Opinion
11-00302.
Decided June 15, 2011.
Michael C. Green, Monroe County District Attorney (Matthew M. Tantillo, Assistant District Attorney, of counsel) for plaintiff.
Timothy Donaher, Monroe County Public Defender (Jean A. Caputo, Assistant Public Defender, of counsel) for defendant.
INTRODUCTION
Defendant Dexter S. Mouzon is charged with the misdemeanor of Criminal Possession of Marihuana in the Fourth Degree and the traffic infraction of Driving With Inadequate Headlamps. The criminal possession charge stems from the discovery of marijuana upon a search of defendant's car after he was taken into custody following a routine traffic stop in Rochester, New York on January 5, 2011.
On March 31, 2011 and April 29, 2011, a hearing was conducted to determine if the police were constitutionally authorized to search defendant's car. Rochester Police Officer John Lewis testified for the People. Defendant offered no evidence. Based on the credible testimony, the Court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
While driving his patrol car in Rochester, New York on January 5, 2011 at about 12:15 a.m., Rochester Police Officer John Lewis noticed a car driving with a broken headlamp. Officer Lewis turned on his emergency lights and brought the car to a stop near 321 Exchange Boulevard. As he pulled his patrol car up to the rear of the vehicle, Officer Lewis saw the driver, who was the car's only occupant, reach into the car's center console. Officer Lewis then approached the driver's side of the car and asked driver, identified as defendant Dexter Mouton, for his driver's license.
Defendant produced his license as requested. Upon performing a records check, Officer Lewis discovered that while there were no outstanding arrest warrants for defendant, there was a "wanted package" for him related to a "domestic felony." Based on this "wanted package," Officer Lewis took defendant into custody and contacted defendant's family to pick up his vehicle.
Before defendant's family members arrived, Officer Lewis reached into defendant's car and lifted the cover of the center console. Inside the console were twelve plastic baggies containing approximately 79 grams of marijuana that Officer Lewis seized. Defendant was subsequently charged with the misdemeanor of Criminal Possession of Marihuana in the Fourth Degree and the traffic infraction of Driving with Inadequate Headlamps.
CONCLUSIONS OF LAW
It is beyond dispute that the police had probable cause, in the first instance, to stop defendant's car for the alleged traffic violation of driving with inadequate headlights. See People v. Robinson, 97 NY2d 341, 349 (2001); People v. Rose , 67 AD3d 1447 (4th Dep't 2009). It is likewise irrefutable that a traffic stop of a vehicle does not, in itself, justify a warrantless search of the vehicle or its occupants. See People v. Adams, 32 NY2d 451, 454-55 (1973); People v. Marsh, 20 NY2d 98, 101-03 (1967); People v. Guzman, 153 AD2d 320, 322 (4th Dep't 1990).
In this case, the People argue that once defendant's car was stopped, the warrantless search of his vehicle was constitutionally justified for three reasons. The People contend, first, that the police were constitutionally permitted to search defendant's vehicle incident to his arrest. Second, according to the People, defendant's act of reaching into the center console constituted a furtive movement that gave the police a sufficient basis to search the console. Third, the People maintain that the exigent circumstances that were created when the police officer called defendant's family members to retrieve the car provided the officer the authority to search defendant's car before transferring it to defendant's family. The People's three theories are addressed separately below.
Search of A Vehicle Incident to A Lawful Arrest
In Arizona v. Gant, __ U.S. __, 129 S.Ct. 1710 (2009), the United States Supreme Court clarified the federal constitutional doctrine that circumscribes police searches of automobiles incident to an occupant's lawful arrest. The Court held that:
Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable [under the Fourth Amendment to the United States Constitution] unless police obtain a warrant or show that another exception to the warrant requirement applies.
Arizona v. Gant, __ U.S. at __, 129 S.Ct. at 1723-24. These federal constitutional principles comport with the state constitutional principles governing a search of an arrestee's vehicle articulated by the New York Court of Appeals in People v. Belton [Belton II], 55 NY2d 49, 54-55, rearg. denied 56 NY2d 646 (1982).
