People v Willette

[*1] People v Willette 2006 NY Slip Op 52433(U) [14 Misc 3d 1206(A)] Decided on September 22, 2006 County Court, Essex County Meyer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2006
County Court, Essex County

The People of the State of New York,

against

Tylor F. Willette, Defendant.



4753



(Appearances: Julie A. Garcia, Esq., Essex County District Attorney (Robert M. Winn, Esq., of counsel), Elizabethtown, New York; Livingston L. Hatch, Esq., Essex County Public Defender (Brandon Boutelle, Esq., of counsel), Elizabethtown, New York)

Richard B. Meyer, J.

Motion by the Defendant, as part of an omnibus motion, to suppress physical evidence and any statements attributed to him by law enforcement, and to preclude the use of such evidence at trial.

The Defendant is charged by a single-count indictment with having allegedly committed the crime of Criminal Possession of Marijuana in the second degree (Penal Law 221.25), a Class D Felony. The charges arise out of an incident which occurred on March 1, 2006 in the Town of Schroon, Essex County, New York when the Defendant was stopped for an alleged traffic violation and a subsequent search of the trunk of his vehicle revealed approximately 9 pounds of marihuana located in a hockey bag.

The Defendant asserts that the evidence and statements should be suppressed and precluded from use at trial because they were obtained as a result of an unlawful stop, the police excessively detained him, the search was involuntary as he did not consent to a search of his vehicle, and there was no valid inventory search of the vehicle. The People claim that the initial search of Defendant's vehicle, which resulted in the discovery of marijuana, was based upon probable cause.

A combined Mapp, Dunaway, Huntley and Ingle hearing (Mapp v. Ohio, 367 US 643, 81 [*2][*3]SCt 1684, 6 LEd2d 1081; Dunaway v. New York, 442 US 200, 99 SCt 2248, 60 LEd2d 824; People v. Huntley, 15 NY2d 72, 255 NYS2d 838, 204 NE2d 179; People v. Ingle, 36 NY2d 413, 369 NYS2d 67, 330 NE2d 179; see CPL §710.10 et seq.) was held on August 15, 2006. Based upon the testimony at the hearing, and after assessing the character, temperament and credibility of the sole witness produced by the prosecution, the Court makes the findings of fact and conclusions of law set forth below.

On March 1, 2006, at approximately 3:30 a.m. a cold, clear, "well lit", "fairly bright night" the Defendant operated a green, two-door Ford Mustang in a southerly direction on Interstate 87 (the "Northway") in the Town of Schroon, Essex County. A member of the New York State Police K-9 Unit was parked, running radar, in the median U-turn road located near mile marker 85. The officer observed the Defendant's vehicle traveling south and the Defendant "was not driving erratically or speeding or any other sort of moving violation". After the vehicle went by at approximately 65 miles per hour, the officer claims to have observed in the side-view mirror of his own vehicle that the Mustang's rear plate lamps were out.

The officer exited the U-turn area and with all lights on except for his take-down lights, and proceeded at a speed of up to 97 miles per hour to catch up to the Defendant. As he came upon the Defendant, the Defendant pulled on to a rest area exit ramp. When the Defendant's vehicle came to a stop the officer activated his vehicle's take-down lights to illuminate the Mustang.

Getting out of his vehicle, which contained his dog, the officer approached the Defendant's vehicle from the passenger's side. After asking for and receiving the Defendant's license and registration, the officer asked the Defendant his name and why he had a restricted license. The Defendant stated that the license was for work, but admitted that he was not going to work and was unemployed. Returning to his vehicle, the officer ran license and vehicle checks. After discussions with dispatch, in which he learned that Defendant had four scofflaw revocations, he started printing three traffic tickets for inoperable plate lamps, illegal window tint and operating the vehicle in violation of the restricted license. Before the tickets finished printing, the officer exited his vehicle and approached the Mustang again, this time on the driver's side. He observed nothing inside the vehicle, and admitted that he had no reason to believe that the Defendant was under the influence of alcohol.

