Opinion
2013-05-2
The PEOPLE of the State of New York, Respondent, v. Natasha BOLER, Appellant.
Barrett D. Mack, Valatie, for appellant. D. Holley Carnright, District Attorney, Kingston (Cindy B. Chavkin of counsel), for respondent.
Barrett D. Mack, Valatie, for appellant. D. Holley Carnright, District Attorney, Kingston (Cindy B. Chavkin of counsel), for respondent.
Before: LAHTINEN, J.P., STEIN, SPAIN and GARRY, JJ.
SPAIN, J.
Appeal from a judgment of the Supreme Court (Czajka, J.), rendered February 4, 2011 in Ulster County, convicting defendant upon her plea of guilty of the crimes of criminal possession of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the fourth degree, and the violation of unlawful possession of marihuana.
On February 19, 2010 at approximately 9:00 p.m., Officer Joseph Garvila, a canine division officer with the Town of Ulster Police Department, received a call from his dispatcher that he had received a phone call with a tip regarding two black women shooting heroin in a gold or tan Nissan Maxima with a specific license plate, in the parking lot of a particular discount store. Garvila, with his canine partner, a dog named Dak, proceeded to that location and was directed by a store security employee to a car parked in the lot matching that description (the license plate was one number off) in which two black women were sitting. Garvila parked his car to the rear of that car and Nancy Girard exited the passenger side of the vehicle. Garvila noted that she was “very antsy, jittery,” “couldn't stand still,” “waving her hands around” “very excited, moving around a lot” and appeared to be under the influence of “some type of substance.” As the officer approached, defendant exited the driver's side holding a small black purse; he observed a white powdery substance under her nostrils, and that her speech was “slurred” and “very slow.” He asked for identification and engaged in a brief conversation until a back-up officer, Megan Sutton, arrived and the women were separated on either ends of the car, briefly questioned, and patted down for weapons. Sutton then informed Garvila that she found two “crack pipes” on Girard's person, and defendant refused Garvila's request for consent to search. Garvila then informed the women that he was going to walk his canine partner around the vehicle exterior; he asked the women to step away and wait with Sutton at her adjacent patrol car, directing defendant to place her purse on the hood of her car (hereinafter the hood purse).
During an exterior pass, the narcotics detection-trained canine alerted on the hood purse and at the passenger door handle, signs that his sniff had detected the odor of drugs. Inside the car, the canine indicated on the right rear passenger floor area, where a second purse was found (hereinafter the car purse), reflecting that he had zeroed in on the source of the narcotic odor. When asked by Garvila, defendant admitted that both purses were hers; a search of the car purse disclosed a small bag of marihuana and prescription pill bottles bearing defendant's name. Defendant and Girard were placed under arrest and handcuffed. Garvila then searched the hood purse and discovered money and several decks (i.e., glassine envelopes) of heroin and then questioned defendant about the contents. A subsequent inventory search of the vehicle revealed over 500 decks of heroin and cocaine located in a small cardboard box inside a plastic bag in the vehicle trunk, but no needles.
A combined Mapp/Huntley suppression hearing was held at which only Garvila testified and a DVD recording of the incident from a dashboard camera in his patrol car was submitted as evidence. The source of the tip was not disclosed at the hearing. County Court (Williams, J.) issuedan oral ruling denying defendant's motion to suppress the physical evidence seized by police from the purses and vehicle. As for defendant's statements, the court appears to have ruled that defendant's statements prior to the canine search are admissible, but otherwise suppressed any subsequent statements. Thereafter, defendant entered a guilty plea to criminal possession of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the fourth degree and unlawful possession of marihuana. Defendant appeals, challenging the partial denial of her motion to suppress.
The dashboard camera was not pointed in the direction of defendant's vehicle and, thus, the DVD captured only audio at the outset of the encounter; it first visually depicts defendant and Girard when they stepped away from defendant's vehicle with Sutton to allow the canine pass.
