Opinion
23986.
Decided December 30, 2003.
Edward Nowak, Monroe County Public Defender (Maritza Buitrago, Assistant Public Defender, of counsel), for defendant, Howard R.
Relin, Monroe County District Attorney (Mark Monaghan, Assistant District Attorney, of counsel), for plaintiff.
Defendant Rhondell Miles is charged with criminal possession of a controlled substance in the seventh degree, a misdemeanor under Penal Law § 220.03, and the traffic infraction of riding as a passenger in an automobile without wearing a seatbelt on June 16, 2003. Defendant Miles moves to suppress the evidence obtained as a result of the allegedly illegal inventory search of the automobile in which he was riding, and the statements he made to the police. The People oppose defendant's Motion, asserting that the inventory search was lawful and that defendant's statements were voluntary.
A probable cause hearing was conducted by the Court on October 6, 2003. The two police officers involved in defendant's arrest and the search of the automobile testified for the People. Defendant Miles offered no witnesses or evidence. Having reviewed the credible testimony, and analyzed applicable legal principles, the Court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
On June 16, 2003, at approximately 8:00 p.m., Rochester Police Department Officers Randy Potluck and Scott Ferro were driving in a marked patrol car on Conkey Avenue at Avenue D in Rochester, New York. While Officers Potluck and Ferro were stopped at the intersection's stop sign on Conkey Avenue, heading northbound, they noticed a 1989 blue Honda stop at the intersection's stop sign, heading westbound on Avenue D. The officers noticed that neither the driver nor defendant Miles, who was sitting in the front passenger seat, was wearing his seatbelt, in violation of New York State Law. Besides noticing the absence of seatbelts, neither officer observed any furtive or suspicious movements on the part of the driver or defendant Miles.
Officers Potluck and Ferro proceeded to make a routine traffic stop of the automobile.
After the car came to a halt, Officer Ferro approached the driver's side, and Officer Potluck approached the passenger's side. Upon investigation, Officer Ferro discovered that the driver's operator's license was suspended.
In Officer Potluck's words, the officers then "removed" the driver and defendant Miles from the Honda "for officer safety reasons," "patted [them] down," and "secured" them in the back seat of their patrol car. Before securing the driver and defendant Miles, the officers had not received any information linking the Honda to any type of criminal investigation. Before patting the driver and defendant Miles down, neither officer observed any protrusions or bulges on their persons. Before placing the driver and defendant Miles in the patrol car, neither officer saw them make any furtive or suspicious movements.
Officers Potluck and Ferro then took steps to have the car towed and impounded. According to Officer Potluck, he "was following . . . department policy" with respect to towing the car. However, neither Officer Potluck nor Officer Ferro was able to state, summarize, explain or provide a copy of the department's policy with respect to the impoundment of cars involved in traffic violations. Before impounding the car, neither Officer Potluck nor Officer Ferro asked the driver or defendant Miles whether defendant Miles or anyone else could drive the car away rather than having it towed.
Before it was towed, Officer Potluck conducted an inventory search of the car. Neither officer had seen any contraband in the car before it was searched, nor was any contraband found on either the driver or defendant Miles. While searching the car, however, Officer Potluck found a small white bag filled with cocaine under the driver's seat. When Officer Potluck asked them about the cocaine, the driver and defendant Miles both denied owning or knowing about the cocaine's existence. The driver and defendant Miles were subsequently arrested for criminal possession of a controlled substance in the seventh degree. CONCLUSIONS OF LAW I. Impoundment and Inventory Search of a Car
In People v. Gonzalez, 62 N.Y.2d 386 (1984), the New York Court of Appeals affirmed that the police are permitted to conduct a non-investigative inventory search of a car that is lawfully in government custody. While a car is in lawful custody, an inventory search is permitted to protect the owner's property, to protect the police against false claims for missing property, and to protect the police from potential danger. See People v. Gonzalez, 62 N.Y.2d at 389. See also South Dakota v. Opperman, 428 U.S. 364 (1976); Florida v. Wells, 495 U.S. 1 (1990); People v. Johnson, 1 N.Y.3d 252, 256 (2003); People v. Galak, 80 N.Y.2d 715, 716 (1993). When performed, an inventory search must be conducted according to "`an established procedure clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably" [citation omitted].'" People v. Johnson, 1 N.Y.3d at 256. See Florida v. Wells, 495 U.S. at 4; People v. Acevedo-Sanchez, 212 A.D.2d 1023 (4th Dep't 1995).
To survive Fourth Amendment scrutiny, then, an inventory search of an automobile must pass a two-prong test: (1) the car's impoundment must be lawful; and (2) the inventory search must be conducted according to legally valid procedures. The inventory search of the car in this action fails in both respects.
