Opinion
2125/18
09-03-2019
The PEOPLE of the State of New York, v. Anthony DEBELLIS, Defendant.
For the defendant, Alexander Sanchez, Esq., 860 Grand Concourse, Bronx, NY 10451, 718-665-0112 For the People, A.D.A. Danielle Koves, Bronx District Attorney's Office, 198 E. 161 Street, Bronx, NY 10451, 718-838-7468
For the defendant, Alexander Sanchez, Esq., 860 Grand Concourse, Bronx, NY 10451, 718-665-0112
For the People, A.D.A. Danielle Koves, Bronx District Attorney's Office, 198 E. 161 Street, Bronx, NY 10451, 718-838-7468
David L. Lewis, J.
This matter is before the Court for pre-trial hearings seeking the suppression of the objects seized from the defendant under Mapp v. Ohio, 367 US 643 (1961), and statements made by the defendant to the police under People v. Huntley , 15 NY2d 72 (1965), all arising out of a traffic stop. Based upon the facts and the proper application of the principles of People v. De Bour , 40 NY2d 210 (1976), and People v. Garcia , 20 NY3d 317 (2012), the police officer's actions in detaining the defendant after a stop for a traffic violation and subsequent recovery of a gun, ammunition, a holster, two loaded magazines and drugs, the stop, search and seizure were each and collectively legally proper. It therefore follows that the statements of the defendant, albeit not Mirandized , were made not while in custody. Further, the post arrest statements that the People seek to offer were spontaneous and not induced by police questioning.
FINDINGS OF FACT
The People called a single witness, Police Officer Justin Allen. Officer Allen is a nine year veteran of the police force who had been assigned to Highway 1 for the last three years. In the more than 2,000 stops he had made as a highway patrol officer, there had been only one prior stop that involved a weapon.
On September 19, 2018, at about 3:30 in the afternoon, Officer Allen was in the vicinity of Mosholu and Bronx River Parkways on routine patrol in a marked patrol car, equipt with a laser set, radar and a license plate reader. The license plate reader observed the plates of vehicles driving past the patrol car and signaled that it had received a hit on a grey 2016 BMW. The database linked to the reader indicated that the plate led to a suspended registration. The patrol car's dashboard camera was activated and produced a video of the entirety of the stop, arrest and subsequent statements of the defendant. (People's Exhibit 1).
The officer pulled behind the BMW and followed it for a quarter mile. The car kept going. The officer then attempted to get the driver to pull over to a safe location on the parkway, but he continued driving on the parkway. Officer Allen put his lights on. The vehicle continued, ignoring the lights of the marked police car, and exited the parkway. The BMW continued to a cross walk. At the stop sign, the officer activated the microphone and instructed the driver to pull over. He activated the siren after he gave the order to the driver to pull over, and a couple of seconds later, after traveling an additional 50 feet, the driver complied. As the car sat, the officer then re-ran the license plate to make sure that the car's registration was in fact suspended. This re-run through the NYPD computer system confirmed that the car's registration was suspended due to a lapse in insurance.
THE STOP AND THE LACK OF IDENTIFICATION
The officer approached the stopped vehicle. A microphone in his uniform pocket captured on People's Exhibit 1, an albeit muffled recording of the interactions between the defendant and the officer. The officer, through the lowered open window, asked the defendant seated in his car for his license and registration. The defendant did not produce it so the officer asked for them a second time. The defendant stated that he did not have a license and registration. Thirteen minutes into the stop Officer Allen told his superior that he cannot verify who the defendant is. The defendant at no point in the encounter produced any real identification.
THE FIRST LOADED MAGAZINE
As the defendant answered the officer's question as to a license and registration, the officer looked at the defendant who using his right hand fidgeted with something shiny in his pocket. The officer asked the defendant, "What's this in your pocket?". The object, about the size of man's hand, appeared to the officer to be a loaded magazine. The officer stated that at the time he asked the defendant what it was he had seen a bullet in the magazine. The defendant answered that it was a cartridge. When the magazine was revealed to the officer, the defendant was asked what he was doing with it and responded that "they" put it in the car. Officer Allen described the magazine to his superior officer as it came out of his pocket.
