People v Keith

[*1] People v Keith 2008 NY Slip Op 52486(U) [21 Misc 3d 1143(A)] Decided on November 25, 2008 Supreme Court, New York County Hayes, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 25, 2008
Supreme Court, New York County

The People of the State of New York

against

David Keith, Defendant.



6336/07



Robert Morgenthau, Esq., District Attorney, New York County, New York City (ADA Jennifer Gaffney, of counsel) for the People.

Robert Levy, Esq., for defendant.

Roger S. Hayes, J.

Defendant was indicted on one count of Criminal Possession of a Weapon in the Third Degree, in violation of Penal Law § 265.02(1), fifty counts of Possessing a Sexual Performance by a Child, in violation of Penal Law § 263.16, and one count of Criminal Possession of a Stolen Property in the Fourth Degree, in violation of Penal Law

§ 165.45(2). Defendant moves to suppress a stun gun, the contents of his knapsack including a notebook and its contents, as well as statements he made to police officers at the scene of the arrest and the police station. This Court conducted combined Dunaway/Mapp and Huntley hearings on September 24, September 25, and October 17, 2008. Based on the findings of fact and conclusions of law set forth below, defendant's motion is granted in part, and denied in part.

Findings of Fact

The People presented two witnesses, Police Officers Detective Steven Fisco (hereinafter "Fisco") and Lieutenant Gerald Cawley (hereinafter "Cawley"). Defendant did not present any witnesses. The Court finds the officers were credible, candid witnesses who testified openly, did not attempt to avoid difficult questions, and did not appear to conform their testimony to meet constitutional requirements. While there were some differences in the witness' testimony and recollection of facts, it is understandable given the events transpired more than a year ago, and those differences did not detract from the witnesses' credibility. Based on their credited testimony, the court makes the following factual findings:

On October 18, 2007, Fisco and Cawley both in plain clothes, were patrolling in an unmarked police car. At approximately 12:10 a.m., they witnessed a black BMW sedan driven by the defendant, going northbound on Eighth Avenue, twice changing lanes [*2]without signaling, and making a right-hand turn without signaling, in violation of New York Vehicle and Traffic Laws. The officers turned on the siren and lights, and the BMW pulled over.

The officers got out of their car. Fisco approached the driver's window, and asked defendant for his license, registration, and proof of insurance. Cawley approached the passenger and used his flashlight to look into the car. He saw that the defendant was the driver, there was a male in the front passenger seat, and a female in the rear passenger-side seat. He also observed a black object, between four to five inches long, lying on the floor of the back seat. Concerned it might be a weapon, he asked the female passenger what the object was. She said nothing in response, but defendantreached toward the back seat, and stated, either "That's not mine, you could throw it away" or "Oh, that's nothing."[FN1] Cawley instructed defendant not to grab the item. The passenger sitting in the backseat moved her legs and feet slightly to the right, and Cawley saw the object in its entirety and recognized it as a stun gun. The officers placed everyone under arrest for possession of a stun gun. Cawley removed the stun gun from the vehicle, tested it to see if it was operable, which it was.[FN2] He conducted a quick search of the car to ensure there were no other weapons, and none were found. The officers transported all three individuals to the Midtown South Precinct. No summons were issued for the traffic violations. The vehicle was brought back to the precinct, but it was not impounded.

During the arrest processing and without Miranda warnings, Fisco asked defendant whether there was someone he wanted to call to pick up his personal property. He testified that he expected either to voucher defendant's property for safekeeping, or, to turn the property over to someone if that was what the defendant wanted. Defendant asked Fisco to give his cash (approximately $250), his laptop, and his backpack, to his girlfriend.[FN3]

Fisco recovered the backpack from behind the driver's seat of defendant's car, and returned with it to a room in the precinct to conduct what he described as an inventory search. The defendant was in another room. Fisco testified that the purpose of the inventory search was to "safeguard both the vouchering and officer, [sic] write an itemized list of property that's removed, and to hand it over." He stated that it was done [*3]"to protect the officer from allegations of theft" as required by the patrol guide, and that it is done "in any case where you're turning over a defendant's personal property over to another civilian person." Cawley was present at the inventory search to witness the counting of defendant's money.

