People v Cohen

[*1] People v Cohen 2009 NY Slip Op 52101(U) [25 Misc 3d 1215(A)] Decided on October 19, 2009 St. Lawrence County Ct Richards, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 19, 2009
St. Lawrence County Ct

The People of the State of New York

against

Ryan D. Cohen, Defendant



2009-025



The People, by Nicole M. Duvé, Esq., District Attorney

Defendant Ryan D. Cohen, by Peter Dumas, Esq.

Jerome J. Richards, J.

On September 3, 2009 this court conducted a suppression hearing relating to the basis for the stop of the vehicle in which defendant was a passenger, the legality of the canine sniff of the exterior of the vehicle, the search of the vehicle, seizure of alleged marijuana, and the voluntariness of statements given by defendant to police officers. Troopers Kevin Beattie and Steven Bos testified, and the court gives full credence to their testimony.

Trooper Kevin Beattie testified that he is a 19-year veteran of the New York State Police, and is trained to work with his canine, named Cully, to detect narcotics and marijuana. OnJuly 21, 2008 he was working a noon to midnight shift, with Cully in the car. Between 8 and 9 p.m. Beattie was headed east on NY route 37C near Helena. He encountered a small green car going the opposite direction; its license plate had the first three letters of CYY. As the car passed him, Beattie concluded that the license plate was not a local registration, so he called the station to verify registration data, and learned that the vehicle was from the Oneida, NY area. Beattie asked other police vehicles to be on the lookout for the green car because of the time of day, the fact that it was registered from outside the area, and the fact that the area where Beattie saw the car was on a known drug smuggling route.

Sometime later, Beattie received a call from Trooper Bos, reporting that Bos had seen the car in the Gouverneur area. When he received this call, Beattie was on the way to Canton, and continued on to the Gouverneur area. Bos told Beattie that he had stopped the green car and had spoken with the occupants. Bos reported that the occupants gave contradictory responses to routine inquiry about where the car was coming from and where it was headed. Beattie received a third call from Bos, reporting that the green car occupants refused his request for consent to search the vehicle. Beattie had suggested to Bos that because Bos received contradictory answers to his questions he could ask for consent to search.

When Beattie arrived at the place where Bos had stopped the green car, both green car occupants were out of the vehicle. Beattie used Cully to do a detection sniff around the outside of the car. Cully alerted on a window or door, and then alerted and scratched at the trunk area of the [*2]car. After returning Cully to the police vehicle, Beattie searched the green car and found a duffle bag in the trunk, containing plastic bags of what Beattie was trained to recognize as marijuana. Beattie then called in the narcotics unit, called for a tow truck and followed the tow truck to the state police station in Gouverneur. Beattie then catalogued the evidence, noting 14 bags of alleged marijuana. Beattie recalled that he smelled marijuana when the car trunk was opened. Beattie did not have conversation with the vehicle occupants other than when he first arrived and told them why he was there.

On cross-examination, Beattie stated that he did not observe any vehicle and traffic violations when he first saw the green car. On re-direct examination, he stated that he learned that Ryan Cohen was the owner of the vehicle.

Trooper Steven Bos testified that he had been a state trooper for ten years, and that he was working the 7 p.m. to 7 a.m. shift on July 21, 2008. He heard the radio transmission from Beattie about the suspicious green car from the Massena area, together with a description of the vehicle and license plate. Bos saw the car around 10 p.m. in the Gouverneur area, in front of him at the intersection of NY Route 58 and US route 11. Bos reported this observation to the Canton station, then followed as the green car turned left onto NY 58. As the green car passed under a railroad trestle, Bos saw it cross a solid double yellow center line in the road, by about 1 ½ feet. As the car turned onto Route 812, Bos saw the car again cross the double center line. He then activated his emergency lights, and spoke with the car occupants, asking for identification of driver and passenger. He then separated the driver from the passenger.

