People v Dubon
Annotate this CaseDecided on June 1, 2018
Criminal Court of the City of New York, Queens County
The People of the State of New York, Plaintiff,
against
David Dubon, Defendant.
CR-040357-17QN
Nick Justiz, Esq., Queens Law Associates
Assistant District Attorney Christopher McClain & Richard Giordano, Queens
Jerry M. Iannece, J.
In this case before the Court, the police made a plain view observation of incriminating evidence inside a vehicle where the defendant was a front seat passenger. The incriminating evidence was immediately and contemporaneously confiscated and the defendant place under arrest. While there was reason to believe that there was other further incriminating evidence inside the vehicle, it was not searched on the scene, but rather taken back to the precinct, searched there, and other incriminating evidence recovered.
At issue is whether the officer's warrantless retrieval of incriminating evidence from the vehicle after the arrest was justified on the basis of his initial plain view observations and still fall under the penumbra of the automobile exception as being within a "reasonable time after arrest".
It is the opinion of the Court that it does not.
On May 16, 2018, this court held a Pre-Trial Dunaway/Mapp Hearing in relation to the admissibility of the property recovered. At the hearing, the arresting Officer Sean Buchanan testified as the sole witness for the prosecution. The underlying facts as recited in this decision are drawn from his testimony.
On September 29, 2017, at approximately 1:15 pm the arresting officer was in an unmarked patrol vehicle with his partner, when he observed a 2001 Dodge Neon with a broken tail light and no front license plate on the shoulder of the service road of the Clearview Expressway in Bayside Queens. The vehicle was followed and pulled over in the vicinity of 58-17 Clearview Expressway by the officer and his partner for the afore stated traffic infraction. Upon approaching the vehicle, a separately apprehended female was operating the vehicle and the defendant was the front seat passenger. Upon inquiry, the female driver could not produce any paperwork for the car and was asked to exit the vehicle. Thereafter the defendant was observed by the arresting officer to quickly open and close a front center console compartment, [*2]where the officer observed in plain view 2 crack pipes with alleged contents/residue, which the officer believed upon his training and experience to be cocaine. The female driver then apparently admitted/stated that marijuana was inside the vehicle. Both individuals were placed under arrest, and along with the vehicle, they were transported to the 111 Precinct. At the precinct the vehicle was searched and another glass pipe with residue, a spoon with alleged heroine residue on it, a can of mace, and a straight edge knife was recovered from the back-seat area and a quantity of marijuana was recovered from the trunk compartment. The arresting officer testified that the rationale for not searching the vehicle at the time of arrest was for safety in that it was on the service road to a highway. No further evidence or testimony was received to support this explanation. Furthermore, no testimony was elicited as to the distance the precinct was from the location, nor how much time transpired from the time of arrest to the time of search of the vehicle. No search warrant was obtained nor was there any testimony proffered as to the guidelines or procedures of an Inventory Search.
The Fourth Amendment of the US Constitution clearly states that warrantless searches are per se unreasonable, subject to a few specifically established and well delineated exceptions. Katz v. United States, 389 U.S. 347, 88 S. Ct 507 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022; Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009). The most widely relied upon and recognized exception is the doctrine of "plain view". Under this exception an item may be seized without a warrant if three conditions are met: (1) law enforcement are lawfully in a position from which they can view an object; (2) the incriminating character of the object is immediately apparent, and (3) the officers have a lawful right of access to the object. People v. Diaz, 81 NY2d 106, 595 N.Y.S.2d 940 (1993); Arizona v. Hicks, 480 U.S. 321, 107 S. Ct. 1149 (1987). It is well established that the police may seize contraband, evidence or instrumentalities of a crime when these items are in open view and the officer makes his/her observations from a lawful vantage point. People v. Spinelli, 35 NY2d 77, 358 N.Y.S.2d 743; People v. Diaz, 81 NY2d 106, 595 N.Y.S.2d 940 (1993). Under the plain view doctrine, the police may seize items seen inside a vehicle during an investigative stop if they were justified in stopping the vehicle. People v. Harvey, 245 AD2d 108, 666 N.Y.S.2d 139 (1st Dept. 1997).
In this case, Officer Buchanan credibly testified that he pulled the vehicle over for a broken tail light and missing license plate, and consequently was at that place and time lawfully. Any observations he made from this vantage point were permissible, lawful and justifiable, and hence the two crack pipes with residue, recovered from the center console compartment of the vehicle, are admissible under the plain view exception. See People v. Ingle, 36 NY2d 413, 369 N.Y.S.2d 67 (1975).
