People v Roger

[*1] People v Roger 2012 NY Slip Op 50068(U) Decided on January 20, 2012 District Court Of Nassau County, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 20, 2012
District Court of Nassau County, First District

The People of the State of New York,

against

Daniel Roger, Defendant.



2011NA012813



Hon. Kathleen Rice, Nassau County District Attorney

Attorney for Defendant: Timothy D. Aldridge, Esq

Andrew M. Engel, J.

The Defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree, Failing to Signal and Operating an Uninspected Motor Vehicle, in violation of Penal Law § 220.03 and Vehicle and Traffic Law §§ 1163(a) and 306(b), respectively.

Upon the consent of the parties, on December 14, 2011 this court conducted a Mapp/Dunaway/Huntley [FN1] hearing. At such a 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 N.Y.S.2d 65 (1965); People v. Wise, 46 NY2d 321, 413 N.Y.S.2d 334 (1978); People v. Dodt, 61 NY2d 408, 474 N.Y.S.2d 441 (1984); People v. Moses, 32 AD3d 866, 823 N.Y.S.2d 409 (2nd Dept. 2006), lv. den. 7 NY3d 927, 827 N.Y.S.2d 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 N.Y.S.2d 884 (1971); People v. Di Stefano, 38 NY2d 640, 382 N.Y.S.2d 5 (1976); People v. Lombardi, 18 AD2d 177, 239 N.Y.S.2d 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, 15 NY2d 72, 255 N.Y.S.2d 838 (1965); People v. Valeruis, 31 NY2d 51, 334 N.Y.S.2d 871 (1972); People v. Anderson, 42 NY2d 35, 396 N.Y.S.2d 625 (1977).

In an attempt to meet their burden, the People relied exclusively on the testimony of Police Officer Gene Piccirillo. The Defendant did not call any witnesses. Having had the opportunity to listen to Officer Piccirillo and observe his demeanor on the witness stand, the court finds him to be credible and makes the following findings of fact:

Officer Piccirillo is an eighteen (18) veteran of the Nassau County Police Department, [*2]assigned to the anti-crime unit for the past eight (8) years. At the Nassau County Police Academy he received training in, among other things, arrests involving drug transactions. Over the course of his career he has made over one thousand (1,000) arrests, seventy five (75%) percent of which involved searches or pat downs.

On May 29, 2011, at approximately 11:00 p.m., Officer Piccirillo was on duty, in plain clothes, in an unmarked Buick Century, with Police Officer Kevin O'Brien, who was also in plain clothes. At that time, the officers were parked on the east side of Grand Avenue, in Baldwin, facing north, just north of the Baldwin train station, investigating possible narcotics activity. This is an area known to the officers as a location of prior narcotics transactions. Officer Piccirillo witnessed five (5) drug transactions at this location in the month preceding this incident.

While parked, Officer Piccirillo saw a 1997 Volkswagon come to a stop at an apartment complex on the east side of Grand Avenue, approximately one hundred (100') feet from the officers. Officer Piccirillo observed the driver of the Volkswagon exit his vehicle and approach an individual standing in front of the apartment buildings. The men appeared to engage in conversation and then Officer Piccirillo observed "some sort of hand to hand transaction." Officer Piccirillo could not see what was exchanged between the individuals. Based upon his training and experience he believed this to be a drug transaction.

Following this brief encounter, which lasted less than one (1) minute, the driver returned to the Volkswagon and proceeded northbound. Officer Piccirillo proceeded to follow the Volkswagon, staying approximately two (2) car lengths behind, without activating his lights or siren. After traveling about three-quarters (¾) of one mile Officer Piccirillo observed the Volkswagon change lanes without signaling. Officer Piccirillo then activated his emergency lights; and, the Volkswagon pulled to the curb. Officer Piccirillo acknowledged that if not for the VTL violation he would not have pulled over the Volkswagon. Officer Piccirillo further testified that he pulled the Volkswagon over to conduct a VTL investigation.

