704 NYS2d 779 | N.Y. Sup. Ct. | 1999
OPINION OF THE COURT
The defendant was arraigned and pleaded not guilty to a two-count indictment charging him with one count of criminal possession of a controlled substance in the fourth degree in violation of Penal Law § 220.09 (1) and one count of unlawful possession of marihuana in violation of Penal Law § 221.05. These crimes are alleged to have been committed on February 8, 1999. The defendant filed motions requesting suppression of the evidence seized from the defendant and evidence seized from the car in which the defendant was riding, on the ground that the police had no reason to stop his car, and otherwise exceeded the bounds of an investigatory stop. A hearing was held on November 5, 1999, pursuant to CPL 710.60 (4), and the following constitutes the court’s decision and order denying the motion to suppress the evidence seized from the defendant
THE FACTS
On February 8, 1999 Officer Anthony Bongiovanni was observing traffic headed northbound on Joseph Avenue. As a white 1995 BMW drove by, Bongiovanni noticed that the driver of the BMW was not wearing a seat belt. He began following the vehicle and ran a records check of the license plate. Bongiovanni eventually stopped the vehicle on Seneca Avenue, near Route 104. As Bongiovanni approached the vehicle, black curtains began to rise in the windows, obstructing the officer’s view into the car. Bongiovanni immediately called for backup, but continued to approach the driver. As the officer began talking to the driver, Terrance Wright, he detected a moderate smell of marihuana emitting from the car. He described the smell as that of unburned marihuana or a stale smell of burned marihuana. He then asked Wright for a driver’s license. Wright could not produce a driver’s license, so Officer Bongiovanni asked Wright to accompany him to his squad car. When they arrived at the squad car, Bongiovanni asked Wright for any kind of identification. Wright said he did not have any identification. Bongiovanni then patted Wright down “for safety,” and then placed Wright into the police car. He asked Wright whether there was any more marihuana left in the car. Wright stated that he was not sure because his friend, Leroy, seated inside the car, had smoked the marihuana. Bongiovanni then asked Wright if he could search the vehicle for marihuana or weapons. Wright consented to the search of the BMW.
Bongiovanni approached the vehicle again, this time with the backup he had requested from other officers over the radio. Bongiovanni asked the defendant, who was seated in the front passenger seat, to get out of the car. Two females were seated in back. He asked the defendant if he had any weapons or identification on him. The defendant produced identification and stated that he had no weapons. Bongiovanni asked defendant to step up on the sidewalk. Officer Muskco, who arrived to back up Bongiovanni, searched the BMW. Muskco found a small amount of marihuana in a closed compartment located in the armrest or console between the driver’s seat and the front passenger’s seat, and notified Bongiovanni of his find. Bongiovanni told the defendant marihuana had been found in the vehicle, and more fully frisked him. Bongiovanni detected a lump around his groin area. He asked the defendant what the lump
Bongiovanni suspected the rocky, white substance was cocaine. He then placed the defendant under arrest, and he led the defendant to Officer Muskco’s police car. Bongiovanni searched the defendant again before placing him into the police car. This second search produced a “blunt” quantity of marihuana (i.e., a cigarette) and over $500 in cash. The driver, Terrance Wright, testified for the defendant. He maintained that he was wearing his seat belt, that the officers never mentioned the seat belt, that they asked him about a hit-and-run accident over at the University of Rochester across town, that he freely gave the officers permission to search the car, that no one ever smelled marihuana and that both he and the defendant were searched in the manner specified above, with a flashlight pointing down their pants, instead of the gradual outside-pat frisk method. Wright’s testimony, however, was seriously compromised by his acknowledgment that a ticket was given to him for failure to wear a seat belt (thus negating his prior testimony that no one mentioned the seat belt issue) and that he indeed pleaded guilty to a seat belt violation. Wright’s explanation of the curtains rising in his automobile (they were “broke”) also undermined his credibility overall.
