People v Adams

[*1] People v Adams 2009 NY Slip Op 51982(U) [25 Misc 3d 1205(A)] Decided on September 24, 2009 Supreme Court, Nassau County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2009
Supreme Court, Nassau County

The People of the State of New York

against

Duane Adams, Defendant.



1007N/09

Norman St. George, J.

The defendant is charged with one (1) count of violating Penal Law §220.16, Criminal Possession of a Controlled Substance in the Third Degree as a Class B Felony, one (1) count of violating Penal Law §220.03, Criminal Possession of a Controlled Substance in the Seventh Degree as a Class A Misdemeanor, one (1) count of violating Penal Law §170.25, Criminal Possession of a Forged Instrument in the Second Degree as a Class D Felony, one (1) count of violating Penal Law §190.23, False Personation as a Class B Misdemeanor, two (2) counts of violating Vehicle and Traffic Law §511.2, Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree as a Class A Misdemeanor, and various other Vehicle and Traffic Law violations.

On September 16, 2009, upon stipulation by both parties, this Court conducted a Huntley, Mapp, and Dunaway hearing. (See People v Huntley, 15 NY2d 72 [1965]; Mapp v Ohio, 367 US 643, 81 SCt 1684, 6 LEd2d 1081 [1961]; and Dunaway v New York, 442 US 200, 99 SCt 2248, 60 LEd2d 824 [1979]). The Huntley hearing pertained to three statements allegedly made by the defendant to the Police prior to and after his arrest, namely:

1. "I ain't got nothing on me, you can check me if you want."

2. "Listen, can I work with you guys to make this thing go away tonight."

3. "That Maryland driver's license ain't no good. I had it made."

The Mapp portion of the hearing was regarding cocaine allegedly seized from the defendant's back pants pocket, cocaine allegedly seized from the defendant's wallet, and cocaine and methamphetamine allegedly seized from a hidden compartment in the vehicle that the defendant was driving.

The People called three witnesses at the hearing: Police Officer Gene J. Piccirillo, Police Officer Douglas Hardiman, and Police Officer Michael J. LaSala, all of the Nassau County Police Department. The defendant did not call any witnesses. Based on the testimony of Police Officers Piccirillo, Hardiman and LaSala, this Court makes the following findings of fact and conclusions of [*2]law:

FINDINGS OF FACT

This Court finds the testimony of Officers Piccirillo, Hardiman and LaSala to be credible. Officers Piccirillo and LaSala are both sixteen year veterans of the Nassau County Police Department. Officer Hardiman is an eleven and a half year veteran of the Nassau County Police Department.

On March 13, 2009, Officer Piccirillo testified that he and his partner, Officer Hardiman, were dressed in plain clothes patrolling the First Precinct of Nassau County in an unmarked Nassau County Police car. At approximately 11 p.m., they were traveling north on Newbridge Road in East Meadow, Nassau County, New York. Officer Piccirillo testified that his attention was drawn to a black Nissan Altima which was also traveling north on Newbridge Road. Officer Piccirillo indicated that the driver was operating his vehicle while talking on a cellular phone. Officer Piccirillo followed the vehicle and continued to observe it. He observed the vehicle drift from the right lane, over the broken white line lane markings, into the left lane without signaling. Officer Piccirillo observed the vehicle speed up and slow down at various times. After the vehicle was stopped at a red light, Officer Piccirillo noticed that the vehicle delayed in proceeding after the light turned green. Officer Piccirillo testified that based on the manner that the vehicle was being operated, he suspected that the operator of the vehicle might be under the influence of either alcohol or drugs. Officer Piccirillo activated his emergency lights and pulled the vehicle over at the intersection of Newbridge Road and Orchid Road.