Officer Piccirillo and Officer O'Brien exited their vehicle and approached the Volkswagon. Officer Piccirillo approached the driver, who was the same individual observed in what appeared to be a hand to hand transaction, who Officer Piccirillo identified as the Defendant; and, Officer O'Brien approached the passenger's side of the vehicle. With his shield displayed, Officer Piccirillo asked the Defendant for his license, registration and insurance card. At this same time, with his shield displayed, Officer O'Brien was speaking with the passenger of the Volkswagon. Officer Piccirillo recalled that the Defendant provided his license, but could not recall if he also provided his registration and insurance card. At this time, Officer Piccirillo also noticed that the inspection sticker on the Defendant's windshield was expired. Officer Piccirillo then asked the Defendant to exit his vehicle, which the Defendant did, without objection.

The area where the Defendant was stopped was well lit. Officer Piccirillo did not have his gun drawn, did not handcuff the Defendant, did not touch the Defendant and did not use any force. Without Mirandizing [FN2] the Defendant, and with the intent of "seeing if the [Defendant] would be honest with [him]," Officer Piccirillo twice told the Defendant that he had seen him pull up to a building on Grand Avenue, exit the vehicle, approach a male in front of the building, [*3]exchange something, return to the car and drive away. The Defendant responded by stating that he did not know what Officer Piccirillo was talking about; that he had nothing on him; that the officer could check the car; and that he would even open the trunk. In response, Officer Piccirillo patted down the Defendant and then reached into his left front pocket, pulling out two (2) packets of a white powdery substance, believed to be cocaine. Officer Piccirillo then had the Defendant sit on the curb. No other statements were made.

"Simply stated the proper analysis in cases of this nature is to examine the predicate for the police action and then determine whether or not that predicate justified the extent of the official intrusion on the individual." People v. Stewart, 41 NY2d 65, 66, 390 N.Y.S.2d 870, 871 (1976); See also: People v. Allen, 109 AD2d 24, 489 N.Y.S.2d 749 (1st Dept. 1985) In making this analysis, the court "must weigh the degree of intrusion entailed against the precipitating and attending circumstances," People v. Salaman, 71 NY2d 869, 870, 527 N.Y.S.2d 750, 751 (1988) "concentrat[ing] on whether the conduct of the police was reasonable at the time in view of the totality of the circumstances (citations omitted), for reasonableness is the touchstone by which police-citizen encounters are measured (citations omitted)." People v. Lomiller, 30 AD3d 276, 277, 818 N.Y.S.2d 27, 28 (1st Dept. 2006); See also: People v. Alvarez, 308 AD2d 184, 764 N.Y.S.2d 42 (1st Dept. 2003)

In People v. De Bour, supra., the Court of Appeals "set out a four tiered method for evaluating the propriety of encounters initiated by police officers in their criminal law enforcement capacity[,] " People v. Hollman, 79 NY2d 181, 184, 581 N.Y.S.2d 619, 620 (1992) as follows:

(1) The least intrusive encounter permits an officer to approach an individual to request information where there is "some objective credible reason for that interference not necessarily indicative of criminality." People v. De Bour, supra. at 223, 386 N.Y.S.2d 375, 384 (1976)

(2) The next level of permissible intrusion is the common law right to inquire, which is predicated upon "a founded suspicion that criminal activity is afoot[.]" People v. De Bour, id. at 223, 386 N.Y.S.2d 375, 385 (1976) At this level, a police officer may interfere with a citizen to the extent necessary to gain explanatory information; but, such interference may not rise to the level of a forcible seizure. People v. De Bour, id.; People v. Cantor, 36 NY2d 106, 365 N.Y.S.2d 509 (1975)

(3) At the next level of intrusion, a police officer may forcibly stop and detain a citizen where the officer "entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor[.]" People v. De Bour, supra. at 223, 386 N.Y.S.2d 375, 385 (1976) "Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand." People v. Cantor, supra. at 112, 365 N.Y.S.2d 509, 516 (1975); See also: People v. Martinez, 80 NY2d 444, 591 N.Y.S.2d 823 (1992); People v. William II, 98 NY2d 93, 745 N.Y.S.2d 792 (2002) As a corollary to this temporary stop for questioning, if the officer reasonably suspects that he or she is in danger of physical injury the officer is authorized to frisk the individual. See: CPL § 140.50(3); People v. De Bour, supra.