DISCUSSION
Defendant contends, relying largely on the testimony of Terrance Wright, that the stop of the vehicle was without probable cause or reasonable suspicion (Wright claimed to be wearing his seat belt despite his guilty plea), and made as a pretext for conducting an investigation of the University of Rochester hit-and-run accident. The concept of “pretext,” or an analysis of the subjective motivations of the police conducting a stop of a vehicle, has no place in Fourth Amendment jurisprudence. (Whren v United States, 517 US 806, 813 [1996] [“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis”]; United States v Scopo, 19 F3d 777, 780 [2d Cir 1994], cert denied 513 US 877 [1994]; United States v Barber, 839 F Supp 193, 199 [WD NY 1993] [anticipating Whren and Scopo].) Accordingly, under the Fourth Amendment, a police officer may stop a vehicle upon an objective indication of
The same rule is applied in New York under New York Constitution, article I, § 12, concerning which, except in special cases which invoke collateral New York constitutional rights (People v Harris, 77 NY2d 434 [1991]), or which involve sudden and dramatic changes in direction by the Supreme Court (People v Scott, 79 NY2d 474, 497 [1992]), neither of which is at issue here, “it may be assumed, as a general proposition, that the two provisions [i.e., NY Const, art I, § 12, and US Const 4th Amend] confer similar rights.” (People v Harris, 77 NY2d, at 437 [1991].) Thus, many cases in the Second Department have applied Whren (supra). (See, People v King, 266 AD2d 239 [2d Dept 1999] [rejecting pretext theory]; People v Ortiz, 265 AD2d 579 [2d Dept 1999] [same]; People v Gomcin, 265 AD2d 493 [2d Dept 1999] [same]; People v Henry, 258 AD2d 473 [2d Dept 1999] [same] [collecting cases]; People v Dougherty, 251 AD2d 344, 344-345 [2d Dept 1998] [“stop was not rendered invalid even though the defendant was also suspected of burglary”]; People v McCoy, 239 AD2d 437, 439 [2d Dept 1997] [same — with discussion].) Even before Whren, the Second Department applied an objective approach. (People v Green, 103 AD2d 362, 365 [2d Dept 1984]; People v Lopez, 95 AD2d 241, 248-250 [2d Dept 1983, Lazer, J.].) There is authority to the contrary elsewhere (see, People v Martinez, 246 AD2d 456 [1st Dept 1998], and cases cited in People v McCoy, 239 AD2d, at 439), but these cases are not controlling or persuasive after Whren. Although making several oblique references to pretext (e.g., People v Spencer, 84 NY2d 749, 753 [1995]; People v Troiano, 35 NY2d 476, 478 [1974]), the Court of Appeals has never explicitly applied a subjective approach (Pitler, Independent State Search and Seizure Constitutionalism: The New York State Court of Appeals’ Quest for Principled Decisionmaking, 62 Brook L Rev 1, 284, n 1096 [1996] [collecting cases] [“the court has never expressly held pretextual search and seizure
Creation of a separate rule would not appear to be consonant with relevant Court of Appeals precedents in this area of law (see, People v Woods, 64 NY2d 736, 737 [1984], affg over dissent of Alexander, J., 104 AD2d 322 [1st Dept 1984] [stop upheld on ground of observation of expired registration sticker; dissent embraces pretext theory that plainclothes officers on “anticrime patrol” in an unmarked van only interested in a drug search of van]), and in any event cannot be made for the first time by a court at nisi prius (People v Brewer, 173 Misc 2d 520 [Sup Ct, Queens County 1997]), nor even by an Appellate Division. (People v Keta, 165 AD2d 172, 177-178 [2d Dept 1991], revd on other grounds 79 NY2d 474 [1992].)
Moreover, this case does not involve a search and seizure context, i.e., investigative or traffic stops, or special circumstances, appropriate for the creation of a separate State constitutional rule under New York Constitution, article I, § 12. Unlike People v Harris (supra), traffic stops upon probable cause to believe a traffic violation has occurred do not invoke special State constitutional guarantees such as the right to counsel vindicated in Harris. Nor does this case involve “a sharp or sudden change in direction by the United States Supreme Court [which] dramatically narrows fundamental constitutional rights,” as was perceived in People v Scott (79 NY2d, supra, at 497, 485, 486-487; People v Torres, 74 NY2d 224, 228 [1989] [“ ‘ “predictability and precision” ’ ”] [quoting People v P. J. Video, 68 NY2d 296, 304 (1986)]; see, United States v Scopo, supra; United States v Barber, supra, 839 F Supp, at 197-200 [both anticipating Whren (supra) as firmly established by prior Supreme Court precedents]).
