People v Noreiga

[*1] People v Noreiga 2009 NY Slip Op 50925(U) [23 Misc 3d 1124(A)] Decided on May 8, 2009 Criminal Court Of The City Of New York, Queens County Lopez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 8, 2009
Criminal Court of the City of New York, Queens County

The People of the State of New York

against

Steven H. Noreiga, Defendant.



2008QN001052



For the Defendant:

Thomas McCullough, Esq.

For the People:

ADA Carla Cheung

Gene R. Lopez, J.

The defendant is charged with two counts of driving while intoxicated (Vehicle and Traffic Law §1192[2], [3]), one count of failing to obey a traffic control device (Vehicle and Traffic Law §1110[a]) and one count of consumption or possession of alcoholic beverage in a motor vehicle (Vehicle and Traffic Law §1227[1]). The defendant has moved to suppress the breathalyzer test results and beer bottles as the products of an unlawful arrest or search. A Mapp/Dunaway hearing was held on February 5, 2009, during which Officer Steven Weber testified for the prosecution and the defense did not present any witnesses. This written decision explains the basis for my decision rendered from the bench on March 31, 2009 denying the defendant's motion to suppress the results of the breathalyzer test and granting his motion to suppress the six beer bottles. As indicated on March 31, 2009, I found Officer Weber credible and make the following findings of fact and conclusions of law.[FN1]

Finding of Fact

Officer Weber, employed by the New York City Police Department for the last 23 years, was assigned to the 112th precinct on January 6, 2008. Shortly after 3:00 a.m. of that day he and [*2]his partner, Sergeant Kimberly Smith, were monitoring traffic from 150 feet southwest of the intersection of Woodhaven Boulevard and Wetherall Street in Queens County, an accident prone location.

At about 3:50 a.m., Officer Weber saw the defendant driving a 1994 Chevy Blazer, traveling southbound on Woodhaven Boulevard, make an illegal U-turn at the intersection of Wetherall Street and Woodhaven Boulevard in violation of two posted signs.[FN2] Officer Weber stopped the defendant at the intersection of Woodhaven Boulevard and Queens Boulevard, near the Long Island Expressway.

Officer Weber approached the driver's side of the Blazer, explained to the defendant his reason for stopping him and then asked for his driver's license which he produced. During this interaction, Officer Weber smelled a strong odor of an alcoholic beverage on defendant's breath and saw that the defendant had bloodshot, watery eyes. The defendant, when asked by Officer Weber, denied he had been drinking, and said it was his passengers who had been drinking, one of whom was in the front passenger seat and two others were in the rear passenger seats.

Officer Weber, after confirming that the defendant had a valid license and registration, asked the defendant to exit the Blazer and administered a portable breathalyzer test to the defendant which indicated a .188 percent blood alcohol content. The defendant was then arrested and transported to the 112th precinct. Officer John Tan, who arrived at the scene after the defendant was arrested, drove the Blazer along with the defendant's passengers to the precinct and parked it nearby; the three passengers remained at the precinct to await the results of the breathalyzer test.

Officer Weber, after processing the defendant at the 112th precinct, returned to the Blazer at about 5:30 a.m. in order to secure it. Officer Weber testified that the vehicle was not in his custody or the department's custody and had also determined the defendant was not the owner. Officer Weber saw on the floor behind the driver's seat six 12 ounce bottles of Corona beer. At the time of the stop and defendant's arrest, Officer Weber had not seen these bottles. Two of the six bottles were unopened and the rest were opened, containing various amounts of beer.

Conclusions of Law

In this case, Officer Weber lawfully stopped the defendant's vehicle; Officer Weber observed the defendant commit a traffic infraction, an illegal U-turn. (See People v Ingle, 36 NY2d 413 [1975]; People v Bryon, 4 Misc 3d 1024[A][Sup Ct, Bronx County 2004]. ) Officer Weber, during the discussion with the defendant to determine whether he was properly licensed and the Blazer was properly registered, smelled a strong odor of alcohol on the defendant's breath and saw that his eyes were bloodshot and watery. The effect of these combined observations was sufficient to create a reasonable suspicion for Officer Weber to believe that the defendant had been driving the Blazer while intoxicated and to direct the defendant to exit the vehicle. (See [*3]People v DeBour, 40 NY2d 210, 223 [1976].) It was also proper for Officer Weber to ask the defendant to take the alco-sensor test. (Vehicle and Traffic Law §1194[1][b].) The defendant agreed and took the test, which resulted in a reading of .188 percent blood alcohol content. At this point, Officer Weber had probable cause to arrest the defendant for driving while intoxicated. (See People v Ball, 141 AD2d 743 [2d Dept], lv denied 72 NY2d 954 [1988]; People v Blajeski, 125 AD2d 582 [2d Dept 1986], lv denied 69 NY2d 877 [1987].) At the precinct, a breathalyzer test was administered to the defendant. Since the stop and arrest of the defendant were lawful, the defendant's motion to suppress his test result is denied.