THE DEFENDANT STEPS OUT OF THE CAR
Given the failure of the defendant to identify himself, and based on the answers as to the ammunition clip, Officer Allen asked the defendant to step out of the car. The defendant stepped out of the car on the officer's command as shown in People's Exhibit 1. Although the officer's memo book stated that he "pulled" the defendant from the car, the video demonstrated that in fact the memo book entry was not correct. The defendant was not pulled from the car as evidenced by People's Exhibit 1.
THE FRISK
Officer Allen walked the defendant to the back of the vehicle and frisked him from head to toe for his safety. Nothing was found on the defendant.
DEFENDANT'S FALSE STATEMENTS
Officer Allen made it clear to the defendant that he did not believe what the defendant was telling him based on the many stories he gave him. The first false statement was that the cartridge was the car owner's, even though it was in the defendant's hand and his hand was coming out of his jacket pocket. The second set of false statements occurred outside the car at the rear of the vehicle when the defendant told the officer that the car belonged to his friend Eric Frieberg. He said that the magazine was left in the car, ostensibly by his friend Eric Frieberg. No evidence was adduced that connected anyone named Frieberg to the vehicle. The third false statement was given during the frisk that he, the defendant, worked "for the courts" and that he "was security," and that "he worked security for the courts" as an explanation as to why he had the magazine. A fourth false claim was made when he stated that he worked for "Sanitation." Nothing corroborated these claims. The defendant had still not provided any identifying information as to himself or the vehicle. Further, his answers as to ownership of the car and the magazine were themselves suspicious. The claim that he worked for the courts and security were further grounds for suspicion. The magazine alone was sufficient to suspect that the defendant had a weapon in the car.
THE POST FRISK INQUIRY
The focus then turned to identifying the defendant and determining the ownership of the vehicle in light of the suspended registration and defendant's assertion that he did not own the car. After the frisk, the officer walked to the passenger side of the car to look into the car. He tried the passenger door. The door was locked. When Officer Allen looked into the car on the passenger side of the car, he observed on the car floor a half open bag. The bag had, in plain view, loose rounds, another magazine and an off duty law enforcement type of holster, the type of holster that law enforcement used to carry their weapon when off duty. The car door was opened and the officer further looked into the bag.
The officer asked the defendant what he was doing with the bag. The defendant stated that he had had a fight with his wife and she threw him out of the house. He said that he just grabbed the bag and left in a hurry.
THE OFFICER DOESN'T BELIEVE THE DEFENDANT & TELLS HIM
Officer Allen told the defendant that he did not believe him because of the different stories he was telling. The officer then asked him if he had a gun in the car since there was a holster, ammunition and a magazine, "so where's the gun?". Officer Allen told the defendant that there was a smell of alcohol in the car. The defendant denied that he was drinking. He said that the holster was for his gun. There was no other answer from the defendant as to the gun. He asked the defendant if he had a gun in the car, leading to a convoluted set of false statements further raising the officer's suspicion. The defendant claimed to have had a gun permit that was revoked two days earlier for a Glock and a .45. He did not show any permit. The officer told him that the ammunition and the magazine should be locked up if he no longer had the permit. On the video, the officer was seen removing documents from the car that he believed were insurance documents or registration documents but he was not sure if they were.
THE LIEUTENANT ARRIVES
Thereafter a police lieutenant came to the scene. There is conversation between the lieutenant and Officer Allen, and the defendant is seen on the video opening the trunk of the car to allow the officers to look inside the trunk and discover a set of license plates which belonged to a completely different car, a Lexus.
THE ATTEMPT TO REACH THE OWNER
The lieutenant asked the defendant to call the owner of the car. The defendant appeared to use the phone, but stated that he could not get in touch with the owner. When he challenged the defendant's claim that he had no way to contact the owner, the defendant did not reply.
THE OFFICER WRITES TWO TRAFFIC TICKETS
The officer then continued to try and ascertain the identity of the defendant by asked for pedigree information including a name and date of birth. The officer provided the defendant with a piece of paper to write down his name and date of birth because the defendant had no identification and the officer believed that the defendant was lying as to his identity. The name and date of birth when run through the NYPD system came back with no hits. Later, at the precinct after his arrest, a fingerprint check determined that the name given and the date of birth were false. He was not John Franco DeBellis but Anthony DeBellis.
