Opinion
2007NA25482.
Decided January 5, 2009.
Hon. Kathleen Rice, Nassau County District Attorney.
Grandinetti Serio, Attorneys for Defendant.
The Defendant is charged, under Docket Number 2007NA25482, with Criminal Possession of Marijuana in the Fifth Degree, in violation of Penal Law § 221.10(1), and, under Docket Number 2007NA25483, with Driving While Intoxicated, Aggrevated Unlicesnce Operation of a Motor Vehicle in the Third Degree, Operating an Uninsured Vehicle, Operating Without a Seatbelt, and Unauthorized Possession of a License, in violation of VTL §§ 1192(2), 511(1), 319(1), 1229(c)(3)(a) and 509(6), respectively, as well as Possessing Alcohol while being under twenty-one (21) years of age, with intent to consume, in violation of Alcohol Beverage and Control Law § 65-c. All of these charges arise out of the same incident of October 14, 2007.
The parties stipulated to a Mapp/ Dunaway/ Huntley hearing concerning the issues of probable cause for the Defendant's arrest and the suppression of any statements allegedly made by and any tangible property seized from the Defendant. That hearing was held before this court (Engel, J.) on October 27, 2008 and November 18, 2008.
Mapp v. Ohio, 367 U.S. 643; 81 S.Ct. 1684 (1961); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248 (1979); People v. Huntely, 15 NY2d 72, 255 NYS2d 838 (1965)
At a Mapp/Dunaway/ Huntley hearing, where a defendant challenges the legality of a search and seizure, along with statements allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. People v. Malinsky, 15 NY2d 86, 262 NYS2d 65 (1965); People v. Wise, 46 NY2d 321, 413 NYS2d 334 (1978); People v. Dodt, 61 NY2d 408, 474 NYS2d 441 (1984); People v. Moses , 32 AD3d 866 , 823 NYS2d 409 (2nd Dept. 2006), lv. den. 7 NY3d 927, 827 NYS2d 696 (2006) Once the prosecution has met this burden, the defendant has the ultimate burden of establishing the illegality of the police conduct, by a fair preponderance of the evidence. People v. Berrios, 28 NY2d 361, 321 NYS2d 884 (1971); People v. Di Stefano, 38 NY2d 640, 382 NYS2d 5 (1976); People v. Lombardi, 18 AD2d 177, 239 NYS2d 161 (2nd Dept. 1963) Additionally, the People have the burden of proving the voluntariness of any statements allegedly made beyond a reasonable doubt. People v. Valeruis, 31 NY2d 51, 334 NYS2d 871 (1972); People v. Anderson, 42 NY2d 35, 396 NYS2d 625 (1977).
In an attempt to meet these burdens, the People relied upon the testimony of Police Officer Richard McDonald and Police Officer Thomas Judge. The Defendant did not call any witnesses. After listening to Officers McDonald and Judge, and observing their demeanor, the court finds their testimony to be credible and makes the following findings of fact.
On October 14, 2007, at approximately 9:19 p.m., Officer McDonald, an eleven (11) year member of the Nassau County Police Department, was on patrol in the vicinity of the South Gate Shopping Center located in Massapequa Park, New York. At that time, Office McDonald was alone, in uniform, and traveling in a marked police car, driving from the back to the front of the shopping center. As he came around to the front parking lot, Officer McDonald observed a dark vehicle parked approximately fifty (50') feet away, within the confines of a parking space, in front of the King Kullen supermarket, with two (2) males standing outside the vehicle, one (1) of which he observed on the passenger's side of the vehicle making the motion of throwing objects at the supermarket. Upon seeing this, Officer McDonald turned off his headlights so that he might further observe these individuals. Shortly thereafter, upon seeing Officer McDonald, the two (2) individuals entered the vehicle by which they were standing and began to pull away. As the passenger got into the vehicle Officer McDonald observed him place an object which looked like a beer bottle down beside the vehicle.
