Opinion
456/2016
01-09-2017
The People of the State of New York v. Julian Pacheco and TOMMY LUNA, Defendant.
Mark Laykind, Esq. Attorney for Defendant Pacheco Philip Middler, Esq. Attorney for Defendant Luna Richard A. Brown, District Attorney By: Cory Barkoff, ADA
Mark Laykind, Esq. Attorney for Defendant Pacheco Philip Middler, Esq. Attorney for Defendant Luna Richard A. Brown, District Attorney By: Cory Barkoff, ADA Charles S. Lopresto, J.
INTRODUCTION
An indictment has been filed accusing the defendants Julian Pacheco and Tommy Luna with Criminal Possession of a Controlled Substance in the Third Degree (PL § 220.16[12]), accusing defendant Pacheco of Failing to Stop at a Stop Sign (VTL § 1172[A]) and Operating or Driving a Motor Vehicle Without a license (VTL § 509[1]) and accusing defendant Luna of Unlawful Possession of Marihuana. On November 30, 2016, this Court conducted a Mapp/Huntley/Dunaway Hearing to determine whether physical evidence should be suppressed and whether statement evidence should be suppressed. After the close of the hearing, and on the record, decision was reserved.
To sustain their burden of proof, the People called Detective Jared Rothschild, Shield Number 4298. Detective Rothschild has been employed by the New York City Police Department for fourteen and a half years and has been assigned to the Queens North Gang Squad for the last three and a half years. During his time with the New York City Police Department, Detective Rothschild has made over one hundred and fifty drug related arrests and has been trained in the identification and testing of narcotics, cocaine, heroin and marijuana. I find his testimony to be credible. The defendant presented no evidence. Based upon the evidence adduced at the hearing, I make the following findings of fact and conclusions of law. FINDINGS OF FACT
On August 20, 2015, Detective Rothschild and his partner, Detective Tloczkowski, were in plainclothes in an unmarked vehicle. Detective Rothschild was the driver. The detectives were assigned to investigate gang activity in the 114th Precinct in Queens County in relation to a shooting that had occurred on a prior day within the Queensbridge Houses. The shooter had been on foot. As part of the investigation into the shooting, Detective Rothschild was conducting traffic stops. Detective Rothschild did not have a violation pad with him.
On that date, Detective Rothschild was in the unmarked police vehicle and parked on the northwest corner of the intersection of 11th Street and 38th Avenue in Queens County. At 8:35 p.m. he observed a Toyota four-door sedan traveling westbound on 38th Avenue roll through the stop sign, failing to stop. Detective Rothschild followed the vehicle, intending on issuing a ticket. After one block, he activated the police vehicle's lights and siren and pulled over the Toyota at 8-07 38th Avenue, Queens, New York.
Detective Rothschild then approached the driver's side of the vehicle and his partner walked up to the passenger side. They did not have their guns drawn. There were two people in the vehicle, in the driver's seat and in the front passenger seat. The driver, Julian Pacheco, rolled down his window and Detective Rothschild asked to see his driver's license, registration and insurance. Julian Pacheco stated that he did not have a driver's license. He later produced a temporary registration.
At that point, Detective Rothschild observed a clear sandwich sized plastic bag containing a quantity of marijuana on the lap of the passenger, Tommy Luna. The marijuana filled approximately a quarter of the bag. Detective Rothschild's partner recovered the bag of marihuana and gave it to Detective Rothschild. Detective Rothschild then motioned to Detective Tloczkowski to have the passenger Tommy Luna exit the vehicle. Both the driver and passenger exited the vehicle and Detective Rothschild brought them to the back of the vehicle where they stood with Detective Tloczkowski. The driver Julian Pacheco and the passenger Tommy Luna were not placed under arrest and were not handcuffed although they were frisked for weapons.
Detective Rothschild testified that Tommy Luna's possession of marihuana was an arrestable offense and that, as a matter of his discretion, he did not handcuff Tommy Luna at that time but was going to place him in handcuffs and place him in the police vehicle. Detective Rothschild testified that the arrestable offense for which he ultimately arrested and charged defendant Luna was the violation of possessing marihuana.
Detective Rothschild testified that he did two searches of the vehicle, first a cursory one searching for weapons for his own personal safety and then, combined with that, the second search which was for "further" narcotics. Detective Rothschild searched in and around the driver's seat and then opened the latch on the center console where he observed a clear sandwich sized plastic bag containing a quantity of cocaine. Detective Rothschild motioned to his partner to place Julian Pacheco and Tommy Luna under arrest.
