Opinion
March 21, 1991
Appeal from the County Court of Sullivan County (Leaman, J.).
The facts surrounding defendant's arrest are detailed in this court's earlier decision (see, People v Thomas, 162 A.D.2d 822). There, we withheld decision pending a hearing on defendant's motion to suppress. A hearing on that motion has since been held at which one of the arresting officers, Detective James Whalen, testified that he inventoried the car in which defendant was a passenger pursuant to an unwritten standardized inventory procedure. County Court credited the officer's testimony and declined to suppress the evidence because it found the search valid under the automobile exception to the warrant requirement (see, e.g., People v Belton, 55 N.Y.2d 49) and, alternatively, that it was a valid inventory search of an impounded vehicle (see, e.g., People v Gonzalez, 62 N.Y.2d 386).
We are unpersuaded that the People sustained their burden of demonstrating that the search was lawfully executed pursuant to the automobile exception (see, People v Hodge, 44 N.Y.2d 553, 557). Whalen stated that he searched the vehicle because it was being impounded. There is no evidence in the record that the circumstances surrounding defendant's arrest for petit larceny led Whalen to believe that the vehicle contained anything that might have been used in the crime's commission (see, People v Belton, supra, at 55). Accordingly, the automobile exception provides no basis for sustaining this warrantless search.
There is, however, sufficient record evidence that Whalen, found to be credible by County Court, searched the car pursuant to a standardized inventory procedure. Notably, State law is consistent with Federal law in this area (see, People v Gonzalez, supra, at 389-390). Whalen testified that he impounded the automobile because it would have presented a hazard to other drivers if left on the interstate highway, and because the occupants were in custody and were being taken to police headquarters.
It was the usual, albeit unwritten, policy of the Sheriff's department that impounded cars be inventoried to safeguard the occupants' personal effects and to protect the department from invalid loss claims. Any object of worth, based on the searching officer's determination of value, was then noted on an evidence record (compare, Florida v Wells, 495 U.S. 1, 5 [Brennan, J., concurring]). There is no indication that Whalen deviated in any way from this standard procedure (compare, People v Townsend, 152 A.D.2d 515, 517, appeal dismissed 76 N.Y.2d 746). Given the absence of any evidence that the police chose to impound this vehicle simply to investigate suspected criminal activity (see, Colorado v Bertine, 479 U.S. 367, 376; People v Gonzalez, supra, at 391), we concur in County Court's finding that the evidence need not be suppressed.
Although Whalen indicated that one of the purposes for searching an impounded car generally was to look for contraband, he did not suggest that this was the reason this vehicle was searched.
Judgment affirmed. Mahoney, P.J., Yesawich, Jr., Levine, Mercure and Crew III, JJ., concur.