Opinion
10 Cr. 498 (RPP).
February 8, 2011
OPINION AND ORDER
Defendant Anibal Colon moves to suppress physical evidence seized from his minivan on May 15, 2010 as fruits of an unlawful search.
Defendant filed the motion to suppress on September 24, 2010, and the Government filed a brief in opposition on October 5, 2010, followed by two revisions on October 7 and October 12, 2010. The Defendant filed a reply on October 13, 2010, and a suppression hearing was held on November 23, 2010. On December 16, 2010, at Defendant's counsel's request, this Court viewed the minivan from which the evidence was seized at an impound lot in Brooklyn. Post-hearing briefs were filed on December 21, 2010.
BACKGROUND
During the suppression hearing held on November 23, 2010, the Government called as witnesses Police Officers Malcolm Hart and Jean Paul Rodriguez. The Defense called Police Officers Debbie Abreu and Odalis Muniz, and the Defendant Anibal Colon.
I. Testimony of Officer Malcolm Hart
Officer Hart is an officer with the New York Police Department ("NYPD") and is a member of the Patrol Borough Bronx based out of the 40th Precinct, where he has been employed since January of 2010. (Suppression Hear'g Transcript ("Tr.") at 4.) On direct examination, Officer Hart testified that on May 15, 2010, he was working a 5:30 p.m. to 2:05 a.m. shift. (Id.) Officer Hart was patrolling on foot that evening with his partner Officer Debbie Abreu. (Id. at 5.) At approximately 10:45 that evening, Officer Hart was at the corner of East 149th Street and Third Avenue in the Bronx. (Id. at 4.) Officer Hart described this intersection as busy, with "people getting off the train, getting off the bus and on the bus, and you have regular . . . citizens walking across the street." (Id. at 10-11.) While standing on the corner of East 149th and Third Avenue, Officer Hart heard "loud noise coming from a vehicle. It was music playing and it was unreasonable. . . . the bass could be heard from blocks away." (Id.) Officer Hart testified that when he first heard the noise, it sounded as though it was "about two blocks" away, and traveling southbound on Third Avenue toward his position at the corner of Third Avenue and East 149th Street. (Id. at 5, 9.) After the light turned green, the music came closer to him, and he saw that it was coming from a minivan. (Id. at 6.) The minivan "had TVs in it, which . . . you could see from the distance, and it had [high intensity] lights." (Id.) The minivan came to a stop on East 149th Street behind a car that was stopped at a red light. (Id.)
Officer Hart asked the driver of the vehicle in front of the minivan not to move when the light changed to green, "so that the [minivan] doesn't speed off." (Id. at 7.) Officer Hart and Officer Abreu then approached the minivan, with Officer Hart approaching the driver's side and Officer Abreu approaching the passenger's side. (Id.) Mr. Colon was sitting in the driver's seat of the minivan. (Id. at 13.) He was the vehicle's only occupant. (Id.) Officer Hart asked Mr. Colon for his identification from the driver's side, and Officer Abreu asked the same question from the passenger's side. (Id. at 7.) Mr. Colon could not provide identification, but gave Officer Hart "his name, his date of birth, and his address. He [also] gave . . . a client ID number, which is a 9-digit number . . . posted on every New York State ID, on the driver's license." but did not provide a driver's license, or other identification. (Id. at 11.) After receiving the client ID number orally from Mr. Colon, Officer Hart stepped away from the minivan and called another "unit" to his location so that the number could be entered into a computer. (Id. at 12.) Officer Hart also asked Mr. Colon to move his vehicle into the bus land and out of traffic. (Id.)
One or two minutes after Officer Hart requested assistance from another unit, Officers J.P. Rodriguez and Odalis Muniz arrived at the scene in a marked police van. (Id.) Officer Hart provided Officers Rodriguez and Muniz with Mr. Colon's client ID number. (Id. at 13.) Officers Rodriguez and Muniz entered the client ID into the computer system, and the system responded "non valid person." (Id.) At that time, Officer Hart looked toward the minivan, and saw Mr. Colon seated on the passenger side of the vehicle, calling to him. (Id.) He was unable to hear what Mr. Colon was saying, but Mr. Colon's "head was actually protruding outside the vehicle." (Id. at 13-14.) Officer Hart walked up to the vehicle slowly, and when he reached the vehicle, Mr. Colon "put his head further in the vehicle" and told the Officer that he had another client ID. (Id. at 14.) Mr. Colon did not provide a driver's license. (Id.)
As Mr. Colon provided Officer Hart with the new client ID number, Officer Hart "noticed that the glove box was open." (Id.) Officer Hart was able to see inside the glove compartment and observed that "there was actually an item hanging from it and there was a strange smell coming from the vehicle." (Id.) Officer Hart identified the smell as marijuana. (Id.) He was unable to identify what the item was that he observed "hanging down from the glove compartment box," and backed away from the vehicle. (Id. at 15.)
When Officer Hart first stopped the Defendant, the glove compartment was not open. (Id. at 15.)