The Belton II Court characterized a search of the grabbable area of an arrestee's car as a search incident to an arrest, and a search of an arrestee's car for evidence related to the crime for which defendant was arrested as a search pursuant to the "automobile exception" doctrine. See Belton II, 55 NY2d at 52-53, 54-55. Since Arizona v. Gant was decided, at least one appellate court has referred to a search of an arrestee's car under these circumstances as a search incident to an arrest. See People v. Daniels , 68 AD3d 1711 (4th Dep't 2009), lv. denied 14 NY3d 887 (2010) (search of car incident to occupant's lawful arrest for evidence of the offense of arrest was proper where there was reason to believe such evidence was in the car).
The parties in this case disagree as to whether defendant's arrest was lawful in the first instance. When he initially approached defendant, Police Officer Lewis lacked probable cause to believe that defendant was involved in any illegal activity more serious than a traffic infraction. There were no outstanding warrants for defendant's arrest. Officer Lewis took defendant into custody following the traffic stop only upon learning that the police department had a "warrant package" relating to a "domestic felony" that involved defendant, and that defendant was "on the west side wanted board."
Whether a police officer's knowledge of the existence of a "warrant package" for an individual provides a valid basis for the officer to take defendant into custody is debatable. See NY Criminal Procedure Law § 140.10(1)(b) (warrantless arrest is authorized where a police officer has "reasonable cause to believe that such person has committed [a] crime, whether in his presence or otherwise"). In this case, though, it is unnecessary to decide whether defendant's arrest pursuant to the "warrant package" was lawful.
The New York Court of Appeals has observed that an arresting officer acts with probable cause when "he [or she] arrests on the direction of a fellow officer who has probable cause or without such direction on the basis of information received from a fellow officer who testifies at the suppression hearing concerning how he [or she] obtained his [or her] knowledge, which information itself or together with that known to the arresting officer establishes probable cause." People v. Brnja, 50 NY 366, 373 n. 4 (1980). See People v. Mitchell, 185 AD2d 163, 164 (1st Dep't 1992), app. dismissed 81 NY2d 819 (1993). No such evidence was offered at the hearing in this case.
Regardless of whether defendant's arrest was lawful, there is no evidence that either constitutional prerequisite for a warrantless search of defendant's car incident to his arrest existed. First, there is no evidence that when the search was conducted, defendant was "within reaching distance of the passenger compartment." Arizona v. Gant, __ U.S. at __, 129 S.Ct. at 1723. To the contrary, defendant was already out of his vehicle and in police custody when Officer Lewis conducted the search. Under the circumstances, there was no possibility that defendant would reenter his car and jeopardize the officer's safety or destroy criminal evidence. See Arizona v. Gant, __ U.S. at __, 129 S.Ct. at 1716; Belton II, 55 NY2d at 52-53.
Second, there is no evidence that Officer Lewis had any reason to believe that "evidence of the offense of arrest might be found in the vehicle." Arizona v. Gant, __ U.S. at __, 129 S.Ct. at 1714; People v. Daniels, 68 AD3d at 1711. To the contrary, Officer Lewis was aware only that defendant was "wanted" for a nonspecific "domestic felony."
Accordingly, the search of defendant's car was constitutionally impermissible as a search incident to an arrest, regardless of whether defendant's arrest was lawful.
Search of a Vehicle Based on an Occupant's Furtive Movement
The People argue next that defendant's "furtive movement" of reaching into the car's console authorized the police to conduct a limited search of the car for weapons. A police officer's observation of conduct that demonstrates "an actual and specific threat to the [police] officers' safety'" can provide the officer with a legitimate basis to conduct a limited search of a car to protect the officer's safety following a traffic stop. People v. Mundo, 99 NY2d 55, 61 (2002), citing People v. Torres, 74 NY2d 224, 231 n. 4 (1989). See, e.g., People v. Omowale , 83 AD3d 614 , 616-18 (1st Dep't 2011); People v. Jones , 39 AD3d 1169 , 1171 (4th Dep't 2007).