Detective Rothschild asked them about the cocaine that he found but they both denied that there was anything in the vehicle. They were brought to the 114th Precinct where their arrests were processed. PARTIES' CONTENTIONS
The People contend that the seizure of the physical evidence was justified pursuant to the automobile exception to the search warrant requirement as the police observed marihuana in plain view providing them with the probable cause to arrest defendant Luna and providing them with the probable cause necessary to search the vehicle, which resulted in the recovery of the cocaine.
The defendants contend that the suppression motion should be granted because the witness' testimony was not credible. The defendants further contend that even if the court were to believe Detective Rothschild's testimony, stopping a vehicle for a traffic violation and then observing the additional violation of unlawful possession of marihuana (PL § 221.05) does not give the police authority to search the vehicle. Thus, according to the defendants, the search of the vehicle violated the defendants' Constitutional rights. In addition, the defendants argue that suppression of statement evidence is warranted as there was no testimony that the defendants were given Miranda warnings. CONCLUSIONS OF LAW
The People have the burden in the first instance of going forward to show the legality of the police conduct. The burden of proof, however, remains with the defendant to show by a preponderance of the evidence that his constitutional rights were violated (People v Berrios, 28 NY2d 361[1971]).
Probable cause to arrest is present when the facts and circumstances known to the arresting officer are "sufficient to support a reasonable belief that an offense has been or is being committed" (People v Maldonado, 86 NY2d 631, 635 [1995]). In determining probable cause, it must "appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice" (People v Carrasquillo, 54 NY2d 248, 254 [1981]).
"All warrantless searches presumptively are unreasonable per se," and when a warrant has not been obtained, the People who have the burden of overcoming this presumption of unreasonableness (People v Jimenez, 22 NY3d 717, 721 [2014]; see also, People v Hodge, 44 NY2d 553, 557[1978]). A warrantless stop of an automobile and the detention of its occupants is a seizure within the meaning of the State and Federal Constitutions (NY Const, art I, § 12; US Const 4th Amend; CPL § 140.50; People v Sobotker, 43 NY2d 559; People v Hicks, 68 NY2d 234 [1986]). A traffic stop must be supported by probable cause (People v Robinson, 97 NY2d 341 [2001]; see Whren v United States, 517 US 806 [1996]). If the initial stop of the vehicle for a traffic infraction based upon the officer's observations is lawful, there is no violation of the New York Constitution if the officer's primary motivation is to conduct an unrelated investigation (Id). Generally, a traffic stop is justified when an officer observes a vehicle fail to stop at a stop sign (VTL § 1172 [a]; People v Guthrie, 25 NY3d 130, 133 [2015]).
Where a police officer has probable cause to believe that a person has committed a violation, the decision to issue a summons or to make an arrest is within the officer's discretion (see CPL § 140.10[1][a]; CPL § 150.20 [1]; see also People v Lewis, 50 AD3d 595, 857 NYS2d 88 [1st Dept 2008]). Thus, an officer may make an arrest for the petty offense of unlawful possession of marijuana (CPL § 1.20 [39]; PL § 221.05; CPL § 140.10 [1]; People v Morgan, 10 AD3d 369, 370 [2d Dept 2004]).
Once the police lawfully stop a motorist for a traffic violation, they may also require that he or she produce a license, registration and proof of insurance and request pedigree information in order to determine the defendant's status (VTL §§ 312 [1] [b]; § 319 [3]; § 401 [4]; § 507 [2]; People v Thomas, 19 AD3d 32 [st Dept 2005], lv den 5 NY3d 795, 835 NE2d 676, 801 NYS2d 816 [2005]). A driver who fails to produce the requested documents is presumed to be driving without them in violation of the Vehicle and Traffic Law (People v Branigan, 67 NY2d 860, 862 [1986]). Upon ascertaining that a driver's license is suspended, an officer has probable cause to arrest the driver, and subsequent to that arrest, conduct a search incident to it (VTL § 509; People v Davis, 32 AD3d 445 [2d Dept] lv app den 7 NY3d 924[2006]).
The plain view doctrine allows the police to seize incriminating evidence in plain view if they have the right to be where they are when they see it (People v Diaz, 81 NY2d 106, 111 [1993]; see also, People v Blasich, 73 NY2d 673, 677[1989]). Police officers may properly seize an item in "plain view" without a warrant if (I) they are lawfully in a position to observe the item; (ii) they have lawful access to the item itself when they seize it; and (iii) the incriminating character of the item is immediately apparent (People v Brown, 96 NY2d 80, 88-89 [2001]; People v Diaz, 81 NY2d at 110).
