People v Roman
Annotate this CaseDecided on February 21, 2017
County Court, Rockland County
The People of the State of New York, Plaintiff,
against
John Roman, Defendant.
2016-296
ROCKLAND COUNTY PUBLIC DEFENDER
Attorney for Defendant
11 New Hemstead Road
New City, New York 10956
ROCKLAND COUNTY DISTRICT ATTORNEY
1 South Main Street, Suite 500
New City, New York 10956
Craig Stephen Brown, J.
On the 30th day of January and the 2nd day of February, 2017, a Hearing was held with regard to the above-entitled matter. Hearing issues concerned the admissibility of oral statements made by defendant and of physical evidence seized from a vehicle occupied by defendant. Appearing for the People was Amanda M Doty, Esq., Senior Assistant District Attorney for the County of Rockland. Appearing for defendant was Kenneth J. Murphy, Esq., Assistant Public Defender for the County of Rockland. Defendant is charged with Criminal Possession of a Controlled Substance in the Second Degree (Penal Law §220.18). The People called Senior Investigator William Diaz of the New York State Police, Detective Ryan Lee of the New York City Police Department, Trooper Dermont Summers of the New York State Police and Sgt. Christopher Ford of the Rockland County Sheriff's Officer. Defendant testified on his own behalf and called no other witnesses.
Following the Hearing, a Memorandum of Law, dated February 6, 2017 was submitted by Assistant Public Defender Edward J Murphy, Esq and an undated Memorandum of Law was submitted by Assistant District Attorney Amanda M. Doty.
FINDINGS OF FACT
1) At approximately 10:30 A.M., on August 10, 2016, Senior Investigator William Diaz, a member of the New York State Police and a supervisor of the New York Drug Enforcement Task Force, along with other members of the Task Force, operating six or seven unmarked police vehicles, commenced what became a four-hour mobile surveillance of defendant and the motor vehicle he was operating: a red Chevrolet mini-van.
2) The Task Force members followed defendant's vehicle from Brooklyn as it traveled to Queens, then over the Triboro Bridge, through the Bronx, to I-87 and then to Westchester onto the New York State Thruway into Rockland County.
3) During the vehicle's travel through the Bronx and Westchester County, Senior Investigator Diaz observed that the vehicle slowed to a speed of approximately 35-40 miles per hour on the highway, which had a 55 mile per hour limit. The vehicle also changed lanes without signaling on several occasions.
4) Senior Investigator Diaz also observed the vehicle exit I-87 onto McLean Avenue in Yonkers only to make several turns and then proceed back onto the I-87. The vehicle also exited the Thruway and proceeded to a rest area at Ardsley, New York and then, without stopping at the rest stop, drove back onto the Thruway.
5) Senior Investigator Diaz testified that he believed that by driving the vehicle onto McLean Avenue and back to I-87 and into the Ardsley rest area and back onto the Thruway, defendant was employing counter-surveillance procedures. However, no testimony was elicited from Senior Investigator Diaz detailing his background and experience in surveillance and counter-surveillance.
6) Senior Investigator Diaz telephoned and radioed a State Trooper and requested the Trooper to effect a traffic stop of the vehicle after it crossed the Tappan Zee Bridge and entered Rockland County.
7) Trooper Dermont Summers effected a stop of defendant's vehicle at approximately 2:40 P.M. Defendant was the only occupant of the vehicle. Trooper Summers asked defendant for his driver's license and defendant produced it. Trooper Summers asked defendant where he was driving from and where was he driving to. Defendant stated that he was driving from Brooklyn to Nyack.
8) Shortly after Trooper Summers stopped defendant's vehicle, other members of the Task Force approached the scene. Senior Investigator Diaz parked his vehicle nearby and walked to the scene.
9) There were at least five police officers and at least four police vehicles at the scene.
10) Senior Investigator Diaz approached defendant and advised defendant of Miranda warnings from memory. Defendant stated that he understood his rights and agreed to speak to Senior Investigator Diaz.
11) In response to questions asked him by Senior Investigator Diaz, defendant stated that he was on parole for a drug conviction and was driving from Brooklyn to Nyack to get a job for a moving company. Senior Investigator Diaz asked defendant about his exit onto McLean Avenue. Defendant stated that he received a telephone call from a friend who told defendant he needed a bolt cutter so he left the highway and drove onto McLean Avenue in order to assist his friend. After he left the highway, the friend told him he no longer needed the bolt cutters so defendant returned to I-87. Defendant admitted to Senior Investigator Diaz that he did not have a bolt cutter in his vehicle. Senior Investigator Diaz asked defendant about his exit into the Ardsley rest area and defendant replied that he drove to the Ardsley rest area to find a Burger King but there was no Burger King there so he left the rest area and drove back onto the Thruway.
12) Detective Ryan Lane, of the New York City Police Department and also a member of the Task Force surveillance team also was at the scene. He escorted defendant to his unmarked vehicle and placed defendant in the rear passenger seat of said vehicle. In response to questions asked by Detective Lane, defendant stated that he was driving from Brooklyn, he was on parole and he was driving to find a job as a locksmith. Detective Lane asked defendant if there was [*2]anything in the car they should be aware of. Defendant stated there was nothing that he knew of.
13) Detective Lane asked defendant if he would mind if they searched his car and defendant responded "Yes". He took that response as an oral consent. A written Consent to Search form (People's Exhibit 2) was thereafter signed by defendant.
14) No testimony was presented by the District Attorney to establish that the consent form was read to the defendant or by the defendant.
