People v Taylor

[*1] People v Taylor 2006 NY Slip Op 50190(U) [11 Misc 3d 1053(A)] Decided on February 15, 2006 Supreme Court, Bronx County Sonberg, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 15, 2006
Supreme Court, Bronx County

The People of the State of New York

against

Dennis Taylor, Defendant.



2741/02



For the People:Robert T. Johnson

District Attorney

Bronx County

198 East 161st Street

Bronx, NY 10451

(718) 590-2000

Bruce R. Birns Of Counsel

For the Defendant:Kevin M. Canfield

111 John Street, Suite 800

New York, NY 10038

(212) 966-5780

Michael R. Sonberg, J.

Defendant was indicted and charged with two counts of Murder in the Second Degree [PL 125.25(1)] and [PL 125.25 (2)], one count of Manslaughter in the First Degree [PL 125.20 (1)], and one count of Criminal Possession of a Weapon in the Fourth Degree [PL 265.01 (1)]. All charges relate to the death of Emma Stevens. He moves to suppress tangible evidence seized at the time of his arrest and post-arrest statements.

A combined pre-trial Dunaway/Mapp/Huntley suppression hearing was held on September 28, 2005 and continued on September 29, 2005, during which three witnesses testified for the prosecution: retired Lieutenant Chuck Mitchell and Acting Sheriff Mark Gower, both from the Iron County Sheriff's Department in Cedar City, Utah, and NYPD Detective Steven Rodriguez of the 44th Precinct Detective Squad, Bronx County, New York. Defendant called no witnesses and presented no evidence. For the reasons set forth below, defendant's motion is granted in part and denied in part.

[*2]FINDINGS OF FACT [FN1]

The Court finds retired Lt. Chuck Mitchell, Acting Sheriff Mark Gower and Det. Steven Rodriguez to have been credible. On May 17, 2002, then-Lieutenant Chuck Mitchell, a 27-year veteran of the Iron County, Utah, Sheriff's Department in Cedar City,[FN2] was in uniform in the early morning hours while patrolling in a marked Sheriff's vehicle. He was the second-in-command in the Sheriff's Department. Present in Lt. Mitchell's vehicle was his brother, Tom Mitchell, a civilian. His assigned tour was 8:00 A.M. to 4:00 P.M.

On this day, as was his usual practice, he was out in his vehicle earlier than 8:00 A.M. At approximately 6:54 A.M., he received a radio dispatch indicating that a taxi cab from Las Vegas, Nevada, had been car jacked by use of a shotgun. The radio dispatch described the car jacker as a male black,[FN3] with close cropped hair, slender build, approximately 180 lbs., wearing a dark colored baseball cap with a large "D" on front and light colored clothing. The radio dispatch also indicated that the cab driver had been ordered out of the cab between one and one and one-half miles west of Interstate 15, almost five miles south of Cedar City. The cab driver indicated that he was out or almost out of gas when he was ordered out of the vehicle on a dirt road. Interstate 15 runs the length of Utah into Nevada. The dispatch information was that the cab had been traveling northbound on I-15 for at least 165 miles. Lieutenant Mitchell testified that the dispatch call was based on a telephone call from the cab driver; it is unclear whether the caller identified himself in the call as John Callahan, but it is clear that he did identify himself as the driver of the cab that had been car jacked.

Acting upon the report, Lt. Mitchell proceeded to the north end of Cedar City and approximately 15 minutes later, between 7:00 and 7:15 A.M., was headed south on Main Street, towards the center of Cedar City, when he noticed a man walking on the sidewalk, matching the description in the radio dispatch. He observed that the man, identified as the defendant, was a tall, young (approximately 29 years of age) male black, with close cropped hair, slender build (approximately 180 lbs.), wearing a dark colored baseball cap and light colored clothing (light colored pants, either slacks or sweat pants, with darker upper clothing), carrying a dark duffel bag on his shoulder and walking northbound. Lieutenant Mitchell made eye contact with defendant and as Lt. Mitchell was traveling south and defendant was heading north, Lt. Mitchell made a U-turn. As he did, he observed that defendant was about to cross the street. Upon closer observation, Lt. Mitchell noticed that the cap on defendant's head had the letter "D" on its front. Because defendant exactly matched the description he had received, he made a hand signal to [*3]defendant to step back on the curb; defendant complied. He then observed defendant put the duffel bag down on the sidewalk next to him.

As Lt. Mitchell exited his vehicle, he observed defendant reach for the duffel bag and told defendant to step away from the bag. As he started to approach defendant, from approximately 15-20 feet, he told defendant that "he needed to visit with him." Lieutenant Mitchell told defendant that he fit the description of a suspect that he was looking for. Defendant responded: "They told you light colored clothes?" Lieutenant Mitchell responded, "Yes, they did." Lieutenant Mitchell described defendant's tone of voice as challenging. Lieutenant Mitchell testified that the defendant's interest in a clothing description further heightened his suspicion. He then asked defendant if there were any weapons in the bag; defendant answered no and then told him that he did not have permission to look. As Lt. Mitchell continued to approach defendant, he grabbed the duffel bag by its side and felt what appeared to be a shotgun. He also noticed a large hole, approximately 2-3 inches by 5-6 inches, at the top of the bag where he observed what appeared to be the muzzle of a shotgun.