After the defendant wrote the false name and date of birth, the police officer then issued summonses for the VTL violations. The officer told the defendant that he was being written two summons and that he should respond to the summons in fifteen days or they will suspend his license.
Because the defendant could not make contact with the owner, the officers decided that the car had to be towed. The police informed the defendant that the car had to be towed because as it was not registered and therefore could not be driven on the public road. The officers and the defendant waited for the tow truck. During this time, the defendant in possession of the summonses, appeared to voluntarily wait with the officers for the tow truck. When the tow truck driver arrived, the police were still allowing the defendant to move freely with the bag containing the clip and the ammunition.
THE DEFENDANT RE-ENGAGES WITH THE CAR
The defendant asked to get the phone charger out of his car. The officers told him that when the tow truck arrives to take the car he can get his charger.
When the tow truck driver arrived and was preparing the car for towing, the defendant again asked the police if he could return to the car to get his cell phone charger. The officer watched the defendant as he entered the now impounded car. The officer stood next to the defendant who was sitting in the car. The defendant moved around the compartment of the car from the driver's seat and got out. Officer Allen walked away. At that point the defendant returned to the car when Officer Allen was not with him.
The second time with no officer next to him, the defendant reached for the console on the right side of the driver's seat and then reached to the left side, and then seemed to reach below the driver's seat. Officer Allen stated that it looked as if the defendant was reaching for something other than the charger in a place other than where the phone charger actually was sitting. Instead the officer observed the defendant reaching around in the inner compartment of the car, rummaging under the driver's side. Significantly, although the phone charger was in plain view on the passenger seat, the defendant did not reach for the phone charger on either occasion even though he said that he had to go back to the car to get. At that point Officer Allen again ordered him out of the car. The defendant stepped out of the car.
THE GUN IS FOUND
The officer reached into the area where the defendant was reaching and he found a firearm, a gray Browning 1911, under the driver's seat covered by the floor mat.
THE DEFENDANT WAS NOT IN CUSTODY
Officer Allen testified that the defendant was not free to leave during the car stop until they wrote up the summonses. He was also not free to leave because he had not provided any identifying materials as to himself or the car. Further, the defendant did not ask to leave. The video demonstrates that the defendant was under no restraint. He moved freely around the car, as well as in and out of camera range. He smoked cigarettes while waiting for the police to continue their investigation. He spoke on his cell phone and apparently was allowed to call whomever he wished. The defendant was also free to leave the stopped vehicle and go over to the patrol car driver's side and chat with Officer Allen through the window while Allen sat and the defendant stood over him, telling the officer that he worked for Sanitation. Although the officer told him to stay by the car, the only direct command actually given was that he not put his hands in his pockets. The defendant also had retained possession of the bag of ammunition, the clips of ammunition and the holster. The defendant was not under arrest. He freely engaged with the officers and spoke to them. He never asked if he could leave and made no protest regarding the stop and search. He never refused to answer any question. The officer did not arrest him until at the end of the encounter and only when the weapon was actually observed.
THE DEFENDANT IS PLACED UNDER ARREST
The defendant was cuffed and placed in the patrol car. In the patrol car the defendant slipped his right hand out of the handcuff and reached into the buttocks area of his pants and withdrew two blue Xanax pills. Within 20 minutes of the arrest, the defendant spontaneously told the officer that he had swallowed twenty Xanax pills and that he was "checking out" and that he wanted to talk to his wife. The police transported the defendant to a hospital.
At no point in the encounter and questioning until the discovery of the weapon under the floor mat in the driver's side of the car was the defendant provided with his Miranda rights. The delay in the stop was occasioned solely by the fact that the defendant had no license, registration or identification. The statement made by the defendant in response to pedigree questions and the initial inquiry were not Mirandized.
The statements after arrest concerning the ingestion of the 20 Xanax, the checking out and the statement to call his wife were all spontaneous and not in response to questioning, but rather were made in explanation as to the Xanax removed by the defendant from his buttocks area in the police car after he slipped the handcuff off his wrist.