Seeing this, Officer McDonald pulled up behind the vehicle and activated his emergency lights and siren to effectuate a stop. The vehicle traveled a shot distance, now no longer within a single parking space, but straddling the lines between two (2) spaces. Upon stopping the vehicle, Officer McDonald approached the driver, who he later identified as the Defendant, and asked for his license, registration and insurance card. The Defendant produced a license and registration, but not an insurance card. At that time, he also observed an open beer bottle next to where the vehicle had been parked; and, upon looking into the vehicle, saw an unopen bottle of beer on the floor behind the passenger. While standing next to the Defendant's vehicle, approximately eighteen (18") inches away from the Defendant, Officer McDonald noticed the Defendant's speech to be slurred, his eyes bloodshot and glassy and the odor of alcohol emanating from his breath. Officer McDonald testified that as he spoke to the Defendant, the Defendant was relatively cooperative, but was not forthcoming with his answers to the officer's questions. Officer McDonlad then asked the Defendant to step out of the vehicle for the purpose of conducting field sobriety tests ("SFSTs").
Upon performing the Horizontal Gaze Nystagmus test Officer McDonald observed positive clues for intoxication in both eyes. Officer McDonald also observed positive clues for intoxication in performing the Nine Step Walk and Turn test, including missed heel to toe steps, raised arms for balance and making a complete spin when told to turn around. Similarly, on the One Leg Stand Test Officer McDonald observed the Defendant have difficulty counting while performing this test, and put his foot down and raise his arms for balance, all positive clues for intoxication.
At this point, based upon his observations of slurred speech, the aroma of alcohol coming from the Defendant, the Defendant's glassy and bloodshot eyes and his performance on the SFSTs, Officer McDonald placed the Defendant under arrest.
Police Officer Thomas Judge testified that he arrived on the scene at approximately 9:30 p.m. Officer Judge is a twenty-seven (27) year member of the Nassau County Police Department, and was previously a member of the New York City Police Department for six (6) years. On the night of the Defendant's arrest, Officer Judge was in uniform and alone in a marked police car. After the Defendant was placed under arrest, at approximately 9:40 p.m., Officer Judge assisted Officer McDonald in moving the Defendant to the right rear passenger's side of Officer McDonald's patrol car. Officer Judge then proceeded back to the Defendant's vehicle to begin what he called an inventory search.
Officer Judge conducted his search of the Defendant's vehicle at the scene, shortly after the arrest. He searched the interior of the vehicle, the glove compartment and the trunk, in that order. As a result of this search, Officer Judge recovered a bottle of Budweiser from the floor in the rear of the vehicle, and nine (9) bags of a brown leafy substance, which appeared to be marijuana, wrapped in a larger bag, from the trunk. During his search, Officer Judge also observed articles of clothing and possibly some compact discs, cassette tapes and paperwork inside the vehicle, as well as a stereo system attached to the car inside the trunk. He did not recall what property, if any, was in the glove compartment.
Following this search, Officer Judge completed two (2) forms, a property voucher form, on which any recovered evidence was listed, and a departmental form request for testing of evidence. Office Judge also indicated that there exists a form known as an impound sheet, to be completed after an inventory search, on which is listed all valuables recovered which are not going to be used as evidence. Officer Judge did not complete an impound sheet in this case; but, he assumed one was completed by an Officer Grossman. No such impound sheet was ever offered into evidence at the hearing; and, Officer Judge testified that the only property that was inventoried was the substance believed to be marijuana and the beer bottle found in the Defendant's vehicle.
