People v Padilla

[*1] People v Padilla 2009 NY Slip Op 52332(U) [25 Misc 3d 1228(A)] Decided on November 18, 2009 Supreme Court, New York County Conviser, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2009
Supreme Court, New York County

The People of the State of New York

against

Kenneth Padilla, Defendant.



752/09



Robert Morgenthau, District Attorney, New York (John B. Chiara of counsel), for the People.

Mark L. Potashnick, Mineola, for Defendant.

Daniel P. Conviser, J.

The Defendant is charged with one count of Criminal Possession of a Weapon in the Second Degree in violation of Penal Law § 265.03(3) and one count of Operating a Motor Vehicle Under the Influence of Alcohol in violation of Vehicle and Traffic Law § 1192 (3). A hearing was conducted before this Court to determine whether the arrest of Mr. Padilla was supported by probable cause and whether physical evidence recovered by law enforcement, specifically a loaded gun, may be introduced against Mr. Padilla at trial. The prosecution called two witnesses- Police Officers Christopher White and William Lanzisero. The Defendant also called two witnesses - Ms. Luz Martinez, Defendant's girlfriend and Police Officer Evette Vasquez, the Defendant's sister.

The Court found the testimony of Officer White, Officer Lanzisero and Evette Vasquez to be credible. For the reasons stated below, the Court did not find the testimony of Luz Martinez to be credible. For the reasons stated below, Defendant's suppression motion is denied.

STATEMENT OF FACTS

Police Officer Christopher White, an employee of the NYPD since 2006, testified that he was driving a marked police vehicle while on routine patrol duty in New York County with his partner Police Officer Iones Cercel on the evening of June 6, 2008 into the early morning of June 7, 2008. Officer White stated that at approximately 2:15 A.M. on June 7, 2008 in the vicinity of Henry and Clinton Streets he observed a Lexus SUV illegally parked at a hydrant with the rear of the vehicle impeding the flow of traffic northbound on Clinton Street.

Officer White put on his turret lights and proceeded to check the license plate of the Lexus. He stated that he observed a white male in the driver's seat of the Lexus with the door closed. Upon exiting his patrol vehicle Officer White approached the Lexus. At the same time, the male in the driver's seat, identified as the Defendant, exited the Lexus. Though Officer White did not touch the vehicle's hood or observe the individual drive the Lexus, he stated that he was able to hear the engine of the Lexus running as he approached it and saw the lights of the vehicle turned on. Officer White stated on direct examination that at a later time he noticed keys in the [*2]ignition of the Lexus in the on position. On cross examination, however, Officer White acknowledged that he did not recall whether the Lexus had a key or a button. A female and other civilian witnesses were also present on the corner.

Officer White stated that he told the Defendant to re-enter the Lexus, but was unable to recall whether the Defendant was holding a soda or iced tea in his hand. Though Officer White stated that the other civilian witnesses present began yelling, he was unable to recall their exact words. The Defendant refused repeated requests by Officer White to get back into the Lexus and became belligerent, though Officer White was unable to recall the exact words he spoke. Officer White also said the Defendant had signs of intoxication in that his eyes were bloodshot and watery, his speech was slurred, and he was unsteady on his feet. Several civilian witnesses were also present during the encounter between the Defendant and the police.

When Officer White determined the Defendant to be intoxicated he tried to handcuff him. Officer White stated that he issued no summonses for traffic infractions because the Defendant was going to be taken into custody for operating a motor vehicle under the influence of alcohol. The Defendant refused to place his hands behind his back and Officer White stated that it took three police officers to handcuff him. During this period the Defendant yelled obscenities. Subsequent to being placed under arrest the Defendant's shoes were removed to search for weapons. In addition to refusing orders to be compliant the Defendant was offered and refused to submit to a portable breath test. Officer White stated that he had been filling in for Officer Cercel's regular partner on his shift that evening.