Officer Piccirillo approached the driver's side of the vehicle and spoke with the driver (whom he identified in Court as the defendant) who was the sole occupant of the vehicle. Officer Hardiman approached the passenger side of the vehicle. Officer Piccirillo testified that he asked the defendant for his driver's license, registration and insurance card. The defendant produced a Maryland State driver's license with the name "Anthony Carwell." Officer Piccirillo testified that the defendant appeared to be lethargic and confused. Officer Piccirillo then again asked the defendant for the vehicle's registration and insurance card. The defendant turned to the center console of the vehicle and opened it. Officer Piccirillo testified that when the defendant opened the center console he observed a large amount of U.S. currency "haphazardly strewn" throughout the center console. Officer Piccirillo watched as some of the money actually overflowed out of the center console. Officer Piccirillo testified that the defendant abruptly shut the center console and looked straight ahead. Officer Piccirillo observed that the defendant then appeared to become nervous and his hands started shaking. Officer Piccirillo stated that since he did not smell the odor of alcohol in the car, he suspected that the defendant might be under the influence of drugs. Officer Piccirillo asked the defendant to step out of the vehicle to continue his investigation. He also testified that he wanted [*3]the defendant to step out of the car for police officer safety because he was concerned about the abrupt manner in which the defendant shut the center console.

Officer Piccirillo testified that when the defendant opened the driver's door and stepped out of the vehicle, he observed a plastic baggie in the map pocket of the driver's side door. Officer Piccirillo concluded, based on his training and experience in the recognition of controlled substances and the packaging of controlled substances, that the plastic baggie was consistent with those used for the packaging of drugs. Officer Piccirillo indicated to Officer Hardiman that he saw a plastic baggie in the vehicle. The defendant was directed over to Officer Hardiman who was now located at the rear of the vehicle that the defendant had been driving. Officer Hardiman testified that he intended to pat the defendant down for police officer safety. Officer Hardiman asked the defendant if he had any weapons or drugs on him and the defendant stated, "I ain't got nothing on me, you can check me if you want." Officer Hardiman then patted the defendant down. Upon feeling a rocklike substance in the defendant's right rear pocket Officer Hardiman asked the defendant if he was sure he had no weapons or drugs on him. The defendant again stated "I ain't got nothing on me, go ahead and check ." Officer Hardiman testified that he went into the defendant's right rear pocket and retrieved a black glassine bag which contained a white rock-like substance which he believed to be cocaine. The defendant was then arrested, placed into handcuffs, and placed into the rear of the unmarked Police car.

Officer Piccirillo testified that he then did a "cursory search" of the driver's side of the vehicle for the presence of any weapons and additional drugs in the defendant's immediate area. Officer Piccirillo testified that he did not see any weapons or drugs in the driver's side of the vehicle; however, he recovered the defendant's wallet which was on the front seat of the car. Although Officer Piccirillo testified at the hearing that he did not search the defendant's wallet until he returned to the precinct, on cross-examination Officer Piccirillo admitted that he previously gave testimony to Grand Jury that he searched the defendant's wallet at the scene. Officer Piccirillo further admitted during cross-examination that he told the Grand Jury that it was at the scene that he recovered a clear envelope from the defendant's wallet which contained a small amount of white powdery substance which he believed to be cocaine.

