Opinion
01 Civ. 9867 (AJP)
May 13, 2002
OPINION ORDER
Petitioner James Lesane seeks a writ of habeas corpus from his 1998 conviction in Supreme Court, New York County, for criminal possession of a weapon and unlicensed operation of a motor vehicle, for which he was sentenced to a term of five years imprisonment. See People v. Lesane, 284 A.D.2d 249, 250, 727 N.Y.S.2d 418, 418 (1st Dep't 2001). Lesane's habeas petition alleges that: (1) he was subject to an illegal search and seizure (Dkt. No. 1: Pet. ¶ 13(1)); and (2) due to the illegal search, there was insufficient evidence to support his weapons conviction (Pet. ¶ 13(2)). The parties have consented to decision of Lesane's petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 6.)
For the reasons set forth below, Lesane's petition is DENIED.
FACTS
Suppression Hearing
On April 22, 1998 a pretrial suppression hearing was held before Justice Arlene Silverman. (4/22/98 Suppression Hearing Transcript ["Tr."].) At the hearing, Port Authority Police Officers Lawrence Cummings and Sean Horan testified that on December 15, 1997 at approximately 4:15 p.m., they were on foot patrol outside the Port Authority Bus Terminal when they observed James Lesane in the driver's seat of a parked, green Isuzu Rodeo Sport Utility Vehicle ("SUV"), obstructing the taxi line on Eighth Avenue. (Horan: Tr. 5-6, 24; Cummings: Tr. 59-62.)
Officer Cummings "made eye contact with [Lesane] and motioned with [his] hand [for Lesane] to pull away from the curb, which [Lesane] did not do." (Cummings: Tr. 61.) Officer Cummings then "approached the vehicle and told [Lesane] to move. [Lesane] shook his head no." (Cummings: Tr. 61.) When Lesane refused to move his SUV, Cummings requested that Lesane put the vehicle in park, hand over his keys, and provide identification. (Cummings: Tr. 61-62, 94-95.) Officer Cummings radioed Lesane's identification information to the central police desk and, after it was discovered that Lesane's New York license had been suspended eleven times on five different occasions, placed Lesane under arrest. (Horan: Tr. 8-9; Cummings: Tr. 62-63.)
Officer Cummings then directed Officer Horan to "take the vehicle back to what [the police] term the old taxi roadway . . . and begin an inventory of the vehicle's contents because it was going to be impounded." (Cummings: Tr. 63-64.) Both officers testified that Port Authority Police procedure required them to impound a vehicle and conduct an inventory search after the driver was arrested, if there is no passenger available to operate the vehicle. (Horan: Tr. 17-19, 34-35; Cummings: Tr. 53-56.) In accordance with this procedure, Officer Horan took petitioner's keys and drove the SUV to a police roadway under the Port Authority Terminal to conduct a preliminary inventory search to catalog any valuables, such as cellular telephones, jewelry, or money that might be inside the impounded vehicle. (Horan: Tr. 9-12, 36-37; Cummings: Tr. 63-64.)
Officer Horan began the search by checking the visors and the driver's side floor of the vehicle. (Horan: Tr. 11-12.) He then removed a tray of cassettes from the console between the front seats and observed a metal plate with a keyhole at the bottom of a well underneath the tray. (Horan: Tr. 12-13, 29-30.) Officer Horan testified that in accordance with Port Authority police procedure requiring officers to open locked containers inside impounded vehicles, he opened the container with a key from Lesane's key chain and recovered a loaded, semi-automatic handgun. (Horan: Tr. 12-13.)