Officer White testified that he had not had any contact with the Defendant prior to the incident and Officer Cercel never mentioned having had any prior contacts with the Defendant at the time of the stop. Officer White acknowledged that he testified before the Grand Jury that Officer Cercel had previously arrested the Defendant for gun possession and that this was the reason he and Officer Cercel did not take the arrest of the Defendant that evening. During his initial hearing testimony, however, he indicated that he and Officer Cercel did not take the arrest on that evening because they would not earn cash overtime. He explained this inconsistency by asserting that the information about Officer Cercel's prior history with the Defendant and Officer Cercel's motivation for not being the arresting officer only became known to him after the events of June 7, 2008.

When questioned on cross-examination regarding a videotape, CD or DVD that may have been inside the Lexus, Officer White stated that he personally did not look inside the vehicle. Officer White denied viewing any video footage from security cameras of the incident. He also stated that he did not observe any of the other officers at the scene look inside the Lexus and that he never went to speak to any of the civilian witnesses present.

Police Officer William Lanzisero, a six-year employee of the NYPD, was also driving on uniformed patrol duty with his partner Sergeant Walsh in the early morning hours of June 7, 2008 when he received a radio call at 2:15 A.M. for back-up at the intersection of Henry and Clinton Streets. Upon arriving at the location he observed Officer White and Officer Cercel attempt to place the Defendant under arrest. Officer Lanzisero stated that he assisted in handcuffing the Defendant and placing the Defendant in the rear of his patrol car. Officer Lanzisero stated that the Defendant had bloodshot eyes, smelled of alcohol, and was agitated. Officer Lanzisero testified that he believed that it was Officer Zito who ended up driving the [*3]Lexus back to the precinct between 2:20 and 2:35 A.M. so it could be vouchered and an inventory search conducted. As the arresting officer on the case Officer Lanzisero was required to remain with the Defendant and conduct an inventory search of the Lexus at the 7th precinct.

Officer Lanzisero testified that he had conducted dozens of inventory searches in the past, that it was common to conduct an inventory search of a vehicle for which forfeiture may be sought in connection with a drunk driving case, and that the reason for conducting an inventory search in this case was to remove and protect the Defendant's property so that the vehicle could be vouchered for asset forfeiture purposes.

A two-page copy of the guidelines from the NYPD Patrol Guide, pursuant to which Officer Lanzisero conducted the inventory search was introduced into evidence as People's Exhibits 1A & 1B. Officer Lanzisero, reading from the guidelines, stated that an inventory search is undertaken to protect property, guard against claims of theft by the police and protect the police against dangerous instruments.

Regarding the search of the Lexus, Officer Lanzisero said that he started removing items from the front driver's seat and worked his way to the rear of the vehicle. Officer Lanzisero stated that he had in fact started the inventory search prior to asking the Defendant to submit to the intoxilyzer test. He testified that he stopped searching the vehicle and locked it at approximately 3:15 A.M. to determine whether the Defendant would submit to an intoxicated driver's test. The Defendant refused to submit to the test.

At approximately 4:00 A.M. the Defendant's sister arrived at the precinct and identified herself as the Defendant's sister and also as an MTA Police Officer. Officer Lanzisero believes that he may have attended the police academy with Defendant's sister but was not acquainted with her prior to June 7th. Officer Lanzisero stated that he afforded Officer Vasquez the opportunity to speak with the Defendant. After speaking to her brother, Officer Vasquez was accompanied to the Lexus by Officer Lanzisero. Together, Officer Lanzisero and Defendant's sister removed personal items from the vehicle and placed them in large plastic bags. Officer Lanzisero testified that he allowed the Defendant's sister to remove and take the personal items as a courtesy, but that the patrol guidelines governing an inventory search do not explicitly provide for property to be turned over to a third person. Officer Lanzisero stated that he had extended a similar courtesy to friends and family members of arrestees on other occasions in the past.