Lieutenant Mitchell asked defendant if he had any weapons on his person and defendant answered no, whereupon Lt. Mitchell frisked defendant and advised him that he "needed to visit with him more at the County Sheriff's office." He then conducted a further protective frisk of defendant for his personal safety, handcuffed defendant and put him in the front seat of his Sheriff's vehicle and put the duffel bag in the back seat with his brother, who had remained inside the vehicle throughout. Prior to handcuffing defendant, he read him his Miranda rights. He then asked defendant if he understood those rights. Having advised defendant of his rights and defendant having indicated that he understood them, he told defendant that he did not have any questions for him right then. Defendant never requested to have the rights repeated or reread. Defendant was then transported to the Iron County jail, part of the same complex that includes the Sheriff's Department's offices. Prior to being placed in a holding cell, he was searched by a jailer; subsequently, an inventory search of his possessions was undertaken. In the course of that inventory, the duffel bag was opened and its contents were removed.

In the holding cell, defendant was again advised of his right to remain silent by Lt. Mitchell, who advised defendant that it would be a big help if he told them where the taxi cab was. Defendant responded that kidnapping and crossing state lines would get him 20 years.

Recovered from defendant's person were a wallet belonging to John Callahan (a photograph of which was admitted in evidence as People's Exhibit 6), a Detroit Tigers baseball cap (a photograph of which was admitted in evidence as People's Exhibit 3), one 12-gauge shotgun shell, an ATM check card and a Mobil credit card belonging to Emma Stevens, a receipt from a Las Vegas Greyhound locker, an advertisement from a gun store in Las Vegas, a transit transfer, two withdrawal receipts from ATM's, using Ms. Stevens's ATM card, and a Gatorade bottle.

Acting Sheriff Mark Gower has worked for the Iron County Sheriff's Department for 13 years. On May 17, 2002, he held the rank of Detective with the Department and Lt. Mitchell was his superior officer. On that day he arrived at the Sheriff's Department at approximately 8:30 A.M., where he was met by Lt. Mitchell, who informed him that an "attempt to locate" ("ATL") had been broadcast earlier that morning and that the person who was in the jail matched the subject broadcast on the ATL. He also told him that defendant was arrested for aggravated [*4]robbery, aggravated kidnaping and theft of a motor vehicle.

Lieutenant Mitchell asked Sheriff Gower to help Det. Steve Cantonwine inventory the contents of the duffel bag that was recovered. He also told him that there was a weapon, specifically a shotgun, in the bag that he wanted secured. Sheriff Gower described the bag as a dark colored duffel bag with a 3-4 inch hole in the back. Sheriff Gower indicated that the stitching was ripped or picked apart, creating the hole.

Detective Cantonwine helped Sheriff Gower remove the items from the duffel bag one by one; as each item was removed, Det. Cantonwine wrote a description of the item on a piece of paper. With Det. Cantonwine's help, Sheriff Gower removed the following items from the bag: a 12-gauge Mossberg shotgun, a black sweatshirt, black sweat pants with $145 in $5 bills, $38 in one dollar bills and a Ford Explorer vehicle key, all from the pockets of the pants, a Walgreens sack with toiletries, a sewing kit, a portable CD player with headset, a spiral notebook, paperback books, one pair of rubber gloves, two particle masks, body lotion, a key ring with three keys, a key ring with four keys, an Ericsson cell phone, a Radio Shack quick charger, six boxes of shotgun ammunition, a Greyhound bus boarding pass, white wash cloths, a box of band-aids, a pocketbook belonging to Emma Stevens with papers inside, and a 20 oz. Brisk brand of bottle water.

Sheriff Gower testified that the Explorer vehicle key fit the ignition to the taxi cab (a photograph of which was introduced as People's Exhibit 5 in evidence) that had been car jacked. After the contents of the bag were removed and descriptions written down, he photographed all of the items.

At approximately 11:00 A.M., Sheriff Gower met Mr. Callahan, who was then interviewed by Detective Jodie Edwards about the car jacking. Although Sheriff Gower was not present for the interview, he was informed that Mr. Callahan had been shown a photo array and positively identified defendant as the person who car jacked him.