(4) The final, and most intrusive, level of encounter is an arrest of an individual when the officer has probable cause to believe that the person has committed a crime or offense in his presence. [*4]

Officer Piccirillo's observation of what appeared to him to be a hand to hand drug transaction did not provide him with either probable cause to make an arrest of the Defendant or with reasonable suspicion that a crime had been committed, sufficient to forcibly stop and detain the Defendant at that time. Indeed, Officer Piccirillo neither detained nor arrested the Defendant at this time. Officer Piccirillo's observations, however, did "provide the officer with a founded suspicion that criminality was afoot to justify a common-law right to inquire (citation omitted)." People v. Martin, 88 AD3d 473, 474, 931 N.Y.S.2d 7, 9 (1st Dept. 2011); See also: People v. Sylvain, 33 AD3d 330, 821 N.Y.S.2d 588 (1st Dept. 2006) lv. den. 7 NY3d 904, 826 N.Y.S.2d 613 (2006); People v. Mejias, 63 AD3d 526, 881 N.Y.S.2d 78 (1st Dept. 2009) lv. den. 13 NY2d 747, 886 N.Y.S.2d 101 (2009); People v. Schlaich, 218 AD2d 398, 640 N.Y.S.2d 885 (1st Dept. 1996) lv. den. 88 NY2d 994, 649 N.Y.S.2d 401 (1996)

Given the fact that immediately after Officer Piccirillo's observations the Defendant re-entered his vehicle and proceeded to drive away, Officer Piccirillo properly chose to follow the Defendant. While Officer Piccirillo's actions, in activating his lights and siren and pulling over the Defendant's vehicle upon seeing the Defendant change lanes without signaling, constituted a seizure, People v. May, 81 NY2d 725, 593 N.Y.S.2d 760 (1992); In re Muhammad F., 94 NY2d 136, 700 N.Y.S.2d 77 (1999), same was justified by "probable cause to believe that a traffic violation ha[d] occurred" People v. Graham, 54 AD3d 1056, 1058, 865 N.Y.S.2d 259, 261 (2nd Dept. 2008); See also: People v. Harris, 186 AD2d 148, 587 N.Y.S.2d 425 (2nd Dept. 1992); People v. Grant, 83 AD3d 862, 921 N.Y.S.2d 285 (2nd Dept. 2011) Such a temporary roadside detention pursuant to a routine traffic stop is not custodial in nature. People v. Myers, 1 AD3d 382, 766 N.Y.S.2d 581 (2nd Dept. 2003) lv. den. 1 NY3d 631, 777 N.Y.S.2d 30 (2004); People v. Parris, 26 AD3d 393, 809 N.Y.S.2d 176 (2nd Dept. 2006) lv. den. 6 NY3d 851, 816 N.Y.S.2d 757 (2006); People v. Williams, 81 AD3d 993, 917 N.Y.S.2d 278 (2nd Dept. 2011)

In the presence of probable cause for a vehicle stop due to a VTL violation, "the police officers' subjective motivation to investigate possible drug activity does not negate the objective reasonableness of the officers' actions (see People v. Wright, 98 NY2d 657, 658-659 [2002]; People v. Robinson, 97 NY2d 341, 350 [2001])," People v. Edwards, 14 NY3d 741, 742, 898 N.Y.S.2d 538, 539 (2010) rearg. den. 14 NY3d 794, 899 N.Y.S.2d 125 (2010) While the Defendant's failure to signal a lane change might have been fortuitous, the court does not find it to have been incredible. If Officer Piccirillo was going to pull the Defendant over solely to investigate what he believed to be a hand to hand drug transaction there would have been no reason for him to have followed the Defendant for nearly three quarters (¾) of a mile and wait to pull him over. Once he pulled the Defendant over for the VTL violation Officer Piccirillo appropriately sought the Defendant's license, registration and insurance card, all of which were attendant to a VTL stop and had nothing to do with the suspected drug activity; and, Officer Piccirillo issued summonses to the Defendant for two (2) VTL violations. Consistent with Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769 (1996), "where a police officer has probable cause to detain a person temporarily for a traffic violation, that seizure does not violate the Fourth Amendment to the United States Constitution even though the underlying reason for the stop might have been to investigate some other matter." People v. Robinson, 97 NY2d 341, 348, 741 N.Y.S.2d 147, 150 [2001] See also: People v. Nunez, 82 AD3d 1128, 920 N.Y.S.2d 146 (2nd Dept. 2011) [*5]