The driver was identified as Michael Van Patten, who told Bos that he (Van Patten) was coming from Brasher Falls and was going to Oneida. He said that he had been in the Brasher Falls area since early afternoon, and had gone there to see "Rob." Bos then approached the passenger — defendant Ryan Cohen — and separately asked him the same questions. Trooper Bos indicated that Trooper Wells stayed with Van Patten while Bos questioned Cohen, getting the same answer about coming from Brasher Falls, and heading to Oneida. But Cohen told Bos that they had come up the day before, and had gone to see "Derrick." When Bos asked Van Patten who "Derrick" was, Van Patten did not seem to know.

Bos then discussed this situation with Beattie, and following Beattie's suggestion, asked Van Patten for consent to search the vehicle. Van Patten said it was not his vehicle so he could not consent, but he said the car belonged to Cohen. Bos then asked Cohen for consent to search. Cohen told Bos that he understood why Bos was asking, but he refused consent.

Bos asked Cohen if he had any luggage, and was told that he had a bag in the trunk. Asked how many bags, Cohen said there was one, and that it was his. Bos then returned to his police vehicle and began a computer search of names and licenses for the two car occupants. He learned that all was in order with respect to the license plate. As Bos began to write a ticket for failure to keep right, generating an electronic uniform traffic ticket, Beattie arrived on the scene.

Beattie told Bos to get Cohen out of the car, since Beattie was going to have Cully perform a sniff search around the outside of the vehicle. Bos watched as Beattie supervised Cully doing a sniff search, and then Beattie himself searched the interior of the green car after seeing Cully alert on the door, window and trunk of the car. Bos saw Beattie find the bag containing alleged marijuana.

People's Exhibit 1 was received in evidence, and the parties stipulated that defendant was [*3]read his Miranda warnings, then said he understood them; that he was willing to speak with the police; and that he was interviewed at the Gouverneur station by Trooper Loveland.

On cross-examination, Bos said he did not know why defendant's vehicle was considered suspicious; that he followed the car for several miles after the railroad trestle, and that the second observation of crossing the double line was not at the intersection of NY 58 and NY 812. On re-direct, Bos testified that about 15 minutes elapsed between the time when Bos stopped the green car and when Beattie arrived. At the close of the testimony, the court permitted both sides to submit memoranda of law, which have been received and considered.

The defense cites People v. Banks, 85 NY2d 558 [1995] for the view that a police officer who stops a motorist after seeing a traffic infraction may not detain the motorist, as a matter of state constitutional law, for a longer time than is reasonably necessary to investigate and write up the traffic infraction. The defense reads Banks as having very similar facts to the present case. In Banks the court held that the police officer who stopped the motorist was not justified in continuing to detain him after writing up the traffic infraction, even though the officer thought that the vehicle occupants appeared nervous and gave inconsistent answers to preliminary investigative questions. These observations were held not to be a sufficient basis for a reasonable suspicion of criminality. The defense further argues that here the detention of Van Patten and Cohen was significantly longer than was necessary to process the traffic infraction and write the ticket, though perhaps not as long as was true in Banks.

The People note correctly that during the hearing, the defense withdrew its earlier request for a Huntley hearing to challenge the voluntariness of defendant's statement, and further conceded probable cause for the initial stop based upon an observed traffic violation. As a result, the issues to be resolved by the hearing are whether the traffic stop continued for an extended time beyond what was necessary to process the traffic infraction, and that as a result, the discovery and seizure of the alleged marijuana should be suppressed as the fruit of the poisonous tree,' tainted by the overly-long detention of the motorist. The court also questioned the legality of the duffle bag search after the canine search.

The prosecution reads Banks as allowing a police officer a reasonable time in which to process the traffic infraction which led to the stop, and to ask about ownership of the vehicle and the occupants' destination. The officer may also take a reasonable amount of time to examine and check on the driver's license. The People cite People v. Coutant, 16 AD3d 772 [3rd Dept 2005] for the view that the duration of the stop may be extended for a reasonable time if the officer develops a founded suspicion of criminality based on the initial stop and questions.