A. The Impoundment of the Automobile
Whether a car is lawfully impounded is a legally distinct question from whether an inventory search is lawfully conducted because only a lawfully impounded car can be subjected to an inventory search. See South Dakota v. Opperman, 428 U.S. at 368; United States v. Duguay, 93 F.3d 346, 351 (7th Cir. 1996); People v. Rhodes, New York Law Journal p. 35, col. 6 (Supreme Court, Queens County, April 6, 1997). The Fourth Amendment's proscription against unreasonable seizures prohibits the police from impounding a car solely because the driver or passenger is arrested. See United States v. Duguay, 93 F.3d at 353; People v. Rhodes, New York Law Journal, p. 35 col. 6. Rather, the lawfulness of a car impoundment depends on the lawfulness of the arrest, as well as "the totality of the circumstances relating to the vehicle itself, including its condition and location at the time of the arrest and the presence of other persons to whom the driver may wish to entrust it." People v. Rhodes, New York Law Journal p. 35 col. 6 (Supreme Court, Queens County, April 6, 1997). See People v. Johnson, 254 A.D.2d 500, 500-01 (2d Dep't 1998), leave denied, 93 N.Y.2d 972 (1999); People v. Revander, 254 A.D.2d 625, 625-26 (3rd Dep't 1998), leave denied, 92 N.Y.2d 1053 (1999).
Under N.Y. Vehicle and Traffic Law § 511-b, the police are required to impound a car where the driver is arrested for aggravated unlicensed operation of a motor vehicle in the second degree pursuant to N.Y. Vehicle and Traffic Law § 511(2). It is undisputed that the driver in this case was arrested for aggravated unlicensed operation of a motor vehicle in the third degree, for which there is no concomitant statutory impoundment obligation. Accordingly, the Court has no occasion to determine whether a car's impoundment pursuant to N.Y. Vehicle and Traffic Law § 511-b is constitutional in the absence of probable cause or other indicia demonstrating a constitutionally reasonable basis to do so. See United States v. Duguay, 93 F.3d at 353 ("The policy of impounding [a] car without regard to whether the defendant can provide for its removal is patently unreasonable if the ostensible purpose for the impoundment is for `caretaking' of the streets.").
New York courts have held that police may lawfully impound a car only in carefully circumscribed circumstances. Impoundments are lawful, for example, where there is a reasonable basis to believe the car was used in the commission of a crime ( see, e.g., People v. Hutson, 270 A.D.2d 45 (1st Dep't), leave denied, 95 N.Y.2d 854 (2000)); where the car is unregistered, uninsured, or uninspected ( see, e.g., People v. Marasa, 284 A.D.2d 971 (4th Dep't), leave denied, 96 N.Y.2d 940 (2001)); where a car is abandoned or illegally parked and presents an impediment to traffic ( see, e.g., People v. Hanks, 275 A.D.2d 1008 (4th Dep't), leave denied, 95 N.Y.2d 964 (2000)); where the car is reported or appears to be stolen ( see, e.g., People v. Grear, 232 A.D.2d 578 (2d Dep't), appeal denied, 89 N.Y.2d 923 (1996)); where a car is involved in a fatal automobile accident ( see, e.g., People v. Quackenbush, 88 N.Y.2d 534 (1996)); or where the car is driven by an unlicensed driver, and there is no one present who is legally able to drive the car ( see, e.g., People v. Johnson, 298 A.D.2d 281 (1st Dep't 2002), rev'd on other grounds, 1 N.Y.3d 252 (2003); People v. Buckmon, 293 A.D.2d 623 (2d Dep't), leave denied, 98 N.Y.2d 729 (2002); People v. Mendez, 239 A.D.2d 945 (4th Dep't), appeal denied, 90 N.Y.2d 895 (1997); People v. Clark, 210 A.D.2d 701 (3rd Dep't 1994)).
In short, a decision to impound the car is reasonable where there is a legitimate reason to move the car, there is a legitimate reason to detain the car for further investigation, or there is not another person present who can drive the car away safely. Stated differently:
The decision to impound an automobile, unless it is supported by probable cause of criminal activity, is only valid if the arrestee is otherwise unable to provide for the speedy and efficient removal of the car from public thoroughfares or parking lots.
United States v. Duguay, 93 F.3d at 353.
None of the exigent circumstances described above, let alone any other exigent circumstances that would justify a car's impoundment, exist in this case. Neither the driver, defendant Miles, nor the car in which they were found was suspected of being involved in a crime. Neither the driver or defendant Miles possessed any contraband There was no evidence that the driver or defendant Miles did not have permission to have the car. There was no evidence that the car was not properly registered, properly insured, or properly inspected.