Upon discovering the various property belonging to Emma Stevens, Sheriff Gower made a series of telephone calls to New York, first to some of the telephone numbers in Ms. Stevens's telephone book and, when he was unsuccessful in making any contact, with the New York City Police Department. Based upon the address on her checks, which were in the pocketbook, he was eventually directed to the desk sergeant at the 44th Precinct and asked if he would send out a car to check on Ms. Stevens. A few minutes later, Det. Mike Rodriguez [FN4] returned Sheriff Gower's call and advised him that Ms. Stevens had been the victim of a homicide and that there was an ongoing investigation. Sheriff Gower explained how he had obtained Ms. Stevens's property and when he advised Det. M. Rodriguez that he had Dennis Taylor in custody, Det. M. Rodriguez told Sheriff Gower that Mr. Taylor was a suspect in the homicide. Sheriff Gower faxed a photograph of defendant to Det. M. Rodriguez, who subsequently confirmed that defendant was a suspect in the investigation of Ms. Stevens's death. They thereafter made arrangements for the New York detectives to come to Utah the following day.

Sheriff Gower testified that persons arrested and charged with crimes are transported once [*5]a day, at about 9 A.M., to the Iron County District Court for arraignment. Persons not ready for arraignment by that time are held until the next business day; no arraignments are performed on weekends. Although defendant was in custody early enough in the day that he might ordinarily have been arraigned on May 17, 2002, Sheriff Gower's inventory of the duffel bag and other investigation, including the identification procedure with Mr. Callahan, prevented defendant from being arraigned that day. By the time Sheriff Gower spoke with Det. M. Rodriguez, it was clear that defendant would not be arraigned before the following Monday, May 20, 2002.

Detective Steven Rodriguez testified that he has been a detective with the New York City Police Department since 1995 and is currently assigned to the Deputy Commissioner's Office of Operations. In May 2002, his command was the 44th Detective Squad and he had been assigned the investigation of the death of Emma Stevens. During his investigation, he learned that Emma Stevens had a relationship with an individual named Dennis Taylor. On May 17, 2002, he was informed by his brother, Det. M. Rodriguez of the 44th Vice Squad, that Dennis Taylor had been arrested in Iron County, Utah, on robbery and other related charges, and that he had personal property belonging to Emma Stevens in his possession.

On May 18, 2002, Dets. Mike and Steven Rodriguez arrived in Las Vegas and on May 19, 2002, at approximately 8:00 A.M., met with Sheriff Gower in Cedar City. After meeting with Sheriff Gower and being shown the items recovered from defendant, Det. Rodriguez observed the name "Emma Stevens" on some of the items. He also discussed defendant's right to counsel with Sheriff Gower. He spoke to an assistant district attorney, whose name he did not remember, who informed him that defendant had no right to counsel at that stage of the proceeding. Arrangements were then made for the Detectives Rodriguez to speak to defendant.

Defendant was seated at a table in the interview room; he was not handcuffed. Detective Rodriguez read defendant the Miranda warnings from a sheet of paper entered into evidence as People's Exhibit 12. Defendant orally acknowledged to Det. Rodriguez his understanding of each right as read to him and his responses were memorialized by him by writing the word "yes" and initialing the question after the recitation to each of the questions in People's Exhibit 12. He stated that he was willing to answer questions. In the course of questioning, defendant confessed to having killed Emma Stevens. Detective Rodriguez than provided defendant with a pen and a piece of paper and defendant wrote his confession and signed the piece of paper (People's Exhibit 12 in evidence). Afterwards, defendant read the statement and made and initialed several corrections. The statement described in detail the events leading up to Ms. Stevens's death on May 3, 2002 and the defendant's departure from New York City and eventual arrival in Las Vegas.

In due course an arrest warrant was obtained from Bronx County, New York. Defendant was brought before a magistrate in Iron County on May 19, 2002, where he waived extradition and was brought to New York on May 21, 2002.

CONCLUSIONS OF LAW

I. CHOICE OF LAW

The first issue is whether the out-of-state search and seizure of defendant and his subsequent arrest are to be analyzed by the laws of New York or whether the laws of Utah are applicable because defendant was arrested in Utah for crimes that originated in Nevada and [*6]continued into Utah (the so-called situs rule).

In both civil (International Planning v. Daystrom, 24 NY2d 372) and criminal law (People v. Benson, 88 AD2d 229 [3d Dept 1982]; People v. Couch, 74 AD2d 582 [2d Dept 1980]), New York courts have adopted an "interest analysis" approach in determining which law to apply. Some courts have viewed this question as one of evidence and procedure and applied their own law under the rule that the law of the forum controls such matters. See, e.g., Burge v. State, 443 SW2d 720 (Tex Cr App 1969) (evidence illegally obtained in Oklahoma admissible in Texas prosecution under Texas rules of evidence). Other courts have addressed the issue as one of conflicts of law, namely, should the forum apply its own or the law of the state where the alleged constitutional violation occurred. See, e.g., People v. Saiken, 49 Ill 2d 504, 275 NE2d 381 (1971) (where the crime was committed in Illinois and the trial was to be held in Illinois, Illinois law applied because it had a greater interest in the proceedings than Indiana, whose laws were allegedly violated in the procurement of evidence). Both approaches have been criticized. See Morrison, Choice of Law for Unlawful Searches, 41 Okla L Rev 579 (1988). The procedural-substantive formulation has been criticized on the basis that one cannot appropriately reach the law of evidence until the question of the legality of such evidence's acquisition has been addressed which brings one back to a question of substantive law. Alternatively, the "significant relationship" test of classical civil conflicts has been criticized for failing to clearly identify the conflict being resolved.