Regarding the physical evidence seized, defendant contends that it should have been suppressed in that Garvila's conduct was, from its inception, unjustified and unreasonable. In evaluating police action, we consider whether it was justified at its inception and, if so, whether it was “reasonably related in scope to the circumstances which justified the interference in the first place” ( People v. William II, 98 N.Y.2d 93, 98, 745 N.Y.S.2d 792, 772 N.E.2d 1150 [2002] [internal quotation marks and citation omitted]; see People v. De Bour, 40 N.Y.2d 210, 215, 222, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). An approach of a parked vehicle and request for information may be undertaken for “an objective, credible reason” ( People v. Ocasio, 85 N.Y.2d 982, 984, 629 N.Y.S.2d 161, 652 N.E.2d 907 [1995], citing People v. Harrison, 57 N.Y.2d 470, 475–476, 457 N.Y.S.2d 199, 443 N.E.2d 447 [1982] ). At the suppression hearing, defense counsel conceded that upon finding the two women in the vehicle at the location as described by the anonymous tip, police had a common-law right to inquire, which is activated by a “founded suspicion that criminal activity is afoot and permits [an officer] ... to interfere with a citizento the extent necessary to gain explanatory information, but short of a forcible seizure” ( People v. De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562). While Garvila did not, upon approaching the vehicle, observe the women using drugs or the presence of any needles necessary to “shoot” heroin, the fact that the scene matched the tip at the specified location allowed Garvila upon approach to request identification and ask general and investigative questions ( see People v. Moore, 6 N.Y.3d 496, 498, 814 N.Y.S.2d 567, 847 N.E.2d 1141 [2006] ). He was entitled to ask the women to exit the vehicle ( see People v. Russ, 61 N.Y.2d 693, 694, 472 N.Y.S.2d 601, 460 N.E.2d 1086 [1984] ), and we defer to County Court's fact-finding that as Garvila approached, Girard exited first, unrequested, and then defendant alighted of her own accord at the same time as Garvila asked her to do so ( see People v. Culver, 69 A.D.3d 976, 977, 893 N.Y.S.2d 327 [2010] ).
Upon observing Girard's hyper behavior and appearance of being under the influence of drugs, which the DVD fully depicts, as well as the white powder under defendant's nostrils and her slurred and slow speech, and the crack pipes found shortly thereafter on Girard, and considering the information relayed in the tip, Garvila had a reasonable suspicion that defendant was involved in a crime so as to stop and detain her for questioning ( seeCPL 140.50[1] ). The circumstances thus also supported a “founded suspicion that criminal activity is afoot” ( People v. De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562), the lower standard which authorizes a request for consent to search and the canine search of the vehicle's exterior( see People v. Devone, 15 N.Y.3d 106, 113, 905 N.Y.S.2d 101, 931 N.E.2d 70 [2010];People v. Anderson, 104 A.D.3d 968, 970, 960 N.Y.S.2d 548 [2013];People v. Whalen, 101 A.D.3d 1167, 1168, 956 N.Y.S.2d 598 [2012],lv. denied20 N.Y.3d 1105 [Mar. 22, 2013] ).
Nothing was found on defendant's person during the pat down and defendant conceded that she lacked standing to challenge the pat down of Girard's person ( see People v. Wesley, 73 N.Y.2d 351, 357–358, 540 N.Y.S.2d 757, 538 N.E.2d 76 [1989] ).
Moreover, once the dog alerted, probable cause existed to search the vehicle ( see People v. Gathogo, 276 A.D.2d 925, 927, 715 N.Y.S.2d 459 [2000],lv. denied96 N.Y.2d 734, 722 N.Y.S.2d 801, 745 N.E.2d 1024 [2001];see also Florida v. Harris, ––– U.S. ––––, 133 S.Ct. 1050, 185 L.Ed.2d 61 [2013];People v. Offen, 78 N.Y.2d 1089, 1091, 578 N.Y.S.2d 121, 585 N.E.2d 370 [1991];People v. Abdur–Rashid, 64 A.D.3d 1087, 1089, 883 N.Y.S.2d 644 [2009],affd. 15 N.Y.3d 106, 905 N.Y.S.2d 101, 931 N.E.2d 70 [2010] ). Under the “automobile exception” to the Fourth Amendment search warrant requirement, police “may search a vehicle without a warrant when they have probable cause to believe that evidence or contraband will be found there” ( People v. Galak, 81 N.Y.2d 463, 466–467, 600 N.Y.S.2d 185, 616 N.E.2d 842 [1993] ). Thus, the canine search of the vehicle interior was lawful. Further, the inventory search of defendant's vehicle following her and Girard's arrest, in which heroin and cocaine were discovered in the trunk, was lawful ( see People v. Walker, 20 N.Y.3d 122, 125, 957 N.Y.S.2d 272, 980 N.E.2d 937 [2012] ). As established by Garvila's testimony, which County Court credited, the inventory search was conducted pursuant to “reasonable police regulations relating to inventory procedures administered in good faith” ( Colorado v. Bertine, 479 U.S. 367, 374, 107 S.Ct. 738, 93 L.Ed.2d 739 [1987] ). Thus, all of the evidence seized from inside the vehicle was properly ruled admissible.