Officer Hart testified that he then returned to the police van, and gave the new client ID number to Officers Rodriguez and Muniz to enter into the system. (Id.) While Officers Rodriguez and Muniz checked the new ID number, Officer Hart sat in the backseat of the van and began writing a summons for unreasonable noise. (Id.) Upon entering the new client ID number into the computer system, the Officers learned that there was a suspension and a warrant for arrest in the system for Mr. Colon. (Id. at 16.) Officer Muniz then approached the minivan on the driver's side in order to ask Mr. Colon about the suspension that came up in the computer. (Id. at 17.) Officer Muniz then returned to the van, by which time the actual arrest warrant had popped into the compuer system, so the officers could see it. (Id. at 18.) Officers Hart and Rodriguez then walked over to the minivan and approached Mr. Colon on the driver's side. (Id.) They asked Mr. Colon to step outside the vehicle, because there was a warrant for his arrest in the system. (Id.) The Officers then arrested Mr. Colon, patted him down for weapons, and placed him in the backseat of the police van. (Id.) No weapons or contraband were found on the person of Mr. Colon. (Id. at 19.)
After placing Mr. Colon in the police van, Officers Hart and Rodriguez walked back to Mr. Colon's minivan and discussed how to transport the vehicle back to the 40th Precinct. (Id.) Officer Hart testified that the minivan had to be taken back to the precinct for vouchering because there were no other individuals in the vehicle, the driver had been arrested, and the vehicle was parked in the bus stop. (Id. at 20-21. As they approached the vehicle, Officer Rodriguez was on the driver's side and Officer Hart was on the passenger side. (Id. at 21.) The Officers opened the minivan's front doors. (Id.) Officer Hart was able to see the object that he had observed earlier, "which was hanging out of the top of like the dashboard in the glove compartment box, which was partially opened and partially closed at the same time." (Id. at 22.) Officer Hart touched the item, and felt a ring that felt similar to the ring on his gun, as well as a "line sticking down, a metal, hard object." (Id.) He then grabbed the outside of it and could feel that it was a gun. (Id.) Officer Hart ripped the gun down from the material and placed it in his pocket. (Id.) He then called for his supervisor to arrive on the scene, because he found a gun inside the vehicle. (Id. at 22-23.) The gun was loaded with 4 rounds of .38 caliber ammunition. (Affidavit of Malcolm Hart, dated May 16, 2010, submitted as Exhibit A to the Declaration of John Byrnes dated September 21, 2010).
Once Officer Hart's supervisor and other officers arrived, Officer Rodriguez drove the vehicle back to the precinct. (Id. at 23.) When the minivan arrived at the 40th Precinct, the vehicle was vouchered and everything inside the vehicle was checked to make sure the vehicle was safe. (Id.) Officer Hart and Officer Rodriguez worked together to voucher the vehicle. (Id. at 26.) Officer Hart testified that the vouchering process is governed by section 1813 of the NYC Patrol Guide "Internal Search of Automobile and Other Property." (Id. at 23-24.) At the suppression hearing, Officer Hart read from the Patrol guide (Govt. Ex. 6) which states "whenever any property comes into custody of this department, an inventory search will be conducted as follows," and listed the areas of an automobile that are to be searched as part of an inventory search: "glove compartment, console, map pockets on doors, areas under the seat and around the seat stuffing and springs, under the floormats, under and behind the dashboard, inside the ashtray, in the air vents where accessible, under the hood, and trunk." (Id. at 25.)
In the course of the voucher search, Officer Hart and Officer Rodriguez found 19 decks of heroin, money and a bag of marijuana. (Id.) The heroin was labeled "Avatar," and had rubber bands around it, and was found in a container of rice in a plastic bag. (Id.) This plastic bag was found in a space above the glove compartment. (Id.) Officer Hart testified that "inside the glove compartment box, there was a hole on top of it in which the gun was hanging from inside a cloth. When the cloth was removed, [the bag with the heroin] was on the right-hand side of . . . the gun, further up inside the dashboard" (Id. at 27.)
The Officers vouchered a 13-inch flat-screen TV that was connected to the ceiling of the car, and a Sony camcorder found on the floor on the passenger's side of the vehicle. (Id. at 30.) The black insulation cloth that surrounded the gun, as well as loose marijuana residue found on the cloth were each vouchered as Exhibit 9 and labeled Number 2. (Id. at 37-38.) A separate clear plastic bag which contained marijuana found in the area above the glove compartment, and its contents, were vouchered as Exhibit 9 and labeled Number 1. (Id. at 38-39.) Finally, the money found in the plastic bag containing the rice and the decks of heroin was vouchered, along with money found in Mr. Colon's pockets. (Id. at 46.) A total of $910 was vouchered. (Id. at 40.) Officer Hart testified that the Officers found about $500-600 on the person of Mr. Colon. (Id. at 48.)
On cross-examination, Officer Hart clarified that the space above the glove compartment, which was found to contain the bag of rice holding the heroin and cash, the bag of marijuana, and from which hung the gun wrapped in cloth, was connected to the glove compartment through a hole big enough to reach his hand into. (Id. at 54.) Officer Hart further testified that he cut the insulating cloth that was hanging from the hole free from the glove compartment with a knife. (Id. at 56.) Upon further questioning, Officer Hart explained:
"The cloth was hanging down. The cloth, when it was hanging down, is connected to the dashboard. All the items that I said was inside it was behind it. So at one point before I ripped the gun off, they were on the cloth but behind the gun. The gun was ripped off separately and the items were remaining inside of it, inside the dashboard."
(Id. at 59.)
On cross-examination, Officer Hart was questioned about his initial approach to the vehicle, during which he requested Mr. Colon's identification. (Id. at 61-62.) Defendant's attorney pointed out that in his grand jury testimony, Officer Hart had testified that the Defendant provided him with registration and insurance, while on direct Officer Hart testified that he received no documents from Mr. Colon. (Id. at 62.) Officer Hart did not deny offering such testimony but also could not recall testifying that he received those documents. (Id. at 63.)