Officer Lanzisero testified that he released diapers, child care items, Defendant's cell phone, $62.75 of United States currency, an IPOD and house keys to Defendant's sister. He said that he recorded these items in his memo book and then had Defendant's sister sign the memo book to acknowledge that she had received the items. Officer Lanzisero's memo book was received in evidence as People's Exhibits 3A, 3B, 3C & 3D. The memo book memorializes items turned over to Defendant's sister. These memo book entries also indicate that a wallet was turned over to Defendant's sister. A property clerk's invoice filled out by Officer Lanzisero on June 7th, lists 26 additional separate items retrieved from Defendant's car and vouchered by the police department. (People's Exhibits 2A, 2B & 2C.)

As he resumed his search of the Defendant's vehicle Officer Lanzisero stated that the entire trunk area of the Lexus contained a speaker system. Officer Lanzisero stated that since the speaker system was not the one that originally came with the vehicle it was considered personal property and had to be removed. He further stated that the process of removing the system took [*4]approximately 45 minutes - 1 hour because the process of locating a screwdriver and disconnecting the wires was laborious. In addition to the speaker system the trunk also contained an amplifier and a socket wrench set.

In the area underneath the speaker system Officer Lanzisero testified that he recovered a black bag. When he looked inside the bag he recovered the loaded gun that is the subject of this hearing. The gun was recovered at approximately 7:00 A.M. Officer Lanzisero attributed the length of time it took to complete the inventory search to the volume of paperwork he is required to prepare in connection with a drunk driving arrest, the fact that he was required to be present with the Defendant during the request for testing, the significant amount of personal items that had to be removed from the Lexus and the laborious process of extricating the speaker system from the trunk of the Lexus. Officer Lanzisero stated that it was necessary to remove anything that did not originally come with the vehicle because otherwise the vehicle would not be accepted for commencement of civil forfeiture proceedings. Since the Defendant had already been sent to Central Booking to be arraigned on charges related to operating the Lexus while under the influence of alcohol, Officer Lanzisero stated he had to be re-arrested to add charges related to the weapon recovered. Officer Lanzisero testified that at no time did he seek to obtain a warrant to search the Lexus.

Officer Lanzisero testified that he was familiar with the above-mentioned NYPD Patrol Guide procedures governing inventory searches and that the actions he took in conducting the search were consistent with the Patrol Guide. He did admit, however, that in giving a number of Defendant's personal items to his sister he deviated from the Guide's policy. He acknowledged that he also deviated from the Patrol Guide in not noting the quantity of the diapers he returned to Defendant's sister. He acknowledged that he filled a garbage bag with a number of items for her. He said that he vouchered Defendant's EZ Pass but admitted that he had told the Grand Jury that he had returned the EZ Pass to Defendant's sister. He speculated that this may have meant there were two EZ Passes in the car. He did not recall whether he returned gold bracelets to Defendant's sister. He did not recall returning any credit cards to Ms. Vasquez although he did return Defendant's wallet and cash to her. Officer Lanzisero was certain that neither he nor anyone else recovered or played a vacation video or DVD belonging to the Defendant.

Officer Lanzisero's testimony appeared to recount a time line in which he searched the Defendant's car at three different times. The initial search began around 3:00 A.M. and was interrupted when Officer Lanzisero accompanied the Defendant for his intoxilyzer test at approximately 3:15 A.M. The search then resumed, with Defendant's sister, at about 4:00 A.M. Defendant's sister signed Officer Lanzisero's memo book acknowledging the receipt of Defendant's property at approximately 4:30 or 4:50 A.M. Officer Lanzisero then returned to the precinct. He then went back for his final search of the car at approximately 6:30 A.M. The gun was then discovered at approximately 7:00 A.M.

Officer Lanzisero testified that when he went to search the car the final time, he noticed that the back panels of the front seats were askew and he looked in them. He acknowledged that drugs are sometimes hidden in such compartments but said his purpose at that point was to retrieve the car's speakers. In response to leading questions concerning his looking into the back panels of the seats which he saw were askew, he admitted that he was looking for evidence of narcotics when he looked into the space between the back panels of the front seats and the seats [*5]themselves. He testified, however, that he found no items in those spaces.

