Opinion
2010-079.
Decided May 23, 2011.
The People, by Nicole M. Duvé, Esq., District Attorney, Defendant Bardia Banisadr, by Brian P. Barrett, Esq.
On May 4, 2011 this court conducted a suppression hearing with respect to the basis for the stop of defendant's vehicle by Border Patrol Agent Napoli, the search of the vehicle, the seizure of marijuana from the vehicle, and defendant's statements to Investigator Norcross. At the end of the hearing, the court allowed both attorneys to prepare and file memoranda of law, and the court has read and considered both. Defendant is charged with one count of criminal possession of marijuana in the second degree [Penal Law § 221.25]. The court makes the following findings of fact and conclusions of law.
State Police Investigator Richard Norcross testified that he has been a member of the State Police since 1996, and has worked as an Investigator in the Narcotics Unit since 1993. He has investigated between two and three hundred drug cases, most of them involving marijuana.
On October 10, 2009 Norcross arrived at the Border Patrol station near Massena, New York at about 10:00 p.m. During his conversation with defendant Bardia Banisadr at about 10:15 p.m. he first established defendant's identity.
Defendant was in a holding cell at the station, and no one other than Norcross was present during the conversation. Norcross identified himself, and read defendant the Miranda warnings from the card which Norcross carries for such purposes [People's exhibit 1]. Defendant answered "Yeah" when asked if he understood the rights and agreed to talk with Norcross. Defendant did not appear to Norcross to be under the influence of any drug or of alcohol, and did not appear to have any injuries. Norcross testified that he made no promises or threats. Defendant told Norcross that "I'm just a small player, I was to be paid $2,000 to fix my vehicle." Referring to his working notes from the interview [People's exhibit 2, marked but not offered in evidence], Norcross asked defendant if he knew why he was at the station, and defendant answered, "Yeah. . .same as before." Asked if he knew what was in the vehicle, defendant answered, "marijuana." Asked how much, defendant answered, "ten pounds." Asked if others were involved, he shook his head from side to side, which Norcross said he interpreted as meaning, "No." The court fully credits the testimony of Investigator Norcross.
The second witness was United States Border Patrol Agent James Napoli. He testified that he had served as a border patrol agent for almost six years, and had trained for five months in New Mexico. He had special training in recognition and detection of drugs, including marijuana. In his training he was exposed to the smell and texture of marijuana, and learned about various methods of concealing it. He had specifically seen, smelled and handled marijuana before the arrest of this defendant.
On October 10, 2009 Napoli was working near the [Akwesasne] Reservation at Hogansburg, New York, on roving patrol along NY Route 37. Napoli was in a marked patrol vehicle. Napoli testified that the Reservation is situated in both the United States and Canada. He noted that there are several unguarded roads across and along the border, and that those roads and the nearby St. Lawrence River are used for smuggling from Canada to the United States. He stated that he has previous experience with investigations which resulted in the seizure of contraband.
The phrase unguarded road' apparently refers to a road which crosses the US-Canada border, but which does not have a staffed border crossing post.
At 5:47 p.m. on State Route 37 Napoli saw two out-of-state vehicles near St. Regis Road, an unguarded road on the Reservation. This particular crossing point is known locally as the "Four Corners," where several roads intersect. One leads into Canada but does not have a formal point of entry (staffed crossing point). Napoli was making these observations from approximately 1 to 1-1/2 miles from the border. The first vehicle clearly had New Jersey plates on a Ford Focus. The second vehicle was a Ford Explorer with Maryland plates. Both vehicles looked new. Napoli characterized the vehicles as traveling together, less than one car length apart. The two Fords were going west, and Napoli was headed east. He made a u-turn to follow the two cars, and it took him between 30 seconds and one minute to catch up to them. He followed the two cars to the intersection with Bridge Road, where the highway became a four-lane road.
