People v Livigni

[*1] People v Livigni 2009 NY Slip Op 52657(U) [26 Misc 3d 1204(A)] Decided on December 28, 2009 Nassau Dist Ct, First District Engel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 28, 2009
Nassau Dist Ct, First District

The People of the State of New York,

against

Steven Livigni, Defendant.



2007NA029663



Hon. Kathleen Rice, Nassau County District Attorney

Attorney for Defendant: Thomas J. Tyrrell, Esq.

Andrew M. Engel, J.

The Defendant is charged with two counts Criminal Possession of a Controlled Substance in the Seventh Degree and Unlawful Fleeing of a Police Officer in the Third Degree, in violation of Penal Law §§ 220.03 and 270.25, respectively, along with Driving While Ability Impaired by Drugs, four counts of Failing to Stop at a Stop Sign, and Passing a Steady Red Light, in violation of VTL §§ 1192(4), 1172(a) and 1111(d)(1), respectively.

A hearing was held before this court (Engel, J.) on December 11, 2009, pursuant to People v. Huntely, 15 NY2d 72, 255 NYS2d 838 (1965); Mapp v. Ohio, 367 U.S. 643; 81 S. Ct. 1684 (1961)and Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979), to determine issues involving probable cause for the Defendant's arrest, suppression of all tangible evidence seized from the Defendant and/or his vehicle, and the suppression of statements allegedly made by the Defendant.

At a Mapp/Dunaway/Huntley hearing, where a defendant challenges the legality of a search and seizure, along with statements allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. People v. Malinsky, 15 NY2d 86, 262 NYS2d 65 (1965); People v. Wise, 46 NY2d 321, 413 NYS2d 334 (1978); People v. Dodt, 61 NY2d 408, 474 NYS2d 441 (1984); People v. Moses, 32 AD3d 866, 823 NYS2d 409 (2nd Dept. 2006), lv. den. 7 NY3d 927, 827 NYS2d 696 (2006) Once the prosecution has met this burden, the defendant has the ultimate burden to establish the illegality of the police conduct, by a fair preponderance of the evidence. People v. Berrios, 28 NY2d 361, 321 NYS2d 884 (1971); People v. Di Stefano, 38 NY2d 640, 382 NYS2d 5 (1976); People v. Lombardi, 18 AD2d 177, 239 NYS2d 161 (2nd Dept. 1963) The burden is also on the People to prove, beyond a reasonable doubt, that the statements in question were voluntarily made before their admission into evidence on the People's case in chief at trial. People v. Huntely, supra .; People v. Valeruis, 31 NY2d 51, 334 NYS2d 871 (1972); People v. Anderson, 42 NY2d 35, 396 NYS2d 625 (1977).

The People attempt to meet their burden through the testimony of Police Officer Peter Semetsis. The Defendant did not call any witnesses. After listening to Officer Semetsis and [*2]observing his demeanor, the court finds his testimony to be credible and makes the following findings of fact:

Officer Semetsis is a fifteen year veteran of the Nassau County Police Department, having received training at the Nassau County Police Academy in 1994, been involved in approximately one hundred driving while intoxicated investigations and a few hundred traffic stops.

In the evening of January 27, 2007, Officer Semetsis was in uniform, on duty and alone in a marked police vehicle traveling northbound on Bellmore Avenue near its intersection with Newbridge Road. At that time, Officer Semetsis observed a white Toyota Forerunner, traveling northbound on Newbridge Road, at a speed greater than the posted thirty five mile an hour limit, pass through a steady red light. Officer Semetsis made a right onto Newbridge Road, activated his lights and siren, and attempted to pull over the Forerunner. The Forerunner failed to pull over, accelerated to a speed twenty five miles per hour over the speed limit and made a left turn onto Waring Street. To this point, the officer did not see the driver of the Forerunner or the vehicle's license plate, and only saw the vehicle's tail lights.

