People v Lagares
Annotate this CaseDecided on August 25, 2009
Supreme Court, Monroe County
The People of the State of New York, Plaintiff,
against
Angel Lagares, Defendant.
09-0092
APPEARANCES:MICHAEL C. GREEN, ESQ., DISTRICT ATTORNEY
Faye Vitagliano, Esq., of counsel
Attorney for People
PHILLIP R. HURWITZ, ESQ.
Attorney for Defendant
David D. Egan, J.
This is a decision on a suppression motion filed by defense counsel. A hearing was held in this matter on May 20, 2009 and May 26, 2009. At the conclusion of the hearing, counsel requested and were permitted to submit written memoranda in support of their respective positions on the Defendant's motion. The Court has received both counsel's memoranda with supporting exhibits and has considered them in its determination of the motion.
The Defendant is charged by indictment with one count of Criminal Possession of a Weapon
in the Second Degree. The defendant moves to suppress any statements he made to law
enforcement as well as the weapon which was recovered after a traffic stop in which he was a
passenger. The Defendant also seeks to suppress a statement he made to Rochester Police
Department (hereinafter, "RPD") Investigators on the grounds that it was taken as the fruit of an
unlawful seizure. The Defendant also seeks suppression of other evidence that is the product of
the allegedly illegal search and seizure. The Defendant also moves for suppression of all
statements contained in the CPL §710.30 notice attached to the indictment on the grounds
that they were involuntarily obtained.
Huntley Hearing
The Court makes the following findings of fact after a full hearing:
The Court credits the testimony of Investigator Houlihan and Officer Feldman of the [*2]Rochester Police Department (hereinafter, "RPD") in all respects.
After Defendant was transported to the Public Safety Building (hereinafter, "PSB"), Investigator Houlihan then administered Miranda warnings to the Defendant by way of a standard, pre-printed form card which was admitted into evidence at the hearing. The Defendant indicated that he understood each of the rights contained in the rights advisement card. Investigator Houlihan stated that the Defendant did not appear to be under the influence of any drugs or alcoholic beverages and that he, Houlihan, did not use threats, coercion or any promises to obtain Defendant's rights waiver and cooperation. After administering the warnings and obtaining the rights waiver, Houlihan then questioned Defendant about his possible possession of the pistol. Defendant admitted to possession of the loaded pistol and that although he had the paperwork for obtaining a permit, he had failed to submit it. The statement was then reduced to writing. The Defendant was given an opportunity to make additions, deletions, or corrections to the written statement, which he did. The statement was signed by the Defendant and witnessed.
The Court makes the following conclusions of law:
The Defendant's initial statements to Officer Feldman at the roadside that "I wasn't driving, sir. I wasn't driving" were volunteered statements, and they are admissible. These statements were genuinely spontaneous, and not due to inducement, provocation, encouragement or acquiescence (see People v. Maerling, 46 NY2d 289 [1978]). The Court determines that these statements were not triggered by police conduct that should reasonably have been anticipated to evoke a statement from Defendant (see People v. Lynes, 49 NY2d 286 [1980]). The Court determines these statements to be have been made voluntarily and spontaneously. The conduct of Officer Feldman in merely stopping the car and inquiring of the driver was not reasonably likely to elicit an incriminating response from the Defendant, who was just a passenger. Therefore, the Court determines that suppression of these statements is not warranted.
Furthermore, the Court finds that the Defendant's remaining statements were taken after a
knowing, intelligent and voluntary waiver of his right to remain silent. People v.
Anderson, 42 NY2d 35 (1977). The statement taken by Investigator Houlihan was not the
product of any threats, promises, or coercion. The Defendant's argument that his will was
ostensibly overborne by Investigators's questioning of the driver within earshot is without merit.
There was no evidence adduced at the hearing to support this inference. The People proved the
voluntariness of all of Defendant's statement beyond a reasonable doubt. People v.
Anderson, 42 NY2d 35, supra.
Stop and Detention
The Court makes the following findings of fact after a full hearing:
At approximately 2:46 am on February, 2009, the Defendant was riding as a passenger in a car being driven by one Randall Taylor. RPD Officer Feldman was on patrol in a marked police car heading southbound on Dewey Avenue in the City of Rochester when he noticed that the car in front of his (later identified as belonging to Taylor) car had a missing license plate lamp in violation of Vehicle & Traffic law (hereinafter "V & TL") 375(2)(a)(4). Officer [*3]Feldman then activated his emergency lights and stopped the car in the southbound lane of Dewey Avenue in the 800 block. Upon stopping the car, he called in the license plate number and learned that the car was registered to Taylor. He approached the driver's side window, while RPD Officer Socol, who just arrived on scene as backup, stopped and approached the passenger side. Officer Feldman testified at the hearing that the area in which Taylor was stopped was a high crime area and that he was on a zero tolerance enforcement shift.