THE CREDIBILITY OF THE OFFICER
This Court finds the testimony of Officer Allen entirely and fully credible. First, it is mirrored by the dash cam video in almost every respect, even contradicting his memo book entry. Second, his narrative is consistent and believable even outside the context of the dash cam. Third, and most significantly, Officer Allen was candid about the fact that in effect the decisions made in the handling of this the second weapons related car stop in his career could easily have led to tragedy regarding the officers and innocent passerby. The officer's zeal in finding the gun that seemed to him obviously present led him to allow the defendant to return to the car when the defendant asked to do so, before the car was towed away in the hopes that the defendant would lead the police to the gun. The officer readily admitted that he had made the tactical error of letting the defendant possibly get his hands on a gun. The officer admitted that letting the defendant return back to the car, not once but twice, was from a tactical standpoint, "an absolute no-no". In fact the officer testified that he and his lieutenant disagreed on letting the defendant go back to the car and from the testimony it is clearly inferable that the lieutenant overruled Officer Allen and allowed the defendant to return to the car in hopes of flushing out the gun.
CONCLUSIONS OF LAW
On a motion by a defendant to suppress physical evidence, the People have the burden of going forward to show by a preponderance of credible evidence the legality of the police conduct in the first instance and that the arrest of the defendant was based upon reasonable and probable cause. The defendant then bears the ultimate burden of proving by a preponderance of the credible evidence that the evidence should not be used against him. People v. Whitehurst , 25 NY2d 389, 391 (1969).
"The touchstone of [any] analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen's person security." Terry v. Ohio , 392 US 1, 19 (1968) ; Pennsylvania v. Mimms, 434 US 106, 108—109 (1997) ; People v. Prochilo, 41 NY2d 759, 761 (1977). Whether governmental action is reasonable will turn on the facts of each case and requires consideration of whether the police action at issue "was justified in its inception and whether ... it was reasonably related in scope to the circumstances which created the encounter." People v. Powell, 246 AD2d 366, 368 (1st Dept), appeal dismissed 92 NY2d 886 (1998).
Encounters between civilian and police authorities are analyzed under the four tier assessment of People v. De Bour , 40 NY2d 210 (1976). Each progressive tier, however, authorizes a separate degree of police interference with the liberty of the person approached and consequently requires escalating suspicion on the part of the investigating officer. The De Bour formulation applies to vehicle stops in the same fashion as street encounters. People v. Garcia, 20 NY3d 317, 320 (2012). Vehicle stops are thereby governed by the same De Bour standards.
At the first level, law enforcement may engage in minimally intrusive questioning to request information "when there is some objective credible reason for that interference not necessarily indicative of criminality." De Bour, 40 NY2d at 223. The second level, the common-law right of inquiry, permits officers "to gain explanatory information, ... short of a forcible seizure" upon a "founded suspicion that criminal activity is afoot" Id. Courts have described this level-two inquiry as one that closes in on a defendant as a "suspected law breaker". In re Antoine W., 162 AD2d 121, 122 (1st Dept 1990), affd 79 NY2d 888 (1992). Although this level of intrusion entitles an officer to interfere with a citizen "to the extent necessary to gain explanatory information," it may not involve a forcible stop and seizure. De Bour, 40 NY2d at 223 ; see also People v. Hollman, 79 NY2d 181 (1992) ; In re Wesley M., 195 AD2d 350 (1st Dept 1993), affd 83 NY2d 898 (1994). The third level, "a forcible stop and detention," requires the "officer entertain[ ] a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor," and "[a] corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that [they are] in danger of physical injury by virtue of the detainee being armed." Id. (citation omitted).Under a level-three intrusion, however, the focus is not simply whether there is a founded suspicion of criminal activity, but whether there is reasonable suspicion that a certain individual is believed to be involved in such criminal activity. De Bour, 40 NY2d at 223. Reasonable suspicion exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was (or is being) committed and that such person committed it. People v. Cantor , 36 NY2d 106, 112-113 (1975). "Finally[,] a police officer may arrest and take into custody a person when [the officer] has probable cause to believe that person has committed a crime, or offense in [the officer's] presence." People v. Parker, 32 NY3d 49, 56 (2018).
