Opinion
4525/2008.
Decided October 26, 2009.
Michael Letwin, Esq., for defendant Adames.
Gary Farrell, Esq., for defendant Escolastico.
Michael Ferrari, Esq., for the People.
The defendants are charged with Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16) and other related counts. A Dunaway/Mapp hearing was ordered and held. The People called one witness, New York City Police Officer Luis Jamie.
FINDINGS OF FACT
This Court finds the People's witness to be credible.
On May 4, 2008, at approximately 1:40 a.m., Officer Luis Jamie, while on patrol in an unmarked police vehicle with his partners, Officers Salgado and Malak, observed a four door Nissan Maxima with tinted windows pass in front of the officers in the vicinity of Boerum Place and Broadway, Kings County. Even though the police vehicle's headlights were trained on the Nissan, Officer Jamie was unable to see inside the car because of the darkness of the window tint. Officer Jamie engaged the police vehicle's turret lights and siren and stopped the subject vehicle. Instructing the driver of the Nissan to lower the windows because he could not determine how many passengers were inside because the tint was too dark, Officer Jamie approached the passenger side. Officers Salgado and Malak walked to the driver's side of the Nissan. All four windows rolled down and the police could see two men sitting in the front, defendant Adames in the passenger side and defendant Escolastico in the driver's side. Officer Jamie observed the front passenger of the Nissan crouching down in an apparent attempt to conceal something under the seat. The officer feared the passenger could be hiding alcohol, drugs, or even a gun.
Officer Jamie asked defendant Adames for identification, and without looking at the officer, defendant Adames nervously complied. Officer Salgado similarly asked the driver, defendant Escolastico, for identification. Because of the defendants' nervous behavior and Adames' crouched position, both the driver and the passenger were asked to exit the Nissan. As Adames was exiting the car, Officer Jamie observed him put his right foot out, while his left foot was dragged toward the edge of the car. As Adames was stepping out, his left foot remained on the floor of the passenger side in an obvious attempt to conceal something with his left foot. When Adames eventually exited completely out of the vehicle, Officer Jamie trained a flashlight in the car and noticed 10 glassines of a substance that looked like heroin on the passenger side of the car floor. Defendant was taken to the rear of the Nissan, patted down for weapons, then placed in handcuffs and arrested. Officer Salgado similarly removed defendant Escolastico from the vehicle and placed him in handcuffs and effectuated an arrest.
With both defendants at the rear of the Nissan with Officers Salgado and Malak, Officer Jamie returned to the passenger side of the vehicle and recovered the 10 glassine bags of heroin. During the recovery, the officer also observed a black plastic bag protruding from the emergency brake located in the middle of the car between the driver and passenger seats. Officer Jamie pulled on the black bag which revealed a check-book sized cardboard box underneath the emergency brake. The box was removed and the officer observed 590 glassine bags of heroin with a stamp on the outside stating "King of New York," the same marking on the 10 bags found on the floor of the Nissan. Once at the police precinct, the defendants were again searched. Officer Jamie recovered a false identification and $276 of United States Currency from defendant Escolastico.
CONCLUSIONS OF LAW
DUNAWAY/MAPP
In enforcing the constitutionally protected right to be left alone, the level of permissible intrusion by law enforcement officers during street encounters with private citizens is governed by the four-tier analysis as set forth in
People v De Bour ( 40 NY2d 210). The lowest level of intrusion in approaching an individual to request information is permitted where there exists some objective credible reason for the interference not necessarily indicative of criminality ( see People v De Bour, supra; see also People v Hollman, 79 NY2d 181; People v Wells, 226 AD2d 406, appeal denied 88 NY2d 997). The next level of intrusion, the common law right to inquire, is allowable when the police have a "founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure" ( People v De Bour, supra at 223). Third, a police officer may pursue, stop and detain a person when a reasonable suspicion exists that such person has committed, is committing or is about to commit a crime ( see People v De Bour, supra; see also CPL 140.50; People v Martinez, 80 NY2d 444; People v Hollman, supra; People v Leung, 68 NY2d 734). Finally, the fourth level of intrusion permits the arrest and custody of a person where the police have probable cause to believe that the person has committed a crime ( see People v De Bour, supra; People v Hollman, supra; see also CPL 140.10; People v Brown, 256 AD2d 414).