PROBABLE CAUSE
Given Officer McDonald's initial observation of the Defendant and another individual, who appeared to be throwing something at the King Kullen supermarket, even the Defendant concedes that the officer had the right to approach these individuals and inquire as to their conduct. Indeed, it is the court's opinion that the conduct initially observed by Officer McDonald rose to the level of "a founded suspicion that criminal activity is afoot," People v. De Bour, 40 NY2d 210, 223 386 NYS2d 375, 385 (1976) permitting the officer to interfere with the Defendant to the extent necessary to gain explanatory information. See: People v. De Bour, id.; People v. Cantor, 36 NY2d 106, 365 NYS2d 509 (1975)
The court further finds that, based upon Officer McDonald's observations of an open bottle of alcohol in the vicinity of the Defendant's vehicle, a bottle of beer in the Defendant's vehicle, the Defendant's physical condition and the alleged positive clues of intoxication observed while the Defendant was performing the SFSTs, the Defendant's arrest was based upon probable cause. See: People v. Kowalski, 291 AD2d 669, 738 NYS2d 427 (3rd Dept. 2002); People v. Moran, 17 Misc 3d 1116, 851 NYS2d 65 (Dist.Ct. Suffolk Co. 2007)
SUPPRESSION OF BEER BOTTLES AND STATEMENT
The performance of a purported inventory search notwithstanding, the open bottle of beer left on the ground beside the Defendant's vehicle, as the Defendant began to drive away from Officer McDonald, was observed by Officer McDonald in plain view after having been abandoned "in the face of lawful police activity (citations omitted)." People v. Wright, 244 AD2d 439, 664 NYS2d 319 (2nd Dept. 1997); See also: People v. Leung, 68 NY2d 734, 506 NYS2d 320 (1986); People v. Sanders, 254 AD2d 309, 680 NYS2d 100 (2nd Dept. 1998); People v. Medina, 107 AD2d 302, 486 NYS2d 754 (2nd Dept. 1985) Similarly, separate and apart from any inventory search, "the record supports the . . . finding that the officer saw the [unopened bottle of beer] in plain view upon shining his flashlight into the defendant's car from outside (citation omitted)." People v. Edwards , 29 AD3d 818 , 816 NYS2d 128 (2nd Dept. 2006) Accordingly, that branch of the Defendant's application seeking to suppress the two (2) recovered beer bottles is denied.
Contrary to the Defendant's argument, responsive testimony was elicited from Officer McDonald at the hearing regarding the statement allegedly made by the Defendant, in the following exchange:
Q.Was he cooperative with you?
A.Relatively.
Q.Relatively. Was he asking what was he doing that wasn't cooperative?
A.He just wasn't forthcoming with his answers. When I asked him whose beer was in the back of the car, I don't know. I don't know whose that is. It's not mine.'
As is apparent from the foregoing, Officer McDonald's answer regarding the statement allegedly made by the Defendant was responsive to the question posed and no objection or request to strike this answer as non-responsive was made. Moreover, it is equally apparent that the Defendant's alleged statement was voluntarily made in response to reasonable inquiry following a lawful stop of the Defendant's vehicle. See: Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138 (1984); People v. Mathis, 136 AD2d 746, 523 NYS2d 915 (1988); People v. McGreal, 190 AD2d 869, 593 NYS2d 868 (2nd Dept. 1993); People v. Brown, 104 AD2d 696, 480 NYS2d 578 (3rd Dept. 1984); People v. Fiorello, 104 AD2d 708, 529 NYS2d 27 (2nd Dept. 1988) Accordingly, the Defendant's application to suppress the statement attributed to him is denied.
INVENTORY SEARCH
A different result must be reached for the marijuana seized from the Defendant's trunk. While a warrant based upon probable cause was not required to search the Defendant's trunk, given the facts and circumstances presented, such search would only be justified if conducted pursuant to a standard departmental inventory procedure consistent with constitutional dictates. See: Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632 (1990); People v. Galak, 80 NY2d 715, 594 NYS2d 689 (1993) The People bear the initial burden of coming forward with evidence of the existence of such a procedure and that the search was conducted in accordance therewith. See: People v. Gomez , 50 AD3d 407 , 859 NYS2d 621 (1st Dept. 2008); People v. Elpenord , 24 AD3d 465 , 806 NYS2d 675 (2nd Dept. 2005) The People herein have failed to meet their burden.