Fisco opened the backpack and removed a laptop, a notebook, and assorted papers. After quickly looking through the backpack, he was unable to locate the cash the defendant had stated was in his backpack. Fisco went to defendant's holding cell to ask him if he had any idea where in the backpack the cash was located. Defendant reiterated that the money was in the backpack.

While Fisco was speaking to the defendant in one area, Cawley began to leaf through the notebook in another room, looking for the cash. He found a pile of bills inside the notebook. He went through the notebook again to ensure he had not missed any of the cash. In doing so, written information on various pages in the notebook caught his eye, and he began reading the information on various pages of the notebook. The information in the notebook contained multiple names, addresses, some social security numbers, as well as what appeared to be bank account numbers. From the contents of the notebook, he believed the property was evidence of identity theft.

Fisco returned to the inventory search room, saw a pile of currency sitting in the open notebook, and testified that he assumed that Cawley found defendant's cash. Fisco removed the bills from the notebook, and then he read the contents of the open page where the money was sitting, including the names of two individuals, and what appeared to be bank account numbers and social security numbers. After reading this information, he contacted the detective squad because he believed the notebook might be evidence of identity theft. He then read other pages of the notebook, and photocopied the entire notebook. Fisco vouchered the notebook and the computer, but did not to turn them over to defendant's girlfriend because he believed them to be evidence of identity theft.[FN4] He did, however, turn over to the defendant's girlfriend a list of other vouchered items recovered from the defendant, including: $250 US currency, a 1996 BMW, a watch, earrings, necklace, DVDs, and a suitcase with clothing. Defendant's girlfriend was given this list, signed for the items, and the property was released to her.

Conclusions of Law

At a Dunaway/Mapp hearing, the People have the burden of establishing the lawfulness of the police conduct in the first instance. See People v Wise, 46 NY2d 321, 329 (1978). The defendant, however, has the ultimate burden of proof to establish the illegality of the police conduct. See People v Baldwin, 25 NY2d 66, 70 (1969).

[*4]It is well established that any inquiry into the propriety of police conduct must weigh the degree of intrusion which it entails against the precipitating and attending circumstances out of which the encounter arose. See People v Salaman, 71 NY2d 869, 870 (1988). The court's focus must be directed on whether the conduct of the police was reasonable in view of the totality of the circumstances. See People v Batista, 88 NY2d 650, 653 (1996).

Police Stop

A police officer may stop a moving vehicle if he 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, 753 (1995); People v Sobotker, 43 NY2d 559, 563-64 (1978). Violations of the Vehicle and Traffic Law ("VTL") observed by the police are a sufficient basis for the stop of a moving vehicle. See People v Robinson, 97 NY2d 341, 351 (2001); People v Ingle, 36 NY2d 413, 419 (1975). Courts will uphold the stop of a moving vehicle when the officer observes a violation of the VTL, even if the violation is minor. See People v Robinson, 271 AD2d 17, 24 (1st Dept 2000).

Here, the police officers observed defendant's BMW make two lane changes and a right-hand turn all without signaling. These violations justified the officers' stop of defendant's vehicle. See Robinson, 271 AD2d at 24. Simply because the police did not issue a summons for the traffic violation does not invalidate the stop, nor cause the Court to conclude the traffic violations did not occur. See People v Greene, 135 AD2d 449 (1st Dept 1987). It is understandable that after arresting the defendant, the traffic infractions were of no importance to the police. Accordingly, there was a sufficient basis for the stop.

Search/Plain View

It is well settled law that the police are permitted to seize incriminating evidence in plain view without a warrant where the officers are lawfully in a position to observe the item, they have lawful access to the item itself when they seize it, and that the incriminating character of the item is immediately apparent. See People v Brown, 96 NY2d 80, 89 (2001).