The Forerunner next made a right, heading northbound onto Bellmore Avenue, with Officer Semetsis in pursuit. After traveling about one-half mile on Bellmore Avenue the Forerunner made a left onto "Schiller," with Officer Semetsis following about one-tenth of a mile behind. Officer Semetsis continued to chase the Forerunner, which next made a left, heading southbound on Park Avenue. At this point, the Forerunner was about two-tenths of a mile ahead of Officer Semetsis and traveling at a speed greater than sixty miles per hour. The speed limit on Park Avenue is thirty miles per hour.

Officer Semetsis, who had not lost sight of the Forerunner to this point, next observed the Forerunner turn right. Officer Semetsis turned right as well. Officer Semetsis lost sight of the Forerunner at this time and did not recall the name of the street onto which either he or the Forerunner turned. Both vehicles were heading eastbound in the direction of Merrick Avenue. Before reaching Merrick Avenue Officer Semetsis heard a crash; and, shortly after arriving at Merrick Avenue observed a white Forerunner up against a tree just east of Merrick Avenue. Officer Semetsis pulled his vehicle behind the Forerunner, exited his vehicle, and approached the Forerunner's driver's side.

Upon approaching the Forerunner Officer Semetsis observed that the vehicle had extensive front end damage and observed the Defendant sitting behind the wheel, conscious and alert. Officer Semetsis initially directed the Defendant to place his hands on the steering wheel and stay in the vehicle. The Defendant complied. Thereafter, Officer Semetsis directed the Defendant to exit the vehicle. The Defendant did so, with Officer Semetsis' assistance, at which time the officer observed that the Defendant was unsteady on his feet and that the Defendant's eye lids were fluttering very rapidly. Officer Semetsis asked the Defendant, "Why didn't you just stop," to which the Defendant responded, "I got scared."At that same time, while the Defendant was exiting the vehicle, Officer Semetsis observed what he identified as a crack pipe on the driver's side floor mat.

The Defendant was placed under arrest for driving while impaired by drugs, possession of a controlled substance, speeding, passing numerous stop signs, and fleeing a police officer. The Defendant was handcuffed and placed on the grass on the opposite side of the street. The [*3]Defendant complained of pain; and, an ambulance was called. Shortly after the arrest Office Semetsis recovered thirteen pills in an unmarked bottle from the center console of the Forerunner. Officer Semetsis did not know what kind of pills he recovered. He further testified that the search of the Defendant's vehicle was "done for inventory."

The Defendant was removed to Nassau University Medical Center by ambulance. While in the emergency room, the Defendant stated to Officer Semetsis, and other officers who were present, in sum and substance, "I'm sorry I put you guys in that spot. I got scared. I was smoking crack and had to get home. A worker turned me on to crack and I got a problem. I have two young kids and wrecked the family car." This statement was not made in response to any question posed to him. The Defendant was handcuffed at the time he made this statement; and, the officer's weapons were holstered at the time.

REASONABLE SUSPICION AND PROBABLE CAUSE

"A police officer is authorized to stop a motor vehicle on a public highway when the officer observes or reasonably suspects a violation of the Vehicle and Traffic Law (citations omitted)." People v. Schroeder, 229 AD2d 917, 645 NYS2d 217 (4th Dept.1996) See also: Liebel v. Jackson, 261 AD2d 474, 690 NYS2d 94 (2nd Dept.1999); People v. Riggio, 202 AD2d 609, 609 NYS2d 257 (2nd Dept. 1994) Officer Semetsis' observation of the Defendant operating his vehicle in excess of the posted speed limit and passing a steady red light provided him with a sufficient basis for stopping the Defendant's vehicle.