Officer Hart also testified on cross-examination that when Mr. Colon was trying to obtain his attention to provide the second client ID, while Officer Hart was in the police van, Mr. Colon was seated in the passenger seat of the van. (Id. at 66.) Officer Hart further testified on cross that when he first approached the minivan, he did not smell marijuana, and only smelled it when he returned to the vehicle and was provided the second client ID number. (Id. at 67.) Officer Hart explained that at the time he smelled the marijuana, he did not arrest Mr. Colon or write out a summons. (Id. at 68.) Officer Hart testified that "just smelling marijuana" was not a reason to arrest Mr. Colon. (Id. at 69.)
Officer Hart testified that when Mr. Colon was finally arrested, after the Officers had an arrest warrant appear in their computer system that corresponded to his client ID, Mr. Colon had some difficulty getting out of the car, "because his leg was hurting." (Id. at 72.) Officer Hart did not recall Mr. Colon having crutches with him in the vehicle. (Id.) Officer Hart testified on cross that he did not recall having any conversation with Mr. Colon regarding Mr. Colon's wife picking up the minivan. (Id. at 73.)
Officer Hart testified that he was unable to recall whether the marijuana odor he described was that of smoked marijuana or raw marijuana. (Id. at 81.)
On redirect, Officer Hart clarified that he smelled marijuana both when he approached the minivan to obtain Mr. Colon's second client ID number, and when he approached the minivan to arrest Mr. Colon on the warrant. (Id. at 86.) Officer Hart also affirmed that he "knew for a fact" that the odor was marijuana. (Id. at 87.)
B. Testimony of Officer Jean-Paul Rodriguez
Officer Jean-Paul Rodriguez is employed by the NYPD and assigned to the patrol borough Bronx IRT unit, where he has been assigned for the past year. (Id. at 89.) His duties include patrolling the streets, usually on foot, to prevent crime and look for quality of life offenses. (Id.)
On direct examination, Officer Rodriguez testified that on the evening of May 15, 2010, he was working the 6 p.m. to 2 a.m. shift with his partner Officer Muniz. (Id.) The two officers occupied van 8576, in which Officer Rodriguez was a passenger, while Officer Muniz drove. (Id.) At about 10:45 p.m., they overheard "on the air" that a car was stopped, and they reported to the location of the stop at Third Avenue and 149th Street. (Id. at 89-91.) They responded very soon after they heard about it on the radio. (Id. at 90.) When Officer Rodriguez arrived at the intersection, he first noticed a vehicle parked in a bus stop area. (Id. at 91.) He observed the Defendant in the driver's seat, and saw no one else in the vehicle. (Id.) Officers Hart and Abreu came to the van where Officer Rodriguez was sitting and provided Officer Rodriguez with a piece of paper with a New York State ID number written on it. (Id. at 92.) Officer Rodriguez then entered this number into the van's computer system. (Id. at 93.) The system replied that it had no record of that number. (Id.)
While Officer Rodriguez was entering the number, he looked toward the stopped minivan and saw the Defendant move into the passenger seat. (Id.) He testified that the Defendant was moving around in the passenger seat, and that he observed his "head bobbing." (Id.) After the computer system responded that the client ID number was invalid, he heard the Defendant yelling another number "outside the passenger window." (Id.) Officer Rodriguez was unable to tell what the number was. (Id.)
Officer Rodriguez then watched Officer Hart go to the passenger side of the minivan to retrieve the second number. (Id. at 94.) Officer Hart returned and provided the new number, which Officer Rodriguez entered into the system. (Id.) The system showed that "the defendant had a warrant, that it specifically said something about that he was a gang member. There was a conditional on some motorcycle license that seemed awkward. It could have been for driving while impaired or something of that nature. It was just not of the usual." (Id. at 95.) The Officers then discussed placing the Defendant under arrest and bringing him to the 40th Precinct. (Id.) Officer Rodriguez next saw Officer Hart arrest the Defendant and put him in handcuffs. (Id.) Officer Hart then brought the Defendant to the police van occupied by Officer Rodriguez. Next, Officers Hart and Rodriguez discussed what to do with the minivan. (Id. at 96.) Officer Rodriguez explained that they were discussing how to handle the vehicle because:
"[T]here was nobody we could give the vehicle to. And because of the area that it was at, we knew we had to move it out of the area. It couldn't be left on Third Avenue, because it was left at a bus stop, a high density area, people. Because of the equipment, we could not just leave it there, because it might get broken into or whatnot. So we knew we would just have to bring it to the 40 Precinct."
(Id. at 97.)
Officer Rodriguez then told Officer Hart that he would drive the van to the precinct. (Id.) The two officers approached the vehicle; Officer Rodriguez on the driver's side and Officer Hart on the passenger's side. (Id.) Officer Rodriguez testified that they scanned the front seat area for any safety risks before sitting in the car, pursuant to their normal procedure. (Id. at 98.) Officer Rodriguez focused on the driver's side floor and seat, "anything [his] body would be touching." (Id. at 98.) Officer Hart then asked him "Do you smell marijuana?" (Id.) Officer Rodriguez leaned toward the passenger's side of the vehicle and confirmed that he did smell marijuana. (Id.) Officer Rodriguez testified that the smell was coming from the front of the vehicle, and therefore he looked toward the glove compartment. (Id. at 99.) The glove compartment was open at the time he was scanning the vehicle. (Id.) He noticed a cloth sticking out from on top of the glove compartment. (Id. at 100.) He saw Officer Hart reach at the same cloth Officer Rodriguez had observed, and he watched as Officer Hart put his hand inside that cloth and say "I think I have a gun." (Id.) He then saw Officer Hart put the gun in his pocket. (Id.) Then Officers then radioed for a supervisor. (Id. at 101.)