Defendant's apprehension in Utah and the subsequent search of his person and the duffel bag were all in relation to the investigation of the car jacking which had occurred in Utah. Although the searches recovered property which is relevant in this prosecution (as well as property relevant to the car jacking), that recovery was an unexpected by-product of the Utah investigation. The interest of the State of Utah as to how its officials investigate crimes which occur within Utah far exceeds New York's interest in some of the property recovered, even if it relates to a crime which occurred in New York and which will be prosecuted in New York.[FN5] It would be illogical to apply New York law to the actions of Utah law enforcement officials, investigating a crime which had occurred within their own jurisdiction. Utah's law will be applied with respect to defendant's apprehension and search. On the other hand, the interrogation of defendant which is in issue here was performed by New York City detectives with respect to a crime which had occurred in New York. Even though Det. Rodriguez, to his credit, tried to ascertain whether Utah law permitted him to interrogate defendant, New York's interest in the conduct of its law enforcement officials, in their investigation of a crime which had taken place in New York and in its admissibility in a New York trial, far outweighs any interest Utah might have in the conduct of out-of-state law enforcement officials, investigating a New York crime through the interrogation of an individual in the custody of Utah authorities on unrelated charges. People v. Benson, supra. Therefore, New York law will be applied with respect to defendant's motion to suppress his statements.

[*7]II. DUNAWAY/ MAPP

In the Dunaway/Mapp portion of the hearing, the People have the initial burden of going forward to establish that the arrest of defendant was supported by probable cause and providing evidence of the legality of the police conduct. The burden then shifts to defendant to establish the illegality of the police conduct. Dunaway v. New York, 442 US 200 (1979); Mapp v. Ohio, 367 US 643 (1961).

A. Initial Contact With Defendant

Defendant contends that his initial detention was unjustified and illegal from its inception. He argues that he was stopped because he was the only male black on Main Street in Cedar City, a predominantly Caucasian city of approximately 17, 000 people. Defendant argues that the police did not have probable cause to arrest him, and that all of his statements and the physical evidence obtained as a result of this encounter should be suppressed.

Under Utah law, there are three permissible levels of police stops: (1) an officer may approach a citizen at any time and pose questions so long as the citizen is not detained against his will; (2) an officer may seize a person if the officer has an articulable suspicion that the person has committed or is about to commit a crime; and (3) an officer may arrest a suspect if the officer has probable cause to believe an offense had been committed or being committed. State v. Johnson, 805 P2d 761 (Utah 1991).

The first issue is whether Lt. Mitchell had "reasonable suspicion" necessary to justify an "investigative" stop of defendant under Terry v. Ohio, 392 US 1 (1968) and its progeny. The requirements for a Terry investigatory stop are codified in Utah Code Ann. § 77-7-15, which authorizes law enforcement personnel to "stop any person in a public place when [the officer] has a reasonable suspicion to believe he has committed or is in the act of committing or is attempting to commit a public offense and may demand his name, address and an explanation of his actions."

In determining whether such reasonable suspicion exists, the specific and articulable facts required may be supported by facts derived from an officer's own observations, but in certain circumstances, police officers can rely on other sources of information, e.g., radio dispatch, bulletins and flyers received from other law enforcement sources. United States v. Hensley, 469 US 221 (1985); State v. Bruce, 779 P2d 646 (Utah 1989); State v. Seel, 827 P2d 954 (Utah App), cert denied 836 P2d 1383 (Utah 1992).

In this case, Lt. Mitchell's reliance on the dispatch report was warranted because of the reliability of the call precipitating the report. Lieutenant Mitchell testified that although he was not sure whether the telephone call was a 911 call, the radio dispatch was based on a telephone call from the cab driver, the victim of the car jacking. Because citizen informants, unlike police informers, volunteer information out of concern for the community and not for personal benefit, the reliability and veracity of citizen informers are presumed. State v. Case, 884 P2d 1274 (Utah App 1994); State v. White, 851 P2d 1195 (Utah App 1993).

The evidence shows that, contrary to defendant's assertion, his detention by Lt. Mitchell was justified at its inception by the determination that a crime was afoot and that defendant was connected to that crime. That determination was based on the following: 1) the radio dispatch provided Lt. Mitchell with a description of the alleged crime, i.e., a car jacking at gun point using a shotgun; 2) when he observed defendant walking in the early morning hours on Main Street, [*8]defendant exactly matched the physical description of the suspect given over the radio dispatch; 3)Lt. Mitchell encountered defendant within fifteen minutes of the radio dispatch and based upon the cab driver having said that the cab was out or almost out of gas, Lt. Mitchell surmised that defendant would be in the outskirts of Cedar City; and 4) defendant was carrying a duffel bag and was wearing light-colored clothing. At that point, reason demanded that Lt. Mitchell initiate contact with defendant, the most apparent and visible lead in his investigation of the car jacking. Viewing the facts in their totality and considering the rational inferences to be drawn from those facts, Lt. Mitchell's seizure of defendant was justified at its inception by a reasonable suspicion that crime was afoot and that defendant was connected to that crime.