Regarding the propriety of the stop, defendants argue that the vehicle in which they were riding was unconstitutionally stopped on the pretext of a traffic violation. "A pretext stop has generally been defined as a police officer's use of a traffic infraction as a subterfuge to stop a motor vehicle in order to investigate the driver or occupant about an unrelated matter" ( People v Robinson, 271 AD2d 17, lv granted 95 NY2d 968; see People v Laws, 213 AD2d 226, appeal denied 85 NY2d 975). However, the legality of a search or seizure is to be measured by the objective circumstances, and not by the subjective motivation of the officer ( see People v Robinson, supra; People v Henry, 258 AD2d 473, lv denied 93 NY2d 874; see also, Whren v United States, 517 US 806), and the "decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred" ( Whren v United States, supra at 810).
In the matter before this Court, the police observed a four door Nissan Maxima traveling in front of the police vehicle with an excessively dark tint on the windows which prevented the police from seeing inside the car. Since it is wholly reasonable for a motor vehicle to be stopped when its windows are excessively tinted ( see Vehicle and Traffic Law § 375 (12-a)(b)(2); People v Edwards, 222 AD2d 603, appeal denied 88 NY2d 984), this Court finds the police had reasonable suspicion to stop the vehicle ( see People v De Bour, supra; see also CPL 140.50; People v Martinez, 80 NY2d 444, supra; People v Hollman, supra; People v Leung, supra). Furthermore, the stop is no less valid merely because the officers failed to issue a summons for the violation of the Vehicle and Traffic Law ( see People v Miller, 216 AD2d 421, appeal denied 86 NY2d 874; People v Garcia, 179 AD2d 1047, appeal denied 82 NY2d 895).
Turning to the recovery of the heroin, the bending forward of an occupant in a vehicle is not by itself a furtive movement sufficient to provide the police with probable cause to search ( see People v Guzman, 153 AD2d 320, appeal granted 75 NY2d 926; see also People v Torres, 74 NY2d 224). The movement, however, coupled with the observation of nervous behavior and defendant Adames' "shaky" hand, followed by the attempt to conceal something under his left foot, provided probable cause for the police to take further reasonable measures to protect their safety ( see People v McClane, 143 AD2d 848; see also People v Edwards, 222 AD2d 603, supra; People v Jean-Louis, 154 AD2d 393), including a search of the vehicle ( see People v Major, 267 AD2d 251, lv denied 94 NY2d 904; People v Poree, 240 AD2d 597, appeal denied 90 NY2d 1013; see also People v Torres, supra). Once the defendants were removed from the vehicle, Officer Jamie was lawfully present inside the vehicle to collect the 10 glassine bags on the floor of the car since the heroin was in plain view ( see People v Beriguette, 84 NY2d 978; see also People v Traynham, 85 AD2d 748). Once drugs were found inside the car, the police were justified in searching the rest of the vehicle for the presence of more illegal contraband ( see New York v Cruz, 7 AD3d 335; People v Eure , 46 AD3d 386 ). Thus, the cardboard box containing the 590 glassine envelopes of heroin was legally retrieved from the vehicle.
Finally, contrary to the arguments raised by defendants, the search of the vehicle is not vitiated by Arizona v Gant ( ___ US ___; 129 S Ct 1710). In Gant, the United States Supreme Court found the search of defendant's vehicle was illegal since the only offense committed by Mr. Gant was driving with a suspended license. Given the facts of the stop in Gant, the Court held, inter alia, that the police did not have probable cause to believe that the car of a man arrested for driving with a suspended license contained evidence of a crime ( Arizona v Gant, supra at 1714). In the matter at hand, the police recovered 10 bags of what was believed to be heroin. Thus, unlike the facts in Gant, it is wholly reasonable for the officers to believe that other contraband could be found inside the subject vehicle.
Accordingly, the stop of the vehicle in which defendants were driving was proper, as was the search and subsequent recovery of heroin. Therefore, the evidence obtained during the encounter will not be suppressed.
This shall constitute the Decision and Order of the Court.