After the sergeant arrived on the scene, Officer Rodriguez drove the minivan back to the 40th Precinct. (Id.) The Officers were then told by their supervisor to voucher the vehicle, which he understood was because they found a gun in this vehicle. (Id. at 102.) As they vouchered the vehicle, Officer Hart searched the vehicle while Officer Rodriguez wrote down what was found. (Id.) While seated in the passenger's seat, Officer Hart found a white plastic bag containing money and what appeared to be heroin in the upper part of the glove compartment. (Id.) Officer Rodriguez was standing next to him outside the vehicle at this time. (Id. at 103.)
On cross-examination, Officer Rodriguez provided further explanation regarding the glove compartment. (Id. at 104-105.) He explained that the van's glove compartment "comes down and there is a pocket, so something can stick down from it." (Id. at 104.) With regard to the object he noticed in the glove compartment, Officer Rodriguez testified that "there was a cloth. There was something that did not — didn't look usual." (Id. at 108.)
Officer Rodriguez was then cross-examined regarding his recollection of smelling marijuana in the van. (Id. at 113-114.) Officer Rodriguez testified that the odor he detected was the odor of raw marijuana, not of someone smoking marijuana. (Id. at 114.) Defendant's counsel then asked whether Officer Rodriguez had any experience smelling marijuana that was in a Ziploc bag. (Id. at 115.) Officer Rodriguez replied that "You can't smell marijuana in a Ziploc bag." (Id.) He further testified that there some marijuana in a Ziploc bag was ultimately found in the vehicle, but "there was also loose." (Id.)
Officer Rodriguez also testified on cross examination regarding the Defendant's efforts to attract police attention and provide his second client ID number. (Id. at 119.) Officer Rodriguez testified that he heard yelling outside the passenger's side of the vehicle, and that he observed as Officer Hart approached the Defendant from the passenger side. (Id. at 118-119.) Officer Rodriguez then testified that when Officer Hart returned to the vehicle to remove Mr. Colon and effect the arrest, Officer Hart approached the passenger's side of the minivan. (Id. at 121.) Officer Rodriguez also testified that he remembered the Defendant having difficulty walking and that he recovered crutches from the vehicle. (Id. at 122.)
Defendant's counsel next cross-examined Officer Rodriguez regarding the voucher search. (Id. at 123-126.) Officer Rodriguez testified that he and Officer Hart searched the van once it got back to the precinct. (Id. at 123.) He explained that during the voucher search he watched as Officer Hart removed the bag of rice and heroin from on top of the glove compartment. (Id. at 124.) He saw that Officer Hart stuck his hand through an opening in the glove compartment, the same hole from which he originally pulled the gun. (Id. at 125.) Officer Rodriguez did not know how big the hole was. (Id.)
On re-cross examination, Officer Rodriguez was asked to describe the initial scan search he and Officer Hart undertook when they first approached the vehicle following Mr. Colon's arrest. Officer Rodriguez explained:
"Both doors are open. Both of us are looking inside the vehicle and scanning inside. I can tell you I'm standing outside, leaning forward toward the passenger side, scanning, looking, looking, looking and then he tells me, do you smell marijuana? I put my head up, and that's when I leaned forward more and I say, yes. So I wasn't sitting down."
(Id. at 130-131.)
Officer Rodriguez further testified that when he saw Officer Hart touch the black cloth, Officer Hart was on the passenger side of the vehicle. (Id. at 131.)
C. Officer Debbie Abreu
The Defendant called Officer Debbie Abreu to testify. On direct examination, Officer Debbie Abreu testified that around 10:50 p.m. on May 15, 2010, she was working with Officer Hart, her partner, in the vicinity of 149th and Third Avenue in the Bronx. (Id. at 132-133.) Officer Abreu recalled that she and Officer Hart heard loud music playing, and eventually determined that it was coming from the defendant's vehicle. (Id. at 134.) When the Officers stopped the vehicle, Officer Abreu approached the driver's side and Officer Hart approached the passenger's side. (Id.) She testified that the minivan's windows were open when she requested Mr. Colon's credentials. (Id. at 135.) Mr. Colon provided her with the registration and insurance information, but not a driver's license. (Id. at 136.) Mr. Colon fumbled in his pocket looking for the information. (Id.) She testified that she "didn't look at the glove compartment," and didn't know whether it was open or closed. (Id. at 137.) She also did not remember smelling marijuana. (Id.)
Officer Abreu testified that she and Officer Hart called a police van that has a computer in it to run the license number provided by the Defendant. (Id. at 138.) She and Officer Hart then asked Mr. Colon to move his car over to the side away from traffic. (Id.) After the van arrived, the license number was given to the officers in the van. (Id. at 138.) She then stayed in the van with Officer Muniz, and Mr. Colon was arrested and brought to the van. (Id. at 139.)
On cross examination, Officer Abreu testified that she only went to Mr. Colon's vehicle once, when he was initially stopped. (Id.) She also clarified that when Mr. Colon pulled his vehicle out of traffic, the minivan was parked at a bus stop. (Id. at 140.)