The more difficult issue arises as to the admissibility of the other items recovered pursuant to the search of the vehicle at the precinct after the defendant was placed under arrest. Had Officer Buchanan searched the vehicle contemporaneously or immediately after his observations and/or arrest of the defendant at the place of the stop along the service road of the Clearview Expressway, there would be no issue. According to the controlling case law, it would clearly fall within the purview of the "automobile exception". Under the automobile exception, warrantless searches of vehicles, and visible closed containers therein, are permitted for a reasonable time and to a reasonable extent, when the circumstances give rise to believe that the vehicle or its visible contents may be related to the crime for which the arrest is being made or if it's incident to a lawful arrest and the defendant is in or near the vehicle. People v. Yancy, 86 [*3]NY2d 239, 630 N.Y.S.2d 985 (1995); People v. Belton, 55 NY2d 49, 447 N.Y.S. 873 (1982); People v. Appel, 103 AD2d 860, 477 N.Y.S.2d 915 (3rd Dept. 1984); People v. Galak, 80 NY2d 715 (1983). When the police engage in a lawful search pursuant to the automobile exception to the State and Federal Constitutions' warrant requirements, and where circumstances giving rise to probable cause to arrest a driver or passenger in an automobile also support the belief that the automobile contains contraband related to a crime for which an arrest is made, police may search without a warrant, within a reasonable time after arrest, any container, locked or otherwise, located in said automobile. People v. Langen, 60 NY2d 170 (1983).
There is not and has never been any requirement that police must do all their searching at one time promptly upon seizure incidental to an arrest or upon the plain view of incriminating evidence or contraband. These "delayed searches" are many and have been long upheld to be valid. People v. Brosnan. 32 NY2d 254 (1973). The justification for a warrantless search conducted upon probable cause pursuant to the automobile exception do not dissipate merely because the vehicle has been placed in the control of the police. People v. Milerson, 51 NY2d 919, 434 N.Y.S.2d 980. The exception is equally applicable whether the search is conducted at the time and place where the automobile was stopped or whether, instead, the vehicle is impounded and searched after removal to the police station. People v. Orlando, 56 NY2d 441, N.Y.S.2d 559. Where the search is reasonably close in time and place to the point of arrest, there is no requirement that the police further delay the search to obtain a warrant. Milerson, supra; People v. Blasich, 73 NY2d 673 (1989). It is well established that once the police have lawfully taken possession of an arrested person's property, especially where there is knowledge or probable cause that it contains contraband or evidence of the crime, they have the right to examine it — to search it — within a reasonable time and at a reasonable convenient place for such contraband or other evidence of the crime for which the arrest was made. The facts, circumstances, and conditions existing at the time of the arrest can and should be taken into account. People v. Perel, 34 NY2d 462, 358 N.Y.S.2d 383; People v. Brosnan, 32 NY2d 254, 344 N.Y.S.2d 900; People v. Fustanio, supra; People v. Paragas, 58 AD3d 874 (2nd Dept. 2009).
It is quite clear that had the vehicle been left unattended, outside police custody, on the shoulder of the Clearview Expressway service road, and the police went back some time after the arrest and then searched the vehicle, a search warrant would have been required. There would have been a clear break in the right to search under the automobile exception. See People v. Tashbaeva, 35 Misc 3d 812 (2nd Dept. 2012). In this case, the vehicle was lawfully stopped by the police officers pursuant to a traffic infraction, plain view observations made of incriminating evidence, and probable cause existed to seize the initial 2 crack pipes and arrest the defendants. For the People to rely upon a delayed search of the vehicle at the precinct after the arrest as a continuation under the automobile exception to justify the recovery of all the subsequent evidence/contraband, it is incumbent upon them to set forth facts and/or elicit testimony to show that the subsequent search was within a "reasonable period of time and at a reasonably convenient place after the arrest". The court cannot assume facts and/or inferences which do not naturally flow from the testimony. The record in this case is completely and totally devoid of any testimony whatsoever as to the distance the precinct was from the location and/or how long after the initial stop and arrest of the defendant, the vehicle was searched. The safety argument, without further compelling facts to support it, in and of itself, is not enough to circumvent this. The People have failed to go forward and sustain their burden of proof to establish that the search was within a reasonable period of time and at a reasonably convenient [*4]place after the arrest. Accordingly, it is the court's decision that all property recovered at the precinct, to wit: 2 additional crack pipes, spoon with heroin residue, can of mace and marijuana from the trunk compartment, must be suppressed.
This constitutes the Decision and Order of the Court.
Dated: June 1, 2018
Kew Gardens, New York
JERRY M. IANNECE, JCC
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