An exception to the Federal and State Constitutions' warrant requirements is the search incident to arrest which allows an arresting officer to search for and seize weapons when there are exigent circumstances such as the safety of the and the public, and the need to prevent evidence from being destroyed or concealed (People v Gokey, 60 NY2d 309, 312 [1983]; People v Belton, 55 NY2d 49, 52-53 [1982]). Exigency must be affirmatively demonstrated and may be presented either through an officer's testimony that he or she feared for their safety or for the integrity of any destructible or may be presented through objectively reasonable evidence (People v Jimenez, 22 NY3d 717, 722-723 [2014]; People v Anderson, 142 AD3d 713, 715 [2d Dept 2016]).
Generally, a search may not precede an arrest even where probable cause to arrest exists, as a search must follow the arrest, or at least be relatively contemporaneous therewith (People v Reid, 24 NY3d 615, 619 [2014]; People v Evans, 43 NY2d 160, 162, 165-166 [1977]; People v Chestnut, 36 NY2d 971, 973 [1975]). "Where the formal arrest followed quickly on the heels of the challenged search . . . , we do not believe it particularly important that the search preceded the arrest rather than vice versa" (Rawlings v Kentucky, 448 US 98, 111 [1980]). A search, however, must be incident to an actual arrest, not just incident to probable cause that might have led to an arrest, but did not (People v Reid, 24 NY3d at 619; People v Evans, 43 NY2d at 165). The "search incident to arrest" doctrine, by its nature, requires proof that, at the time of the search, an arrest has already occurred or is about to occur' and where no arrest has yet taken place, the officer must have intended to make one (People v Reid, 24 NY3d 615, 620 [2014]).
The search incident to an arrest exception exists "only to protect against the danger that an arrestee may gain access to a weapon or may be able to destroy or conceal critical evidence" (People v Blasich, 73 NY2d 673, 678 [1989]). Therefore, the scope of such a search must be limited to the arrestee's person and the area from within which he might gain possession of a weapon or destructible evidence (People v Belton, 50 NY2d 447, 450 [1982]; People v Smith, 59 NY2d 454). In addition to the exigent circumstances requirement, a search incident to an arrest will be upheld when it closely follows the arrest and is of the person of the individual arrested and the area within his or her immediate reach, i.e. the "grabbable" area (People v Jimenez, 22 NY3d at 721; see also, People v Gokey, 60 NY2d 309, 312 [1983]). Where circumstances arise that lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to an officer's safety, further intrusion is permissable "notwithstanding the suspect's inability to gain immediate access to that weapon" (People v Torres, 74 NY2d 224, 231, n 4[1989]; People v Carvey, 89 NY2d 707, 710-711 [1997]).
New York also recognizes a second exception to the warrant requirement, which is the "automobile exception" (People v Blasich, 73 NY2d 673, 678 [1989]). Where a valid arrest is made and there is "reason to believe that the vehicle or its visible contents may be related to the crime for which the arrest is being made or there is reason to believe that a weapon may be discovered or access to means of escape thwarted" a car may be searched incident to lawful arrest even where no other exigencies exist (People v Belton, 55 NY2d 49, 55 [1982]; People v Blasich, 73 NY2d at 678-679; People v Page, 137 AD3d 817 [2d Dept 2016]). Therefore, after a lawful car stop for a traffic infraction, if the police discover contraband in plain view, and they have validly arrested an occupant of the vehicle, and they have reason to believe that the car may contain evidence related to the crime for which the occupant was arrested, the police may contemporaneously search the passenger compartment, including any closed containers found therein (People v Belton, 55 NY2d 49 at 55; see also, People v Yancy, 86 NY2d 239 [1995]; People v Blasich, supra; People v Langen, 60 NY2d 170 [1983]; People v Morgan, 10 AD3d at 370 [2d Dept 2004]).
"[T]he proper inquiry in assessing the propriety of a Belton search is simply whether the circumstances gave the officer probable cause to search the vehicle" (People v Blasich, 73 NY2d at 681; People v Condon, 100 AD3d 920 [2d Dept 2013]). The search need not focus solely on the crimes for which a defendant is formally arrested, "the proper inquiry in assessing the propriety of a Belton search is simply whether the circumstances gave the officer probable cause to search the vehicle" (People v Galak, 81 NY2d 463, 467 [1993]). The assessment of whether there was probable cause for the arrest of an individual is to be made by the hearing court "upon consideration of all the relevant objective facts known to the officer; the subjective beliefs of the officer do not control the determination (People v Cooper, 38 AD3d 678, 679 [2d Dept 2007]; see also, Devenpeck v Alford, 543 US 146, 153 [2004]; People v Robinson, 97 NY2d at 349).