15) Paragraph 3 of the Consent to Search form stated" "I FREELY CONSENT TO THIS SEARCH". Following those words, the word "No" was written and crossed out. To the right of the crossed-out "No", the word "Yes" was written along with "J.R.", defendant's initials, above-it. Defendant printed his name to the right of paragraph 3.
16) No testimony was elicited from Detective Lane, or any other of the District Attorney's witnesses, to explain the manner in which the consent form was presented to defendant, or to explain how the word "No" was written, crossed out and replaced by the word "Yes".
17) Detective Michael McGoldrick was present when defendant executed the Consent to Search form but did not testify at the hearing.
18) According to Detective Lane, Detective Michael McGoldrick was present with him when the Consent to Search form was presented to defendant and signed by defendant. The District Attorney did not call Detective McGoldrick to testify at the hearing.
19) One of the Task Force members requested the assistance of a K-9. Sgt. Christopher Ford, of the Rockland County Sheriff's Department arrived at the scene with his K-9 at approximately 4:00 P.M. He directed his K-9 to examine the defendant's vehicle. The K-9 gave a positive reaction at the rear of the vehicle. No drugs were found at that location. The K-9 gave another positive reaction in the interior of the vehicle, near the center console. Police then removed the center console and found a quantity of narcotics and marihuana hidden in a compartment beneath the center console.
20) After the drugs were located and seized, Detective Lane placed defendant under arrest and handcuffed him. He asked defendant whether he had additional drugs at his apartment in Brooklyn. Defendant stated that he had an additional 400-500 grams in his apartment and that his roommate had no knowledge of the drugs.
21) At no time did any member of law enforcement make a threat or promise or use force or coercion to induce defendant to make a statement.
CONCLUSIONS OF LAW
1) The stop of the defendant's vehicle was lawful based on Senior Investigator Diaz's observation of defendant's vehicle traveling at an excessively slow speed on the highway and changing lanes on several occasions without signaling.
2) Defendant's response to questions asked by Trooper Summers immediately after the Trooper stopped defendant's vehicle were not he product of custodial interrogation.
3) Prior to speaking with defendant, Senior Investigator Diaz advised defendant of Miranda rights and defendant made a knowing, intelligent and voluntary of his rights under Miranda.
4) Statements made by defendant to Detective Lane prior to the search of the vehicle were made after defendant was advised of his Miranda rights by Senior Investigator Diaz and [*3]after defendant waived said rights.
5) The search of defendant's vehicle and seizure of the contraband from said vehicle was not based on reasonable cause to believe the vehicle contained contraband.
6) The K-9 sniff of defendant's vehicle was not based on a founded suspicion that the vehicle contained contraband.
7) Defendant's oral and written consent to the search of vehicle was not voluntary.
8) The statements made by defendant to Detective Lane following the seizure of the contraband from the vehicle was the product of an unlawful search.
DECISION
Based on the foregoing, defendant's motion to suppress statements made by him to Trooper Summers is denied on the ground that defendant's vehicle was lawfully stopped and the statements were not the product of custodial interrogation. Defendant's motion to suppress statements made in response to questions asked him by Senior Investigator Diaz and Detective Lane prior to the search of the vehicle is denied on the ground that said statements were made after defendant was advised of and made a knowing, intelligent and voluntary waiver of his Miranda rights.
Defendant's motion to suppress the contraband seized from the vehicle occupied by him is granted on the ground that the search was not based on reasonable cause to believe the vehicle contained contraband and said search was not conducted with defendant's voluntary consent.
The automobile exception to the warrant requirement permits a search of motor vehicle if it is based on reasonable cause to believe that the vehicle contains contraband. Here, police had no such reasonable cause. The manner in which defendant operated the motor vehicle and his answers to questions asked by police did not provide reasonable cause to believe the vehicle contained narcotics or any other contraband. Senior Investigator Diaz was not qualified to give his opinion on counter-surveillance. However, even if he was, and defendant engaged in a counter-surveillance procedure, such procedure did not provide reasonable cause to believe the vehicle contained contraband. In addition, the Court finds that the District Attorney failed to establish at the suppression hearing that there was a "founded suspicion" that the vehicle contained contraband to justify the "canine sniff" (See, People v Devonne, 15 NY3d 106). Clearly, law enforcement did not devote the time and resources to conduct surveillance on defendant's vehicle from Brooklyn to Rockland County on the information and evidence elicited at the suppression hearing. But this Court is constrained to make its decision only on said evidence.
The search of defendant's vehicle cannot be justified as a consent search. It is well-settled that the People have a heavy burden of proving that a defendant's consent to search is voluntary (See, People v Gnzalez,39 NY2d 122). Here, defendant was detained on an interstate highway by at least five or more police officers with six or seven police vehicles for one and one-half hours before the alleged consent was given. No testimony was presented to show that defendant was aware that he had the right to refuse his consent. No witness was able to describe how the word "No" at paragraph 3 of the Consent to Search form was changed to "Yes". No testimony was offered to establish how the Consent to Search form was presented to defendant and whether it was read to defendant. Under these circumstances, the Court finds that the people have failed to meet their heavy burden to show that defendant's consent to search was voluntary.
Defendant's motion to suppress statements made by defendant to Detective Lane after the contraband was seized is granted as such statements were the product of the unlawful search.
The aforesaid constitutes the Decision and Order of the Court
Dated: February 21, 2017
New City, New York
E N T E R .
_s/_____________________________
HON. CRAIG STEPHEN BROWN
Judge of the County Court
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