Pursuant to a proper traffic stop, Cawley approached defendant's vehicle and, with the use of a flashlight, observed in plain view a black object measuring approximately four to five inches long on the floor of the rear passenger side of the vehicle. Based on his experience and training, Cawley suspected that the item could be a weapon, and made an inquiry about it. Once the object was in full view, Cawley recognized it as a stun gun, per se contraband, (see PL § 265.01[1]), and seized it.

Defendant contends the seizure of the stun gun was improper because Cawley lacked a specific basis for an inquiry regarding the item, based on People v Harrison, 57 NY2d 470 (1982). That case is distinguishable. In Harrison, the entire case rested on the police's failure to establish reasonable suspicion for a stop, because the sole evidence for the suspicion was the defendant's dirty rental car. Here, in contrast, the stop was valid [*5]pursuant to Vehicle and Traffic Law violations, (see Robinson, 271 AD2d at 24), and the inquiry was proper based on the Cawley's observations of a potential weapon on the floor in the back seat. See Brown, 96 NY2d at 90.

Defendant also cites People v Carbone, 184 AD2d 648 (2nd Dept 1992), for the proposition that Cawley lacked a basis for inquiring about the object because the item was neither suspicious or threatening. Defendant is mistaken. In Carbone, the court found that there was no basis to conclude that three pills seen on the floor of a vehicle were contraband, and thus it could not serve as the sole basis for probable cause for the arrest. Accordingly, that seizure was improper. In contrast, Cawley saw a black metal object four to five inches long, and based on his training and experience, concluded that it could be a weapon. Accordingly, defendant's claim that there was no basis for Cawley's inquiry is without merit. Therefore, the motion to suppress the stun gun is denied.

Inventory Search

The People seek to justify the seizure of the backpack and its contents on the basis that they were seized as part of an inventory search.

Law enforcement officers may conduct an inventory search of an impounded automobile without a warrant, provided the search is conducted according to a procedure established by the police agency and that the established procedure is consistent with the limited purpose of an inventory search. See People v Galak, 80 NY2d 715 (1993). The principle objectives of an inventory search are: to protect the owner's property while in custody of the police; to ensure against claims of lost, stolen or damaged property; and to protect police from danger. See People v Johnson, 1 NY3d 252, 256 (2003); Galak, 80 NY2d at 718. These objectives are weighed against the individual's expectation of privacy and "the risk that the search will exceed the scope of its purposes and intrude without justification on the privacy interests of citizens." Galak, 80 NY2d at 718. The search must be "conducted pursuant to an established procedure clearly limiting the conduct of the individual officers that assures that the searches are carried out consistently and reasonably.'" Johnson, 1 NY3d at 256, citing Galak, 80 NY2d at 719.

The People have the burden of demonstrating that an inventory search was conducted pursuant to standard procedures. See Johnson, 1 NY3d at 256. The People must, then, put the procedures into evidence to demonstrate that those procedures are rationally designed to meet the objectives justifying an inventory search, and to demonstrate that the officer conducted this search properly and in compliance with the established procedure. See id.

Although Fisco and Cawley testified that they knew that one objective for conducting an inventory search was to protect police against allegations of theft, the People offered insufficient evidence to establish the rules and regulations of the N.Y.P.D. regarding inventory searches. See id. The People failed to enter into evidence, either the rules and regulations themselves, or adequate testimony regarding inventory searches, particularly regarding the inventorying of books or the regulations on closed container [*6]searches. The Court is therefore unable to analyze whether the procedures are rationally designed to meet the objectives of the search, and if they are, whether the search was properly executed pursuant to those rules and regulations. See id.(reversing the denial of motion to suppress where People failed to submit evidence establishing existence of departmental policy regarding inventory searches). Accordingly, the People failed to demonstrate that the contents of the backpack were properly seized pursuant to a valid inventory search, and the evidence must be suppressed.