Officer Piccirillo testified that after the defendant was arrested, a K-9 unit was passing the scene and stopped to see if they needed assistance. Officer Piccirillo told the K-9 Officer that he wanted the vehicle sniffed by his dog to determine if there were any drugs in the car. The K-9 Officer responded that his dog was trained to search for bombs and explosives, but not for drugs. The K-9 Officer put out a notification for a narcotics K-9 unit to respond to the scene. Shortly thereafter, Officer Michael LaSala responded to the scene with his canine partner named "Maverick." Officer LaSala testified that when he arrived at the scene, the defendant was already in handcuffs and was located in the rear of Officer Piccirillo's unmarked Police car. Officer LaSala explained that Maverick is trained to detect the presence of controlled substances by sniffing. Upon finding a controlled substance, Maverick is trained to give an "active alert" by becoming excited and scratching at the area where he believes there are drugs. Officer LaSala further detailed Maverick's training and experience in the detection of drugs. Officer LaSala testified that he directed Maverick [*4]to first sniff the outside of the vehicle. Maverick sniffed the entire outside of the vehicle and gave an active alert at the driver's side door handle. Based on this active alert, Officer LaSala testified that he opened the driver's side door of the vehicle and allowed Maverick to enter the vehicle. Maverick immediately jumped into the back seat of the vehicle and gave an active alert at the rear of the front passenger seat. Officer LaSala removed Maverick from the car and visually inspected the rear of the front passenger seat. He testified that he folded the front passenger seat down flat and looked inside the gap between the rear of the seat and the cushion of the seat. Officer LaSala stated that, in his experience, drugs are often hidden in the space between the rear of the seat and the cushion of the seat. Officer LaSala first saw two pink Christmas tree air fresheners hanging inside the seat. He also noticed that the interior area of the seat was carpeted. Officer LaSala explained that it was unusual for that area of the seat to be carpeted. He then worked his fingers into the gap and felt that there was a locking mechanism. Officer LaSala testified that he returned the seat to its upright position and, using a flashlight, looked into the gap area from above. Officer LaSala testified that in the gap area he observed a plastic bag containing a white substance which he believed to be cocaine. Officer LaSala then forced the rear of the seat open and the rear back to the seat came down on hinges. He observed a locking mechanism at the top center of the seat that caused it to lock shut. Officer LaSala recovered a large plastic bag containing 46 smaller ziplock baggies, each containing a white powdery substance which he believed to be cocaine. He also recovered bags containing pills which Officer LaSala believed to be methamphetamine. On cross examination, Officer LaSala admitted that at no time did the defendant consent to the search of the vehicle, and that no application for a search warrant was ever made.

Officer Piccirillo testified that after the drugs were recovered from the vehicle, he walked over to the back of his Police car to check on the defendant. Officer Piccirillo stated that defendant said to him, "Listen, can I work with you guys to make this thing go away tonight." The defendant was then transported to the First Precinct for arrest processing.

Officer Piccirillo testified that at the precinct he invoiced the defendant's wallet. He stated that he looked through the defendant's wallet to identify the contents for the property invoice. Officer Piccirillo testified that he recovered a clear envelope from the defendant's wallet which contained a small amount of white powdery substance which he believed to be cocaine. He also recovered a BJ wholesale supermarket card which had a different name than the name which was on the Maryland driver's license that the defendant had given to him at the scene. The name of the BJ card was Duane Adams. Officer Piccirillo took a thumb print of the defendant and determined that he was Duane Adams and not Anthony Carwell. Officer Piccirillo approached the defendant and asked him, "Who is Anthony Carwell?" The defendant responded, "That Maryland driver's license ain't no good. I had it made."

Officers Piccirillo and Hardiman testified that the white powdery substance found in the defendant's pocket and in the defendant's wallet was later tested and found to be cocaine. Officer LaSala testified that the 46 bags of white powdery substance found in the hidden compartment in the car were tested and found to contain 28 grams of cocaine, and the pills were tested and found to be methamphetamine.

CONCLUSIONS OF LAW

Defense counsel argues that there was no reason or basis for the stop of the defendant's vehicle. Defense counsel contends that the testimony concerning the defendant talking on a cellular phone was pre-textual in nature and should not have been the basis for the car stop. Further, defense counsel asserts that the testimony adduced at the hearing failed to establish a basis for the defendant to be removed from his car and therefore everything occurring after the defendant was removed from the car should be suppressed. The People respond that Officer Piccirillo had a basis to stop the defendant's vehicle based on the defendant's cellular phone use and erratic driving. The People argue that the defendant was properly removed from the car based on the excessive amount of money in the center console, the defendant's demeanor, and for police officer safety. The People further argue that the search of the defendant's person was consented to by the defendant and the search of the vehicle was proper based on the results of the canine alert. The People offer that the search of the defendant's wallet was necessary in order to invoice the defendant's property.