In the meantime, Officer Cummings escorted Lesane to the police desk in the terminal and advised Lesane of his Miranda rights. (Cummings: Tr. 66-70.) Lesane acknowledged his understanding of those rights and expressed his willingness to answer Officer Cummings's questions. (Cummings: Tr. 68.) Before Officer Cummings had the opportunity to question Lesane, Officer Horan called Officer Cummings and asked him to come to the police car and gave Officer Cummings the gun he had found. (Horan: Tr. 12, 14; Cummings: Tr. 68-69.) Officer Horan then continued the preliminary inventory of the vehicle and recovered three bullets from the glove compartment. (Horan: Tr. 13-14.) When Officer Horan concluded the preliminary inventory search, he locked the vehicle and met Officer Cummings at the police desk. (Horan: Tr. 14-15.)
Officer Cummings showed Lesane the gun and asked Lesane "if he knew it was in the vehicle, if it was his." (Cummings: Tr. 69.) Lesane responded that he presumed that the weapon belonged to his friend, to whom he had loaned the SUV the prior evening. (Cummings: Tr. 69-70.) Lesane again waived his Miranda rights later that evening before an Assistant District Attorney and made oral and written statements regarding his friend's alleged ownership of the weapon. (Cummings: Tr. 72-83.)
Officer Cummings returned to the Port Authority Terminal at about midnight, and performed a full inventory search of the SUV which was still parked in the police roadway, and in accordance with Port Authority procedure, photographed the vehicle, checked for pre-existing damage and recorded the vehicle's contents. (Cummings: Tr. 86-87.) Finally, Officer Cummings drove the SUV to the impound lot on the roof of the Port Authority Bus Terminal. (Cummings: Tr. 86-87.)
The Trial Court's Ruling on the Suppression Motion
On May 19, 1998, Justice Arlene Silverman denied Lesane's motion to suppress the gun and ammunition the police discovered in Lesane's SUV, as well as post-arrest statements Lesane made after his arrest, holding in part:
It is well-settled that law enforcement officials "may conduct an inventory search of an impounded automobile without a warrant, provided the search is conducted according to a `single familiar standard' or procedure established by the police agency." Additionally, the procedure must meet two standards of reasonableness; first, "the procedure must be rationally designed to meet the objectives that justify the search in the first place"; secondly, "the procedure must limit the discretion of the officer in the field."
The preliminary inventory search by P.O. Horan was conducted in accordance with the written Port Authority Police impound regulations. It was performed for the purpose of safeguarding any items in the vehicle while parked in an unsecured area. The officer had limited discretion in conducting the search — in fact, the procedure for performing the search was set forth in specific detail in the manual.
When an inventory search of a vehicle following a defendant's lawful arrest is conducted pursuant to routine police procedure, there is no need for the police to obtain a search warrant. Additionally, the Court of Appeals has upheld the opening of closed containers in connection with lawful inventory searches.
In view of the lawful arrest of the defendant, the necessity to impound his vehicle, and the fact that the inventory search was conducted pursuant to routine police procedure, I find that the recovery of the gun was proper. Accordingly, defendant's motion to suppress the physical evidence recovered in this case is denied.
(Ex. B: 5/19/98 Opinion at 8-10, citations omitted.).
References to exhibits are to those attached to the February 27, 2002 Affidavit of Assistant Attorney General Lisa E. Fleischman.
On October 23, 1998, Lesane proceeded to trial at which Officers Horan and Cummings gave substantially the same testimony as they gave during the pre-trial suppression hearing. (See generally Trial Transcript.)
Verdict and Sentencing
The jury found Lesane guilty of criminal possession of a weapon in the third degree, and aggravated unlicensed operation of a motor vehicle. (Trial Transcript at 465.) On November 16, 1998, Lesane was sentenced, as a predicate felon, to concurrent terms of five years imprisonment on the weapon count and 180 days on the unlicensed operation of motor vehicle count. (See 11/16/98 Sentencing Transcript at 3-4, 9.)