Only two occupants were in the car: Taylor, who was driving, and the Defendant, who was a front seat passenger. When Officer Feldman had an initial conversation with the driver, he noticed that Taylor bore many indicia of an intoxicated driver. Feldman then began a driving while intoxicated investigation. It was at this point when the Defendant spontaneously stated to Feldman that he wasn't driving. Feldman reassured the Defendant that he wouldn't get into trouble for being a passenger, even if he had been drinking. Both occupants admitted to Feldman that they had been drinking prior to being stopped. Feldman noticed that the Defendant had an odor of an alcoholic beverage on his breath and that his speech was slurred. He then concluded that the Defendant would not be fit to operate the car as a reasonable and prudent operator in the event that Taylor was arrested for driving while intoxicated.
Feldman then returned to his patrol car to check the license status of both occupants. He either called RPD City Records over his radio or on his cell phone. Feldman was unsure whether he took Defendant's driver's license when he did the check or whether he just obtained his pedigree data to use in the records check. The City Records check revealed that Defendant's license to drive had been suspended. Feldman then continued his driving while intoxicated investigation of Taylor, which resulted in Taylor being placed under arrest and put in the back of Feldman's car. During the investigation of Taylor, the Defendant was allowed to roam somewhat freely, even crossing the street to talk on his cell phone. Officer Socol permitted Defendant to cross the street. At no time up to this point was Defendant under arrest, or physically detained in any way.
There was some evidence adduced at the hearing by Defendant in the form of a witness from the 911 Center. Richard Kirby, CAD information specialist from the 911 Center, testified about the procedures used by road patrol officers when they contact 911 Center for certain information. Kirby also authenticated CAD printouts from this incident. The CAD and MDT ("mobile data terminal") printouts were admitted at the hearing. In short, Kirby testified that sometimes when patrol officers contact 911 Center either over the radio or through their on board car computer, sometimes no response is generated. He explained that if the 911 Center has no record on an individual, sometimes no response is sent back to the officer in the field. Kirby also testified that if a patrol officer contacts RPD City Records on a records check, 911 Center would have no record of it. The records did reveal that Officer Feldman did input an information request on Randall Taylor, but that no response was sent back by 911 Center. Kirby speculated that if an officer unsuccessfully attempted to obtain information from the 911 Center, then they would have to call RPD City Records to get it.
After placing Taylor under arrest, and after determining that Defendant's license was suspended and that Defendant may also have been intoxicated, Feldman decided to have the car towed in accordance with RPD General Order, specifically Section 511(1)(e), thereof. The RPD General Order was submitted as a hearing exhibit. Feldman and Socol testified at the hearing as [*4]being familiar with the General Order and its requirements for impoundment and inventory searches. They also testified that they were familiar with recent updates prior to this investigation. The Court has reviewed the General Order in its consideration of the proof at the hearing. The effective date of the General Order was June 14, 2004. Feldman testified that he decided to have the car towed and impounded due to both occupants's intoxication, the Defendant's suspended license, the fact the location was a "high crime" area, that the location where the car had been stopped was in a bus lane and that, lastly, due to the time of day, it was unlikely that another qualified, fit operator would be available to pick the car up on short notice.
After Feldman's decision to tow the car, he advised Officer Socol to conduct an inventory search of the car per the RPD General Order. Socol then conducted an inventory search of the whole car, which yielded no items of high value. The search did reveal, however, a loaded .22 caliber pistol under the front passenger seat where Defendant had been sitting minutes earlier. Once Socol found the pistol, he notified Feldman and called the Defendant back over from across the street. He then placed Defendant under arrest without incident and placed him in the back of his patrol vehicle.
At the hearing, the defense took the position that Feldman did not credibly establish when it was that he learned Defendant's license was suspended. The Court concludes that the People established that the information was learned sometime prior to the Defendant's arrest and the decision to tow the vehicle. From the totality of the evidence adduced at the hearing, the Court concludes that despite some omissions of the Defendant's license status and his intoxicated condition in Feldman's crime report, there was ample evidence at the hearing to establish these facts. Surprisingly, it was never the contention of the defense at the hearing that Defendant's license was not suspended at the time of the incident. But, the defense contends that the decision to have the vehicle impounded and searched was unreasonable. The defense also contended at the hearing that the length of Defendant's approximately 30 minute detention prior to arrest was unreasonable.
The Court makes the following conclusions of law:
The detention of the Defendant while RPD conducted an investigation of the equipment violation, driving while intoxicated and license status was proper and reasonable. People v. Brown, 190 AD2d 1003, 1004 (4th Dept. 1993) leave denied 81 NY2d 968 (1993). At no time prior to his arrest was Defendant handcuffed, told he was under arrest, or even told to sit in a patrol car. Rather, he was permitted to amble around the scene of the investigation, allowed to cross the street and to talk on his cell phone. It was only after Officer Socol discovered the pistol that the Defendant was ordered back and placed under arrest. Significantly, the Defendant was not even ordered on the ground at gunpoint, a technique frequently employed by police when a weapon is discovered. The Officers calmly advised Defendant to return to the West side of Dewey Avenue, where he was placed under arrest without incident.