The People also cite People v. Turriago, 219 AD2d 383 [1st Dept 1996], aff'd as modified 90 NY2d 77 [1997] for the view that upon receiving materially different explanations of the travel plans from the two vehicle occupants, Trooper Bos was free to ask for consent to search the car.[FN1] [*4]

The prosecution further argues that the Banks holding of excessive detention is factually distinguishable from the present case because in Banks the police officer had finished writing the traffic ticket and was simply holding the driver's license while waiting for the canine patrol to arrive on scene. That fact pattern is significantly different from the one here, where the entire delay from time of stop to arrival of Beattie and Cully was 15 minutes, including the time during which Bos was processing the ticket and questioning the driver and passenger about their destination, then checking on warrants and status for the vehicle and the driver's license. The hearing testimony did not establish the duration of any time interval between completion of writing the traffic ticket and the arrival of Trooper Beattie and Cully.

With respect to the canine sniff search, the prosecution notes the holding of the Supreme Court in Illinois v. Caballes, 543 US 410 [2005]. In that case the court held that after a traffic stop which resulted in the motorist's vehicle needing to be towed from the scene, there was no violation of the Fourth Amendment when the police conducted a canine sniff search around the exterior of the vehicle while waiting for a tow truck to arrive. The People also cite People v. Willette, 42 AD3d 674 [3rd Dept 2007], which noted that the Court of Appeals has construed the New York Constitution, article 1 §12 more narrowly than the Fourth Amendment, "such that a canine sniff may constitute an impermissible search depending on the circumstances (see People v. Dunn, 77 NY2d 19, 24-26 [1990], cert. denied 501 US 1219 [1991]; see also People v. Offen, 78 NY2d 1089 [1991]." Willette, 42 AD3d 674, 675. The Willette court went on to observe that a court's analysis should focus, under state constitutional law, on whether there has been an intrusion into an area where an individual has a reasonable expectation of privacy. The court further observed that while the New York Court of Appeals has not yet addressed automobile searches in the context of canine sniffs, it has continued to hold that automobile searches represent an exception to the warrant requirement because of the mobility of vehicles and their contents, and also because motorists have a diminished expectation of privacy when traveling in an automobile, citing People v. Yancy, 86 NY2d 239 [1995]. Because of the facts in Willette, the vehicle was subject to being impounded; that in turn required an inventory search; and an inventory search could properly have included opening and taking inventory of closed containers in the trunk (citations omitted here), and those facts meant that the Willette court did not need to reach the question whether canine sniffs of automobiles ever constitute unlawful searches under the New York Constitution. The People also cite People v. Gomez, 270 AD2d 959 [4th Dept 2000], and People v. Estrella, 48 AD3d 1283 [4th Dept 2008], affirmed 10 NY3d 945 [2008], cert. denied __US __, 129 S. Ct. 608 [2008]. Gomez holds that police had reasonable suspicion that marijuana would be found in a vehicle, based on an informant's specific factual description of the vehicle, its occupants, and where it would park in a particular lot. Upon seeing the vehicle, as described by the informant, police used a canine to do an exterior vehicle sniff search, which was proper based on the reasonable suspicion from the informant. The dog's positive alert to drugs in the car gave probable cause to arrest defendant. A warrant was obtained for search of the vehicle. In Estrella the court held that the police had probable cause to stop an out-of-state vehicle for excessively opaque windows. The police used a narcotics-trained dog to do a vehicle exterior search during the stop for the traffic infraction. The court held that the canine sniff [*5]during the traffic stop did not violate the Fourth Amendment protection against unlawful search and seizure. 48 AD3d at 1285.

Contrary to the People's assertion in their memorandum, in Gomez the court explicitly found that the police did have reasonable suspicion that drugs would be found in the vehicle, so that case has little in common with the one before the court other than the fact that both cases involve a canine sniff search.