The second issue is whether the subsequent warrantless arrest of defendant was supported by probable cause. Probable cause exists when the facts and circumstances known to law enforcement would warrant a reasonable person to conclude, under all of the circumstances, that defendant had committed or was committing a crime. Probable cause must be evaluated in light of the circumstances as they would have appeared to a prudent, cautious, trained police officer.

The authority to arrest without a warrant in Utah is set forth in Utah Code Ann. § 77-13-

3 (3). It permits an officer to do so where "a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it." An arrest occurs when the police show of official authority is such that a reasonable person would have believed he was not free to leave. United States v. Richie, 35 F3d 1477 (10th Cir 1994). In the instant matter it is clear that defendant was not free to leave.

After stopping defendant in furtherance of his investigation, Lt. Mitchell signaled to defendant to step back on the sidewalk. When he told defendant that defendant matched the description of the suspect he was looking for, defendant's tone of voice and response bore further investigation. The detailed specificity of the description, combined with other information such as defendant's presence in the early morning hours walking into Cedar City, the direction of the flight of the cab after the driver's removal and the close temporal and spatial proximity to the crime all provided a sufficient nexus to connect defendant to the crime of car jacking. In addition, when questioned, defendant's denial that any weapons were in the bag was inconsistent with the observable facts, in that Lt. Mitchell felt the shotgun when he picked up the bag [FN6] and observed its muzzle from the tear in the bag.

Viewing the facts in their totality and considering the rational inferences drawn from those facts, Lt. Mitchell's seizure of defendant was justified at its inception by a reasonable suspicion that crime was afoot and that defendant was connected to that crime; the underlying arrest was lawful because it was supported by probable cause and authorized by statute. State v. Harmon, 910 P2d 1196-1204 (Utah 1995); State v. White, 577 P2d 552, 554 (Utah 1978). The evidence establishes that Lt. Mitchell had probable cause to seize defendant, who met a detailed description of a man involved in a car jacking using a shotgun. The information relied on came [*9]from a source that had identifying characteristics rendering it reliable. Furthermore, this information was corroborated by defendant's conduct, which was suggestive of criminality. For the foregoing reasons, I find that the warrantless arrest of defendant was supported by probable cause and was therefore valid.

B. Search of Defendant's Person

The People argue that the search of defendant's person was justified as a search incident to a lawful arrest. There are two basic requirements for a search incident to arrest. First, the search must be contemporaneous in time with the arrest. Second, the area of the search must be geographically limited, that is limited to the area within the arrestee's immediate control. In United States v. Edwards, 415 US 800 (1974), an arrestee was jailed and continued to wear the same clothing in which he had been arrested. A day after the arrest, officers searched that clothing. The United States Supreme Court upheld the search on the ground that since the arrestee's clothing could have been lawfully searched without a warrant at the time of his arrest, it was not a Fourth Amendment violation to do so later even though a substantial period of time had elapsed.

The search of an arrestee is valid without a warrant, even if it shortly precedes the arrest, so long as the arrest and the search are substantially contemporaneous. State v. Chansamone, 2003 UT App 107, 69 P3d 293, 296 (Utah App 2003), quoting State v. Banks, 720 P2d 1380 (Utah 1986). In this case, after defendant was arrested he was taken to the Cedar City jail where, prior to being placed in a cell, he was searched by a jailer. Although the warrantless search was temporally and physically removed from the arrest, it was reasonable in scope and conducted within a reasonable time after the arrest. A full search of a person incident to arrest can take place after the accused has arrived at the place of detention. United States v. Edwards, supra. The normal processes incident to defendant's arrest had not been completed and the police were entitled to conduct a through search of his person and seize material evidence of the crime for which he had been arrested. Accordingly, the items recovered from defendant's person are not suppressed.

C. Seizure of the Shotgun

The People argue that the seizure of the shotgun from the duffel bag was authorized under the "plain view" doctrine. The criteria that generally guides so-called "plain view" seizures is set forth in Coolidge v. New Hampshire, 403 US 443 (1971). Its rationale is that if an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. The plain view doctrine as set forth in Coolidge permits the warrantless seizure by police of private possessions where three requirements are satisfied: first, the police officer must lawfully make an "initial intrusion" or otherwise properly be in a position from which he can view a particular area; second, the officer must discover incriminating evidence "inadvertently"[FN7]; finally, it must be immediately apparent to the police that the items they observed may be evidence of a crime, contraband or otherwise subject to seizure.