Even assuming, contrary to the Court's finding, that the contents of the backpack were properly obtained pursuant to an inventory search of the backpack, there is no basis to conclude that the inventory search would permit the opening of the pages and reading the contents of the notebook. Though the Court found the officers truthful, the reading of the contents of the notebook exceeded the objectives of an inventory search, and was intrusive without justification. See Galak, 80 NY2d at 720-21. The reading of the contents of the notebook's pages are simply not related to the purposes of an inventory search. Accordingly, the contents of the notebook are not admissible as property obtained pursuant to a valid inventory search.

Consent

The People also contend the defendant consented to the search of his backpack when he asked Fisco to turn over defendant's property to his girlfriend, and that any property seized was, accordingly,lawfully examined. The Court is unpersuaded this was a consent search.

It is the People's burden to establish the voluntariness of defendant's consent to a search. See People v Richardson, 229 AD2d 316 (1st Dept 1996). Consent to search is not considered voluntary unless "it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice." People v Gonzalez, 39 NY2d 122, 128 (1976). It is the People's burden to prove consent by "clear and positive evidence," and the voluntariness of the consent is to be evaluated by the totality of the circumstances. See People v Zimmerman, 101 AD2d 294, 295 (2nd Dept 1984). The People have the burden of demonstrating the propriety of conduct "when a search and seizure is based upon consent ... the burden of proof [is] heavily upon the People to establish the voluntariness of that waiver of a constitutional right." Richardson, 229 AD2d at 316, citing People v Whitehurst, 25 NY2d 389, 391 (1969).

Here, both witnesses testified that defendant did not give explicit consent to search the contents of any closed containers, namely the backpack. Fisco stated that he presumed he had authority to open the closed backpack when defendant said that there was money in the backpack, and asked for his property to be turned over to his girlfriend. The Court disagrees. There is no "clear and positive evidence" to establish consent, only that Fisco thought that the defendant understood that in asking him to give his property to his girlfriend, defendant implicitly consented to have Fisco open and search the contents of the backpack. See Richardson, 229 AD2d at 316. Here, mere speculation that the [*7]defendant must have implied consent to search the backpack is "insufficient to constitute an intentional waiver of a constitutional right" and does not constitute voluntary consent to a search. See id. at 317. That the defendant provided Fisco with the contact information of his girlfriend is of little significance. Rather, the issue is whether or not defendant understood that in turning over property to his girlfriend, the police would open his backpack, search his backpack, and read the contents of his notebook. The Court finds no such voluntary consent was given. Fisco did not tell defendant he would be opening his bag, conducting a search, and he never asked defendant for consent to open the bag. See Richardson, 229 AD2d at 317. Additionally, defendant was not instructed that he could refuse the search. See Gonzalez, 39 NY2d at 130. The Court concludes that no reasonable person in the defendant's situation would have understood that he was consenting to a search of the backpack and contents. Accordingly, under the totality of the circumstances, the facts here are insufficient to constitute clear and positive evidence of an intentional waiver of a constitutional right, (see Zimmerman, 101 AD2d at 295), and there was no consent.

Even if the Court concluded the defendant consented to having his backpack opened by the police, it still cannot be said the defendant gave consent to a search of the contents of the notebook. Indeed, both officers testified that defendant did not give consent to search through or read the notebook, nor was the notebook ever mentioned to the defendant. Accordingly, the People failed to establish the waiver of a constitutional right, (see Richardson, 229 AD2d at 316), and no consent to do so was given. Therefore, even if the police had the right to search the backpack, the contents of the notebook were not discovered pursuant to a valid consent search.

The People also assert that the contents of the notebook were in plain view, and thus properly seized. Even if the Court were to have found that the opening of the backpack was permissible because defendant implied consent, the Court finds the Plain View doctrine does not applyto the contents of the notebook.

Items may be seized without a warrant when the officers are lawfully in a position to observe the item, have lawful access to the item when seized, and the criminal nature of the contents was immediately apparent. See Brown, 96 NY2d at 89.