Lesane's C.P.L. § 440 Motion
On September 22, 1999, Lesane filed a pro se motion pursuant to C.P.L. § 440, to vacate his conviction on the grounds, inter alia that his SUV was illegally searched and that, as a result, the evidence was insufficient to sustain his guilty verdict on the weapons count. (Ex. C: Lesane C.P.L. § 440 Br. at 2-3.) On November 15, 1999, the trial court denied Lesane's motion to vacate the judgment (Ex. C: 11/15/99 Decision Order), and on March 30, 2000, the First Department denied leave to appeal (Ex. C: 3/30/00 1st Dep't Certificate Denying Leave).
Lesane's Direct State Appeal
On December 20, 2000, Lesane, proceeding pro se, appealed his conviction to the First Department arguing, inter alia, that: (1) the search of his SUV was illegal (Ex. D: Lesane 1st Dep't Br. at 5-13); and (2) since the handgun should have been suppressed, there was insufficient evidence to support his conviction (id. at 14-19).
On June 26, 2001, the First Department affirmed Lesane's conviction, holding, in relevant part, that:
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the jury's determinations concerning credibility. Since a loaded pistol was present inside an automobile that had been solely occupied by defendant just prior to the discovery of the weapon, the jury properly applied the statutory presumption of possession, as charged by the court. Moreover, the fact that the vehicle was registered in defendant's name and that the gun was concealed in a car compartment for which defendant had a key on his key chain provided further proof that he exercised dominion and control over the weapon.
Defendant's suppression motion was properly denied. The warrantless search of the impounded vehicle was proper, since it was conducted pursuant to a routine police procedure, which provided for a preliminary inventory search in order to secure valuables when the vehicle is initially left in an unsecured area. Since the opening of the locked metal compartment comported with established routine, it was proper.People v. Lesane, 284 A.D.2d 249, 250, 727 N.Y.S.2d 418, 418-19 (1st Dep't 2001) (citations omitted).
On September 18, 2001, the New York Court of Appeals denied leave to appeal. People v. Lesane, No. M-4365, 2001 N.Y. App. Div. LEXIS 8749 at 1 (Sept. 18, 2001).
Lesane's Federal Habeas Corpus Petition
Lesane's timely-filed federal habeas petition alleges that: (1) he was subject to an illegal search and seizure (Dkt. No. 1: Pet. ¶ 13(1)); and (2) due to the illegal search, there was insufficient evidence to support his weapons conviction. (Pet. ¶ 13(2); see also Dkt. No. 4:12/28/01 Lesane Letter to the Court.) The parties have consented to my decision of the petition pursuant to 28 U.S.C. § 636(c). (Dkt. No. 6.).
ANALYSIS
Lesane's first claim for habeas relief, based on his argument that Port Authority police officers discovered the firearm and ammunition in his SUV in violation of his constitutional right to be free from unreasonable searches and seizures, is a Fourth Amendment claim.
Lesane's Fourth Amendment claim must be assessed by reference to the Supreme Court's holding in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1976), which precludes habeas review of Fourth Amendment claims that have been litigated in state court:
[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. In this context the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal, and the substantial societal costs of application of the rule persist with special force.Stone v. Powell, 428 U.S. 465, 494-95, 96 S.Ct. 3037, 3052-53 (1976) (fns. omitted).
Accord, e.g., Withrow v. Williams, 507 U.S. 680, 682-86, 113 S.Ct. 1745, 1748-SO (1993); McClesky v. Zant, 499 U.S. 467, 479, 111 S.Ct. 1454, 1462 (1991); Fowler v. Kelly, No. 95-2527, 104 F.3d 350 (table), 1996 WL 521454 at 3 (2d Cir. Sept. 16, 1996); Capellan v. Riley, 975 F.2d 67, 69-71 (2d Cir. 1992); Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991); Plunkett v. Johnson, 828 F.2d 954, 956 (2d Cir. 1987);Herring v. Miller, 01 Civ. 2920, 2002 WL 461573 at 2-3 (S.D.N.Y. Mar. 27, 2002) (Peck, M.J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at 9 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at 4 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Roberson v. McGinnis, 99 Civ. 9751, 2000 WL 378029 at 5 (S.D.N.Y. Apr. 11, 2000) (Batts, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at 24 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at 9 (S.D.N.Y. Oct. 29, 1999) (Peck, M.J.);Torres v. Irvin, 33 F. Supp.2d 257, 274-75 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 804-05 (S.D.N.Y. 1997) (Sprizzo, D.J. Peck, M.J.).