REASONABLE SUSPICION FOR THE STOP OF THE DEFENDANT'S VEHICLE:

It has been long held that the stop of an automobile constitutes a limited seizure of its occupants for federal and state constitutional purposes (see Delaware v Prouse, 440 US 648, 99 SCt 1391, 59 LEd2d 660 [1979]; People v Ingle, 36 NY2d 413 [1975]). The Court of Appeals has specifically held that a police officer may stop a moving vehicle if he or she at least reasonably suspects that the occupants had been, are then, or are about to be engaged in conduct in violation of the law (see People v Spencer, 84 NY2d 749 [1995]; People v Sobotker, 43 NY2d 559 [1978]; People v May, 81 NY2d 725 [1992]). Further, the police may stop a car upon reasonable suspicion that a violation of the Vehicle and Traffic Law has occurred (see People v Ingle, supra).

Officer Piccirillo testified that he observed the defendant committing violations of the Vehicle and Traffic Law. First, the defendant was operating the vehicle while using a cellular phone. Second, the defendant was failing to maintain one lane of traffic. Third, the defendant failed to signal lane changes. In addition, Officer Piccirillo testified as to the defendant's erratic operation of the vehicle, i.e., speeding up and slowing down, and a delay in proceeding after a red traffic light turned green. Based on the testimony of Police Officer Piccirillo, this Court finds that there was a legal basis for him to stop the defendant's vehicle for both the Vehicle and Traffic Law violations, and to investigate whether the defendant was driving while under the influence of alcohol or drugs.

REMOVAL OF THE DEFENDANT FROM THE VEHICLE:

Upon Officer Piccirillo requesting the defendant's registration and insurance card, the [*5]defendant opened the center console of the vehicle and a large amount of cash came tumbling out. Thereafter, Officer Piccirillo requested that the defendant exit the vehicle. Officer Piccirillo testified, and the People contend, that the mere presence of a large amount of cash strewn throughout the center console is indicative of criminal activity. This Court finds that it is equally indicative of non-criminal activity and therefore, without more, does not provide Officer Piccirillo with a legal basis to remove the defendant from the vehicle. However, Officer Piccirillo indicated that the reason he stopped the defendant's vehicle was for the Vehicle and Traffic Law violations in addition to his suspicion that the defendant was driving under the influence of alcohol or drugs. Officer Piccirillo's testimony that the defendant appeared lethargic and confused provided him with additional information to suspect that the defendant was impaired by drugs. Although the defendant's action in slamming shut the center console after money poured out of it is innocuous standing alone, when viewed together with the defendant's other conduct correctly elevated the suspicion level of Officer Piccirillo. Not only did the defendant slam the center console shut, but after shutting the center console the defendant became visibly nervous, his hands began shaking, and he stared forward. Moreover, the reason that the defendant opened the center console was to retrieve the vehicle's registration and insurance information. Notably, after the cash poured out of the center console the defendant ceased any effort to look for the registration and insurance information therein or anywhere else in the car.

This Court holds that Officer Piccirillo had reasonable suspicion to remove the defendant from the vehicle to continue his investigation of the defendant for Driving While Impaired by Drugs. In addition, the defendant's conduct with respect to the center console was sufficiently suspicious enough to warrant Officer Piccirillo to remove the defendant from the vehicle for police officer safety concerns. (See People v. Robinson, 74 NY2d 773, 774-775 [1989] cert denied 493 US 996, 110 SCt 411, 107 LEd2d 376 [1989]; People v Douglas, 42 AD3d 756 [3rd Dept 2007]).

SEARCH OF THE DEFENDANT'S PERSON:

Officer Piccirillo testified that when the defendant was removed from the vehicle he observed a plastic bag in the driver's side door pocket. Officer Piccirillo believed that the plastic bag was consistent with drug packaging. The defendant was then directed to Officer Hardiman who intended to pat down the defendant for his and Officer Piccirillo's safety. Before Officer Hardiman patted down the defendant, he asked the defendant about having any weapons or drugs on his person. The defendant replied in the negative and explicitly invited Officer Hardiman to search him.