In this case, the incriminating nature of the shotgun observed by Lt. Mitchell was [*10]immediately apparent because Lt. Mitchell was aware that a shotgun had been used in the car jacking. From his vantage point on a public street he was able to see the shotgun through a tear in the duffel bag. Consequently neither its observation nor its seizure involved any invasion of privacy. Because the seizure of property in plain view involves no invasion of privacy, it is presumptively reasonable. The well-established rule is that "objects such as weapons or contraband found in a public place may be seized by the police without a warrant." Payton v. New York , 445 US 573, 587 (1980). If an officer has probable cause to believe that a publicly situated item is associated with criminal activity, the officer may seize it without a warrant because the interest in possession is outweighed by the risk that such an item might disappear or be put to its intended use. Ibid. The plain view seizure of the shotgun from the duffel bag was clearly permissible and it is of no import that it was not effected until the duffel bag was present in the Sheriff's Department offices.

D. Search of the Duffel Bag

Although Iron County Sheriff's Department employees had the right to remove the shotgun from the duffel bag, it does not necessarily follow that they had the right to remove the balance of the items from the bag. The People argue that the search and seizure of the rest of the items recovered from the duffel bag was valid as a search incident to arrest. Defendant contends that the location of the search was remote from the location of the arrest, and that therefore the search was not legally incident to the arrest within the meaning of that exception to the warrant requirement of the Fourth Amendment.

A search incident to arrest is permitted for two reasons: to recover anything which might threaten the safety of the arresting officers and to recover anything of an evidentiary nature from the defendant's person or in the surrounding area. State v. Harrison, 805 P2d 769, 784 (Utah App 1991), citing Chimel v. California, 395 U.S. 752 (1969); see also State v. Harris, 671 P2d 175, 180 (Utah 1983). The ability to conduct this search is an exception to the Fourth Amendment's requirement of a search warrant and thus must be construed narrowly. Although the Supreme Court, in Edwards, supra, held that the search of the defendant's person could take place at a geographic and temporal distance from the time and place of actual arrest, there is no authority which permits a search of the defendant's possessions at a time and place at which the defendant could have no access to them. The rationale is obvious: there is an interest in the recovery of items on the defendant's person which could be destroyed by him (such as contraband or evidence) or which could be used as a weapon (such as a secreted blade), regardless of where or when the defendant was taken into custody. On the other hand, once the defendant has been taken into custody and is far removed from possessions not on his person, there is no need for an immediate search of his belongings. See, e.g., State v. Amirkhizi, 2004 UT App 324, 100 P3d 225, 230 (Utah App 2004).

The irony here is immediately apparent, since had Lt. Mitchell been accompanied by other law enforcement officers, or if he had called for others to support him, the duffel bag could, and undoubtedly would, have been searched at the time of defendant's arrest on Main Street. The pockets on the sweat pants could have been searched and Ms. Stevens's pocketbook opened. However, because Lt. Mitchell was able to control the situation without assistance, the defendant was deprived of access to the duffel bag and the right to search it "incident to arrest" evaporated as the defendant was placed in a jail cell and the bag was taken to the Sheriff's Office. [*11]

Neither of the other exceptions to the Fourth Amendment's requirement of a search warrant the plain view doctrine and the inventory search are applicable here, despite the People's argument to the contrary, for very different reasons. Since Lt. Mitchell had seen a portion of the shotgun in the duffel bag through the tear, and its evidentiary value as the instrumentality of the car jacking was immediately apparent, officers had the right to open the duffel to remove the shotgun. Once the bag was open, officers were not required to immediately zipper it closed or put on blindfolds. The remainder of its contents were now in plain view. However, the plain view doctrine requires that, in order for an item to be seized, its nature as contraband or as evidence of a crime must be immediately apparent. Coolidge, supra. As such, officers did not have the right to go through the pockets of the sweat pants in the bag in order to recover the Ford Explorer key or to open Ms. Stevens's pocketbook to discover any of her papers, since the key was not in plain view and the evidentiary value of the pocketbook was not immediately apparent. At most, they had a right to remove the six boxes of shotgun ammunition.

Sheriff Gower and Det. Cantonwine conducted what Gower termed an "inventory search" of the duffel bag, and the People argue that the search which was conducted met constitutional requirements. They argue that the search of the bag was justified as a valid inventory search because Sheriff Gower conducted the search following standardized procedures, that inventory forms were used, a written list of items was introduced and that this was recorded contemporaneously with defendant's arrest and that "this process is necessary in order to secure the defendant's personal property." Defendant alleges that the People have not met their burden in proving that the search was conducted pursuant to standard local police regulations and that the search was a pretext for discovery of further evidence.[FN8]

An inventory search is a well-defined exception to the warrant requirement of the Fourth Amendment. Colorado v. Bertine, 479 US 367 (1987); South Dakota v. Opperman, 428 US 364 (1976). However, to be valid, an inventory search must conform to a standardized and established local procedure, and must be motivated by a "concern to inventory [the items] rather than to search for other incriminating evidence." United States v. Feldman, 788 F2d 554, 550 (9th Cir 1986), cert denied 479 US 1067 (1987); see also Bertine, supra, 479 US at 377 (Marshall, J., concurring). The inventory search was designed to effect three purposes: protection of the owner's property, protection of the police against claims of lost or stolen property and protection of the police from potential danger. Opperman, supra, 428 US at 369; United States v. Lugo, 978 F 2d 631(10th Cir 1992). An inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence, but rather an administrative procedure designed to produce an inventory. Florida v. Wells, 495 US 1, 4 (1990).