D. Testimony of Officer Odalis Muniz
The Defendant next called Officer Odalis Muniz to testify. Officer Muniz testified on direct examination that she was also present at the arrest of Anibal Colon on May 15, 2010 of this year. (Id. at 141.) Officer Muniz was driving the police van equipped with a computer to check driver's licenses. (Id.) She recalled receiving a call on her cell phone, around 11 p.m. that evening from Officer Abreu. (Id. at 142.) When the police van arrived at the corner of 149th and Third Avenue, Officer Muniz saw Officers Abreu and Hart standing on the street as well as a minivan. (Id. at 143.) Officer Muniz then testified that either herself or Officer Rodriguez entered a number provided by either Officer Abreu or Hart into the computer system. (Id.) While this number was being entered, Officer Muniz was watching the minivan. (Id.) She watched the minivan because "that is standard procedure. If there is a car stopped, one of us has to keep an eye on the vehicle and occupant within the vehicle." (Id. at 144.)
Officer Muniz testified that at some point, she saw the Defendant's head on the passenger side of the vehicle. (Id.) She then saw Officer Hart go to the vehicle, and return a few minutes later with another number. (Id.) This second number was then ran in the computer system, and came up as the record of Anibal Colon. (Id.) Officer Muniz testified that "Mr. Colon's license came up with a double endorsement, one for regular driving privileges and another one with a motorcycle license endorsement. The motorcycle endorsement came up suspended. So I went to ask Mr. Colon what happened with that endorsement." (Id. at 145-146.) She approached Mr. Colon at the driver's side of the vehicle. (Id. at 146.) When she approached, the driver's side window was closed, and Mr. Colon then lowered it halfway. (Id. at 147.) Officer Muniz did not smell marijuana in the car. (Id. at 146.)
On cross-examination, Officer Muniz testified that in addition to the motorcycle license that came up when they ran Mr. Colon's ID, a warrant also appeared in the system. (Id. at 147.)
E. Testimony of Anibal Colon
As a final witness, the defense called Anibal Colon. Mr. Colon testified that on the evening of May 15, 2010, he went to Pizza Hut with his wife and his two kids. (Id. at 149.) They were then going to go a movie, but because it was sold out, returned home. (Id.) Mr. Colon dropped his wife and kids at home, and then decided to go to a friend's house to pick up a DVD series. (Id. at 151.) His friend lived at 136th Street between St. Ann's and Cypress Avenue in the Bronx. (Id.)
He drove to his friend's house in his Nissan Quest, a minivan. (Id.) He was playing music as he drove. (Id.) As he pulled up to a red light at the intersection of Third Avenue and 149th Street, two police officers approached the car. (Id.) Mr. Colon testified that Officer Abreu approached his passenger's side, while Officer Hart approached his driver's side. (Id.) Mr. Colon lowered the window on the passenger's side, and Officer Abreu asked for license and registration. (Id. at 152.) Mr. Colon asked why she needed his license and registration. (Id.) Officer Hart then tapped on his driver's side window, which Mr. Colon pulled down, and asked for his license and registration. (Id.) Mr. Colon again asked why this was needed. (Id.) While searching for his papers, he opened and closed the glove compartment. (Id.) He then provided the Officers with his insurance and registration. (Id.) He did not provide his driver's license. (Id. at 153.)
In addition to the insurance and registration, Mr. Colon provided the officers with his license ID number. (Id.) He had this number memorized because he had spent a lot of time at the Department of Motor Vehicles prior to the stop. (Id.) Officer Hart then asked Mr. Colon to reverse his vehicle into a bus stop. (Id. at 154.) The Officers then told Mr. Colon to "sit tight." (Id.)
Mr. Colon then noticed that a police van that pulled up, and the officers who had approached earlier walked toward the police van. (Id.) Mr. Colon called his wife to check whether the numbers he provided to the police were correct. (Id. at 154-155.) His wife found his driver's license and recited the number to him, and Mr. Colon realized that the number he had provided had an incorrect digit. (Id. at 155.) He then proceeded to get the officer's attention by waving his hand out the driver's side window, and shouting out the passenger side window. (Id.) Officer Hart then came back to the vehicle, and approached the passenger side. (Id. at 155-156) When Officer Hart returned, the glove compartment was closed. (Id. at 155-156.) Mr. Colon provided Officer Hart with the new license ID number. (Id. at 156.)
Mr. Colon testified that he was never seated in the passenger seat at any point during this incident. (Id.) He had rested on his arm on the passenger seat so he could lean out the window when he was trying to provide the police with the correct ID number. (Id.) The evening of May 15, 2010, Mr. Colon was wearing a brace on his knee and carrying crutches, because he was hit by a car that March, and had surgery on his knee. (Id. at 157.) Mr. Colon testified that it would have been difficult for him to go from the driver's side to the passenger's side in his vehicle. (Id.) Mr. Colon further testified that he did not smoke marijuana in his car that day, and that neither did anyone else. (Id. at 159.)
Next, Mr. Colon testified that Officer Muniz came up to his vehicle, on the driver's side, and asked him about his motorcycle license suspension. (Id. at 158.) Mr. Colon told her that he only had a motorcycle permit but that he knew his driver's license was valid because he had gone to the Department of Vehicles a week earlier and had to pay a fine to get his license back into valid status. (Id. at 158-159.) Officer Muniz responded that "it's coming up suspended," and walked toward the van. (Id. at 159.) Then, Officer Hart approached the vehicle, on the driver's side, and told Mr. Colon to step out and that he was being arrested. (Id.) Officer Hart helped Mr. Colon out of the vehicle because of his injury. (Id. at 160.)