In People v. Devone, 57 AD3d 1240 [3rd Dept 2008], lv granted 12 NY3d 852 [2009], the court held that a canine sniff of the exterior of a vehicle during a lawful traffic stop that does not unnecessarily prolong the encounter is not a violation of the Fourth Amendment. The court also noted the Court of Appeals cases finding a lesser expectation of privacy in a motor vehicle than in one's home, and, as a result, found that because "a canine sniff is far less intrusive than a full-blown search (People v. Dunn, 77 NY2d at 26), we find that the presence of a founded suspicion is sufficient to permit a canine sniff of the exterior of a car that has been lawfully stopped and not unreasonably delayed. Since there was a founded suspicion here, we need not address whether a lesser showing such as applies to the 4th amendment and arguably was applied in People v. Estrella (48 AD3d at 1285) would satisfy the New York Constitution." People v. Devone, 57 AD3d at 1242-1243. The court went on to note that once the trained dog indicated the presence of drugs in the vehicle, probable cause existed to enter and search the vehicle (citations omitted here). In Devone, founded suspicion grew out of evasive and incorrect answers given by the driver and defendant passenger during preliminary questions during the traffic infraction stop. The driver also could not provide his license or the vehicle registration, and did not give a meaningful answer when asked where he was going.

In People v. Abdur-Rashid, 64 AD3d 1087 [3rd Dept 2009] a police officer stopped a motorist for no license plate and other vehicle irregularities. After running a license check, the officer asked the driver to step out of the vehicle, and noted that he seemed nervous, and looked repeatedly at the officer's canine, who was then in the officer's vehicle. When the officer let the dog out of his car, the dog immediately alerted to the presence of narcotics in the trunk area of the motorist's car. The search produced cocaine. While rejecting the People's argument that the cocaine was found as part of a valid inventory search, the court found, instead, that the officer had a reasonable basis to suspect that criminal activity was under way based on the defendant's nervousness, citing Devone, supra. Therefore he was permitted to conduct a canine sniff of the exterior of the vehicle.

None of the cited cases directly answers the questions presented here, whether (1) the canine sniff search violated the New York Constitutional protection against unlawful search and seizure, or (2) whether there was an unreasonably prolonged detention following the processing of the traffic infraction inquiry and issuance of the ticket. While those questions may be addressed by the Court of Appeals in Devone, this court is left with the cited cases to resolve the legal significance of the facts adduced at the hearing.

Under Willette, supra, this court finds that the short delay pending arrival of Trooper Beattie and Cully, and the resulting canine sniff search of the green car were neither unreasonably long nor a violation of New York Constitutional protections against unlawful search and seizure. The delay was quite brief, and none of the facts suggests an improper intrusion into defendant's protected privacy interest in the vehicle in which he was a passenger. [*6]

The court finds that trooper Bos had a founded suspicion of criminal activity sufficient to allow further inquiry, and that the conflicting answers to his questions justified further brief delay while the trooper conducted a records check. None of the facts from the hearing suggest a ruse or stratagem on the part of either Beattie or Bos to hold the green car, after completion of the traffic ticket paperwork, until they could conduct the canine sniff search. On these facts, the stop, the inquiry, the canine sniff search, the vehicle search and the seizure of marijuana from the trunk are all found to be proper under governing law, and the motion to suppress statements or the marijuana is therefore denied on each legal theory raised. So ordered.

Enter.

Date: October 19, 2009

____________________________________

Jerome J. Richards, J.C.C. Footnotes

Footnote 1:The Court of Appeals modified the appellate division decision in Turriago, at 90 NY2d 77 [1997]. Although the prosecution arguedthat police did not require a well-founded suspicion of criminal activity before seeking the motorist's consent to search the vehicle, the high court found that the prosecution had not preserved that argument for review. In modifying the appellate division order, the high court applied the inevitable discovery doctrine (body found in trunk) as one of three exceptions to the exclusionary rule concerning fruits of the poisonous tree.' This court does not read Turriago as standing for the proposition for which the People have cited it.