The objective test has always been, at least since Terry v Ohio (392 US 1 [1968]), the touchstone in this area under the Federal Constitution. (Maryland v Macon, 472 US 463, 470-471 [1985]; Scott v United States, 436 US 128, 138 [1978], supra; United States v Robinson, 414 US 218, 221, n 1, 236 [1973] [quoted in Whren v United States, 517 US, supra, at 812-813]; see also, Horton v California, 496 US 128, 131, 138 [1990]; United States v Jenkins, 496 F2d 57, 72-73 [2d Cir 1974]; United States v Tramontana, 460 F2d 464, 466-467 [2d Cir 1972] [relying on Terry v Ohio, 392 US 1, 21 (1968)]; Beck v Ohio, 379 US 89, 96 [1964]; Ralph v Pepersack, 335 F2d 128,
Finally, application of the objective test leaves open the issue whether pretextual police conduct violates the Equal Protection Clause. (Brown v City of Oneonta, 203 F3d 153 [2d Cir 1999]; United States v Scopo, 19 F3d, supra, at 786 [Newman, Ch. J., concurring].) It is perhaps for this reason that the Supreme Court employs an objective approach. What does it matter, from the defendant’s perspective, that the officer had impure thoughts, at least in the Fourth Amendment sense and not the equal protection sense? If the officer had pure thoughts, that is if he stopped the car solely for an observed traffic infraction, no one can seriously question that everything that happened to Wright and the defendant was permitted under both Constitutions (see, below). How, then, can the invasion of privacy be any greater if the officer harbored impure thoughts of a collateral investigation, if he otherwise confined himself to the permissible dimensions of a traffic stop? To hold that an impure motivation taints the stop when a pure motivation would result in a denial of suppression encourages tunnelvision in police work, and would give ultimate expression to Cardozo’s famous line, “the criminal is to go free because the con
Unquestionably, Officer Bongiovanni had the issue of a possibly stolen car in mind before he stopped the vehicle. He admitted as much in his testimony when he acknowledged following the car for awhile after he observed the seat belt violation to run a record check of the license plate. In addition, although Terrance Wright’s testimony in other respects was not credible, it would have been difficult to make up the detail about a hit-and-run accident involving a white car across town at the University of Rochester. That part of Wright’s testimony had the ring of truth about it. Nevertheless, Bongiovanni, who was merely on traffic patrol at the time in a fixed position in his squad car, personally observed the seat belt violation. In such circumstances, even the one court in New York which has applied a subjective test post-Whren (supra; see, People v Martinez, 246 AD2d 456 [1st Dept 1998], supra; but compare, People v Jones, 219 AD2d 417, 421 [1st Dept 1996]) has nevertheless upheld a similar stop as occurred in this case. (People v Washington, 238 AD2d 43, 49-50 [1st Dept 1998], supra). In Washington, a collateral motivation was alleged to have prompted the stop. But the Court credited, as this court here credits, the officer’s personal observation of Vehicle and Traffic Law violations, and it held that the police “could not ignore these violations and permit the cab to proceed.” (Supra, 238 AD2d, at 51.) The Court found, as this court finds here, that the “primary motivation” for stopping the vehicle was the Vehicle and Traffic Law violations, notwithstanding that the officers were not on traffic detail and they did not, ultimately, issue a traffic summons. (Supra, 238 AD2d, at 51; see also, United States v Dhinsa, 171 F3d 721, 725 [2d Cir 1999] [observation of traffic violation justifies stop even though the observation did not “even partially motivate( )” the stop and no traffic summons was issued].) Here, of course, a traffic summons was issued and the driver, not the defendant, pleaded guilty to it. The stop was justified under these New York decisions, even if there was also a collateral motivation, especially because the traffic violation was committed in the officer’s presence. (See also, People v Dillard, 212 AD2d 1029, 1030 [4th Dept 1995]; People v Gadsden, 192 AD2d 1103 [4th Dept 1993]; compare, People v James, 217 AD2d 969, 969-970 [4th Dept 1995].
It also was proper to ask defendant to alight while the search occurred. Particularly in view of the rising curtains inside the car, it would have been lawful for the officers initially to direct defendant out of the vehicle as a safety precaution without further inquiry. (Maryland v Wilson, 519 US 408 [1997]; People v Carvey, 89 NY2d 707, 710 [1997]; People v Robinson, 74 NY2d 773, 774 [1989]; People v Miles, 208 AD2d 1089, 1091 [3d Dept 1994]; People v Guzman, 153 AD2d 320, 322 [4th Dept 1990].) Instead, Bongiovanni relied on his backup for safety and focused on the driver. That Bongiovanni waited to direct defendant out of the car until he had probable cause to believe defendant was smoking marihuana is of no consequence. (People v Gil, 211 AD2d 99, 101-102 [1st Dept 1995].) The searching officer found a small amount of marihuana in a closed compartment of the armrest area. Defendant has no standing to contest the seizure of this evidence, and his motion to suppress it is denied.
Once Officer Bongiovanni was made aware that marihuana was found in the car, he searched the defendant. He discovered a bag of crack cocaine hidden near the defendant’s
Once the crack cocaine was discovered, Officer Bongiovanni formally placed the defendant under arrest. The defendant was led to a police car and searched again. The second search of the defendant produced a “blunt” and over $500 in cash. The defendant has moved to suppress evidence recovered from the second search. However, our law clearly states an officer can conduct a full search incident to a lawful arrest. (United States v Robinson, 414 US 218, 237 [1973], supra; People v Troiano, 35 NY2d 476, 478 [1974].)
CONCLUSION
Accordingly, the motion to suppress the evidence seized from the person of the defendant and the evidence seized from the car is denied.
. The reference in Washington (supra) to “primary motivation” may be overstated, and recalls the analysis of mixed motive endorsed by the Supreme
. While defendant would not have standing to challenge these measures, the legality of them is reached here, because in some pre-Whren Fourth Department cases, what the officers did upon stopping the car figured in the determination whether the stop was justified in the first instance. (E.g., People v Gadsden, 192 AD2d 1103, supra.)