Defense counsel argues that although the police officers claim they were investigating the defendant for Driving While Impaired by Drugs, they never requested that the defendant perform any field sobriety tests common in such investigations. Defense counsel therefore questions the motivations of the police officers in removing the defendant from the car. The fact that no field performance tests were requested of the defendant after the police discovered that the defendant had what they believed to be drugs in his pocket is of no moment. The decision by the police to immediately arrest the defendant based on what they believed to bedrugs instead of continuing their [*6]investigation of the defendant for Driving While Impaired by Drugs is obviously within their discretion. That decision in no way obviates the initial stated basis for the investigation.

Based on the escalating circumstances; i.e., the defendant's manner of operation of the vehicle, the defendant's demeanor in the car, the cash in the center console, the defendant's conduct after opening the center console, and the clear baggie in the driver's side door pocket, Officer Hardiman had a justifiable basis to pat down the defendant for police officer safety. (See People v Shackleford, 57 AD3d 578 [2nd Dept 2008], lv denied 12 NY3d 762 [2009]; People v. Sutherland, 40 AD3d 890 [2nd Dept 2007]). Moreover, the pat down and subsequent search of the defendant's pocket were permissible based on the defendant's explicit invitation and consent. Therefore, defendant's motion to suppress the cocaine seized from the defendant's pocket is denied.

PROBABLE CAUSE FOR THE ARREST OF THE DEFENDANT:

This Court finds that there was probable cause to arrest the defendant for Criminal Possession of a Controlled Substance based on the white powdery substance that Officer Hardiman recovered from the defendant's pocket. Based the training and experience of both Officer Piccirillo and Officer Hardiman, they believed the substance recovered to be cocaine.



SEARCH OF THE DEFENDANT'S WALLET:

During the hearing it was established that Officer Piccirillo testified before the Grand Jury that he searched the defendant's wallet at the scene and recovered what he believed to be cocaine. At the hearing, Officer Piccirillo testified that the defendant's wallet was not searched until they arrived back at the precinct. There is a glaring discrepancy between Officer Piccirillo's testimony before the Grand Jury and his testimony at the hearing with respect to the search of the defendant's wallet. This Court accepts Officer Piccirillo's testimony to the Grand Jury that he searched the defendant's wallet at the scene. Officer Piccirillo failed to explain the basis for his search of the defendant's wallet at the scene. His stated reason for going back into the car after the defendant was arrested was to search the "grab area" for any weapons or drugs. The search of the defendant's wallet at that point was without a legal basis. Therefore, defendant's motion to suppress the cocaine seized from the defendant's wallet at the scene is granted.

SEARCH OF THE DEFENDANT'S VEHICLE AFTER ARREST:

It is well settled that "[a] police officer's entry into a citizen's automobile . . . is a significant encroachment upon that citizen's privacy interest" (see People v Torres, 74 NY2d 224, 229-30 [1989]; People v Acquino, 119 AD2d 464, 465 [1st Dept 1986]). An ordinary traffic infraction standing alone will not justify a search of the vehicle. However, when there is probable cause to arrest a defendant, "where the police have reason to believe that a car may contain further evidence relating to a crime, they need not stop with the initial recovery of . . . contraband, but may search the [*7]entire vehicle, including closed containers . . . for additional contraband" (see People v Belton, 55 NY2d 49 [1982], rearg denied 56 NY2d 646 [1982]); People v Ellis, 62 NY2d 393 [1984]; People v Cruz, 7 AD3d 335 [1st Dept 2004]; People v Powell, 32 AD3d 544, 545 [2nd Dept 2006 ]).