Once Officer Semetsis activated his lights and siren and the Defendant continued to operate his vehicle at a high rate of speed, make numerous turns and fail to stop at numerous stop signs, in an effort to avoid apprehension, Officer Semetsis had probable cause to arrest the Defendant for Unlawful Fleeing of a Police Officer in the Third Degree, as well as numerous Vehicle and Traffic Law offenses. In addition thereto, upon observing the manner in which the Defendant operated his vehicle, the Defendant's unsteadiness on his feet, his rapidly fluttering eyelids and the presence of what appeared to be a crack pipe on the driver's side floor mat, Officer Semetsis had probable cause to arrest the Defendant for Driving While Under the Influence of drugs.

The court is not persuaded by the Defendant's argument that, due to the brief period of time that the Forerunner was out of Officer Semetsis' sight, the officer could not say that the vehicle he encountered up against a tree just east of Merrick Avenue was the same vehicle he had just been pursuing moments before. The court is similarly unconvinced by the Defendant's argument that probable cause to arrest the Defendant for Driving While Impaired by Drugs did not exist due to the fact that his accident may have caused a head injury, resulting in his unsteadiness and fluttering eyelids.

The Defendant confuses proof beyond a reasonable doubt and probable cause to make an arrest. "Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place (citations omitted)." People v. Bigelow, 66 NY2d 417, 497 NYS2d 630 (1985); See also: CPL § 140.10; People v. Shulman, 6 NY3d 1, 809 NYS2d 485 (2005) "It must be kept in mind that the present inquiry is not as to the defendant's guilt but as to the sufficiency for arrest purposes of the grounds for the arresting officer's belief that he was guilty." People v. Coffey, 12 NY2d 443, 240 NYS2d 721 (1963) "The legal conclusion is to be made after considering all of the facts and circumstances together." People [*4]v. Bigelow, supra .; See also: People v. Henderson, 57 AD3d 562, 868 NYS2d 299 (2nd Dept. 2008); People v. Francis, 44 AD3d 788, 843 NYS2d 419 (2nd Dept. 2007)

The court finds that it was more than reasonable for Officer Semetsis to conclude that the white Forerunner he saw pass the red light at Newbridge Road and Bellmore Avenue and then lead him on a high speed chase, which lasted just three to five minutes, was the same white Forerunner which crashed into a tree east of Merrick Avenue seconds after Officer Semetsis lost sight of the vehicle. Similarly, while the Defendant's accident may explain his unsteadiness on his feet and fluttering eyelids, he is free to argue this at the time of trial. Of course, the accident does nothing to explain the presence of a crack pipe on the driver's floor mat. Whether or not these facts will be sufficient to demonstrate the Defendant's guilt, beyond a reasonable doubt, will have to await trial. Based upon all of the facts and circumstances presented herein, however, the court finds that Officer Semetsis had probable cause to arrest the Defendant after encountering him at the accident scene behind the wheel of the white Forerunner.

APPLICATION TO SUPPRESS CRACK PIPE

Having probable cause to arrest the Defendant and remove him from his vehicle, the object described by Officer Semetsis as a crack pipe, and observed in plain view on the driver's floor mat, was properly recovered by the officer. People v. Ricciardi, 149 AD2d 742, 540 NYS2d 526 (2nd Dept. 1989); People v. Hines, 209 AD2d 717, 619 NYS2d 330 (2nd Dept. 1994)

Accordingly, that branch of the Defendant's application to suppress this object is denied.

APPLICATION TO SUPPRESS PILLS

Officer Semetsis testified that after placing the Defendant under arrest, handcuffing him and removing him to the other side of the street he searched the center console of the Defendant's vehicle, "for inventory," where he found thirteen unidentified pills. The officer was not asked, nor did he offer any testimony concerning the standard departmental inventory procedures of the Nassau County Police Department and whether or not such procedures where followed in this case. See: Florida v. Wells, 495 U.S. 1, 110 S. Ct. 1632 (1990); People v. Galak, 80 NY2d 715, 594 NYS2d 689 (1993) In the absence of any such testimony, the People have utterly failed to meet their initial burden of coming forward with evidence of the existence of such a procedure and that the search was conducted in accordance therewith. See: People v. Gomez, 50 AD3d 407, 859 NYS2d 621 (1st Dept. 2008); People v. Elpenord, 24 AD3d 465, 806 NYS2d 675 (2nd Dept. 2005) Clearly, from the testimony presented, the search of the center console of the Defendant's vehicle, and the recovery of the pills located therein, cannot be sustained as an inventory search. This, however, is not the end of the court's inquiry.