However, Mundo, Omowale, and similar decisions where limited vehicle searches for officer safety purposes were countenanced are inapposite here for two key reasons. First, such searches must be supported by articulable facts showing a "substantial' likelihood of a weapon in the car'" so as to present an actual and specific threat to the officers' safety. People v. Carvey, 89 NY2d 707, 711 (1997). Here, the single observation of defendant reaching into the car's console does not rise to the level of articulable facts demonstrating a substantial likelihood that there was a weapon in the console. See People v. Mundo, 99 NY2d at 58, citing People v. Torres, 74 NY2d 224, 231 n. 4 (1989). See, e.g., People v. Hackett , 47 AD3d 1122, 1124 (3rd Dep't 2008) (observation of car occupant's nervous behavior insufficient to permit a limited search); People v. Chann, 221 AD2d 155 (1st Dep't 1995), lv. denied 87 NY2d 919 (1996) (observation that car occupant looked away and slumped down insufficient to permit a limited search); People v. Guzman, 153 AD2d 320, 323 (4th Dep't 1990) (observation that car occupant bent down insufficient to permit a limited search).
Second, the purpose of permitting a limited search of a car for weapons is to protect the police officers' safety. For this reason:
absent probable cause, it is unlawful for a police officer to invade the interior of a stopped vehicle once the suspects have been removed and patted down without incident, as any immediate threat to the officers' safety has consequently been eliminated.
People v. Mundo, 99 NY2d at 58.
In this case, once defendant was removed from his vehicle and taken into police custody, any potential immediate threat to the officers' safety was eliminated. See, e.g., People v. Chann, 221 AD2d at 155 (after defendant was removed from vehicle, no immediate threat to officer safety existed that would justify a search of the car); People v. Stewart, 199 AD2d 1043, 1044 (4th Dep't 1993), app. denied 83 NY2d 810 (1994) (where occupants detained, search of car for weapons improper because search not related to officer safety); People v. Snyder, 178 AD2d 757, 758 (3rd Dep't 1991), aff'd 80 NY2d 815 (1992) (despite holster on seat and information regarding a possible gun, officers' limited search of car for weapon was improper after car's occupants were frisked and detained). Upon defendant's arrest, therefore, the search of his car was not defensible on police safety grounds.
Search Based On Exigent Circumstances
After taking defendant into custody, Officer Lewis could have impounded defendant's car and conducted an inventory search before the car was towed. See People v. Johnson , 1 NY3d 252 (2003). Instead, Officer Lewis called defendant's family and invited them to come to the location and retrieve the car. The People assert that by doing so, exigent circumstances arose that gave Officer Lewis the authority search defendant's car before releasing it to defendant's family members. This position is untenable for three reasons.
First, while it is lawful to conduct an inventory search of an impounded car, no legal authority supports the proposition that a police officer may conduct a warrantless search of car that he or she chooses not to impound. The purpose of an inventory search is to catalog items in an impounded vehicle, to ensure that the items are properly maintained, and to protect the police from dangerous instruments. See People v. Johnson, 1 N.Y.3 at 256. No such purpose exists when a car is not impounded by the police.
Second, the exigent circumstances doctrine permits a warrantless search of a vehicle only when there is probable cause to believe that the vehicle is the instrumentality of a crime and exigent circumstances, such as the vehicle's imminent departure, exist. See People v. White , 70 AD3d 1316 , 1317 (4th Dep't), lv. denied, 14 NY3d 845 (2010); People v. Sweezey, 215 AD2d 910, 914 (3rd Dep't), lv. denied 85 NY2d 980 (1995). Given the lack of probable cause that defendant's car was the instrumentality of a crime, exigent circumstances justifying the search of the car were absent.
Third, even if exigent circumstances existed, such circumstances were created by Officer Lewis' decision to call defendant's family members to retrieve the car. Exigent circumstances created by a police officer do not permit the officer to conduct an otherwise unjustified warrantless search. See People v. Levan, 62 NY2d 139, 146 (1984)("the police themselves cannot by their own conduct create an appearance of exigency"); People v. Lott, 102 AD2d 506, 511 (4th Dep't 1984).
CONCLUSION
For the reasons discussed above, Police Officer Lewis did not have a constitutionally valid basis to search defendant's car after taking defendant into custody. Accordingly, defendant's motion to suppress evidence seized from his car is granted.
SO ORDERED.