"The defendant's contention that it was not reasonable within the meaning of the Fourth Amendment for the officer to order him out of the vehicle is without merit (citations omitted)." People v. Bush, 171 AD2d 801, 567 N.Y.S.2d 518 (2nd Dept.1991) As the Court of Appeals specifically noted in People v. Robinson, 74 NY2d 773, 774, 545 N.Y.S.2d 90 (1989), cert den. 493 U.S. 966, 110 S. Ct. 411, 107 L. Ed. 2d 376, "The Fourth Amendment of the United States Constitution is not violated when a driver is directed to step out briefly from a lawfully stopped and detained vehicle because the inherent and inordinate danger to investigating police officers in completing their authorized official responsibilities in such circumstances justifies that precautionary action ( see, Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L.Ed.2d 331)." "Upon making the valid traffic stop, the police had discretion to order the occupants to exit the vehicle (citations omitted)." People v. Grant, supra. at 863, 921 N.Y.S.2d 285, 286; See also: People v. Livigni, 88 AD2d 386, 453 N.Y.S.2d 708 (2nd Dept. 1982) aff'd 58 NY2d 894, 460 N.Y.S.2d 530 (1983)

Once the Defendant exited the vehicle, having a founded suspicion that the Defendant had been involved in a criminal drug transaction, Officer Piccirillo was properly in a position to ask "pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing and is the focus of the officer's investigation[.]" People v. Hollman, supra. at 185, 581 N.Y.S.2d 619, 621 (1992); See also: People v. Febus, 11 AD3d 554, 783 N.Y.S.2d 55 (2nd Dept. 2004) app. dis. 4 NY3d 743, 790 N.Y.S.2d 656 (2004); Matter of Robert C., 185 AD2d 313, 586 N.Y.S.2d 275 (2nd Dept.1992) This is precisely what Officer Piccirillo did when he specifically told the Defendant that he was suspected of having participated in a drug transaction. It was in response to this statement that the Defendant made the statements attributed to him, denying knowledge of the transaction about which Officer Piccirillo inquired and consented to a search of his person and of his car.

At the time of this conversation between Officer Piccirillo and the Defendant no threats or promises had been made, no force or coercion was used and no weapons were displayed. Additionally, there was no reason for Defendant to have been Mirandized before this conversation, as it is well recognized 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, 33, 390 N.Y.S.2d 843, 846 (1992) As discussed at length hereinabove, at the time of this conversation, the Defendant was neither in custody, having been briefly detained as the result of a VTL stop, nor being interrogated.

Finally, given the fact that the Defendant was neither under arrest nor in custody, was confronted only by Officer Piccirillo, was not threatened or coerced into consenting to a search, was not even asked by Officer Piccirillo if he could be searched, was fully cooperative with Officer Piccirillo and, without provocation, invited Officer Piccirillo to search him, the court finds that Officer Piccirillo's pat down of the Defendant and search of his pocket, revealing packets of what was believed to be cocaine, were performed pursuant to the Defendant's consent. See: People v. Gonzalez, 39 NY2d 122, 383 N.Y.S.2d 215 (1976); People v. Lewis, 23 Misc 3d 49, 881 N.Y.S.2d 586 (App.Term 2nd, 11th & 13th Jud. Dists. 2009) Upon recovering the packets of white powder from the Defendant the police had probable cause to arrest the Defendant for Criminal Possession of a Controlled Substance in the Seventh Degree. [*6]

Based upon all of the foregoing, the Defendant's motion to suppress his statements and the items recovered from his person is denied.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

January 20, 2012

___________________________

ANDREW M. ENGEL

J.D.C. Footnotes

Footnote 1: Mapp v. Ohio, 367 U.S. 643; 81 S. Ct. 1684 (1961); People v. Huntely, 15 NY2d 72, 255 N.Y.S.2d 838 (1965) and Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979)

Footnote 2: Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966)