Here, the criminal nature of the contents of the notebook was apparent only after the officers read the contents, and realized that names and addresses written in the book did not match the name of the defendant or the passengers in his car. Fisco testified that the notebook itself was not evidence of any crime having been committed, and he had no knowledge of whether defendant had a basis for having possessed the information inside the notebook. Cawley stated that he did not need to read the contents of the notebook in order to recover the money, he just did, and that only after reading the contents was he suspicious of identity theft. Accordingly, the outward appearance of the notebook was not criminal in nature. See People v Etoll, 51 NY2d 840 (1980) ("The outward appearance of the notebooks in question was such that a police officer, no matter how [*8]expert, could not have recognized them as evidence of a crime."). Further, the writing on the pages only indicated possible criminality after they were read. The Court concludes the nature of the notebook's criminal nature was not immediately apparent, and therefore the Plain View exception is not warranted here. See Brown, 96 NY2d at 89.

Accordingly, even assuming defendant gave implied consent to the officers to open his backpack, the seizure of the notebook and contents under the Plain View theory is not supported by the facts, and the contents of the notebook must be suppressed.

Statements

Defendant contends that statements he made to the police while at the scene of the arrest and at the precinct regarding property in his car should be suppressed because there is no evidence that defendant was informed of his constitutional rights.

At a Huntley hearing, the People have the burden of proving beyond a reasonable doubt that the challenged statements are voluntary. See People v Witherspoon, 66 NY2d 973 (1985). A defendant's statements are voluntary when they are spontaneous and not the result of inducement, provocation, encouragement or acquiescence. See People v Rivers, 56 NY2d 476, 479 (1982). The police "are not obligated to silence a talkative defendant." People v Krom, 61 NY2d 187, 199 (1984).

Here, the hearing testimony established beyond a reasonable doubt that defendant's statements were voluntary and spontaneous, and not the result of interrogation or its functional equivalent. See Rivers, 56 NY2d at 479-80. Rather, after a lawful traffic stop, Cawley asked a passenger about an item in the car at her feet. The passenger did not respond, but the defendant stated that the item was not his, and that it could be thrown away. Defendant was not under arrest or in custody at the time the statement was made, and more importantly, the question was not directed to him. Accordingly, no Miranda warnings were required, and the defendant's statement regarding the stun gun was voluntarily made, and is admissible. See id. at 480.

Defendant also made statements at the Midtown Precinct while Fisco was retrieving pedigree information from him. Without Miranda warnings, Fisco asked defendant if there was anyone he wanted to call and pick up his property, and defendant asked the officer to release defendant's $250, his laptop, and the backpack, to his girlfriend. This statement was made during the arrest process. Fisco's question was not designed to elicit an incriminating response, but merely to serve an administrative purpose. See People v Watts, 309 AD2d 628, 629 (1st Dept 2003). It was part of the routine pedigree process and no Miranda warnings were required. The Court therefore concludes that the statement was freely and voluntarily made, not the result of interrogation, and defendant's request to suppress this statement is denied. See People v Dawkins, 201 AD2d 336, 337 (1st Dept 1994).

For the above stated reasons, defendant's motion to suppress the stun gun and statements at the scene and precinct are denied. The defendant's motion to suppress items recovered from his backpack is granted. [*9]

This constitutes the decision and order of the Court.

New York, New York

November 25, 2008_________________

Roger S. Hayes, J.S.C. Footnotes

Footnote 1: The officers' recollection of the statement differs. However, for the purposes of this hearing the contents of the statement are irrelevant.

Footnote 2: Fisco recalled, however, that Cawley pulled the stun gun from the vehicle before all passengers were out of the car and placed under arrest. The Court credits Cawley's version of the facts since he was directly involved in removing the stun gun.

Footnote 3: The terms "knapsack" and "backpack" are used interchangeably on the record, and both refer to the defendant's bag.

Footnote 4: The information contained in the notebook eventually led to the securing of a search warrant for the defendant's computer. The subsequent search of the computer revealed it contained multiple pornographic images of children. The propriety of the search warrant is not before the Court.