It is well established "that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967); See also: People v. Weaver, 12 NY3d 433, 882 NYS2d 357 (2009) Recognizing that "[a] police officer's entry into a citizen's automobile ... [is a] significant encroachment[] upon that citizen's privacy interests (citations omitted)." People v. Torres, 74 NY2d 224, 230, 544 NYS2d 796, 800 (1989); See also: People v. Hackett, 47 AD3d 1122, 850 NYS2d 676 (3rd Dept. 2008); People v Adams, 25 Misc 3d 1205(A), 2009 NY Slip Op. 51982(U) (Dist. Ct. Nassau Co. 2009), with limited exception, warrantless searches of the interior of an automobile are proscribed. As noted in Delaware v. Prouse, 440 U.S. 648, 662, 99 S. Ct. 1391, 1401 (1979), "Were [*5]the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed."

One such exception to the warrant requirement is a search conducted incident to a lawful arrest, which, in Chimel v. Califormia, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040 (1969) was limited to a search of the arrestee's person and "the area from within which he might gain possession of a weapon or destructible evidence." The New York State Court of Appeals has recognized the need for this exception " to ensure the safety of the officer and to deprive the arrestee of any potential means of escape or of the ability to destroy evidence of a crime." People v. Evans, 43 NY2d 160, 165, 400 NYS2d 810, 813 (1977); See also: People v. Hall, 10 NY3d 303, 856 NYS2d 540 (2008)

In an effort to establish a bright line rule, in New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981), the United States Supreme Court extended and seemed to expand Chimel's application, holding, "that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest search the passenger compartment of that automobile." With this holding, the search of an automobile, following the arrest of its occupants, was no longer linked to the requirement that such search be conducted for the purposes of protecting the officer's safety or recovering destructible evidence. Indeed, the court's decision in Belton "has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search." Arizona v. Gant, __ U.S. __, 129 S. Ct. 1710, 1718 (2009) Based upon this application of the "search incident to arrest" exception to the warrant requirement, the Supreme Court in Belton reversed the New York State Court of Appeals, found the seizure therein did not violate the defendant's rights under the Fourth Amendment of the United States Constitution and remanded the matter for consideration of whether or not the search violated the New York State Constitution.

On remand, the Court of Appeals found the search passed muster under both the Federal and State Constitutions. People v. Belton, 55 NY2d 49, 447 NYS2d 873 (1982) [hereinafter "Belton II"] Although the defendant was initially stopped for the Vehicle and Traffic Law violation of speeding, based upon the presence of the aroma of marijuana and an envelope filled with marijuana found in plain view, the court validated the defendant's arrest and a search of the passenger compartment of the vehicle, including the defendant's jacket therein, holding, "that where police have validly arrested an occupant of an automobile, and they have reason to believe that the car may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered or a means of escape thwarted, they may contemporaneously search the passenger compartment, including any containers found therein." Belton II,55 NY2d at 55, 447 NYS2d 873, 876.

This year, in Arizona v. Gant, supra ., the United States Supreme Court reached the same conclusion. Taking a step back from its holding in New York v. Belton, supra ., the Supreme Court made clear that its holding therein should not be read to permit all searches of the passenger compartment of vehicles, or the containers found therein, which are made contemporaneously with a lawful arrest of the vehicle's occupants. As the court noted:

To read Belton as authorizing a vehicle search incident to every recent occupant's arrest would thus untether the rule from the justifications underlying the Chimel exception-a result clearly incompatible with our statement in Belton that it in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.'" Arizona v. Gant, 129 S. Ct. at 1719

Nevertheless, while noting that "the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search[,]" Arizona v. Gant, 129 S. Ct. at 1719, the court did not return to its holding in Chimel, which limited a search incident to a lawful arrest to one for weapons or destructible evidence within an arrestee's "grabable area."