The People have failed to meet their burden in this case. Although the People call the search an inventory search and argue in their post-hearing brief that the search was conducted according to standardized procedures, there was not a scintilla of evidence elicited regarding standardized procedures, whether written or unwritten. While it is clear that the procedures employed by Sheriff Gower and Det. Cantonwine were methodical, there was no proof that the [*12]method employed was that mandated by standardized procedures.[FN9] The original inventory list was not produced only a transcribed list of the contents of the duffel was introduced in evidence so it is not possible to determine whether any regularized procedures were specified on a form which might have been used. Although the procedures employed appear to have been reasonable, federal and Utah decisional authorities make it clear that reasonableness can only be assessed in the context of a standardized and established procedure. Colorado v. Bertine, supra, 479 US at 374, n 6 ("Our decisions have always adhered to the requirement that inventories be conducted according to standardized criteria."); Illinois v. Lafayette, 462 US 640, 648 (1983) (". . . [W]e hold that it is not unreasonable' for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures."); State v. Giron, 943 P2d 1114, 1117 (Utah App 1997) ("The State has the burden of introducing evidence that such a standardized, reasonable procedure exists and that the challenged police activity was essentially in conformance with that procedure.' [citations omitted]"); State v. Strickling, 844 P2d 979, 987-88 (Utah App 1992) ("The pivotal determination with respect to the inventory search is whether the evidence presented by the State at the suppression hearing was sufficient to support a finding that [the officer] acted in compliance with established departmental procedures for conducting an inventory search.").[FN10]

As the People failed to meet their burden to demonstrate that the search of the duffel bag was an inventory search performed in compliance with established procedures, and since the search of the bag at the Sheriff's Office was not incident to the defendant's arrest and, with the exception of the shotgun and the boxes of shotgun ammunition, its contents were not in " plain view," within the meaning of that doctrine, the motion to suppress the contents of the duffel bag, with the exception of the shotgun and the boxes of ammunition, is granted.

III. DUNAWAY/ HUNTLEY

The statements defendant seeks to suppress were made to New York City police detectives in Iron County, Utah. Defendant argues that the confessions obtained from defendant by the New York City detectives should be suppressed because they were obtained in the absence of counsel. Defendant argues that the Iron County authorities deliberately delayed defendant's arraignment on the Utah charges; he contends that they did so to delay defendant's right to counsel and thus provide the NYPD detectives sufficient time interrogate defendant without counsel and obtain a confession. He claims that as a result the foregoing, his confession was involuntary and should be suppressed.

I find that defendant's arraignment was not unduly delayed and that the delay was reasonable in order to continue the investigation of the charges related to the car jacking. [*13]Although Lt. Mitchell had probable cause to arrest the defendant at about 7:15 A.M., when, at 8:30 A.M., Sheriff Gower was assigned to the investigation, the victim of the car jacking had not been interviewed by anyone from the Sheriff's Department, there had been no opportunity to employ an identification procedure to confirm defendant's identity as the person who had committed the car jacking and the taxi cab itself had not been located, nor was there any evidence directly connecting defendant to it.

In those circumstances, it was entirely reasonable that defendant was not placed on a bus before 9 A.M. to be arraigned that day; in fact, it would have been unreasonable to do so. There is no basis to conclude that the failure to arraign defendant on May 17 was intentional. In fact, it is clear that the failure to arraign defendant on May 17 was a "non-decision," i.e., it would have been so contrary to reasonable police procedures that none of the officers involved ever contemplated he would be ready for arraignment on that day.

Moreover, even if he had been arraigned and assigned counsel on the Utah case, interrogation with respect to Ms. Stevens's death was free to take place without regard to that matter. People v. Bing, 76 NY2d 331 (1990). Under New York law, a defendant is entitled to counsel at all critical stages of the criminal prosecution. This "indelible right to counsel" rule provides that the right to counsel attaches to a matter by any one of the following three mechanisms: commencement of criminal action, entry of counsel or request for counsel while in custody. As none of those events had occurred, there was no indelible right to counsel at the time of his interrogation. As to the facts in this matter, as I find them, People v. Kazmarick, 52 NY2d 322 (1981) and People v. Ruff, 81 NY2d 330 (1993), establish that the commencement of a criminal action, without entry or request for counsel, and the defendant's detention thereon, do not bar questioning about unrelated matters so long as the police comply with Miranda. The federal rule is the same. See, e.g., Michigan v. Jackson, 475 US 625 (1986). Thus the pendency of charges against the defendant in Utah did not give rise to an indelible right to counsel with respect to the New York homicide.