Although the People's failure to place in evidence the alleged written inventory procedure guidelines of the Nassau County Police Department is not, by itself, fatal to the People's position, See: People v. Gomez, supra ., Officer Judge exhibited only a cursory "knowledge of the general objectives of an inventory search [and failed] to establish the existence of any departmental policy regarding inventory searches." People v. Russell , 13 AD3d 655 , 656, 788 NYS2d 139, 142 (2nd Dept. 2004); See also: People v. Johnson , 1 NY3d 252 , 771 NYS2d 64 (2003); People v. Jeffrey , 18 AD3d 776 , 795 NYS2d 703 (2nd Dept. 2005) Officer Judge was somewhat equivocal when describing the circumstances under which an inventory search will be conducted, ultimately concluding, "It varies." ( Transcript 11/18/08, p. 7, l. 16) Similarly, concerning how soon after an arrest an inventory search is to be made, Officer Judge candidly acknowledged that, "Offhand, I don't know exactly what the guidelines specify." ( Transcript 11/18/08, p. 8 l. 25) Officer Judge was equally unsure as to the purpose to be served by an inventory search, indicating that he was of the opinion that inventory searches are conducted for the sole purpose of safeguarding valuables and that an officer need not inventory all property found in a vehicle. Such testimony simply does not establish "any standardized procedure for inventory searches promulgated by the [Nassau County] Police Department[.]" People v. Gomez, supra . at 409, 859 NYS2d 621,623 (2nd Dept. 2008)The above notwithstanding, even if the existence of a standard procedure for inventory searches was established by Officer Judge's testimony, the procedure described and followed by Officer Judge does not meet the criteria established by the Court of Appeals in People v. Galak, supra . at 719, 594 NYS2d 689, 692 (1993) for determining the constitutional reasonableness of such searches: "First, the procedure must be rationally designed to meet the objectives that justify the search in the first place (citation omitted.) Second, the procedure must limit the discretion of the officer in the field (citation omitted)."
It is well established that the "specific objectives of an inventory search, particularly in the context of a vehicle, are to protect the property of the defendant, to protect the police against any claim of lost property, and to protect police personnel and others from any dangerous instruments (citations omitted)." People v. Johnson, id. at 256, 771 NYS2d 64, 66 (2003); See also: People v. Galak, supra . It is axiomatic that "[t]he policy or practice governing inventory searches should be designed to produce an inventory." Florida v. Wells, supra . at 4, 110 S.Ct. 1632 (1990) Indeed, "the hallmark of an inventory search [is] a meaningful inventory list." People v. Johnson, supra . at 256, 771 NYS2d 64, 67 (2003); See also: People v. Cochran , 22 AD3d 677 , 804 NYS2d 346 (2nd Dept. 2005)
In the matter sub judice, Officer Judge testified that, although his search revealed the marijuana in question, a stereo system affixed to the trunk of the Defendant's vehicle, some articles of clothing and possibly some compact discs, audio cassettes and paperwork, he was only aware of the marijuana being vouchered, because it was evidence. As indicated herein above, Office Judge completed a property voucher form, listing only the marijuana and had no personal knowledge of any other property being listed on an inventory form; he merely assumed one was completed by Officer Grossman. The People offered absolutely no other testimony concerning what was done with the remaining tangible personal property found by Officer Judge and failed to produce any inventory list. As recently noted in People v. Gomez, supra . at 410, 859 NYS2d 621, 624 (1st Dept. 2008): if vouchers for items held as evidence were deemed to constitute, collectively, an inventory list of the contents of the vehicle from which those items were recovered, the requirement that an inventory search produce an inventory list would be eviscerated, since the police create vouchers, as a matter of course, for items being retained for use as evidence. Moreover, to the extent the police document only those contents of a vehicle that have potential evidentiary value (as appears to have been the case here), it tends to show that the purpose of the search of the vehicle was "a general rummaging in order to discover incriminating evidence" ( Johnson, 1 NY3d at 256, 771 NYS2d 64, 803 NE2d 385, quoting Florida v. Wells, 495 U.S. at 4, 110 S.Ct. 1632), which is not an appropriate aim of an inventory search.
Equally fatal to the search conducted in this matter is the fact, according to Officer Judge, that the officer in the field conducting the inventory search is given complete discretion as to what is deemed "valuable" and what is to be inventoried. Such "[a]rbitrary decision-making about what to seize, . . ., creates unacceptable risks of unreasonableness in an inventory search policy." People v. Galak, supra . at 721, 594 NYS2d 689, 693 (1993)
Given the unfettered discretion of the officer in the field concerning what to seize and inventory, the failure of the People to proffer evidence of a proper inventory list and the absence of any proof that anything other than evidence was seized and vouchered, "manifestly, the procedure was so unrelated to the underlying justification for inventory searches that [the court has] no difficulty finding it to be arbitraty and irrational, and the search it generated unreasonable." People v. Galak, supra . at 720, 594 NYS2d 689, 693 (1993)
Accordingly, the Defendant's application to suppress the marijuana seized from his trunk is granted.
This constitutes the decision and order of the court.