People v Levelle

[*1] People v Levelle 2010 NY Slip Op 50286(U) [26 Misc 3d 1227(A)] Decided on February 18, 2010 Criminal Court Of The City Of New York, Kings County Cyrulnik, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 18, 2010
Criminal Court of the City of New York, Kings County

The People of the State of New York, Plaintiff,

against

Mathis Levelle, Defendant.



2008KN008711



The People were represented by:

Assistant District Attorney Christopher Myco

The defendant was represented by:

Jeff Lee, Esq.

The Legal Aid Society

Miriam Cyrulnik, J.

On January 12, 2010, an Ingle/Huntley/Mapp/Dunaway/Gonzalez hearing was held to determine whether the stop of the defendant's car was lawful, the admissibility of the statement the People seek to introduce into evidence at trial, whether the property recovered from the defendant's car was admissible, if there was probable cause to arrest the defendant, and if the inventory search was performed properly. The court will now rule on the legality of the car stop, the subsequent admissibility of the proffered statements and recovered property, and the inventory search.

Police Officer Anthony Vitale testified at the hearing on behalf of the People. After having had an opportunity to observe and evaluate the testimony of the witness at the hearing, and finding him to be credible, the court issues the following findings of fact and conclusions of law.

FINDINGS OF FACT

Officer Anthony Vitale has been a police officer for 10 years, and has been assigned to the 77th Precinct the entire time. On or about February 2, 2008, at approximately 2:10 a.m., P.O. Vitale observed a green Acura Legend, the driver of which, later identified as the defendant, made a right-hand turn without using the turn signal. Officer Vitale pulled the vehicle over, approached the driver's side of the vehicle, and requested the license and insurance of the defendant. Officer Vitale then observed a quantity of heroin inside the vehicle, and had the defendant exit the vehicle, while he and his partners recovered the heroin. The defendant, upon being approached by P.O. Vitale, who was holding the heroin recovered from the defendant's car, then stated to the officer that he lent the car out to somebody, and the heroin was not his. Officer Vitale took the defendant and the defendant's vehicle back to the 77th Precinct. He performed an inventory search on the vehicle, and recovered two cell phones, a box of glassine envelopes, and a stamper that said, "fire." The cell phones and the defendant's vehicle were released to his wife, who signed P.O. Vitale's memo book indicating her receipt of the items.

CONCLUSIONS OF LAW

INGLE CONSIDERATIONS[*2]

As stated above, the court finds Officer Vitale's testimony to be credible. In order for police officers to stop a vehicle, they must "reasonably suspect[s] a violation of the Vehicle and Traffic Law." People v. Ingle, 36 NY2d 413, 414 (1975); see also People v. Smith, 2009 NY Slip Op 52705(U), 3 (Sup Ct, Nassau County 2009)(holding that "in order for a Police Officer to legally stop a vehicle, the Officer needs to have either observed a violation of the Vehicle and Traffic Law, or reasonably suspect that the occupants had been, were then, or were about to be engaged in criminal conduct"); see also People v. Cobb, 182 Misc 2d 808 (Crim Ct, Kings County 1997).

It is the People's burden to show with credible evidence that the Police acted lawfully in stopping the defendant's vehicle. It then falls to the defendant to show by preponderance of the evidence that the police acted illegally. See People v. Ingle, supra.

The court finds that Officer Vitale acted lawfully in stopping the defendant's vehicle. Officer Vitale observed the defendant make a right-hand turn without first using his turn signal, in violation of the Vehicle and Traffic Law. Therefore, he was justified in pulling over the vehicle.

MAPP/DUNAWAY CONSIDERATIONS

At a Mapp hearing, the People have the burden of initially going forward and establishing the legality of the search and seizure of the property recovered. Here, they must also demonstrate how that recovery provided them with probable cause to arrest the defendant. The burden then shifts to the defendant to prove by preponderance of the evidence that the police conduct was illegal. See generally, People v. Scott, 2009 NY Slip Op 52191(U) (Dist Ct, Nassau County 2009).

In this case, the People have not satisfied their burden. They failed to provide with any specificity, a description of P.O. Vitale's training in narcotics or street crime, or his prior history of making narcotics arrests during his 10 years in the New York Police Department ("NYPD"). Nothing in Officer Vitale's direct testimony demonstrated that he had any specialized training on how to identify narcotics, specifically heroin, or any accumulated experience in narcotics identification while working as a police officer. The only testimony elicited from P.O. Vitale on this point was that he "trained at police academy for learning the laws of car stops, identification of drugs." (Hr'g Tr., p. 4, January 12, 2010). This statement is simply far too vague to satisfy the court that what Officer Vitale observed in the defendant's vehicle was recognizable to him as heroin.

Furthermore, there was no testimony elicited whatsoever as to the physical description of the alleged heroin. Officer Vitale did not specify what the heroin looked like in the vehicle, namely, what kind of packaging he observed, the color, shape, size, or even the amount of drugs recovered. Compare People v. Cabot, 88 AD2d 556, 557 (1st Dept 1982) (finding sufficient probable cause where an officer testified as to his "extensive training in narcotics identification" and that he had "made between 500 to 1,000 arrests for narcotics," and observed in the defendant's vehicle, "the telltale signs of narcotics trafficking — a clear plastic bag containing a white powder, tinfoil packets and glassine envelopes"); see also, People v. McRay, 51 NY2d 594 (1980).