Regarding his documentation of the car's inventory, Officer Lanzisero claimed that his voucher contained a complete listing of the items recovered from the car which were not returned to the Defendant's sister. He acknowledged that his listing of the items returned to the Defendant's sister, which he listed in his memo book, may not have been a complete list of the returned items. Officer Lanzisero testified that it is customary to return personal items of a defendant to family members, that he had done it before and since the incident in question and that it was customarily done by the NYPD. He said that it would not matter to him, in determining whether to return a defendant's personal property, whether the family member property was returned to was a police officer (as was the case here ) or a civilian. He testified that the only thing the police pound will accept in a car are items which originally came with the car. Items installed in a car by an owner (like the stereo system here) will not be accepted. He testified that he disabled the car during the inventory search but could not recall the precise manner in which he had done that.

Luz Martinez, the Defendant's girlfriend, testified that she has known him for 20 years and was with the Defendant at the time he was arrested. She stated that she was the one driving the Lexus and that she and the Defendant had stepped out of the vehicle to get something to drink from a bodega in the vicinity of Henry and Clinton Streets. Ms. Martinez stated that while she was inside the store the Defendant was outside on the street speaking with friends. She further stated that she observed police officers arrive at the location and begin to harass the Defendant who was at no time seated in the Lexus driver's seat.

Subsequent to the Defendant being taken into custody Ms. Martinez testified that she was driven to the 7th precinct in the Lexus by one of the police officers. She stated that the Lexus was parked across the street from the precinct, where she remained for 4-5 hours. While waiting at the precinct Ms. Martinez stated that she observed 4-5 officers with flashlights search through the Lexus. She stated that all the doors to the vehicle were open as well as the trunk and the hood. Ms. Martinez surmised that she was observed watching the officers by a female officer participating in the search and that she and the other officers ceased searching the Lexus upon spotting Ms. Martinez. She testified that Mr. Padilla was involved in a long-term relationship with another woman whom he lives and shares children with. She stated that she was not aware that this other woman is aware of the relationship she has with the Defendant.

Police Officer Evette Vasquez, the Defendant's sister, stated she has been employed as an MTA police officer for six years. She stated that upon learning that her brother had been arrested she went to the 7th precinct. Officer Vasquez stated that she arrived at the precinct at approximately 4:20 A.M., identified herself as both the Defendant's sister and a police officer, and met Officer Lanzisero. She said that she had attended the Police Academy with Officer Lanzisero and that Officer Lanzisero acknowledged being in her graduating class. Officer Vasquez was afforded the opportunity to speak with her brother by Officer Lanzisero. The Defendant gave his sister his wallet and other unspecified items he had in his pocket. Officer Vasquez stated that she did not recall Officer Lanzisero count any credit cards.

Officer Lanzisero then accompanied the Defendant's sister to the Lexus and proceeded to assist her in removing the Defendant's personal items from the vehicle. Officer Vasquez stated that Officer Lanzisero provided two large clear plastic garbage bags in which the items removed [*6]from the Lexus were placed. She stated that Officer Lanzisero was not documenting anything while they were placing items in the plastic bags. Subsequent to filling the two plastic bags Officer Vasquez stated that she signed Officer Lanzisero's memo book to acknowledge receipt of some of the personal property. Among the items that were removed from the vehicle and given to Officer Vasquez were some baseball bats, a baseball glove, baseball cleats, balls, a booster seat, flip flops, CDs, a PSP game unit, a charger, and clothing. (None of these items were recorded either in Officer Lanzisero's memo book as being given to Defendant's sister or recorded on the property voucher Officer Lanzisero filled out). Once the items had been removed from the vehicle Officer Vasquez stated that she locked one of the car's doors manually and that in doing so all the other doors of the vehicle lock up as well.