As Napoli caught up to the two cars, they both signaled and pulled into the right lane. Napoli approached the second vehicle [Ford Explorer], and looked at the driver and passenger. While traveling at about 40-45 miles per hour, he rolled down his window and saw a Caucasian male driving, with his hands tightly gripping the steering wheel. The driver looked straight ahead, and did not glance over at Napoli. The passenger in the Explorer was a lighter-skinned' male, and he also looked straight ahead without glancing over at Napoli.
When Napoli tried to pull in between the two vehicles in order to see the license plate on the lead car, the second car sped up. Napoli continued to drive parallel to the other cars. Napoli received a radio report that the New Jersey vehicle was a rental.
Napoli noted that the driver of the lead vehicle [Ford Focus] was a darker-skinned middle eastern' male. Napoli drove parallel to him for awhile, and noted that this driver also did not look over at him at any time.
Napoli had been driving near the other two cars for between seven and ten minutes, and clocked' them as moving at 45 m.p.h. on a state highway posted for 55 m.p.h. Napoli then passed the two cars and drove west towards the Massena Mall [on NY 37], where he parked on the side of the road and watched as the two vehicles approached. Using binoculars, he saw other vehicles pass the two cars. Again he noted that there was one person in the Focus, and two in the Explorer, all of the occupants looking straight ahead.
Napoli again pulled out and followed the two cars. At the intersection of Route 37 and the
Walmart store stop light, Napoli pulled next to the two cars and stared at the occupants, but got no reaction. When the light turned green, Napoli pulled between the two cars. At this point Napoli received radio information that the second car [Explorer] was registered to defendant Banisadr, but the description of the registered owner did not match the appearance of the person driving the vehicle.
Napoli then stopped the lead vehicle [Focus] within the village of Massena on NY Route 37. The driver complied promptly. Napoli asked the driver to place the gear shift in Park.' Napoli noticed that the driver's hands were shaking. Napoli identified himself and asked the driver about his citizenship, and examined his driver's license. The license identified the Focus driver as Banisadr, who told Napoli that he was a naturalized citizen from Iran. When asked where he was coming from, defendant gave a wrong' answer, saying that he was going to and from Maryland. Asked why he was in New York, defendant stated he was in a place with the letter M,'and was in Plattsburgh visiting a girlfriend, but he didn't know how far away that was.
Napoli then asked defendant about the Ford Explorer; defendant said he didn't know who that was. Napoli said he found that hard to believe, because the Explorer was registered to Banisadr. He then admitted that the car was his. Napoli then asked him why he was driving a rental vehicle when his own car was present. Defendant gave no answer.
Napoli then asked if there was anything illegal in the vehicle, and he responded, "No," and said that there was a just a suitcase full of clothing. Napoli then asked if he could have consent to look in the trunk and the suitcase, and Napoli said defendant said that he could look there, and handed Napoli the keys. Banisadr remained in the driver's seat while Napoli looked in the trunk and suitcase. When he opened the trunk he noted a strong smell of marijuana, and also saw that the only item in the trunk was a black suitcase. When he opened the suitcase he saw a green leafy substance consistent with marijuana. Napoli then placed defendant under arrest and turned him over to the state police.
On cross-examination Napoli said that October 10, 2009 was a Saturday, the weather was clear, and the temperature between 50 and 60 degrees F. Napoli had a passenger, a ride-along person for the Border Patrol program. This passenger, named Kyle Johanson, is the brother of Napoli's ex-girlfriend. Napoli had worked on the Southern border for three years and was commissioned on August 15, 2005. He transferred to this area because his family was from Syracuse. He had not previously seen defendant before seeing him in the Ford Focus. He described the traffic on October 10th as moderate to heavy because it was a Saturday. The Ford Focus was from a rental agency in New Jersey, though Napoli could not recall which one. He noted that the car was very clean.
After the People rested their case, defendant testified. He was driving the Ford Focus, and saw the border patrol agent following him, then alternately pulling along side and backing off. He said that he moved to the United States when he was three years old. Defense exhibits A and B are copies of defendant's social security card and the picture page of his United States passport. The social security card was received over objection, the passport without objection.