Mr. Colon stated that Officer Hart next asked "if there was anyone who could pick up the vehicle, and I told him yes, that my wife could come. He said, all right, fine, I'll let you call her in a second." (Id.) Officer Hart then took Mr. Colon to the van and searched him. (Id.) Once he was placed inside the van, Officer Hart and Officer Rodriguez went to the minivan. (Id. at 161.)
Defense counsel next inquired about the glove compartment:
Q: You opened and closed the glove compartment several times, is that right? You opened and closed that compartment because that was your van, right?
A: Yes.
Q: You used the glove compartment, is that right?
A: Yes.
Q: Was there any hole in the glove compartment that you were aware of?
A: No Sir.
Q: Was there any hole or was there any divider or anything that could fit some roughly 2-inch piece of cloth that could protrude over there, as far as you know?
A: No.
(Id. at 164.)
At the precinct, the Defendant spoke to a detective, who asked him if he knew why he was there. (Id. at 165.) The Defendant replied that he was there for two warrants. (Id.) The detective replied "that's the least of your problems," and showed the Defendant a picture of a gun on his iPhone. (Id.) This conversation happened about five to ten minutes after Mr. Colon arrived at the precinct. (Id.)
Mr. Colon testified that he has been convicted of several crimes, including at least one felony. (Id. at 166.) Mr. Colon also testified that he had previously been convicted of robbery and drug crimes. (Id.)
On cross-examination, Mr. Colon testified that he had paid about $3,000 for his minivan about seven months prior to the incident. (Id. at 167.) He stated that he and his wife are the only people who drive the car. (Id.) Mr. Colon restated that he did not smoke marijuana in the car that day, but acknowledged that he had previously been arrested and pled guilty to charges of driving under the influence of marijuana and possessing marijuana while driving a car. (Id. at 170.)
Mr. Colon was next cross-examined on the availability of his wife to pick up the car. (Id. at 171.) Mr. Colon acknowledged that his wife was not standing outside the vehicle, and that he had no other friends or relatives standing just outside the vehicle. (Id.) The Court then asked Mr. Colon his home address, which is 1349 Franklin Avenue in the Bronx. (Id. at 172.) Mr. Colon explained that his home is about an eight minute drive from the corner of 149th Street and Third Avenue, where the arrest took place. (Id.) The Government introduced a sworn Declaration submitted by Mr. Colon, dated September 17, 2010, as Exhibit 33. (Id. at 174.) In that document, Mr. Colon stated "while the officer was placing me inside the police vehicle, the officer asked me if anyone was immediately available to pick up my car. I advised the officer that my wife could pick up the minivan." (Declaration of Anibal Colon, September 17, 2010 at ¶ 7.)
Mr. Colon was also cross-examined with regard to his minivan, and testified that after he purchased the car, he added a TV monitor and a sound system. (Id. at 175.)
At the conclusion of the cross-examination, the Court asked a few additional questions. The Defendant testified that he estimates that his van is about four feet wide from the passenger's side to the driver's side. (Id. at 177.) He also testified that he is 510 tall. (Id.) The Court asked whether he didn't slide himself, with his good leg, into the passenger seat the evening he was arrested, and Mr. Colon denied doing so. (Id.) Mr. Colon explained that he leaned out the driver's side window and waved his hand out the driver's side, and then leaned over to het passenger side and yelled out that window. (Id. at 178.)
DISCUSSION
I. Automobile ExceptionThe Government contends that the evidence seized from the minivan without a warrant is admissible pursuant to the automobile exception.
"[S]earches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnote omitted). One such exception is the "automobile exception." The automobile exception provides that law enforcement officers may conduct a warrantless search of a readily mobile vehicle "where there is probable cause to believe that the vehicle contains contraband." United States v. Navas, 597 F.3d 492, 497 (2d Cir. 2010). Where the probable cause upon which the search is based "extends to the entire vehicle," the permissible scope of a search pursuant to this exception includes "`every part of the vehicle and its contents [including all containers and packages] that may conceal the object of the search."' United States v. Harwood, 998 F.2d 91, 96 (2d Cir. 1993) (alteration in original) (quoting United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)).
This exception has been justified under two theories. "First, the Court has noted that a persons' expectation of privacy in a vehicle is less than his or her expectation of privacy in a home,see Cardwell v. Lewis, 417 U.S. 583, 590 (1974), and second, the Court has held that because a vehicle is readily movable, exigent circumstances might require a warrantless search, see Carroll v. United States, 267 U.S. 132, 153 (1925)." United States v. Howard, 489 F.3d 484, 492 (2d Cir. 2007). "The mobility rationale . . . does not turn on case-by-case determinations by agents in the field regarding either the probability that a vehicle could be mobilized or the speed with which movement could be achieved. Rather, `[w]hether a vehicle is `readily mobile' within the meaning of the automobile exception has more to do with the inherent mobility of the vehicle than with the potential for the vehicle to be moved from the jurisdiction, thereby precluding a search.' Howard, 489 F.3d at 493." Navas, 597 F.3d at 498.
In order for the seized evidence to be admitted pursuant to the automobile exception, the officers must demonstrate that at the time of the search, they had "probable cause to believe the vehicle contained contraband." United States v. Navas, 597 F.3d at 497. Under New York Penal Law § 221.05, the possession of marijuana is a violation punishable by a fine of not more than one hundred dollars. N.Y. Penal Law § 221.05 (McKinney 2008). Because the possession of marijuana is unlawful, marijuana is a form of contraband. The Government asserts that the officers had probable cause for such belief because they detected the smell of marijuana coming from the vehicle when talking with the Defendant through the open passenger's side window. The odor of marijuana coming from a vehicle can establish probable cause. United States v. Jackson, 652 F.2d 244, 252 n. 6 (2d Cir. 1981); United States v. Martin, No. 09-1382, 360 Fed. Appx. 686, 690 (7th Cir. 2010).