CONCLUSIONS OF LAW

The police are authorized to stop a motor vehicle without a warrant if there exists probable cause to believe a traffic infraction has been committed, irrespective of whether the primary motivation of the police is to conduct a separate investigation. People v. Robinson, 97 NY2d 341 (2001); People v. Webb, 291 AD2d 319 (1st Dept 2002). When the police observe a vehicle that is unlawfully parked it is proper for the police to approach the vehicle to make a limited inquiry so that they may conduct a computer check and draw up a summons. People v. May, 52 AD3d 147 (1st Dept 2008); People v. Speckman, 157 AD2d 599 (1st Dept 1990). The police will also be justified in stopping a motor vehicle on grounds that a traffic infraction has been committed if it is observed blocking traffic for a period of time. See People v. Dennis, 144 AD2d 381 (2d Dept 1988), app denied, 73 NY2d 920 (1989). Here, Officer White's testimony that he observed the Lexus illegally parked in the vicinity of Henry and Clinton Streets in such a manner that it was obstructing the regular flow of traffic provided probable cause to believe a traffic infraction was being committed. Upon making these observations it was proper for the police to approach the vehicle and make inquiry for at least the limited purpose of conducting a computer check.

When a suspect is observed exiting a vehicle by the police and is then observed to demonstrate multiple signs of intoxication such as glassy or watery bloodshot eyes, dilated pupils, difficulty standing or balancing, slurred speech, an odor of alcohol emanating from the suspect's breath or profuse sweating those observations provide probable cause to arrest the suspect for operation of a motor vehicle under the influence of alcohol. People v. Gibeau, 55 AD3d 1303 (4th Dept 2008), lv denied, 12 NY3d 758 (2009); People v. Grow, 249 AD2d 686 (3d Dept 1998); People v. Sawinski, 246 AD2d 689 (3d Dept 1998), app denied, 91 NY2d 930.

In the instant matter, the police had probable cause to arrest the Defendant for operating a motor vehicle under the influence of alcohol when he was observed by Officer White exiting the driver's side of a Lexus SUV manifesting such signs of intoxication as bloodshot watery eyes, slurred speech, being unsteady on his feet and acting in a belligerent manner. Upon arriving at the scene and assisting in the arrest, Officer Lanzisero also testified that the Defendant had bloodshot eyes, smelled of alcohol and was agitated.

In this case, Defendant's girlfriend, Luz Martinez, testified that the Defendant was at no time in the driver's seat of the Lexus and that the police simply arrived at the scene and began harassing Mr. Padilla. Thus, her testimony was in direct contradiction to the testimony of Officer White. The Court did not credit the testimony of Ms. Martinez for a number of reasons. As [*7]Defendant's girlfriend, she was an interested witness. She also testified about being in a romantic relationship with the Defendant which is apparently being concealed from the woman the Defendant lives and shares children with. This deceptive relationship, in the Court's view, increased the unreliability of her testimony. Finally, there was no persuasive evidence at the hearing, in the Court's view, that Officer White had a motive to commit perjury and harass and then arrest the Defendant for no reason. There was evidence that Officer Cercel had arrested the Defendant on another occasion. But this fact alone did not, in the Court's view, serve to make Officer White's testimony incredible. Finally, as noted supra, the Court found Officer White's testimony credible. His testimony was flatly irreconcilable with the testimony of Ms. Martinez.

It is well-settled that the police are authorized to take custody of and commence civil asset forfeiture proceedings with respect to property that is the instrumentality of a crime. It is also clear that such forfeiture proceedings may be brought in drunk driving cases. County of Nassau v. Canavan, 1 NY3d 134, 140 (2003); Property Clerk of the New York City Police Department v. Ber, 49 AD3d 430 (1st Dept 2008). See also, Property Clerk of the Police Department of the City of New York v. Harris, 9 NY3d 237 (2007); Property Clerk of the Police Department of the City of New York v. Brown, 58 AD3d 452 (1st Dept 2009).

Validity of Purported Inventory Search

The most significant issue which arose at the hearing, in the Court's view, was the subsequent search of the vehicle by the police. While the People claim that this was a valid inventory search, Defendant argued, inter alia, that because the search clearly violated some of the rules established by the New York City Police Department for inventory searches, the police did not conduct a valid inventory search and Defendant's gun must therefore be suppressed.