THE LEGALITY OF THE STOP
Police stops of automobiles are permissible where the police have probable cause to believe that the driver of an automobile has committed a traffic violation. People v. Guthrie, 25 NY3d 130 (2015) ; People v. Robinson, 97 NY2d 341 (2001) ; People v. Wright, 98 NY2d 657 (2002).
Police conduct in the making of the initial stop was valid in all respects. People v. David L., 81 AD2d 893 (2nd Dept. 1981), revd 56 NY2d 698 (1982). Where the stop is predicated upon objective evidence of a traffic violation, the stop is valid. The lapsed registration is a specific and articulable fact which reasonably prompted the car stop. The officer's stop of the defendant after the license plate reader alerted him to the lapsed registration is based on the fact that driving with a lapsed registration is a violation of the VTL 401(4), 312 (1)(b), 319(3) and 507(2). Further, VTL 512 makes driving a motor vehicle with a suspended registration an unclassified misdemeanor, providing authorization to stop the vehicle. People v. Martinez, 80 NY2d 444 (1992).
A license plate reader ("LPR") is attached to a police car, often on the trunk, and catalogs every license plate and GPS coordinate it reads as the police officer is driving on patrol or responding to calls. When a license plate record is created, a computer can automatically compare the license plate number against a New York State Department of Motor Vehicles "Hot List", an updated list of license plates. Stolen or unregistered vehicles can also be identified. In People v. Davila, 27 Misc 3d 921 (Sup Ct, Bronx County 2010), the court addressed the lawfulness of a vehicle stop based on information obtained via an automated license plate scanning device.
Officer Allen stopped the BMW solely because the license plate reader alerted on the car's plate. The defense argued that this was a pretext because no evidence of the read out was produced at the hearing. The defense challenged the officer's credibility because no document was produced but conceded during oral argument on the motion to suppress that such a document was turned over to him in discovery in light of the officer's testimony that a document did in fact exist.
Further, the Court of Appeals has specifically held that in order to ensure the safety of our roads, a police officer may run a license plate number through a government database to check for any outstanding violations or suspensions on the registration of the vehicle. Such a check, even without any suspicion of wrongdoing, is permissible, and does not constitute a search. Information obtained indicating the registration of the vehicle is in violation of the law as a result of this check may provide probable cause for the officer to stop the driver of the vehicle. People v. Bushey , 29 NY3d 158 (2017).
Nothing in the record before us suggests there was anything unreasonable about the police officer's actions or that the officer had any illegal motives. He ran the license plate and accessed the DMV database in the performance of his official duties. Therefore, the check was lawful, and the information from the database provided him with a valid reason to stop defendant's car. The officer had probable cause to arrest the defendant, based on the failure of the vehicle to be properly registered. The officer with regard to the stop of this defendant knew at the time of the stop that the registration of the car had been suspended, thus providing probable cause. See People v. Bushey, id.
A vehicle stop by the police is a De Bour level 3 seizure. See e.g. People v. Ocasio , 85 NY2d 982, 984 (1995). While a traffic violation may form the predicate for a police stop, for such a stop to pass constitutional muster, the officer's action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which first justified the detention.
THE RIGHT TO INQUIRE
Where the stop is lawful as this one was, the officer had the right to request that the defendant produce his driver license [see People v. Graham, 54 AD3d 1056, 1058 (2nd Dept 2008) ; People v. Leiva, 33 AD3d 1021, 1022 (2nd Dept 2006) ; People v. Irizarry , 282 AD2d 483, 483 (2nd Dept 2001), lv appeal denied 97 NY2d 705 (2002) ] and his registration. When the officer stopped the car, he was entitled to conduct an inquiry as to the defendant and the vehicle.
If a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality. Because the car came out of the license plate reading as unregistered, it allowed the officer to request information such as the physical license and vehicle registration from the driver.
The reading as to the lapsed registration gave the officer a reasonable suspicion that the driver of the car has engaged in or is engaging in the commission of a traffic violation which is conduct in violation of the law. The initial stop was legal and the inquiry as to license and registration was in the nature of permissible low level inquiry.
THE LACK OF IDENTIFICATION
The defendant did not have and could not produce a license and registration. At first he seemed not to hear the demand and then when it was repeated a second time he admitted that he did not have a license or a registration or any identification at all.