Finally, there are discrepancies in Officer Vitale's testimony about the location where he recovered the alleged heroin. While he initially testified that he "observed what appeared to be a quantity of heroin on the side console of the vehicle," (emphasis added), moments later he stated that "my partners and I recovered the heroin from the center console" (emphasis added). (Hr'g Tr., p. 7, January 12, 2010). [*3]

Accordingly, the court finds that the People have not met their burden in establishing that the police acted properly in recovering the property from the defendant's vehicle. Thus, there can be no probable cause to arrest the defendant for any drug-related charges, or anything other than the traffic infraction described above.

HUNTLEY CONSIDERATIONS

The People claim that the defendant's statement was uttered spontaneously. The defendant asserts that the statement was elicited after he was in police custody and should be suppressed.

The court first notes some discrepancy in the officer's testimony: On direct examination, P.O. Vitale testified that the defendant made the statement to him "after [he] placed the defendant in handcuffs." (Hr'g Tr., p. 8, January 12, 2010). On cross-examination, P.O. Vitale testified that he did not handcuff the defendant until after he stated that it was "not my heroin." (Hr'g Tr., p. 20, January 12, 2010). However, as the People have conceded "the defendant was not free to leave," the issue of the handcuffs is superfluous. (Hr'g Tr., p. 31, January 12, 2010).

Nevertheless, the statement, although indeed spontaneously made by the defendant after he exited the vehicle, and Officer Vitale approached him holding the bag of the alleged heroin, would not have occurred but for the seizure of the heroin, which the court has already found not satisfactorily proven to be lawful. As the defendant's statement is a result of an impermissible seizure and an arrest lacking probable cause, its suppression is required as "fruit of the poisonous tree." See People v. Hanson, 5 Misc 3d 67, 69 (App Term, 2d Dept 2004) (suppressing statements as "fruit of the poisonous tree" after finding officers who gave "no testimony regarding their training or experience in identifying the smell of marijuana . . . lacked probable cause to search the defendant," even though the initial stop of the vehicle for a traffic infraction was lawful); see also Wong Sun v. United States, 371 U.S. 471 (1963). Thus, the statement here is inadmissible.

GONZALEZ CONSIDERATIONS

When the police impound a vehicle, they may perform an inventory search of its contents, provided that such a search is conducted according to proper police procedure. See People v. Gonzalez, 62 NY2d 386 (1984). This purpose of an inventory search is to "protect the property of the defendant, to protect the police against any claim of lost property, and to protect police personnel and others from any dangerous instruments." People v. Johnson, 1 NY3d 252, 256 (2003), citing Florida v. Wells, 495 U.S. 1, 4 (1990). At the ensuing suppression hearing, the People must demonstrate that the search was carried out following the police department's standardized procedures and guidelines. See People v. Ballard, 174 AD2d 1025 (4th Dept 1991).

Courts have upheld inventory searches that are not only performed properly, but where the entire process is described during the hearing. In People v. Grant, 2007 NY Slip Op 51795U, 2 (Sup Ct, Kings County 2007), the court credited the testimony of the officer who "testified knowledgeably about the Patrol Guide and the purpose of inventory searches and the procedures to be followed." There, the officer in question listed the areas of the vehicle he was permitted to search: "floor mats, seats, console, glove compartment, trunk and hood." Id. The police officer was also supervised by a sergeant while conducting the inventory search in order to minimize any discretion he chose to exercise beyond the confines of the NYPD patrol guide on "Inventory Searches of Automobiles and Other Property," which was introduced into evidence by the People. Id. See also People v. Padilla, [*4]2009 NY Slip Op 52332U, 8 (Sup Ct, NY County 2009) (upholding as valid an inventory search where the officer "testified about the purposes for such an inventory . . . and described the methodical procedure" he used, and the NYPD patrol guide was offered into evidence).

In the present case, the People have not demonstrated that Officer Vitale followed police guidelines in conducting an inventory search of the defendant's vehicle. His scant answer to the People's question of "What are the established procedures for the inventory search?" was "Inventory search of the vehicle, you're allowed to go into the trunk, the glove compartment, and anywhere inside the vehicle," and that he did not remove any panels from the vehicle. (Hr'g Tr., p. 9, January 12, 2010). There was no detail elicited regarding the official NYPD guidelines for inventory searches, for example, whether the items recovered must be itemized, or if an inventory search must be conducted with another officer present. Nor were any NYPD regulations offered into evidence by the People to define the procedural requirements.

Furthermore, there was no testimony that Officer Vitale completed "the hallmark of an inventory search: a meaningful inventory list." People v. Johnson, supra at 256. The only memorialization that was testified to concerned the items released to the defendant's wife, as documented by P.O. Vitale in his memo book, a procedure noted by the court in People v. Padilla, supra at 9-10, as "common practice" but "inexplicably" absent from the pages of the NYPD Patrol Guide.

Thus, the People's presentation of evidence in this hearing lacked substantive proof of a thorough and properly conducted inventory search. Even had the arrest of the defendant been effectuated properly, the inventory search would still have failed due to an insufficient showing of adherence to proper procedure and police guidelines.

Accordingly, the court finds that the stop of the defendant's car was warranted. However, as the property was not properly recovered from the defendant's vehicle, there was no probable cause to arrest the defendant. The ensuing statement he made to the police was a result of that improper arrest. Consequently, the defendant's motion to suppress both the property and the defendant's statement is granted. Additionally, the property recovered pursuant to the improperly conducted inventory test is suppressed as well.

This opinion constitutes the decision and order of the Court.

Dated: February 18, 2010

Brooklyn, New York

_____________________________

Miriam Cyrulnik

Judge of the Criminal Court