Defendant does not, nor can he, argue that one of these criminal matters is related to the other. They are not so closely related in nature, space or time that questioning on the homicide would all but inevitably elicit incriminating responses regarding the robbery and kidnaping. Neither was the police interrogation on the robbery and kidnaping charges used as an element in securing the defendant's confession to the homicide matter. Here, defendant had not retained or requested counsel with respect to the New York homicide. Therefore the interrogation on that unrelated matter in New York, after defendant's waiver of the right to counsel, was proper.

As to the voluntariness of defendant's statement, the People have the burden of proving the voluntariness of a statement beyond a reasonable doubt. People v. Anderson, 69 NY2d 651 (1986); People v. Witherspoon, 66 NY2d 973 (1985); People v. Huntley, 15 NY2d 72 (1965) . The burden then shifts to defendant to show that the waiver of rights was not intelligent or knowing. In determining whether defendant made a knowing and intelligent waiver of his Miranda rights, it is necessary to review the totality of the circumstances surrounding the waiver to determine if the People have met their burden in proving the issue beyond a reasonable doubt. People v. Woods, 89 AD2d 1022 (2d Dept 1982).

Where a defendant indicates understanding of Miranda rights and "promptly after having been administered those rights willingly proceeds to make a statement or answer questions [*14]during interrogation, no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant implicitly waived those rights." People v. Sirno, 76 NY2d 967 (1990).

Here, defendant was read his Miranda warnings by Det. Rodriguez. The People produced evidence, in the form of testimony and writing: (1) showing that the warnings were read to defendant; (2) that defendant's affirmatively responded that he understood each and every Miranda right read to him; (3) that defendant wished to waive those rights; and (4) that defendant voluntarily made the oral and written statements. The Court finds that the People have met their burden in proving beyond a reasonable doubt that defendant freely, intelligently and voluntarily waived his rights and agreed to make the oral and written statements. Accordingly, defendant's motion to suppress his statements is denied.

CONCLUSION

Defendant's motions to suppress are denied in all respects, with the exception of his motion to suppress the contents of the duffel bag, as to which his motion to suppress is granted with respects to all contents other than the shotgun and the boxes of shotgun ammunition, as to which it is denied.

This constitutes the decision and order of the court.

Dated:Bronx, New York

February 15, 2006

/s/

MICHAEL R. SONBERG, J.S.C. Footnotes

Footnote 1: The findings of fact set forth below are based on the transcript of the testimony received at the evidentiary hearings conducted on September 28 and September 29, 2005 as well as the exhibits offered by the People and admitted in evidence in this case.

Footnote 2:Cedar City is located in southwestern Utah, approximately 60-70 miles north of the Nevada state line and approximately165 miles north of LasVegas.

Footnote 3:Cedar City's population is approximately 35,000 when Southern Utah State College is in session and approximately17,000 when it is not. The African-American population of Iron County, not including students attending Southern Utah State College, is approximately 30; an additional 75-100 African-Am-ericans attend the college, which Lt. Mitchell assumed was still in session on May 17, 2002.

Footnote 4:Detective Mike Rodriguez's brother, Det. Steven Rodriguez, was also involved in the investiga-tion and was a witness at the hearing. For sake of clarity, Det. Mike Rodriguez will be referred to as "Det. M. Rodriguez," while Det. Steven Rodriguez will be referred to as "Det. Rodriguez."

Footnote 5:If the term "interest analysis" meant that New York law applies to all New York prosecutions of New York crimes, regardless of the circumstances, then there would be no need for "analysis." Cf. People v. Orlosky, 40 Cal App 3d 935, 115 Cal Rptr 598 (Ct App 1974).

Footnote 6:An officer's observation by feel or touch is a permissible predicate for arrest under the United States Constitution, Minnesota v. Dickerson, 508 US 366 (1993), although it is not under the New York Constitution, People v. Diaz, 81 NY2d 106 (1993). No Utah court has addressed the issue in a reported decision; there is no reason to assume that Utah would interpret its constitutional provisions more nar-rowly than the United States Supreme Court's interpretation of the Fourth Amendment.

Footnote 7:In 1990, the United States Supreme Court, in Horton v. California, 496 US 128 (1990), elimina-ted the need for inadvertent discovery of the item.

Footnote 8:Since the People failed meet their burden to demonstrate that the inventory search met constitu-tional standards, this decision will not address the assertion that it was a pretext.

Footnote 9:The words "standard", "regular," "established," "usual" or "mandated" were never used, coupled with the word "procedure," in a question posed by the Assistant District Attorney or in an answer given by Sheriff Gower.

Footnote 10:Since this is also the law in New York, see, e.g., People v. Johnson, 1 NY3d 252, 256 (2003), the requirement of demonstrating an established procedure should have come as no surprise to the People.