Both Officer Hart and Officer Rodriguez testified that they smelled marijuana around the passenger's side of the Defendant's minivan. Officer Hart testified that he first smelled marijuana when he approached the minivan for the second time, on the passenger's side, to obtain Mr. Colon's new client ID number. (Tr. at 14.) Officer Hart testified that at that time the glove compartment was open. (Id.) Officer Rodriguez also noticed the smell of marijuana. Officer Rodriguez explained that during the safety scan the officers conducted prior to driving the vehicle, he was scanning the driver's side, while Officer Hart was scanning the passenger's side. (Id. at 98.) Officer Hart asked Officer Rodriguez whether he smelled marijuana, and when Officer Rodriguez leaned over to the passenger's side, at which point he smelled the odor of marijuana. (Id.) Officer Rodriguez was able identify the odor as that of raw, as opposed to smoked, marijuana. (Id. at 114.)
Defendant testified that no marijuana had been smoked, by himself or anyone else, in the car that day. (Id. at 149.) This testimony is not necessarily inconsistent with the Officers' testimony that they detected the odor of marijuana in the car, because Officer Rodriguez testified that the odor he smelled was of raw marijuana, not smoked marijuana. Probable cause determinations are made on the basis of what information the police had at the time of seizure, United States v. Scopo, 19 F.3d 777, 783 (2d Cir. 1994), however, the fact that a small quantity of loose raw marijuana was ultimately found on the cloth in which the gun was found in the glove compartment lends credibility to the Officers' testimony that they smelled marijuana near the passenger's side of the vehicle.
Upon encountering the suspicious smell, Officers Hart and Rodriguez had probable cause to believe that the car contained contraband, namely, marijuana. It was only after Officer Hart detected the odor of marijuana that Officer Hart reached into the open glove compartment to investigate the unusual piece of cloth he observed hanging from the top of the compartment and found the gun. At the time this search was conducted, Officers Hart and Rodriguez had probable cause to believe the vehicle contained contraband, and therefore the search was not a violation of the Defendant's constitutional rights under the automobile exception to the warrant requirement.
II. Plain View/Feel Doctrine
In the alternative, the Government argues in its corrected Memorandum in Opposition filed on October 7, 2010, that the evidence was properly seized from the minivan pursuant to the plain view/plain feel doctrines. This argument was omitted from the post-hearing brief.
The plain view doctrine provides that law enforcement officers may lawfully seize an item without a warrant where 1) the agents have lawful access to the place from which the item can be plainly viewed; 2) the objects seized are in plain view at the time they are discovered; and 3) it is "immediately apparent" that there is probable cause to believe that the item constitutes evidence or fruit of a crime. Horton v. California, 496 U.S. 128, 136 (1990). The "plain feel" variation of the plain view doctrine provides similarly that law enforcement officers may lawfully seize evidence they touch and can plainly feel is contraband or contains contraband. Minnesota v. Dickerson, 508 U.S. 366 (1993). The plain feel doctrine applies to the seizure of objects in containers as well as objects found on the person of a suspect.United States v. Ocampo, 650 F.2d 421, 429 (2d Cir. 1981).
Neither Ocampo nor United States v. Diaz, 577 F.2d 821, 824 (2d Cir. 1978), cases cited by the Government, support the application of the plain view doctrine to this case. There was no reason for the Officers to believe that the piece of cloth in the glove compartment posed an imminent threat to them as they relocated the van back to the precinct. Absent the probable cause established by the odor of marijuana, as previously discussed, there is nothing inherently incriminating about black cloth, and the Officers would have had no reason to touch it. The evidence presented does not demonstrate that the seizure of the gun is justified by the plain view or plain touch doctrines.
III. Inevitable Discovery
The Government also contends that even if the seized evidence is not admissible pursuant to the automobile exception, it would still be admissible under the inevitable discovery doctrine.
Under the inevitable discovery doctrine, evidence is not suppressed where "the government can prove that the evidence would have been obtained inevitably even if there has been no statutory or constitutional violation." United States v. Mendez, 315 F.3d 132, 137 (2d Cir. 2002). The inevitable discovery doctrine is applied "only where there is a high level of confidence that each of the contingencies required for the discovery of the disputed evidence would in fact have occurred."United States v. Heath, 455 F.3d 52, 55 (2d Cir. 2006).
In this case, the Government contends that the evidence would have been inevitably discovered during a legal inventory search of the vehicle after it was brought to the police precinct. Where the police lawfully take a vehicle into their custody, they are permitted to conduct an inventory search of the vehicle without a warrant or probable cause to believe the vehicle contains contraband. United States v. Lopez, 547 F.3d 364, 369 (2d Cir. 2008). Inventory searches may permissibly implicate the inevitable discovery doctrine where the government establishes the following three elements:
(1) That the police had legitimate custody of the vehicle or other property being searched, so that an inventory search would have been justified; and
(2) That when the police in the police agency in question conducted inventory searches, they did so pursuant to `established' or `standardized' procedures'; and
(3) That those inventory procedures would have inevitably led to the discovery of the challenged evidence.Mendez, 315 F.3d at 138.