The warrantless search of the hood purse requires a different analysis. Defendant placed that purse on the hood of her vehicle at Garvila's direction prior to the canine pass and alert. At the time the hood purse was searched, defendant had already been arrested, handcuffed and placed in Sutton's vehicle and was, like Girard, under Sutton's control and not in the vicinity of the hood purse. Thus, the search of the hood purse without a warrant cannot be justified as a search incident to defendant's arrest ( see People v. Gokey, 60 N.Y.2d 309, 312, 469 N.Y.S.2d 618, 457 N.E.2d 723 [1983] ), which is “limited to the arrestee's person and the area from within which [she] might gain possession of a weapon or [destroy] evidence” ( People v. Blasich, 73 N.Y.2d 673, 677–678, 543 N.Y.S.2d 40, 541 N.E.2d 40 [1989];see People v. Gokey, 60 N.Y.2d at 312, 469 N.Y.S.2d 618, 457 N.E.2d 723;People v. Smith, 59 N.Y.2d 454, 458, 465 N.Y.S.2d 896, 452 N.E.2d 1224 [1983];People v. Belton, 55 N.Y.2d 49, 52–53, 447 N.Y.S.2d 873, 432 N.E.2d 745 [1982] ). Further, the search of the hood purse is not authorized by the automobile exception because it was not found inside the vehicle ( see People v. Galak, 81 N.Y.2d at 467, 600 N.Y.S.2d 185, 616 N.E.2d 842); likewise, the search of the hood purse preceded the inventory search and, in any event, it was not part of the contents of the vehicle impounded ( see People v. Walker, 20 N.Y.3d at 125–126, 957 N.Y.S.2d 272, 980 N.E.2d 937; People v. Gomez, 13 N.Y.3d 6, 11, 884 N.Y.S.2d 339, 912 N.E.2d 555 [2009];People v. Galak, 80 N.Y.2d 715, 716, 720, 594 N.Y.S.2d 689, 610 N.E.2d 362 [1993];see also People v. Johnson, 1 N.Y.3d 252, 256, 771 N.Y.S.2d 64, 803 N.E.2d 385 [2003] ). As the People failed to establish the legality of the warrantless search of the hood purse, the evidence seized therein, including the heroin, must be suppressed.
Garvila testified that both purses were searched prior to defendant's arrest, and County Court so found. However, the DVD reflects that defendant was already in custody and in Sutton's car when Garvila searched the hood purse. Even were we to find that the DVD supports the court's finding that defendant was arrested after the search of both purses, the evidence does not support the conclusion that the hood purse was within defendant's grabbable area at the time of arrest (or even when it was searched) so as to justify it as a search incident to her arrest.
Turning to defendant's motion to suppress her statement to police admitting ownership of the car purse, it was undisputed that defendant was never, at any point, advised of her Miranda rights. County Court's Huntley ruling is somewhat unclear. The DVD recording establishes that when Garvila found the car purse during the canine sniff of the car interior, he specifically asked “whose purse is this?” to which defendant responded “they're [i.e., the purses] both mine.” Thus, defendant's statement was in response to police questioning and was clearly not spontaneous, as implied by the suppression ruling ( see People v. Ferro, 63 N.Y.2d 316, 322, 482 N.Y.S.2d 237, 472 N.E.2d 13 [1984],cert. denied472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717 [1985];People v. Stoesser, 53 N.Y.2d 648, 650, 438 N.Y.S.2d 990, 421 N.E.2d 110 [1981] ).
Upon our review of the testimony and evidence, we find that at the time that defendant was confronted by Garvila with evidence that police had received a tip that they were doing drugs and that their activity had been captured on the store's surveillance camera, prior to the canine search, “a reasonable person innocent of any wrongdoing would [not] have believed that he or she was ... free to leave” ( People v. Paulman, 5 N.Y.3d 122, 129, 800 N.Y.S.2d 96, 833 N.E.2d 239 [2005] ). As such, defendant's subsequent nonspontaneous statement that she owned the car purse was made during a custodial interrogation, without Miranda advisements, and must be suppressed ( see id.). However, looking at the totality of the circumstances in which this statement was obtained, we find that the People proved beyond a reasonable doubt that it was voluntary ( seeCPL 60.45; People v. Anderson, 42 N.Y.2d 35, 38–39, 396 N.Y.S.2d 625, 364 N.E.2d 1318 [1977];People v. Pouliot, 64 A.D.3d 1043, 1044–1046, 883 N.Y.S.2d 372 [2009],lv. denied13 N.Y.3d 838, 890 N.Y.S.2d 454, 918 N.E.2d 969 [2009];compare People v. Holland, 48 N.Y.2d 861, 862–863, 424 N.Y.S.2d 351, 400 N.E.2d 293 [1979] ). Thus, County Court properly ruled that the statement could be used at trial to impeach defendant's credibility if she were to testify ( see People v. Maerling, 64 N.Y.2d 134, 140, 485 N.Y.S.2d 23, 474 N.E.2d 231 [1984];People v. Washington, 51 N.Y.2d 214, 219–220, 433 N.Y.S.2d 745, 413 N.E.2d 1159 [1980] ). Given our decision, the matter must be remitted to County Court to afford defendant the opportunity to withdraw her guilty plea. Defendant's remaining claims lack merit.
ORDERED that the judgment is modified, on the law and the facts, by reversing so much thereof as denied that part of defendant's motion seeking suppression of the purse placed on the hood of the car and defendant's statements related to the purse found on the floor of the car; motion granted to that extent, sentences vacated and matter remitted to the County Court of Ulster County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.