There is no uniform rule governing all searches accompanying valid arrests, but the nature of the offense and the surrounding circumstances do determine whether a search was warranted (People v Pealer, 20 NY3d 447, 459 [2013]). For example, a search for a minor traffic violation has been held to have not been authorized unless "there are reasonable grounds for suspecting that the officer is in danger or there is probable cause for believing that the offender is guilty of a crime rather than merely a simple traffic infraction" (VTL § 155; People v Marsh, 20 NY2d 98, 102-103 [1967]; see also People v Troiano, 35 NY2d 476, 478 [1974]; People v Richardson, 132 AD3d 1239, 1240 [4th Dept 2015]). An arrest for the traffic infraction of failing to stop at a stop sign or for the traffic infraction of driving without a license would not provide authority for a search incident to that arrest unless there were other circumstances present (see, e.g., People v Marsh, 20 NY2d 98 [1967]; People v Cooper, 38 AD3d at 680). A police officer's authority to effect a custodial arrest for a violation other than a minor vehicular offense, remains valid even where the officer has the option of issuing a summons instead (People v Rodriguez, 84 AD3d 500, 501 [1st Dept 2011]; People v Lewis, 50 AD3d 595 [2008], lv den 11 NY3d 790 [2008]). Miranda warnings are required when a suspect is subject to custodial interrogation (see, Miranda v Arizona, 384 US 436 [1966]; People v Paulman, 5 NY3d 122, 129 [2005]; People v Berg, 92 NY2d 701, 704 [1999]). The People have the burden of demonstrating that a defendant was administered each and every Miranda warning and that the defendant knowingly, voluntarily and intelligently waived them (Miranda v Arizona 384 US 436 [1966]). The People must prove beyond a reasonable doubt that a defendant's statement was voluntary (see People v Rosa, 65 NY2d 380, 386 [1985]; People v Huntley, 15 NY2d 72, 78 [1965]).
Although Miranda rights attach upon arrest of a motorist stopped for traffic offenses, the roadside questioning of a motorist detained pursuant to a lawful traffic stop is not a custodial interrogation (Miranda v Arizona, 384 US 436 [1966]); People v Peterson, 22 AD3d 770, 771-772 [2d Dept 2005]). "[A] temporary roadside detention pursuant to a routine traffic stop is not custodial within the meaning of Miranda" and a "reasonable initial interrogation attendant [to a roadside detention] has been held to be merely investigatory" (People v Harris, 186 AD2d 148 [2d Dept 1992]; People v Myers, 1 AD3d 382, 383 [2d Dept 2003]).
In this case, when the police observed the defendant Pacheco fail to stop at the stop sign, they were entitled to stop him to issue a traffic ticket (VTL § 1172 [a]; People v Guthrie, 25 NY3d at 133; People v Robinson, 97 NY2d at 349). Even if the detectives who stopped the vehicle were not looking to enforce the traffic laws, but were instead focused on finding evidence of the prior shooting, it was lawful for them to stop the vehicle when they observed the traffic infraction whether or not they had their summons books with them (Id).
Prior to observing the marihuana, defendant Julian Pacheco was unable to produce a driver's license at Detective Rothschild's request, presumptive evidence that defendant Pacheco did not have one in violation of the Vehicle and Traffic Law (VTL § 509). Once he saw the marihuana in plain view on defendant Tommy Luna's lap, Detective Rothschild had probable cause to arrest defendant Luna. Based upon the probable cause that defendant Luna possessed marihuana, i.e. that defendant Luna had committed a violation in his presence (see CPL § 140.10 [1][a]) Detective Rothschild motioned to his partner to have Tommy Luna exit the vehicle and he then had both Julian Pacheco and Tommy Luna exit the vehicle.
The automobile presumption does not apply to the possession of marihuana (PL § 220.25[1];People v Dan, 55 AD3d 1042 [3RD Dept 2008]; People v Gabbidon, 40 AD3d 776, 777 [2d Dept 2007]).