The Second Circuit, sitting en banc, has concluded that Stone v. Powell permits federal habeas review of exclusionary rule contentions only in limited circumstances:
If the state provides no corrective procedures at all to redress Fourth Amendment violations, federal habeas corpus remains available. It may further be that even where the state provides the process but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process, the federal intrusion may still be warranted.Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (citations omitted), cert. denied, 434 U.S. 1038, 98 S.Ct. 775 (1978).
Accord, e.g., Branch v. McClellan, No. 96-2954, 234 F.3d 1261 (table), 2000 WL 1720934 at 3 (2d Cir. Nov. 17, 2000); Capellan v. Riley, 975 F.2d at 70; Herring v. Miller, 2002 WL 461573 at 3; Gumbs v. Kelly, 2000 WL 1172350 at 9; Jones v. Strack, 1999 WL 983871 at 9; Torres v. Irvin, 33 F. Supp. 2d at 275; Aziz v. Warden of Clinton Correctional Facility, 92 Civ. 104, 1992 WL 249888 at 3 (S.D.N.Y. Sept. 23, 1992),aff'd, 993 F.2d 1533 (2d Cir.), cert. denied, 510 U.S. 888, 114 S.Ct. 241 (1993); Allah v. LeFevre, 623 F. Supp. 987, 990-92 (S.D.N.Y. 1985).
Here, Lesane litigated his Fourth Amendment claim at the pretrial suppression hearing, in a C.P.L. § 440 motion, and on direct appeal to the First Department. (See pages 2-7 above.) Thus, state corrective process was not only available but was employed for Lesane's Fourth Amendment claims, which therefore cannot support a petition for a writ of habeas corpus. See, e.g., Blagrove v. Mantello, No. 95-2821, 104 F.3d 350 (table), 1996 WL 537921 at 2 (2d Cir. Sept. 24, 1996) (where defendant's "Fourth Amendment issues were raised before the trial court in the suppression hearing and before the Appellate Division in [his] pro se brief' defendant's "Fourth Amendment argument is barred [from federal habeas review] because the issue was fully and fairly litigated in the state courts."); Capellan v. Riley, 975 F.2d at 70 n. 1 (noting that "the `federal courts have approved New York's procedure for litigating Fourth Amendment claims . . . .'"); McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 69 (2d Cir. 1983) (New York's procedure for litigating a Fourth Amendment claim in a criminal trial complied with requirement that state provide an opportunity to litigate such claims).
Lesane's claim that there was insufficient evidence to support his conviction for criminal possession of a weapon is based on his allegation that the search of his vehicle in which the gun was discovered violated his Fourth Amendment rights. Since his Fourth Amendment claim is not cognizable on habeas review for the reasons discussed above, his insufficiency of the evidence claim must fail as well.
See also, e.g., Herring v. Miller, 2002 WL 461573 at 3; Gumbs v. Kelly, 2000 WL 1172350 at 10 (New York's procedure for litigating Fourth Amendment claims provides full and fair opportunity to litigate claim);Hunter v. Greiner, 99 Civ. 4191, 2000 WL 245864 at 6 (S.D.N.Y. Mar. 3, 2000); compare Branch v. McClellan, 2000 WL 1720934 at 2-4 (remanding to the district court to determine if petitioner had a full and fair opportunity to litigate his Fourth Amendment claim where the record indicated that defendant did not receive search warrant application on which Fourth Amendment claim was based until late in trial and trial court denied motion as "untimely").