Defendant stated that he is a naturalized US citizen; that he has no criminal record; that the border patrol vehicle was near him for between ten and fifteen minutes; that he was not violating any vehicle and traffic laws; that he had his license for about 1-1/2 years. He acknowledged being asked for his license and registration, and said he told Napoli that he had been in Plattsburgh. He said that Napoli told him to put the car keys on the dashboard. He said he knew the driver of the other car, who was Riad _____ [?] from Algeria. He said he was asked if he had anything in the car, but said he was not asked if Napoli could search the vehicle. Defendant said Napoli grabbed the keys and went straight to the trunk, and did not ask to search the suitcase in the trunk. Defendant said that Napoli came back to the driver side window, pointing his gun at defendant's head, and said, "Don't move or I will blow your f-ing head off."
Defendant asserts the view that Napoli exaggerated the proximity of the two cars to each other, and that it was virtually impossible for them to maintain a ten-foot separation for a substantial time while traveling at 45 m.p.h. While the court is inclined to agree with this assessment, it does not impair the court's belief that Napoli was generally credible in his report of his observations leading up to the stop. The other area in which the testimony may have been somewhat tailored is in the interaction between Banisadr and Napoli when Napoli wanted to search the vehicle. The court credits neither the defendant's version — that Napoli grabbed the keys, opened the trunk and suitcase, and then came back with a drawn weapon — or Napoli's — that he asked Banisadr for permission to search, and defendant agreed and handed him the keys.A federal border patrol agent has many, but not all, of the powers of a peace officer under New York State law to make a warrantless arrest of a person for an offense committed in his presence, and to make a warrantless search when otherwise constitutionally permissible and effected pursuant to the agent's duties. CPL § 2.15(7); CPL § 2.20(1)(a) and (c); CPL § 140.25; People v. Boyea , 44 AD3d 1093 [3rd Dept 2007]. Before making such an arrest or search, the agent must have reasonable suspicion that defendant is committing an offense. People v. May, 81 NY2d 725 ; People v. Booker , 64 AD3d 899 [3rd Dept 2009]; People v. Sobotker, 43 NY2d 559. Sobotker defined reasonable suspicion' as the quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe that criminal activity is at hand,' quoting from People v. Cantor, 36 NY2d 106. As the People note, this is a somewhat lesser standard than probable cause under the federal rule established in U.S. v. Arvidzu, 534 US 266, where the Supreme Court held that the officer's knowledge must be based on specific and articulable facts which, taken together with reasonable inferences from those facts, reasonably warrant [the] intrusion. In New York State, a state police officer had reasonable suspicion to stop a vehicle which eluded a border patrol checkpoint and to make inquiry about citizenship of the occupants; when the officer smelled marijuana emanating from the car, he acquired probable cause to search the vehicle. People v. Boyea , 44 AD3d 1093 [3rd Dept 2007]; see also, People v. Carillo, 257 AD2d 780 [3rd Dept 1999], lv den 93 NY2d 53; U.S. v. Brignoni-Ponce, 422 US 873.
A court reviewing whether there was reasonable suspicion to support the legality of the stop is required to credit the officer with drawing on his stated experience and specialized training that may lead him or her to make inferences and deductions about the situation, even if the cumulative information might elude an untrained person. Arvidzu, supra; People v. Mothersell, 14 NY3d 358, 366-367.
Factors which may support a finding of reasonable suspicion in the roving patrol context include characteristics of the area where the stop occurs; its proximity to the border; usual traffic patterns on that road; previous experience with smuggling in the area; any recent information about specific illegal activity [none claimed here]; the behavior of the driver, including attempts to evade officers, slowing down, stiffening of the driver's posture, failure to acknowledge a sighted law enforcement officer; characteristics of the vehicle itself; and the appearance of people in the vehicle. U.S. v. Brignoni-Ponce, supra; U.S. v. Singh, 415 F.3d 288 [2d Cir. 2005]; People v. Carillo, supra. See also, People v. LaRose, 5 Misc 3d 621 [St. Lawrence County Ct 2004].Even though individual observations may be innocent in and of themselves, they must be evaluated collectively.
