Opinion
682/2004.
Decided January 19, 2005.
Michel C. Green, ESQ., Monroe County District Attorney, Peter C. Lewis, Esq., of Counsel, Assistant District Attorney, Rochester, New York, for the People.
Edward J. Nowak, ESQ., Monroe County Public Defender, Diane C. Russell, Esq., of Counsel, Assistant Public Defender, Rochester, New York, for the Defendant.
Defendant is charged by Indictment # 682 with the crimes of criminal possession of a controlled substance in the first degree (Penal Law § 220.21), operating a motor vehicle without a license (Vehicle and Traffic Law § 509), traffic device violation: failing to stop at a red light before turning right (Vehicle and Traffic Law § 1111 [d] [2] [a]) and unsafe passing (Vehicle and Traffic Law § 1124). He has moved to suppress tangible property seized from his vehicle. The court conducted a probable cause/suppression hearing on December 21, 2004. The following constitutes the court's findings of fact and conclusions of law:
FINDINGS OF FACT
The People's sole witness at the hearing was Rochester Police Officer Marvin Patterson, Jr. He testified that on July 23, 2004, he was partnered with Monroe County Sheriff's Deputy Vince Ange as part of "Operation Impact". They were engaged in proactive patrol techniques in high crimes areas. They were in their marked police vehicle facing east on Jones Avenue near the intersection of Saratoga Avenue at approximately 10:30 P.M., when they first saw a 1998 four-door gold Chrysler Cirrus. It was traveling south on Saratoga Avenue. There were three black males inside: the driver in the front seat and two rear-seat passengers. Officer Patterson observed the gold car passed another car in an manner that caused the passed car to swerve to the right because the gold car was so close. After observing that incident, Officer Patterson followed the gold car as it proceeded south on Saratoga towards Lyell Avenue. He observed it make a right turn onto Lyell Avenue without either stopping at the red traffic light or signaling its intention to turn. The officer continued to follow it as it pulled to the curb on Lyell Avenue and stopped. Officer Patterson activated his "take-down" lights and pulled his police car behind the gold car. The driver and the passenger who was sitting directly behind the driver opened their doors and exited the car. Officer Patterson and his partner commanded them to get back inside. Defendant and the passenger looked directly at the officers, but both ignored the command. The passenger ran across Lyell Avenue. Deputy Ange pursued him but he "got away". Defendant ran about three quarters of the way across Lyell Avenue when Officer Patterson caught up to him, grabbed him by the arm and directed him to return. Meanwhile, other officers responded to the scene. Defendant was handcuffed. He remained outside the vehicle. The other backseat passenger, who had remained in the car throughout the stop and pursuit, was removed by other officers.
Officer Patterson looked inside the car and saw, on the floor of the backseat directly behind the driver's seat, a white plastic bag containing a rectangular-square shaped item that he believed to be a "kilo" of cocaine. Officer Patterson previously worked in the Special Investigation Section for nine years handling crimes involving drug possession and sales. After making this observation, he opened the door and picked up the item. It contained a red fluid around it that he believed was transmission fluid, designed to mask the odor of the drugs from drug-sniffing canines. Deputy Ange then called for a technician and canine.
Meanwhile, they learned defendant's identity. Defendant informed them that the car was registered to his wife and that he had no valid New York State operator's license. Defendant was eventually transported to the Public Safety Building in a Liftline Bus. Officer Patterson drove the gold car to the Public Safety Building to meet with the technician. He located two cell phones that were on the front passenger seat. After the technician took photographs, the car was searched and the cell phones seized. It was customary to search a vehicle incident to a felony drug arrest and as an inventory search. Officer Patterson wrote the paperwork for the car to be towed to the city pound.
CONCLUSIONS OF LAW
Defendant moves to suppress tangible property seized from his car, arguing that the police did not have a reasonable suspicion to stop and approach his car and that his subsequent arrest was not supported by probable cause.
Because defendant's car stopped of its own volition, this case does not involve a stop of a moving vehicle, but rather, the approach by the police of a stopped or parked vehicle. Therefore, the propriety of the officer's actions are governed by the four-tiered analysis formulated by the Court of Appeals in People v. De Bour ( 40 NY2d 210) and its progeny ( see People v. Hollman, 79 NY2d 181). "In evaluating police conduct, the court must determine whether the action taken was justified in its inception and at every subsequent stage of the encounter" ( People v. De Bour, 40 NY2d at 215; People v. Nicodemus, 247 AD2d 833, 835, lv denied 92 NY2d 858).
Here, when defendant pulled his car over and stopped on Lyell Avenue, Officer Patterson had already observed that numerous violations of the Vehicle and Traffic Law had been committed by the driver. These observations provided the officer with a justifiable basis to approach the vehicle and issue defendant, the driver, traffic tickets. When the officer approached the vehicle, defendant exited his vehicle and attempted to flee the scene. The unusual circumstances of the flight gave the officers reasonable suspicion, justifying their pursuit of the defendant and his passenger ( see People v. Sierra, 83 NY2d 928, 929; People v. Smith, 243 AD2d 412, lv denied 91 NY2d 930; People v. Shaw, 208 AD2d 382, lv denied 84 NY2d 1038; see generally People v. Woods, 98 NY2d 627, 628).
Upon apprehending defendant, the officer was justified in returning him to the location of his vehicle. The Officer looked inside the vehicle and observed what he believed to be a kilo of cocaine in plain view on the floor of the back seat of the vehicle. Once the officer observed what appeared to be cocaine in plain view, he was lawfully authorized to enter the vehicle to seize it ( see People v. Beriguette, 84 NY2d 978, 980, rearg denied 85 NY2d 924; People v. Wilson, 284 AD2d 960, lv denied 96 NY2d 943). These observations also gave him probable cause to arrest defendant ( see People v. Brantley, 235 AD2d 546; People v. Billups, 200 AD2d 679, lv denied 83 NY2d 849; People v. Guine, 173 AD2d 849).
There is no basis to grant suppression of the cell phones located on the front passenger seat of the car. After defendant's vehicle was driven to the Public Safety Building, the phones were seized before the vehicle was processed to be towed to the City pound pursuant to the General Order of the Rochester Police Department and incident to a lawful felony drug arrest.
Accordingly, defendant's motion to suppress tangible evidence seized from his vehicle is hereby denied.
This constitutes the decision and order of the court.