The officer asked the Defendant where he was going, to which the Defendant replied that he was going to his girlfriend's house in Glens Falls. Advising the Defendant that he was in violation of his restricted license, the officer then asked the Defendant to turn off and step out of the car. The Defendant complied. At some point thereafter and the officer's testimony is inconsistent, ranging from "the second I approached the vehicle", to "the second" the Defendant turned off the car and opened the door, to when the Defendant got out of the car, to thirty seconds after the Defendant got out of the car the officer claims he first smelled marijuana. He advised the Defendant that he was going to perform an inventory search of the vehicle, but before that he was going to have his dog do an exterior search. Again, the officer's testimony is inconsistent not only as to when he smelled the marijuana but also as to whether he mentioned the inventory search first or after he told the Defendant he was intending to perform an exterior search with the dog. At one time the officer testified that he smelled the marijuana after he told the Defendant he was going to perform the inventory search but before he mentioned an exterior search by his dog, and later testifyied that he smelled the marijuana at the same time he mentioned his plan to have his dog perform a search. At no time did he ever tell the Defendant that he smelled the marijuana. [*4][*5]

Once being informed that he would conduct an exterior search of the car with his dog, the officer testified that the Defendant appeared nervous, looking down and toward the rear of the Mustang. The officer also testified that the Defendant swore upon being told of the planned searches, and when asked if something was going to be found the Defendant is claimed to have replied "nine pounds". The Defendant was then arrested and placed in the officer's vehicle. Subsequent search of the Mustang's trunk at the exit ramp location revealed a hockey bag with a number of plastic bags containing marijuana having an aggregate weight of approximately nine pounds.

As a general rule, a police officer is prohibited from conducting a complete search every time he stops a motorist for a traffic infraction (People v. Marsh, 20 NY2d 98, 228 NE2d 783, 281 NYS2d 789). Specifically, a search of a traffic offender's vehicle is not authorized unless there are reasonable grounds for suspecting that there is probable cause for believing the traffic offender is guilty of a crime rather than merely a traffic infraction (Id. at 102, 228 NE2d 783, 281 NYS2d 789) or when there is "an articulable basis" for the officer to fear for his/her own safety and the search is conducted "only to the extent that is actually necessary to protect himself from harm while he conducts the inquiry authorized by CPL 140.50(1)" (People v. Torres, 74 NY2d 224, 226, 544 NYS2d 796, 797, 543 NE2d 61, 62). "While police officers are authorized to stop a motor vehicle where a traffic offense has been committed in their presence, it is impermissible to use a stop as a mere pretext to facilitate other unrelated purposes (see, People v. Smith, 181 AD2d 802, 581 NYS2d 240; People v. Letts, 180 AD2d 931, 934, 580 NYS2d 525, appeal dismissed 81 NY2d 833, 595 NYS2d 394, 611 NE2d 295)." (People v. Melendez, 195 AD2d 856, 857, 600 NYS2d 776, 777).

The validity of a search depends upon the existence of probable cause at the time the search is conducted and not on the results of that search (see People v. McCarthy, 14 NY2d 206, 250 NYS2d 290, 199 NE2d 382; People v. Loria, 10 NY2d 368, 223 NYS2d 462, 179 NE2d 478). "A search is good or bad when it starts and does not change character from its success (People v. O'Neill, 11 NY2d 148, 153, 227 NYS2d 416, 419, 182 NE2d 95, 98)" (People v. McCarthy, supra at 209, 250 NYS2d at 292, 199 NE2d at 383). The People have failed to satisfy their burden of proving the legality of the search (see Peopel v. McCarthy, supra .; People v. Miret-Gonzalez, 159 AD2d 647, 552 NYS2d 958)."It is well established that the People, faced with a constitutional challenge to a search and seizure, bear the burden of going forward with evidence to show the legality of the search in the first instance (see, People v. Whitehurst, 25 NY2d 389, 391, 306 NYS2d 673, 254 NE2d 905). The testimony offered by the People to meet this burden must be credible (People v. Quinones, 61 AD2d 765, 766, 402 NYS2d 196), and cannot be credited when it appears tailored to nullify constitutional objections (People v. Garafolo, 44 AD2d 86, 88, 353 NYS2d 500), or where such testimony is physically impossible, manifestly untrue, contrary to experience, or self-contradictory (see, People v. Sioba, 187 AD2d 317, 589 NYS2d 164, lv. denied, 81 NY2d 893, 597 NYS2d 955, 613 NE2d 987)." (People v. Carmona, 233 AD2d 142, 144, 649 NYS2d 432, 434)