Based on the factors described by Napoli in his testimony, the court finds that he had the necessary degree of reasonable suspicion that the two stopped vehicles might be involved in transporting contraband. Napoli was therefore authorized to stop defendant's vehicle and make further inquiries.
Contrary to the argument made by defense counsel, Napoli testified that he smelled marijuana, which he was trained to identify by smell, when he opened the trunk. He also testified that defendant consented to his looking in the trunk and the suitcase. If that is true, then the warrantless search of the trunk and the suitcase, and the seizure of the of the marijuana was proper. A driver's consent to search the vehicle is a valid substitute for probable cause. People v. Hodge, 44 NY2d 553; People v. Gonzalez, 39 NY2d 122; People v. Barclay, 201 AD2d 952 [4th Dept 1994]. If defendant merely consented to a search of the vehicle but did not authorize the opening of the suitcase, a closed container, then at most Napoli had probable cause to apply for a warrant to open the suitcase, but did not have authority to open it otherwise.
The People bear a heavy burden' of establishing consent to a voluntary search of a vehicle or its contents. Bumper v. North Carolina, 291 US 543; People v. Whitehurst, 25 NY2d 389, 391; People v. Corbin, 201 AD2d 359 [1st Dept 1994] (consent not established); People v. Bell, 170 AD2d 515 [2nd Dept 1991] (voluntariness of consent not established); People v. Amico, 12 Misc 3d 1176A, [NY Crim Ct 2006] (consent not proven because defendant was not told he could refuse consent); People v. Hall, 12 Misc 3d 1153A [Erie Co Ct 2006], affirmed 35 AD3d 1171 [4th Dept 2006] lv den 8 NY3d 923 (consent not proven); see also, discussion in Kamins, 1-5 New York Search Seizure § 5.05. In People v. Gonzalez, 39 NY2d 122, 128 the court noted its own previous holding that it is not mandatory that a police officer advise defendant that he may refuse consent to a search, but the failure so to advise him is a factor which may be considered in assessing the voluntariness of the consent.
In Hall, supra, both the hearing court and the appellate court found that the record evidence was equivocal on the issue of whether defendant consented to the search and if so, the scope of that consent. While Hall involved an anonymous tip that defendant had a gun in the trunk of his vehicle, the principles surrounding the claimed consent search of the trunk are relevant to the present case. In Hall, the hearing court wrote that
"The police have a difficult job in ascertaining whether or not they have the right to search, especially when dealing with an alleged weapon in a car. But in the absence of the perception by them [emphasis in original] of any criminal or even suspicious activity, they are compelled to take alternative measures. They may, for a reasonable time detain the suspect. They may restrict the movement of the vehicle until they obtain a warrant, oral or written, based on information from a reliable source. And of course, they could establish unequivocally that consent to search was obtained by either getting a signed consent to search' form or, at the very least, make a complete and accurate record of how consent was given. None of that occurred here." 12 Misc 3d 1153A, page 5, [Erie County Ct 2006].
Given the lack of detail, and the wildly different versions of what occurred with respect to the request for consent to search and the scope of the proposed search, the People have failed to meet their heavy burden of showing voluntary consent by clear and convincing evidence, and the marijuana obtained as a result of the search of the suitcase is therefore suppressed from use at trial. The later statement by defendant to Investigator Norcross is therefore also suppressed, although Norcross' questioning of defendant was in other respects proper, because it was the product of the warrantless search of the vehicle by Napoli. People v. Hall, 35 AD3d 1171, 1172 [4th Dept 2006]; Wong Sun v. United States, 371 US 471.
The motion to suppress the marijuana and the statement given to Inv. Norcross is therefore granted. So ordered.