THE SHINY OBJECT OBSERVED
As the officer spoke to the seated defendant in the car, the officer saw that the defendant had his hand in his jacket pocket, as if holding or concealing something. It drew the officer's attention. He observed a shiny object. The officer had a reasonable basis for asking defendant what was in his jacket pocket that he was covering with his hand. The officer indicated that he saw a shiny object in that pocket as well as in the defendant's hand. The defense contended that the officer could not have seen the shiny object.
The officer indicated that he believed it to be a clip of ammunition on the basis that the shiny glint looked to be a bullet at the top of a clip. The defense found this incredible but the Court finds the officer's testimony to be credible based upon his years on the police force and experience. The fact that he saw something shiny and believed it to be a bullet is credible given that the defendant could not identify himself or the vehicle.
THE INQUIRY BASED ON THE OBSERVATION IS NOT RANDOM
The officer in response to his observation asks on the dash cam capture "What's that?". This inquiry based upon a specific observation is not in the nature of an improper general inquiry. The officer engaged in a lawful encounter with defendant that is, a single, rapidly unfolding encounter relating to the traffic violation as well as the officer's other observations concerning the defendant's inability to identify himself or the car.
In response to the officer's inquiry, the defendant took out of his pocket a fully loaded ammunition clip.
THE DISCOVERY OF THE AMMUNITION CLIP
When defendant acknowledged that the object was a clip of ammunition, the officer lawfully retrieved it. See People v. Randall, 143 AD3d 411 (1st Dept 2016), lv appeal denied 28 NY3d 1149 (2017). Possession of ammunition is a crime if the person in possession is not licensed to possess a pistol or revolver or if the possessor is not a dealer in rifles and shotguns. New York City Administrative Code Section § 10—131(i)(3). Upon further inquiry the defendant told the officer that his permit had been revoked. Therefore he was not licensed to possess a firearm. Upon that admission, the officer had particularized probable cause that a crime was being committed in his presence.
The actions of the officer in removing the clip from the defendant was premised upon a reasonable fear that defendant may have been armed. People v. Roth, 66 NY2d 688 (1985) ; People v. Davis, 64 NY2d 1143 (1985). No police officer need "await the glint of steel before he can act to preserve his safety." See e.g. People v. Benjamin, 51 NY2d 267, 271 (1980). Given the fact that the defendant did not appear to have any identification, no less any permit or license sanctioning the possession of ammunition, the officer acted properly to take the clip from the defendant.
THE OFFICER ORDERS THE DEFENDANT OUT OF THE CAR
Upon identifying the shiny object, the officer ordered the defendant to step out of the car. The order of the police officer to the motorist to get out of his car after the vehicle was lawfully stopped for a traffic violation did not violate the Fourth Amendment. Even if the officer had no reason to suspect foul play, as he suggested, the presence of a loaded magazine clip objectively impacted upon consideration of the officer's and passersby safety since the clip suggested the presence of a weapon. Because of the inordinate risk inherent in approaching a person seated in an automobile, officers may order the driver to exit the vehicle even without the particularized reason that the person possesses a weapon, and even more so after the observation of a shiny object that is an ammunition clip. People v. Alvarez , 308 AD2d 184,187 (1st Dept), lv appeal denied 1 NY3d 567 (2003). The officer's safety, as an interest, outweighed other factors and was at most a mere inconvenience to the driver. Pennsylvania v. Mimms , 434 US 106 (1977).
THE PAT DOWN
After ordering the defendant out of the car based upon the discovery of the ammunition clip, the officer directed the defendant to the rear of the car for a full body frisk which was a search of the defendant. The search was done after the ammunition clip came out of the defendant's jacket pocket. Here the search satisfied the Fourth Amendment standard because the clip was additional information after the proper traffic stop. The pat down produced no evidence. The frisk follows the observation of the shiny object that was revealed to be a clip of ammunition, and is justified by the fair inference that the defendant possessing the ammunition, must be in possession of a weapon matched to that ammunition.
THE SEARCH OF THE CAR
Officer Allen reasonably believed that the defendant possessed a weapon. "Upon seeing ammunition and a holster in plain view on top of the shopping bag, the officer had a legitimate reason to suspect the presence of a firearm." People v. Hwi Jin An, 253 AD2d 657, 658 (1st Dept), lv appeal denied 92 NY2d 949 (1998). Officer Allen continued to look for more information from the defendant as to his personal identity. Without getting satisfactory answers, Officer Allen trying to find out more information as to the car and its owner by inspecting the outside and then examining the inside of the car, first visually and second physically to seek what information the vehicle could provide.