Similarly, with respect to a canine sniff of an automobile, where there has been a lawful traffic stop of a vehicle a canine sniff may be conducted without offending the state or federal constitutions (see People v Willette, 42 AD3d 674 [3rd Dept 2007]). Further, the use of a narcotics-detection dog to sniff the exterior of the vehicle during the lawful stop of the defendant's vehicle does not violate the defendant's constitutional right to be protected from unlawful search and seizure (see People v Estrella, 48 AD3d 1283 [4th Dept 2008], affd 10 NY3d 945 [2008], cert denied — US —, 129 SCt 608,172 LEd2d 457 [2008]; People v Devone, 57 AD3d 1240 [3rd Dept 2008], lv granted 12 NY3d 852 [2009]).

In the case at bar, Police Officers Piccirillo and Hardiman had a founded suspicion that there were drugs in the vehicle that the defendant was operating. Their founded suspicion was based upon the drugs found on the defendant, the plastic baggie observed by Officer Piccirillo in the vehicle, and money strewn throughout the center console. Consequently, there existed a sufficient basis to permit a canine sniff of the exterior of the vehicle. Once the canine sniff of the exterior of the vehicle was conducted and there was an active alert at the driver's side door handle, that active alert provided reasonable suspicion to permit the dog to enter the interior of the vehicle to continue his sniffing. The training and reliability of the canine named "Maverick" with respect to sniffing for drugs was sufficiently established during the hearing based upon the testimony of Officer LaSala.

This Court holds that since the canine gave an active alert at the rear of the passenger side seat, that active alert established probable cause for Officer LaSala to enter the vehicle and search the area indicated, namely the rear of the front passenger seat. (See People v Gathogo, 276 AD2d 925 [3rd Dept 2000], lv denied 96 NY2d 734 [2001]; People v Offen, 78 NY2d 1089 [1991]; People v Abdur-Rashid, 64 AD3d 1087 [3rd Dept. 2009 ] ). Moreover, probable cause to search the vehicle also separately existed based on the defendant's arrest for Criminal Possession of a Controlled Substance, together with the plastic baggie observed by Officer Piccirillo in the vehicle, and the money strewn throughout the center console.

In light of the forgoing, Defendant's motion to suppress the cocaine and methamphetamine seized from the car is denied.

STATEMENTS BY THE DEFENDANT:

The defendant made three statements to the Police. The first statement allegedly made by the defendant: "I ain't got nothing on me, you can check me if you want," was in response to Officer Hardiman's question of whether he had any weapons or drugs on him. The statement was made [*8]moments after the defendant was asked to step out of the vehicle. This Court finds that when the defendant made the statement he was not in custody, he was not under arrest, and he was not being interrogated. The questions asked by Officer Hardiman were investigatory in nature. The defendant's response was his consent to the search of his person. Consequently, Miranda warnings were not required. This Court finds that the response by the defendant was voluntarily given by the defendant. Therefore, the defendant's motion to suppress the statement is denied.

The second statement allegedly made by the defendant, "Listen, can I work with you guys to make this thing go away tonight," was made spontaneously by the defendant after the drugs were recovered from inside the vehicle. Although the defendant was already under arrest, he was not being interrogated. Consequently, Miranda warnings were not required. This Court finds that the statement was voluntarily given by the defendant. Therefore, the defendant's motion to the suppress the statement is denied.

The third statement allegedly made by the defendant, "That Maryland driver's license ain't no good. I had it made," was made in response to a question by Officer Piccirillo. Upon finding the BJ card in the defendant's wallet, Officer Piccirillo questioned the defendant about the discrepancy between the name on the BJ card and the name on the Maryland license that the defendant had presented at the scene. This, notwithstanding the fact that Officer Piccirillo had already performed a thumb print scan on the defendant and knew his true identity. The defendant was in custody at that time and had not been read his Miranda warnings. This Court finds that the question asked by Officer Piccirillo was interrogatory in nature and was designed to illicit an incriminating response from the defendant. Therefore, the defendant's motion to suppress the statement is granted.

This constitutes the opinion, decision and order of the court.

Dated: September 24, 2009

ENTER:

____________________________________

Hon. Norman St. George

Acting Supreme Court Justice