Although Detective Rothschild testified that he searched the car for weapons for purposes of a limited protective search, there was no indication that either of the individuals in the vehicle were armed and nor did he recount anything about defendants' demeanor or behavior that might have led him to conclude that they were armed or dangerous. Other than the blanket statement that he searched inside the vehicle "for his safety" he did not express any concerns about his own safety, or the safety of the public, and the circumstances did not serve to establish an objectively reasonable inference of police apprehension (People v Anderson, 142 AD3d 713, 715 [2d 2016]).
Although the People now argue that there was one search pursuant to the automobile exception to the warrant requirement, Detective Rothschild testified that he conducted two searches, with the first one conducted for his safety. It is worth noting that there was no arrest prior to Detective Rothschild's search incident to an arrest. As the People failed to present evidence establishing exigent circumstances at the time of the arrest that would justify the search incident to an arrest to the extent that the search was conducted incident to an arrest, it fails (People v Jimenez, 22 NY3d at 721; People v Gokey, 60 NY2d at 312).
Moreover, there was no testimony that the defendants were ever arrested at the scene. Detective Rothschild's testimony was merely that defendant Luna was 'arrestable' and that "Mr. Luna was going to be placed in handcuffs and placed in my vehicle, but it was my discretion." Detective Rothschild did not testify that defendant Pacheco was to be arrested for the traffic infractions of running a red light or for failing to produce a valid license (VTL §§ 509 and 1172[A]). Detective Rothschild did testify that after he found the cocaine, he motioned to his partner to arrest the defendants at the same time he was questioning the defendants about the cocaine.
There was no testimony that Detective Tloczkowski arrested the defendants or that they were Mirandized prior to his questioning about the cocaine. Even if the Court were to treat the detention of the defendants as an arrest, (see e. g., People v Yukl, 25 NY2d 585, 589 [1969], cert den 400 US 851 [1970]), the People failed to put forth evidence that the detectives validly arrested the defendants prior to the search or, at the very least, contemporaneously with the arrests.
Notwithstanding Detective Rothschild's opaque testimony (1) about defendant Luna being "arrestable" and that Detective Rothschild was going to place defendant Luna in handcuffs and put him in his vehicle, (2) about the discovery of marihuana and how it led to his intention to search for "further narcotics" and weapons, and (3) about how he "motioned" to his partner to arrest the defendants without testifying that the arrest took place, the testimony that the marihuana was in plain view provided the detectives with probable cause to search the vehicle and the closed containers found therein (People v Blasich, 73 NY2d at 678-679; People v Page, 137 AD3d 817 [2d Dept 2016]). There was testimony that the search and later arrest, even if the arrest occurred at the 114th Precinct, were somewhat close in time. As there was probable cause for the search preceding the arrest as well as for the arrest at the time of the search (People v Chestnut, 36 NY2d 971, 973 [1975]), the discovery of the cocaine in the closed console was lawful.
Pursuant to Public Health Law § 3306, marihuana is not classified as a narcotic, a fact seemingly known to Detective Rothschild when he testified that he had been trained in the identification and testing of "narcotics, cocaine, heroin and marijuana."
Defendant Pacheco's admission to Detective Rothschild that he did not have a license when he was pulled over after failing to stop at a stop sign was made before he was in custody, so Miranda warnings were not required at that time (see Miranda v Arizona, 384 US 436 [1966]). Accordingly, defendant Pacheco's statement that he did not have a license was voluntary, non-custodial, and made in response to routine investigatory questioning (People v Huntley, 15 NY2d 72, 78 [1965]; People v Yukl, 25 NY2d at 589).
The defendants' statements that they did not know what the cocaine was, however, were made after Detective Rothschild discovered it and motioned to his partner to arrest them and after they had been in custody. As they had not been given Miranda warnings, the statements regarding the cocaine are suppressed.
In view of the foregoing, the People have met their burden of going forward with evidence tending to show that the arrest was lawful (Dunaway v New York, 442 US 200 [1979]) and that the seizure of the physical evidence was lawful (Mapp v Ohio, 367 US 643 [1961]). The defendants have not met their ultimate burden of proof. Accordingly, the defendants' omnibus motion to suppress physical evidence is denied in all respects.
As to the Huntley portion of the hearing, the People have met their burden that the statement made by defendant Pacheco that he did not have a driver's license was voluntary and defendant Pacheco did not meet his burden in this regard. The People have not met their burden as to the statements regarding the cocaine.
Accordingly, the defendant Pacheco's omnibus motion to suppress defendant Pacheco's statement about his license is denied and the defendants' omnibus motion to suppress statements about the cocaine is granted.
The foregoing constitutes the decision, opinion and order of the court. Dated: January 9, 2017 _______________________ Charles S. Lopresto J.S.C.