point to specific and articulable facts which, along with any logical deductions, reasonably prompted the intrusion."]).

As a result, the court cannot simply rely on its own imagination to speculate the basis on which an officer justified his intrusion. It is "the police officer" who "must be able to point to specific and articulable facts"—not the post-hoc imagination of a judge. (Terry, 392 U.S. at 21 [emphasis added]; see also Brannon, 16 NY3d at 602 [noting that "the intruding officer" must "point to specific and articulable facts"] [emphasis added]; accord United States v. Peters, 60 F.4th 855, 864 [4th Cir. 2023] [Gregory, C.J.] [explaining the same point]).^[FN4]

Thus, where the People fail to establish the circumstances known to an intruding officer, the court cannot find that they met their burden of production. People v. Moses, a case from the Appellate Division, Second Department, provides a paradigmatic example. (32 AD3d 866 [2d Dep't 2016]). There, at a Dunaway hearing, "the prosecution presented only the testimony of the arresting officer, who stated that he received a radio communication regarding a robbery in progress." (Id. at 867). The officer then received a "second radio communication indicating there was a person stopped in the vicinity of a nearby intersection." (Id.). He drove to that location, where he "observed the defendant leaning against an unmarked police car between two plainclothes police officers wearing 'NYPD' jackets." (Id. at 867-868). "The prosecution did not call either of the plainclothes officers to testify at the hearing regarding the circumstances by [*4]which the defendant came to be in their company near the intersection." (Id. at 868). The hearing court nonetheless denied the motion to suppress.

The Appellate Division reversed. Because the prosecution "failed to present any evidence to establish that the defendant was lawfully stopped and detained" before the testifying officer had arrived, "the prosecution failed to satisfy its burden of establishing the legality" of the initial seizure. (Id.).

Moses illustrates a simple and common rule: where the People fail to establish the circumstances under which a person came under police company, they fail to meet their burden of production. (E.g., People v. Powell, 101 AD3d 756, 758 [2d Dep't 2012] [the People did not present "any testimony from the [intruding] officers as to what information they possessed or how they received it before they detained the defendant"]; People v. Skinner, 220 AD2d 350, 350 [1st Dep't 1995] [the People "did not establish the identity of the officer who initially detained defendant" or what information that officer knew]; People v. Broughton, 163 AD2d 404, 405 [2d Dep't 1990] [the People "failed to demonstrate the reasonableness of the police action" because they "failed to elicit any evidence that the arresting police officer's street encounter with the defendant was justified at its inception"]; People v. Barreto, 161 AD2d 305, 307 [1st Dep't 1990] ["Significantly absent from the hearing in this matter is testimony from the officer who actually conducted the stop."]; People v. Rojas, 163 AD2d 1, 2 [1st Dep't 1990] ["[T]here was absolutely no showing at the hearing that the officer who apprehended the suspects . . . had probable cause to do so."]; People v. Testa, 60 Misc 3d 928, 934-35 [Just. Ct., Monroe County 2018] ["Courts have consistently held that a defendant is entitled to suppression where, as here, there is no testimony from a police officer with firsthand knowledge of the initial police-citizen encounter."]; People v. Marmo, 56 Misc 3d 1210[A], at *3 [Crim. Ct., Kings County 2017] ["The People did not call any of the police officers who initially detained the defendant to testify regarding the circumstances by which the defendant came to be in their company."]; People v. Mejia, 21 Misc 3d 1147[A] [Sup. Ct., Bronx County 2008] ["Thus, the Court is left to speculate as to who placed defendant in custody and what observations justified that police action."]; People v. Lanier, 8 Misc 3d 1017[A], at *6 [Sup. Ct., Bronx County 2005] ["At the time [the testifying officer] arrived on the scene, the defendant was already being held by other police officers[, and the People] presented no evidence on what information was available to the apprehending officers that would have permitted [that] detention."]).

In this case, the People fail to establish the circumstances under which Mr. Saquijxol came to be in the company of and seized by the police. The People did not call the initial intruding officer at the hearing. In fact, the People did not even identify who that officer was.^[FN5] By the time Officer Harper arrived, "the defendant was already being held by other police officers." (Lanier, 8 Misc 3d 1017[A], at *6). The other officers' turret lights were on, they had [*5]blocked the intersection, and they were in the middle of questioning Mr. Saquijxol. "The People presented no evidence on what information was available to the apprehending officers that would have permitted [that] detention." (Id.; see also Powell, 101 AD3d at 758 [the People did not present "any testimony from the [intruding] officers as to what information they possessed or how they received it before they detained the defendant"]; Marmo, 56 Misc 3d 1210[A], at *3 ["The People did not call any of the police officers who initially detained the defendant to testify regarding the circumstances by which the defendant came to be in their company."]).

"Thus, the Court is left to speculate" as to what the police had observed beforehand and whether their subsequent actions were lawful. (Mejia, 21 Misc 3d 1147[A]). "The record is devoid of any evidence regarding the initial encounter between defendant and police." (Testa, 60 Misc 3d at 934-35). It does not establish whether, when police initially arrived, Mr. Saquijxol was driving or whether he was outside of his vehicle.^[FN6] It does not establish who told him to "stop" and "park over there," whether it was a police officer or the unidentified person, possibly a civilian, seen later interacting with the police. It does not establish how long the police had detained Mr. Saquijxol by the time Officer Harper arrived. At bottom, it does not establish the legality of any of the police actions in this case before Officer Harper arrived. Tellingly, the People do not even make an argument that the initial intrusion—or any police acts before Officer Harper arrived—were lawful. Instead, they skip that analysis altogether.

In sum, the People failed to establish what happened before Officer Harper arrived; most critically, they failed to establish that the police interactions beforehand were lawful. There is no record establishing who initially intruded upon Mr. Saquijxol's liberty and what was known to that officer. As a result, the People failed to meet their burden of production. The Mapp/Dunaway motion is granted, and all fruits flowing from the initial police interaction with Mr. Saquijxol are suppressed. That includes all resulting observations,^[FN7] the noticed C.P.L. § 710.30 statements, and Mr. Saquijxol's later alleged refusal to submit to a chemical test.

As an addendum, the court notes that had the Mapp/Dunaway motion been denied, it would have nonetheless granted the Refusal motion. At a Refusal hearing, the People bear the burden of establishing that the police had warned the accused person of the consequences of [*6]refusing a chemical test in "clear and unequivocal" language. (V.T.L. § 1194[2][f]). The People failed to meet this burden. The interpretation they elicited from their witness stated that, "if you deny taking a test, it could be presented as evidence against you in any proceedings regarding this arrest." As elicited by the People, that is not an accurate warning of the consequences of refusing a chemical test. Under V.T.L. § 1194, it is a refusal to take the chemical test that may be used against a person in a subsequent proceeding, not a denial that one took the test. As the People's record does not establish that the police clearly and unequivocally warned Mr. Saquijxol of the consequences of refusing a chemical test, the alleged refusal would be suppressed as violating V.T.L. § 1194, as well.

The Huntley motion is moot.

The Mapp/Dunaway motion is granted. The Refusal and Huntley motions are moot; though, if they were not, the Refusal motion would be granted.

The foregoing constitutes the order and decision of the court.