People v. BanksPeople v. Banks
On December 28, 2013, state troopers stopped defendant for driving a vehicle with excessively tinted windows on the New York State Thruway in the Town of Bethlehem, Albany County. A canine sniff of the car was conducted that gave grounds for a search, after which over half a kilogram of cocaine was retrieved from the vehicle. Defendant was arrested and charged in an indictment with criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree. Following an unsuccessful motion to suppress the drugs, defendant pleaded guilty to attempted criminal possession of a controlled substance in the first degree and was sentenced to eight years in prison and five years of postrelease supervision. Defendant now appeals, focusing upon the denial of his suppression motion.
We affirm. The traffic stop was made after troopers observed the excessively tinted windows on defendant‘s vehicle and, as such, was justified (see
County Court heard testimony at the suppression hearing from both troopers involved in the traffic stop of defendant and found them credible, with the account given by State Trooper David Jimenez the most pertinent here. Defendant gave Jimenez his license, registration and proof of insurance, stating that he had been browsing at outlet stores downstate and
Jimenez testified as to how defendant‘s parole status, while not the cause of the canine sniff, played a major role in how the stop evolved after its inception. Jimenez understood from his prior experience that a parolee stopped for a traffic offense must immediately alert the officer to his or her status. Jimenez also knew from his interaction with other law enforcement officials that a parolee supervised in Albany County was not permitted to travel beyond an adjoining county without a written permission slip from his or her parole officer. Defendant had not told Jimenez of his parole status, then admitted that he did not have permission from his parole officer to travel to the outlet stores and had not asked for it.
This exchange occurred within the first 10 minutes of when the stop was made and, given the indications that defendant may have violated one or more conditions of his parole (see
The prolonged diet of inconsistencies and lies provided by defendant about his travels, when coupled with his parole situation and his nervous demeanor throughout the encounter, combined to give the officers a “founded suspicion of criminality” (People v Kenon, 291 AD2d 246, 247 [2002], lv denied 98 NY2d 652 [2002]; see People v Whalen, 101 AD3d 1167, 1168 [2012], lv denied 20 NY3d 1105 [2013]; People v Tejeda, 217 AD2d 932, 932-933 [1995], lv denied 87 NY2d 908 [1995]). This founded suspicion justified both the extension of the stop after its initial justification had been exhausted and the exterior canine sniff that followed (see People v Devone, 15 NY3d 106, 113-114 [2010]; see also United States v Moore, 795 F3d 1224, 1230-1231 [10th Cir 2015]; United States v Brigham, 382 F3d 500, 510-511 [5th Cir 2004]).2 The dog alerted during the sniff and defendant‘s contention regarding the reliability of that alert, an issue that was not advanced before County Court, is unpreserved for our review (see
Rose and Mulvey, JJ., concur.
Garry, J.P. (dissenting). We respectfully dissent. At the outset, it bears noting that defendant was ultimately detained by the state troopers for roughly one half hour before the canine officer was requested. We fully agree with the majority that the initial traffic stop was valid, and that the trooper was permitted to contact defendant‘s parole officer and ask defendant for this contact information. We dissent because defendant‘s parole status and his response to the request for his parole officer‘s phone number did not give rise to a founded suspicion of criminality, and there was no adequate basis stated in the troopers’ testimony to justify the further interrogation,
Although the majority places significant weight on defendant‘s parole status, the suspected technical violation of defendant‘s parole, without more, did not indicate criminal activity (see
We further disagree that defendant‘s response to the trooper‘s request for his parole officer‘s phone number gave rise to a founded suspicion. Defendant told the troopers that he could not access his parole officer‘s phone number because his phone would not “turn on“—and the majority notes that he was thereafter able to turn on his phone. However, Jimenez testified that, although the phone did turn on, half of the screen was black and was likely not operable. Immediately thereafter, defendant explained that he went to the shopping outlet to fix his phone, in slight contrast to his original statement during the initial stop that he went there to shop. Even taken together with his nervousness, the minimal inconsistency in these statements did not justify defendant‘s prolonged detention, particularly because the statements were made only after the initial justification for the stop had been exhausted (see People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 US 868 [1995]; People v Milaski, 62 NY2d 147, 156 [1984]; People v May, 52 AD3d 147, 152 [2008]). Defendant‘s subsequent statements regarding his plans to fix his broken phone, made during his continuing detention and interrogation, were clearly beyond the scope authorized by the circumstances of the initial stop (see United States v Sharpe, 470 US 675, 682 [1985]; People v Banks, 85 NY2d at 562; People v May, 52 AD3d at 151). As the troopers’ testimony failed to demonstrate a founded suspicion
Clark, J., concurs. Ordered that the judgment is affirmed.