Opinion
May 23, 1986
Appeal from the Supreme Court, Monroe County, Corning, J.
Present — Dillon, P.J., Callahan, Denman, Pine and Balio, JJ.
Judgment unanimously reversed, on the law and facts, motion to suppress granted, and matter remitted to Supreme Court, Monroe County, for further proceedings on the indictment. Memorandum: The record does not support the suppression court's determination that defendant was not in custody at the time he admitted having a gun in his vehicle, or that defendant was seated in the rear of the patrol car with the door open while being questioned by police officers. The testimony establishes that the first officers on the scene called for assistance and asked the responding officers to "exercise control over [defendant's] body" and put him in the rear of their patrol car. The officers "escorted" defendant to the patrol car, "placed" him in the rear seat and closed the doors, automatically locking them. Defendant was not told that he did not have to get in the patrol car and one officer testified that he inferred from the circumstances that defendant was under arrest. There were at least four, perhaps six, police officers at the scene when defendant was questioned. Given this "`police-dominated'" atmosphere (People v Huffman, 41 N.Y.2d 29, 34), we conclude that in these circumstances "`a reasonable person, innocent of any crime, would (not) have felt free to leave'" (People v Wroblewski, 109 A.D.2d 39, 42; see also, People v Yukl, 25 N.Y.2d 585, 589, cert denied 400 U.S. 851).
Nor is there support in the record for the court's finding that the gun inevitably would have been discovered in an inventory search of the car. The People had the burden of coming forward with proof that the search was conducted pursuant to standard police procedures authorizing the inventory search of impounded vehicles (see, United States v Hellman, 556 F.2d 442, 444; see also, South Dakota v Opperman, 428 U.S. 364, 366; Cady v Dombrowski, 413 U.S. 433, 437, 443; United States v Edwards, 577 F.2d 883, 893, cert denied 439 U.S. 968; United States v Jackson, 529 F. Supp. 1047, 1054-1055; People v Brnja, 50 N.Y.2d 366, 372; People v Sullivan, 29 N.Y.2d 69, 71, 73, 75, 76; People v Lowe, 91 A.D.2d 1100, 1101; but see, United States v Prescott, 599 F.2d 103, 106 ). Here, as the People concede, there was no proof that police regularly conducted inventory searches of impounded vehicles. Absent such proof, the People did not meet their burden of establishing that "there is `a very high degree of probability that the evidence in question would have been obtained independently of the tainted source'" (People v Knapp, 52 N.Y.2d 689, 697-698, citing People v Payton, 45 N.Y.2d 300, 313, revd 445 U.S. 573, on remand 51 N.Y.2d 169; see, People v King, 117 A.D.2d 1007). The court's application of the inevitable discovery doctrine was thus improper.
The People argue for the first time on appeal that defendant's agitated state, in response to the initial inquiry whether he had a gun in his car, gave rise to a reasonable suspicion which would have led to a search of the car regardless of the other circumstances. There is no support for that theory in the record. To the contrary, the officers testified that they had neither reason nor intention to search defendant's car prior to his statement regarding the gun.