When he looked into the right passenger door, he saw on the seat a partially opened bag with more rounds of ammunition. This gave him the right to open that door which he did by unlocking it to investigate what he saw. Upon opening the car door he found in the half open bag additional loose rounds of ammunition, an off duty type of law enforcement officer's holster and another clip of ammunition. This cache of ammunition provided probable cause for the arrest of the defendant by itself. He had no identifying papers, no drivers license and the car had rounds and rounds of ammunition and a clip, all seemingly illegally possessed.
THE WAIT AND SEARCH FOR MORE INFORMATION
Even with the additional ammunition and clip, the police still did not arrest the defendant. The discovery of the larger amount of ammunition was a clear change in circumstances permitting a greater level of intrusion. People v. Grunwald, 29 AD3d 33 (1st Dept), lv appeal denied 6 NY3d 848 (2006) ; People v. Hollman , 79 NY2d 181, 185, 191-192 (1992). The defendant was also deceptive in his answers and with each evasive or deceptive answer and his lack of identification for himself or the vehicle, each act of the defendant continued to raise the level of inquiry caused by the defendant's own objectively suspicious activity.
The police wanted to identify the owner of the car and asked the defendant to call the owner of the car. They were trying to avoid towing the car. They also did not want to arrest the defendant. But they did not believe his shifting changing stories. Each time he spoke, in effect he changed the circumstances raising the level of inquiry. Similarly, the discovery of a different set of license plates in the trunk and his claim that they were the car owner's plates all gave rise to further inquiry based upon the objectively suspicious behavior and statements of the defendant. As a consequence, there was a delay in resolving the traffic stop because each phase escalated the inquiry because of the concomitant escalation of suspicious answers.
Because there was no identification produced Officer Allen asked the defendant to write his name and information on a piece of paper so it could be checked out. Officer Allen wanted it in the defendant's own handwriting so there could be no claim of mistake. No information came back when Officer Allen ran the name.
There is no constitutional proscribed limit on the length of a traffic stop. Events within the stop, the responses and veracity of the person, the nature of the inquiry and circumstances drive the determination. In the instant stop, the length in part was caused by the police attempting to provide the defendant with every opportunity to identify himself, the owner of the car, and the material facts that could avoid the police having to tow the car. The delay between of the stop also included the wait for the tow truck driver as well as the issuance of the traffic summons. The police could not let the defendant go without knowing who he was in order to write the summons on the traffic stop.
THE DECISION TO TOW THE CAR
The officers eventually decided that the defendant would receive two summons and the car would be towed. No uninsured car may legally travel on the public roads.
THE DEFENDANT RETURNS TO THE CAR
The defendant prior to the tow truck driver appearing asked to return to the car to get his phone charger. The officer told him to wait until the tow truck came and then he could remove his property. When the driver and the tow truck came, with Officer Allen standing next to him the defendant returned to the car. He rummaged around inside but exited without the charger. The defendant's return to the car was ostensibly for his phone charger, but the observation by the police officer of defendant rummaging around within the car coupled with the facts and circumstances previously discussed, (discovery of rounds of ammunition, a loaded clip in a bag and the item in the defendant's jacket pocket, as well as his evasive, contradictory and false answers) was another and further change in circumstance that permitted a greater intrusion.
The police had already given the defendant his summons and he was thereupon free to go. His return to the car the second time still looking for the charger was a renewal of the initial encounter, which led to the discovery of the weapon hidden beneath the floormat.
The defendant's return to the car and his furtive rummaging once the officer was not beside him to watch was both independent probable cause to search the vehicle again and sufficient probable cause on its own to allow the search of the now impounded vehicle. As demonstrated by the dash cam, the defendant's behavior upon his second return to the car ostensibly for his phone charger appeared to be his reaching to free the weapon sitting under the driver's floor mat.
The discovery of the gun in the car at the scene was probable cause to arrest the defendant.