The People maintain that Officer Weber's recovery of the six beer bottles was lawful and consistent with the plain view doctrine [FN3]. The defendant contends that they were unlawfully recovered through an improper inventory search.

After the defendant was arrested at about 3:50 a.m. and taken to the 112th precinct where he was held in police custody, Officer Weber, at about 5:30 a.m., returned to the Blazer which earlier had been impounded by the police [FN4], with the intent, according to the prosecution, to secure the [*4]vehicle - "make sure it was locked"[FN5] -, but not to inventory its contents.

While securing the Blazer, Officer Weber testified that: "I went back to the vehicle to secure it, make sure it was locked and I observed on the floor of the rear behind the driver's seat of the vehicle on the floor six 12 ounce bottles of Corona beer..."[FN6], and seized the six beer bottles for use as evidence against the defendant.[FN7] The People argue that Officer Weber without a search warrant lawfully seized these beer bottles as evidence of the defendant's intoxication, relying on the plain view doctrine.

When the police engage in actions which result in the seizure of evidence, those actions, as the United States Supreme Court recently held, are per se unreasonable under the Fourth Amendment when conducted outside of the judicial process unless the police act in accordance with recognized exceptions to the requirement they first obtain a search warrant approved by a judge or magistrate. (See Arizona v. Gant, 556 US____, 2009 WL 1045962.) Among the recognized exceptions to the warrant requirement are, of course, property recovered pursuant to the plain view doctrine (See People v Spinelli, 35 NY2d 77 [1974]), and property recovered as a result of an inventory search (See People v. Sullivan, 29 NY2d 69 [1971].)

The Court of Appeals stated in People v Diaz, 81 NY2d 106, 110 (1993), that "[u]nder the plain view doctrine, if the sight of an object gives the police probable cause to believe that it is the instrumentality of a crime, the object may be seized without a warrant if three conditions are met: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object's incriminating nature is immediately apparent. (citations omitted)." The continued viability of the prosecution's reliance on the plain view doctrine requires the prosecution to also demonstrate Officer Weber's discovery of the beer bottles was inadvertent. (People v Coston, 271 AD2d 694 [ 2d Dept], lv denied 95 NY2d 833 [2000].)

In this case, there is no dispute that the incriminating nature of these objects was not immediately apparent to Officer Weber,[FN8] or that he had not intended to search for the beer bottles. (See, People v Whitfield, 255 AD2d 924 [4th Dept 1998], lv denied 93 NY2d 981 [1999]). Thus, the issue becomes whether the Officer Weber was in a position to view the beer bottles and had lawful access to the bottles under the plain view doctrine [FN9]. [*5]

About one hour and 40 minutes after defendant was stopped and arrested, the Blazer was still parked at or near the precinct and the defendant was in police custody, safely confined within the 112th precinct. The prosecution failed to elicit or omitted from Officer Weber's testimony clarifying facts that would have established whether the Blazer was a 2 or 4 door vehicle and whether Officer Weber saw the beer bottles while he was outside of the Blazer or discovered the bottles after he entered the Blazer. The prosecutor, in her concluding remarks, said "I believe his (Weber's) testimony was he went to lock it, basically, and observed by going to the vehicle beer bottles in the back".[FN10] The implication of the prosecutor's closing remarks is clear; Officer Weber was outside of the Blazer when he saw the beer bottles and makes the prosecutor's decision not to rely on an inventory search as a basis for the seizure of the bottles more understandable.[FN11] The prosecutor, nevertheless, has the burden of going forward with evidence that establishes that Officer Weber acted properly when he seized the beer bottles by presenting sufficient and unambiguous facts through his testimony. In this regard I find the People have failed to meet their burden of going forward with evidence of establishing where Officer Weber was when he saw the beer bottles. (See People v Rosa, 30 AD3d 905 [3d Dept], lv denied 7 NY3d 851 [2006]); People v De Frain, 204 AD2d 1002 [4th Dept], lv denied 84 NY2d 825 [1994].) The willful ambiguity in Officer Weber's testimony permits either the conclusion that he saw the beer bottles while he was standing outside of the Blazer or that he recovered the bottles after he entered the Blazer while in the process of securing it.