An inventory search is a well-established exception to the Fourth Amendment's warrant requirement and is justified by three purposes. These purposes are protecting an owner's property while in police custody, providing a record the police may use to defend against claims of lost, stolen or vandalized property and protecting the police against any dangerous instruments in a vehicle which would otherwise go undetected. People v. Galak, 80 NY2d 715 (1993). In order for an inventory search to be valid, it must be rationally designed to meet the objectives of an inventory search and must limit an officer's discretion in conducting that search. Id. at 719; People v. Pompey, 63 AD3d 612 (1st Dept 2009). At a suppression hearing, the People bear the burden of demonstrating that a valid inventory search was conducted. Galak, supra; Pompey, supra.

The danger which these requirements guard against is a search which is a "ruse for a general rummaging in order to discover incriminating evidence". People v. Johnson 1 NY3d 252 2003), quoting Florida v. Wells 495 US 1, 4 (1990). As an important part of the analysis, courts may take judicial notice of a standardized police procedure for conducting an inventory search and an officer's compliance with the terms of that procedure. People v. Gomez 13 NY3d 6 (2009).

In this case, in the Court's view, it is clear that the purpose of Officer Lanzisero's search of Defendant's car was prepare an inventory because the car had been seized for forfeiture. The evidence established that the New York City Police Department through its Patrol Guide has a written policy for conducting inventory searches which comports with due-process and if complied with will result in a valid inventory search being conducted. (People's Exhibit 1A). It [*8]is clear that Officer Lanzisero complied with the requirements of the Patrol Guide in fundamental respects. It is also clear that Officer Lanzisero's conduct deviated from the requirements of the Patrol Guide in certain respects. The question, under the facts and circumstances here, is whether those deviations are of a sufficient magnitude to warrant a finding that the search of Defendant's vehicle was not a valid inventory search. In the Court's view, such a finding is not warranted here.

Officer Lanzisero testified credibly that he inventoried the contents of the Defendant's car pursuant to the NYPD's standard policy for inventory searches. He testified about the purposes for such an inventory as provided by the Guide and described the methodical procedure he used in conducting the search. At one point during his testimony, Officer Lanzisero noted that when he saw that the back panels of Defendant's front seats were askew he looked inside them to see if narcotics were present. Officer Lanzisero's motivation for that one action, however, prompted by his happenstance viewing of two suspicious compartments in the car, did not transform his extensive inventory search into a pretextual search for incriminating evidence. As noted supra, moreover, no incriminating evidence was in fact recovered from those panels.

The Patrol Guide's detailed procedures for conducting an inventory search are rationally designed to meet the objectives of an inventory search and limit an officer's discretion by requiring that officers comply with the Guide's provisions. In the Court's view, Officer Lanzisero was justified in removing the speakers from the car because, as he testified, they were not an original part of the automobile and would not have been accepted by the police pound. He was also justified in opening the closed bag he found in the trunk. This is explicitly authorized by both the Patrol Guide and controlling case authority. See People v. Gonzalez, 62 NY2d 386 (1984).[FN1]

He then prepared a detailed inventory of the items which were vouchered by the police department, listing 26 separate items retained by the police on a department invoice form, as required by the Patrol Guide. The uncontradicted evidence at the hearing indicated that this was a complete list of all of the items found by the police in Defendant's car which were retained by the police. In preparing this list, Officer Lanzisero thus completed the "hallmark of an inventory search: a meaningful inventory list". Johnson, supra, at 256. In short, there was nothing in Officer Lanzisero's motivations or general actions in conducting the search which failed to comport with the requirements governing inventory searches.

Officer Lanzisero also failed to comply with the Patrol Guide procedures when he turned over a number of Defendant's personal items to his sister and did not make a complete or proper inventory of those items. The evidence at the hearing, in the Court's view, in this regard, indicated that Officer Lanzisero simply entered the car with Defendant's sister and filled up some garbage bags with the Defendant's personal items. He noted the most significant, noteworthy or valuable items he had given her in his memo book, which she then signed, but failed to make any notation at all with respect to a number of the other items he gave her.