THE INVENTORY SEARCH AND INEVITABLE DISCOVERY
Following a lawful arrest of a driver of a vehicle that is required to be impounded, as in this matter, the police may conduct an inventory search of the vehicle. In the instant case the tow truck was prepared to bring the unregistered vehicle to the tow pound when the gun was located.
The search is "designed to properly catalogue the contents of the item searched." People v. Johnson, 1 NY3d 252, 256 (2003). "While incriminating evidence may be a consequence of an inventory search, it should not be its purpose." Id. at 256. The tow truck had taken possession of the car. The police practice would be to tow the truck to the precinct and conduct the inventory search at the precinct. The flow of events was unended by the defendant's return to the car and his attempt to retrieve the gun from under the mat on the driver's side. The inventory search would have inevitably located the gun.
INEVITABLE DISCOVERY
The doctrine of inevitable discovery holds that fruits of an unlawful search need not be suppressed where there is a very high degree of probability that the evidence in question would have been obtained independently of the tainted source. Thus, the introduction of tainted evidence may be allowed if the prosecution demonstrates that the challenged evidence inevitably would have been discovered by lawful means without the aid of the unlawfully obtained primary evidence.
Even if there was any single cause for suppression, the gun in the car would have been inevitably discovered during the inventory search of the towed car. Evidence obtained as a result of information derived from an unlawful search or other illegal police conduct is not inadmissible under the fruit of the poisonous tree doctrine where the normal course of police investigation would, in any case, even absent the illicit conduct, have inevitably led to such evidence. People v. Fitzpatrick , 32 NY2d 499, 506 (1973). In this matter the evidence demonstrated a "very high degree of probability" that "normal police procedures" would inevitably have resulted in the recovery of the firearm.
THE HUNTLEY ISSUE
The Court finds that the statements made by the defendant on the roadside prior to the discovery of the gun were not the product of custodial interrogation, but the product of a non-custodial investigatory inquiry which does not implicate Miranda v. Arizona, 384 US 436 (1966). While People v. Bryant, 59 NY2d 786 (1983) defines interrogation as both express questioning and any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response, certain express questioning does not constitute interrogation such as legitimate on the scene questioning by an officer designed to clarify the situation encountered or questions designed to protect the officer's welfare or pedigree information as to the detained person's identification. Based on the evidence at this hearing the questioning of the defendant constituted at various junctures all three areas of the permissible inquiry, especially exacerbated by the defendant's evasive and deceptive answers, thus impelling more questioning.
While the police officer indicated that the defendant was not free to leave the scene after the defendant was stopped for a traffic violation, the police, in response to the defendant's inability to identify himself or provide registration material justifies inquiry. The defendant was not in custody.
Contrary to the defendant's contention, his statements to law enforcement officials even after his arrest were spontaneous and not triggered by any improper police questioning or other conduct which reasonably could have been expected to elicit a declaration from him. People v. Wallace, 128 AD3d 866 (2nd Dept), lv appeal denied 26 NY3d 936 (2015) ; People v. Powell, 125 AD3d 1010, 1011 (2nd Dept), affd 27 NY3d 523 (2016) ; People v. Barley, 82 AD3d 996 (2nd Dept), lv appeal denied 17 NY3d 791 (2011) ; People v. Castro, 73 AD3d 800, 801 (2nd Dept), lv appeal denied 15 NY3d 803 (2010).
Similarly the statements made in response to identification questions or the observation of an ammunition clip, a bag of ammunition, another clip and a holster were made in a non-custodial setting incident to the traffic stop and based on escalating tier of factors justifying each inquiry.
THE LENGTH OF THE SEARCH WAS NOT UNREASONABLE
The video shows the length of time was due to a delay by the police trying to sort out how not to arrest the defendant. Further the delay was caused by the attempt to learn if the car had to be towed. But the defendant deliberately delayed matters as well by false and deceptive answers and by failing to have or to provide proper identification. But for the defendant's immediate request to return to the car in what seems to have been a ruse to remove the gun, rather than actually obtain his phone charger, the defendant would have taken his summons and moved on, leaving the police with a false name and a false date of birth.
CONCLUSION
The motion of the defense for the suppression of objects and statement are in all respects denied.
This constitutes the decision and order of the Court.