Assuming Officer Weber saw the beer bottles while standing next to, but outside of the Blazer, and thus accepting the People's version of how he came to seize the beer bottles, the People have nevertheless failed to demonstrate that Officer Weber had lawful access to the Blazer when he entered the Blazer to seize the beer bottles. It is clear that Officer Weber had the means to secure the Blazer while he sought a search warrant and the prosecution has presented no urgent, public safety concern (cf. People v Singleteary, 35 NY2d 528 [1974][urgency in seizing evidence identifying robbers of several elderly people from a car without a warrant constituted an overriding public safety concern]) or exigent circumstances, (cf. People v Ciaccio, 45 NY2d 626 [1978][exigent circumstances existed to overcome need to first obtain a search warrant where police had probable cause to believe a hijacked truck containing stolen watches was about to be moved]) that could excuse Officer Weber's failure to obtain a search warrant in order to seize the beer bottles. Here, as in People v Spinelli, 35 NY2d 77, 81-82 [1974] it is evident there was no impediment to Officer Weber getting a search warrant: "The crux then is that there was ample [*6]time for the law enforcement officials to secure a warrant in order to make this significant intrusion onto the defendant's premises....In the case at bar there was absolutely no justification - either relating to exigent circumstances or the nature of the search or seizure effected - for not obtaining a search warrant." While the police in Spinelli entered private property to seize the stolen truck, the Blazer was already in police custody, either in a secure area or on a public street near the precinct. The defendant's privacy interests in the Blazer is as the United States Supreme Court recognized in Arizona v Gant, 556 US ___ ,2009 WL 1045962, "...nevertheless important and deserving of constitutional protection," particularly in the absence of any safety or evidentiary concerns that otherwise might have justified a warrantless search of the Blazer. Accordingly, I find the People have failed to justify the seizure by Officer Weber of the beer bottles from the Blazer based on the plain view doctrine and the defendant's motion to suppress the beer bottles recovered from the Blazer is granted.[FN12]

The foregoing is the decision and order of the court.

Dated:May 8, 2009

Queens County, New York

________________________________

Gene R. Lopez

J.C.C. Footnotes

Footnote 1:

The Decision and Order dated May 6, 2009 is withdrawn and replaced by this Decision and Order, dated May 8, 2009. Errors in the editing of the final revision of the draft of May 6, 2009 occasioned this action.

Footnote 2:At this intersection, two signs are affixed to posts on the center median that divides Woodhaven Boulevard into north and south bound lanes. Officer Weber described these signs as rectangular in shape with a white background and a red circle. An inverted U with a diagonal arrow is inside the red circle. According to Officer Weber, this is the universal symbol of no U-turn and U-turns are thus prohibited for traffic headed southbound on Woodhaven Boulevard. Officer Weber testified that on the day in question these signs were visible and obstruction free.

Footnote 3:

In this regard, the prosecutor pointedly disavowed that the recovery of the beer bottles by Officer Weber was a result of an inventory search: "It's not my position that he was doing an inventory search (Hearing at 39)".

Footnote 4:

The notion testified to by Officer Weber and argued in conclusory terms by the prosecution that neither Officer Weber nor the police department had custody of the Blazer is rejected. (See People v Grant, 17 Misc 3d1102[A] [Sup Ct, Kings County 2007].) Officer Weber testified on direct examination that neither he nor the police department had custody of the Blazer when he returned to secure it at about 5:30 a.m. where Officer Tan had parked it near the 112th precinct. Officer Weber testified further on cross examination that Officer Tan was summoned to the intersection of Woodhaven Boulevard and Queens Boulevard near its intersection with the Long Island Expressway, the scene of the defendant's arrest, and drove the Blazer and the defendant's three passengers, who were not in custody, to the 112th precinct. Officer Weber also testified that upon smelling a strong odor of alcohol on the defendant's breath he had asked the defendant whether he had been drinking. The defendant, of course, said that his passengers had been drinking. Officer Weber had, by then, confirmed that neither the defendant nor any of his passengers were the owners of the Blazer and had not contacted the owner. The prosecutor, although given an opportunity to rebut this testimony, did not challenge any of this testimony. The rational and reasonable inferences drawn from these facts are that Officer Tan was summoned to the scene to drive the Blazer to the 112th precinct because no occupant could legally drive the Blazer for any number of valid reasons: because none of the occupants were licensed to drive, none could drive the Blazer in their physical condition, none were the registered owner, or the Blazer could not be left safely at a busy intersection just before the onset of the morning rush hour. Thus, I find the police lawfully impounded the Blazer for valid public safety reasons. (People v Martin, 50 AD3d 1169 [3d Dept 2008]; People v Iverson, 22 Misc 3d 470 [Rochester City Ct 2008].)

Footnote 5:Hearing transcript at 8.

Footnote 6:Hearing transcript at 8.

Footnote 7:

The prosecution did not elicit direct testimony from Officer Weber that he entered the Blazer and retrieved the six beer bottles, but it is reasonable to infer that he did.

Footnote 8:There was no testimony as to where the vehicle was parked. It is reasonable to infer the Blazer was either parked on a public street near the precinct or within an area under the control of the police department. As such Officer Weber could properly observe the interior of the vehicle.

Footnote 9:The People do not dispute that the defendant had standing to challenge the search of the Blazer. Based upon the officer's testimony, it is reasonable to infer that the defendant had the permission of the Blazer's owner to operate the it. As a result, the defendant retained an expectation of privacy in the Blazer and its contents. (People v Gonzalez, 68 NY2d 950 [1986]; People v Lewis, 217 AD2d 591 [2d Dept 1995].)

Footnote 10:Hearing transcript at 20.

Footnote 11:

If Officer Weber had discovered the beer bottles after he entered the Blazer, the only legal justification for the seizure of the bottles would have rested on a properly conducted inventory search.

Footnote 12:

There is no need to consider the application of an inventory search to these facts in light of the People's position that they are not relying on that theory to justify the seizure of the beer bottles by Officer Weber.