After the V & TL stop, the police officers clearly had the authority to detain the Defendant
and to order him from the vehicle. Maryland v. Wilson, 519 US 408 (1997); People
v. Robinson, 74 NY2d 773 (1989); People v. Wilson, 284 AD2d 960 (4th Dept.
2001) leave denied 96 NY2d 943 (2001); People v. Forbes, 283 AD2d 92, 94
(2nd Dept. 2001) leave denied 97 NY2d 681 (2001).. The hearing evidence established
that the car in which Defendant was [*5]traveling had an
equipment violation which justified the stop of the car as well as the roadside detention.
Id. The degree of intrusion upon the Defendant's personal liberty under the
circumstances is de minimis. Maryland v. Wilson, 519 US at 412; People v.
Forbes, 283 AD2d at 95. The legitimate safety concerns of the officers outweighs the impact
on the Defendant's personal liberty. Id. Upon discovery of the loaded pistol under the
Defendant's seat, the officers then had probable cause to arrest the Defendant.
Standing/ Impoundment/Inventory Search
The Court makes the following findings of fact after a full hearing:
The Court finds that the Defendant was solely a passenger in the vehicle. The Defendant had no ownership interest in the vehicle in question. The Court incorporates its Findings of Fact from the "Stop and Detention" portion of this decision herein with regard to the facts and circumstances of the police decision to impound and to conduct an inventory search.
The Court makes the following conclusions of law:
The Court finds that, under the circumstances of this case, the Defendant lacks standing to challenge the subsequent inventory search and the impoundment of the driver's vehicle. People v. Brown, 190 AD2d at 1004, supra; People v. Tillman, 283 AD2d 944 (4th Dept. 2001) leave denied 96 NY2d 925 (2001); People v. Wesley, 73 NY2d 351, 361 (1989). As the Court of Appeals made clear in People v. Wesley, there is no automatic standing rule in New York where, as here, the People do not rely upon a statutory presumption of constructive possession. Id. Therefore, it was incumbent on the Defendant to plead sufficient facts in his motion papers and to adduce evidence at the hearing to justify his standing to contest the search. People v. Brown, 190 AD2d at 1004. The Court finds as a matter of law that the Defendant failed to set forth sufficient facts in his motion papers, or to adduce evidence at the hearing, sufficient to confer standing to contest the subsequent impoundment of the vehicle and the inventory search which revealed the pistol. The People have objected to the Defendant's lack of standing throughout this motion process and the Defendant has curiously not spoken to the issue at all. This is especially surprising since the burden of proving standing to contest a search and seizure is Defendant's in the first instance. See, e.g., People v. Wesley, 73 NY2d 351, supra. Therefore, as a matter of law, the issue of the propriety of the impoundment and search are immaterial to the outcome of this motion and decision.
Even if the Court were to recognize the standing of the Defendant, the Court finds as a matter of law that the decision to impound and to conduct the inventory search was proper and reasonable. People v. Johnson, 1 NY3d 252, 256 (2003)("an inventory search should be conducted pursuant to an established procedure clearly limiting the conduct of the individual officers that assures that the searches are carried out consistently and reasonably' ", quoting People v. Galak, 80 NY2d 715, 719 [1993]). Clearly, the search and impoundment here was consistent with the holding of Johnson and its progeny. The officers here testified to their familiarity with the applicable General Order on the subject and the evidence adduced at the hearing shows that they followed it. The General Order under consideration sets forth a standard [*6]procedure that was rationally designed to meet the objective justifying the search and it limited the discretion of the officers conducting the search. People v. Rivera, 60 AD3d 1390, 1391 (4th Dept. 2009). Moreover, the People proved at the hearing that the police followed the procedures provided in the General Order in conducting the inventory search. Id.
The fact that Defendant had no license and was suspected of being intoxicated himself justifies the decision to impound and to search. People v. Washington, 50 AD3d 1539, 1540 (4th Dept. 2008) leave denied 11 NY3d 742 (2008); People v. Wilburn, 50 AD3d 1617, 1618 (4th Dept. 2008) leave denied 11 NY3d 742 (2008). Contrary to the Defendant's assertion, the police were not required to explore alternatives to impoundment. Id. Moreover, there were additional facts present in the matter at bar which negated the rationality of not impounding the car. There was proof that the car was located in a high crime area; that the time of day made it improbable that a qualified driver could quickly respond to take the car, and that the car was parked in a bus lane. To the extent that any items may have been lost in the process (such as Defendant's medallion taken incident to arrest from his person), such would not negate an otherwise valid impoundment and inventory search. Id.
The remaining contentions of Defendant, if any, are without merit.
This shall constitute the decision and order of this Court.
Dated this 25th day of August, 2009 at Rochester, New York.
________________________________
Hon. David D. Egan
SUPREME COURT JUSTICE
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