Here, there is no evidence that the officer was ever in fear for his own safety. The People's claim of probable cause based upon the officer's testimony that he smelled marijuana is not [*6][*7]supported or established by the evidence at the hearing as the officer's expertise, training or experience with respect to the smell of unburnt marijuana was not adequately developed (see People v. Hanson, 5 Misc 3d 67, 785 NYS2d 825), the officer's testimony about when he smelled the marijuana was inconsistent, if not contradictory, the officer never testified before the grand jury that he smelled marijuana at any time and only told the grand jury that he advised the Defendant he would be performing an inventory search of the vehicle, and the officer testified as follows in response to questions by the Court without mentioning the marijuana odor: "THE COURT:So you told him you're going to do an inventory search of the car?THE WITNESS:Prior to that I told him I was going to do an exterior search with my canine.THE COURT:Why were you going to do that?THE WITNESS:Well, it was a good spot to do it.THE COURT:What facts or what information did you have or did you know about at that time that gave you any reason to believe that the vehicle should have a search by your canine?THE WITNESS:Often I bring my canine out on any traffic stop. I'll do that, but with his, his demeanor, his nervousness, we use clues. His demeanor that lets us know something else is going on here.THE COURT:Didn't you testify earlier he didn't get nervous until you let him know you were going to do a canine search?THE WITNESS:Right."

As a matter of law, a defendant's nervousness alone does not provide a basis for reasonable suspicion of criminality (see People v. Banks, 85 NY2d 558, 562, 626 NYS2d 986, 988, 650 NE2d 833, 835, cert. denied 516 US 868, 116 SCt 187, 133 LEd2d 124). While law enforcement may direct a motorist, stopped for a traffic infraction, to exit the detained vehicle (see People v. Robinson, 74 NY2d 773, 545 NYS2d 90, 543 NE2d 733, cert. denied 493 US 966, 110 SCt 411, 107 LEd2d 376) and may also demand the motorist's name, address and an explanation of his/her conduct (CPL §140.50[1]), absent probable cause to believe criminality is afoot further detention of a motorist violates the motorist's constitutional rights (People v. Banks, supra ).

A motorist operating a vehicle in violation of a restricted use license is not "unlicensed" or operating without a license (see People v. Grecco, 151 Nisc2d 859, 583 NYS2d 714), and precludes a charge under Vehicle & Traffic Law §511 (see People v. Fischer 165 Misc 2d 650, 630 NYS2d 188). Thus, the impoundment authority granted by the Legislature to law enforcement in cases of unlicensed operators (Vehicle & Traffic Law §511-b) was unavailing here and the Defendant could [*8][*9]not be detained based upon his alleged violation of his restricted use license.

The officer's advice to the Defendant that both an inventory search and a canine search of the vehicle would be performed exceeded the officer's authority under CPL §140.50(1) as there did not then exist any reasonable grounds to believe the Defendant was guilty of a crime rather than merely a traffic infraction. The Defendant's subsequent claimed response of an expletive and statement of "nine pounds" was the product of excessive detention and must be suppressed (People v. Banks, supra ; see also People v. Smith, 1 AD3d 965, 767 NYS2d 327).

The search of the Defendant's vehicle also cannot be sustained as a valid inventory search. Absent proof of an inventory search policy and substantial compliance with that policy, an inventory search is "not sufficiently regulated to satisfy the Fourth Amendment" (Florida v. Wells, 495 US 1, 4-5, 110 SCt 1632,1635, 109 LEd2d 1; see also People v. Johnson, 1 NY3d 252, 771 NYS2d 64, 803 NE2d 385; People v. Minto, 272 AD2d 558, 708 NYS2d 434).

The Defendant's motion to suppress the substance obtained by the search of his vehicle at the Northway rest area exit ramp, as well as his alleged statements to law enforcement after being advised that his vehicle was to be searched, and to dismiss the indictment, is granted and such evidence is suppressed and the indictment is dismissed.IT IS SO ORDERED.

Decision and Order signed this 22th day of September, 2006 at Elizabethtown, New York.

ENTER

________________________________

Richard B. Meyer

Essex County Judge