The Patrol Guide allows non-valuable personal items to remain in a car after an inventory [*9]search is conducted. It also provides that such items, "within reason" be listed not on a voucher but in an officer's activity log. See People's Exhibit 1A, second "Note". Thus, in not vouchering a number of the items he found in the car and noting some of these items in his memo book, Officer Lanzisero was complying, to some extent, with the Patrol Guide.

There can be no doubt, however, that he violated the provisions of the Patrol Guide in giving these items to the Defendant's sister and not keeping a complete record of them. Officer Lanzisero testified that the fact that Defendant's sister was a fellow police officer and Police Academy classmate had no impact on his willingness to provide Defendant's personal items to her. The Court does not believe that Officer Lanzisero intentionally testified falsely in this regard. At the same time, however, the Court does believe that a reasonable inference can be drawn that Officer Lanzisero, consciously or not, may have been more willing to accommodate Defendant's sister than a person who was not a fellow police officer. Put another way, his discretionary actions in this case may well have been impacted by the status of Defendant's sister.

There are a number of salient facts concerning this violation, however, which, in the Court's view, indicate that it should not be the basis for suppressing the evidence in this case. The primary evil which the law governing inventory searches guards against is the danger that a police officer acting outside established procedures, with unrestrained discretion and no record keeping could use the pretext of an administrative inventory to go on a general fishing expedition, without probable cause, to uncover incriminating evidence. The violations committed by Officer Lanzisero here do not in any way implicate these concerns. In the Court's view, his purpose in conducting the search was clearly administrative. This case is thus distinguishable from cases in which inventory searches were found to be invalid because a search was conducted for the purpose of uncovering evidence of a crime. See Johnson, supra; People v. Acevedo-Sanachez, 212 AD2d 1023 (4th Dept 1995).

Suppressing the evidence in this case would also lead to a result under which the serious charges against the Defendant would be thrown out because the police attempted to help and accommodate him by returning personal items to his family. That is, suppression, if granted here, would result not because Defendant's rights were violated — but because he was provided with more beneficial treatment by the police than the law allowed. Courts have refused to suppress evidence in other cases where officers engaged in similar conduct.. For example, in People v. Blair, 45 AD3d 1443 (4th Dept 2007), lv denied, 10 NY3d 838 (2008), suppression was denied where an inventory search of a car was conducted but the police allowed the Defendant's friend to take a chainsaw and tools in the car and did not make a record of those items. As is true here, the Court reasoned that the officer's vouchering of the items which were retained by the police meant that the objectives of an inventory search had been met. Similarly, in People v. Salazar, 225 AD2d 804 (2d Dept 1996), lv denied, 88 NY2d 969 an inventory search was upheld despite the failure of the police to record every item which was in the vehicle.

Finally, the Court would note that this case would seem to indicate that a revision of the Patrol Guide might be appropriate to explicitly provide a procedure for the return of personal items during an inventory search to a Defendant, or his family or friends. Officer Lanzisero testified that it was common practice for NYPD to return personal items to a Defendant's friends or family after an inventory search. Indeed, this would appear to be an obviously appropriate procedure where property had no evidentiary value and might be needed immediately by a [*10]defendant. In this case, for example, there would appear to be no reason why diapers in a car which might be needed by Defendant's child would have to be vouchered and retained by the police after an inventory search rather than simply returned to a defendant's family. The Patrol Guide allows personal items to be left in a Defendant's car. Inexplicably, however, the Guide sections introduced into evidence during the hearing do not allow such items to be returned to a Defendant's family or friends or provide any procedures or record keeping practices with respect to such returned items. If this useful practice is indeed standard among the NYPD, the Court does not understand why it is not provided for in the department's written guidelines for the conduct of inventory searches.

In any event, however, the Court holds that the search of the Defendant's car here was a valid inventory search. For all of these reasons, Defendant's motion is denied in its entirety.

Dated: New York, New York________________________

November 18, 2009Daniel P. Conviser, A.J.S.C. Footnotes

Footnote 1: As noted supra, Defendant's girlfriend, Luz Martinez, testified that 4 or 5 officers searched Defendant's car, in flat contradiction to the testimony of Officer Lanzisero. The Court did not find her testimony credible, for the reasons stated supra.