Instead, the Supreme Court grafted an additional exception onto the original Chimel holding, permitting the search of the passenger compartment of an arrestee's vehicle where the officer reasonably believes that the vehicle may contain evidence of the crime for which the vehicle's occupant has been arrested. Although seemingly at odds with the court's own recognition that "[i]f there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception [police safety and preservation of evidence] are absent and the rule does not apply[,]" Arizona v. Gant, 129 S. Ct. at 1716, the court unequivocally concluded:

Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest [whether or not it is within the arrestee's reach]. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

As such, the Supreme Court's application of the automobile exception to warrantless searches and seizures, under the Fourth Amendment of the United States Constitution, is consistent with the Court of Appeals' application of this exception, under the New York State Constitution, as set forth in Belton II. The Court of Appeals' apparent extension of the automobile exception to include the recovery of "contraband," in addition to evidence of the crime charged, in People v. Blasich, 73 NY2d 673, 543 NYS2d 40 (1989), may no longer be constitutionally valid.

Applying these principles to the matter before this court, the search conducted of the Defendant's vehicle immediately upon his arrest for Driving While Impaired Due to Drugs was permissible pursuant to the Federal and State Constitutions. The very reasons which lead to the Defendant's arrest for this crime, i.e., the manner in which he operated his motor vehicle, his unsteadiness on his feet, his rapidly fluttering eyelids and the presence of what was described to be a crack pipe on the driver's floor mat, provided Officer Semetsis with a reasonable basis to believe the vehicle contained further evidence of one of the crimes for which the Defendant was arrested. The matter sub judice is not unlike People v. Rives, 237 AD2d 312, 654 NYS2d 797 (2nd Dept. 1997) lv. den. 90 NY2d 1013 (1997), where the court upheld the search of the defendant's vehicle after it was stopped for a Vehicle and Traffic Law violation and a crack pipe was observed on the front seat, or People v. Guzman, 23 AD3d 579, 804 NYS2d 410 (2nd Dept. 2005), where a valid search was conducted after a packet of what was believed to be heroin was seen in plain view following a lawful traffic stop; and, it is quite similar to People v. Sanchez, 178 Misc 2d 695, 681 NYS2d 428 (Crim. Ct. NY Co. 1998), where the court sustained the validity of a search of the defendant's vehicle after the observation of a Vehicle and Traffic Law violation, followed by a high speed chase, involving numerous other traffic violations, a crash of the defendant's vehicle and the officer's observation of evidence leading him to believe the defendant was driving while intoxicated. [*6]

Accordingly, that branch of the Defendant's application which seeks to suppress the pills found in the center console of his vehicle is denied.

APPLICATION TO SUPPRESS STATEMENTS

It is well established that "both the elements of police custody' and police interrogation' must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda."People v. Huffman, 41 NY2d 29, 390 NYS2d 843 (1976); See also: People v. Berg, 92 NY2d 701, 685 NYS2d 906 (1999) It is clear from Officer Semetsis' credible and uncontroverted testimony that the Defendant was not in custody at the time he freely and voluntarily responded to Officer Semetsis' question concerning his reason for not stopping when signaled to do so. It is equally clear that, while the Defendant was in custody when he made the statement attributed to him at Nassau University Medical Center, the statement was gratuitously made in the absence of any questioning, threats, promises, violence or coercion.

Accordingly, that branch of the Defendant's application seeking to suppress his statements is denied.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

December 28, 2009

___________________________

ANDREW M. ENGEL

J.D.C.