A. The Legitimacy of the Police Custody of Defendant's Vehicle
Under the first element of the Mendez test, the Government must demonstrate that the Officers' decision to impound the Defendant's vehicle was legitimate.
The Supreme Court has held that police have the power to impound vehicles where it is "[i]n the interests of public safety and as a part of what the Court has called `community caretaking functions.'" South Dakota v. Opperman, 428 U.S. 364, 387 (1976). "Police officers may exercise their discretion in deciding whether to impound a vehicle, so long as that discretion is `exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.'" Colorado v. Bertine, 479 U.S. 367, 375 (1987). "[W]hen a person is taken into custody after being stopped in his vehicle, it is reasonable for police officers to impound the vehicle under the community care functions where, among other things, the vehicle would otherwise potentially impede traffic, threaten public safety, or be subject to vandalism." United States v. Bailey, 468 F.Supp.2d 373, 392 (E.D.N.Y. 2006). See also South Dakota v. Opperman, 428 U.S. at 373.
In this case, the minivan was taken into police custody after Mr. Colon had been arrested. (Tr. at 19.) There was no one else in the immediate vicinity to move the vehicle to a different location, (Id. at 97, 172) and the vehicle was parked at a bus stop in an area that the police witnesses testified was a busy area with transit connections. (Id. at 10, 97.) The Officers could reasonably have concluded that the presence of the minivan in a bus stop would impede traffic. In addition, had the vehicle been left unattended, it could have been susceptible to vandalism or theft, particularly in light of the fact that it contained an after-market stereo system and flat screen monitor. (Id. at 175.) Moreover, according to a post-hearing Affidavit submitted by Steven Csankany, Captain in the NYPD and currently commanding officer for the Bronx Anti-Crime Unit, "it is the practice and policy of the NYPD to properly safeguard vehicles when all the occupants of a vehicle is [sic] arrested."
Defendant contends that prior to impounding the vehicle, Officer Hart asked him whether there was anyone who could come and pick it up, to which Defendant replied that his wife was available to come and take the car. Officer Hart denied having such a conversation with the Defendant. (Id. at 73.) In any event, the Defendant testified that his wife was about an eight minute drive away from the car's location. (Id. at 172.) It is unclear how his wife would have arranged transportation to that site, or whether he knew if she was available to travel to that site and take custody of the car. Even if such a conversation took place, the Officers were entitled to employ their discretion, in the name of community caretaking, and impound the car rather than arranging for the Defendant's wife to arrive to pick the car up. Bailey, 468 F.Supp.2d at 392.
Defendant's counsel argues that Officer Hart inquired whether someone would be available to take possession of the car, and only decided to impound the car upon discovering the gun during an allegedly improper search. Officers Hart and Rodriguez, however, testified that they returned to the minivan and began scanning the front seats so that Officer Rodriguez could drive the minivan to the Precinct and it could be vouchered. (Tr. at 21-23, 97-101.) It was only after they made the decision to take the car to the precinct that they found the gun.
Defendant testified that he was asked if anyone was available to pick up the car, and that he replied that his wife could come and pick it up. (Id. at 160.) Giving full credit to Defendant's testimony regarding this conversation, it still would have been reasonable, upon hearing Defendant's response and learning that there was no one in the immediate vicinity to take the car, for Officer Hart to decide to impound the vehicle. Indeed, Officer Rodriguez testified that he and Officer Hart discussed who would take the car back to the precinct "because there was nobody we could give the vehicle to."
Accordingly, the decision to impound the vehicle was reasonable under the Fourth Amendment. See United States v. Barrios, No. 07 Cr. 658, 2007 WL 3256945 (S.D.N.Y. November 1, 2007).
B. The Conduct of the Inventory Search
In considering the second element of the Mendez test, the Court must consider whether the inventory search was conducted pursuant to "established" or "standardized" procedures. Officers Hart and Rodriguez testified that they followed the procedures set forth in the NYPD Patrol Guide, Section 218-13, "Inventory Searches of Automobiles or Other Property." The Guide, portions of which were read into the record, requires that all seized vehicles be searched "thoroughly," to protect property, prevent unwarranted claims of theft, and protect officers and others from danger. The procedures specifically state that the glove compartment can be searched. Therefore, even if Officer Hart's initial search of the glove compartment and seizure of the gun had been unlawful, the glove compartment still would have been searched as part of a standard inventory search once the minivan was taken to the Precinct.
C. The Inevitability of Discovering the Seized Evidence
The final element of the Mendez test is whether the inventory procedures would have inevitably led to the discovery of the seized evidence. It is clear that an inventory search of the vehicle would have led to the discovery of the seized evidence. Upon scanning the glove compartment, the Officer would have observed the unusual-looking cloth hanging down from the glove compartment, and would have found the gun. Once the gun had been discovered, the Officers would have, under the policies, been able to engage in a more intrusive search because they would have grounds to reasonably suspect that the vehicle contains contraband other weapons. Therefore, the discovery of the marijuana and heroin in the hidden compartment just adjacent to the location of the loaded gun would have been inevitable.
Based on the application of the three-factor Mendez test, the impoundment and inventory search of Defendant's vehicle were reasonable. This Court finds that there is a high likelihood that the evidence seized would have been discovered during the inventory search even if Officer Hart had not found the gun at the scene of Defendant's arrest.
CONCLUSION
The evidence seized from Defendant's minivan was seized lawfully under the automobile exception to the warrant requirement, and would have been inevitably discovered during a lawful inventory search. Defendant's motion to suppress is accordingly denied.
IT IS SO ORDERED.