Moreover, there was no evidence that defendant Miles, who was initially cited for failure to use a passenger seatbelt, did not have a valid operator's license. There was no evidence that defendant Miles was unable to drive the car away safely after the driver was arrested for aggravated unlicensed operation of a motor vehicle in the third degree. Indeed, there was no evidence that either Officer Potluck or Officer Ferro made any inquiries to determine whether defendant Miles, not to mention any other authorized individual, could lawfully drive the car away following the driver's arrest. To the contrary, Officer Potluck testified that he never asked the driver or defendant Miles whether anyone else could pick up the vehicle. See Hearing Transcript, October 6, 2003, p. 19.
Accordingly, it is manifest that under the totality of the circumstances, the People have failed to meet their burden of showing that the impoundment of the automobile in which defendant was a passenger was lawful. See United States v. Duguay, 93 F.3d at 353 (impoundment not lawful where defendant's girlfriend or brother was present and could have driven away the car); People v. Rhodes, New York Law Journal p. 35 col. 6 (impoundment was lawful because defendant's car was illegally parked; had it been legally parked, impoundment would have been unlawful).
B. The Inventory Search of the Automobile
Even where an automobile's impoundment is lawful, the evidence seized during an inventory search is admissible at trial only if the inventory search was conducted according to "standardized criteria or established routine" procedures. Florida v. Wells, 495 U.S. at 4. See People v. Johnson, 1 N.Y.3d at 256. Further, the standardized procedures that are followed must be rationally designed to meet the objectives that justify the search and limit the discretion of the police officer conducting the search. See People v. Johnson, 1 N.Y.3d at 256. The prosecution has the burden of demonstrating that the inventory search procedures are rational and that they were properly followed. See People v. Johnson, 1 N.Y.3d at 256; People v. Bookless, 120 A.D.2d 950, 951 (4th Dep't), appeal denied, 68 N.Y.2d 767 (1986).
On direct examination, Officer Potluck testified that after the driver and defendant Miles were removed from the car, he conducted an inventory search of the vehicle. See Hearing Transcript, October 6, 2003, p. 6. The prosecution, however, introduced no evidence whatsoever regarding the routine or standardized procedures, if any, that govern Rochester Police Department inventory searches, whether Officer Potluck followed RPD procedures, or the procedures followed by Officer Potluck when he conducted the inventory search. Given the prosecution's failure to produce such evidence, the items seized as a result of the inventory search must be suppressed. See People v. Johnson, 1 N.Y.3d at 256.
Without explaining the policy, Officer Potluck testified on cross-examination that he followed "our department's policy" when he decided to tow the car. Officer Potluck also testified on cross-examination that he filled out a "tow slip" after conducting the inventory search. Neither the RPD's towing policy nor the "tow slip," not to mention any RPD inventory search policy or procedures, was introduced into evidence. See Hearing Transcript, October 6, 2003, pp. 18-19.
II. Defendant Miles' Statements
Defendant Miles also moves to suppress the statements he made to the police regarding the cocaine. Based on the unrefuted evidence, this component of defendant's motion can be decided in short shrift.
Before asking defendant Miles about the cocaine found in the car, Officer Potluck "removed" him from the car, patfrisked him, and "secured" him in the back of his police patrol car. Both Officer Potluck and Officer Ferro testified that defendant Miles was not free to leave. See Hearing Transcript, October 6, 2003, pp. 16, 30. After discovering the cocaine, Officer Potluck asked defendant Miles if he knew anything about it. No Miranda warnings were given to defendant Miles before Officer Potluck questioned him.
It is black letter constitutional law that once a person is taken into custody, the police cannot question him or her about an alleged crime until they give him or her proper Miranda warnings. See Dickerson v. United States, 530 U.S. 428, 435 (2000); Miranda v. Arizona, 384 U.S. 436, 478-79 (1966). It is also black letter constitutional law that a person is in police custody if he or she is in the presence and control of the police and is not free to leave. See People v. Yukl, 25 N.Y.2d 585, 588-89 (1969), cert. denied, 400 U.S. 851 (1970).
In this action, both Officer Potluck and Officer Ferro testified that having "secured" him in the back of their patrol car, defendant Miles was not free to leave. Before questioning him about the alleged crime, then, the police were constitutionally obligated to give him Miranda warnings. Because they did not do so, defendant Miles' statements regarding the cocaine, made in response to the police officers' questions, must be suppressed. See People v. Bookless, 120 A.D.2d at 951; People v. Parks, 120 A.D.2d 920, 921 (4th Dep't), appeal denied, 67 N.Y.2d 1055 (1986).
CONCLUSION
For the foregoing reasons, defendant Miles' motion to suppress the items seized as a result of the inventory search of the car in which he was a passenger is granted. His motion to suppress the statements he made to the police after he was taken into custody is granted.
SO ORDERED.