Opinion
256-2006.
Decided on February 14, 2007.
Attorney for the People: Daniel Donovan, District Attorney, Richmond County, Staten Island, New York 10301.
Attorney for the defendant: ADA Kelly Carroll, Manuel Ortega, Esq., Staten Island, New York 10314.
The defendant is charged with criminal possession of a weapon in the third degree, assault in the second degree and other minor charges. A Dunaway/Mapp hearing was ordered by a justice of concurrent jurisdiction. This court conducted said hearing on January 18, 2007.
The prosecution presented the only witness at the hearing: Police Officer Thomas Elliassen. Officer Elliassen has been a police officer for three years. I found his testimony to be credible, reliable and uncontroverted.
FINDINGS OF FACT
On April 4, 2006, Officer Elliassen was on routine patrol in West Brighton, in an unmarked police van, with fellow officers Delrete, Fopeano and Sergeant Warshefski. At some point in the evening, the team arrested an individual for possession of marijuana. This individual gratuitously volunteered that he had recently seen a gun in a gold Nissan Maxima.
At approximately 2 AM, Officer Elliassen observed a gold Nissan Maxima pulling into the rear parking spaces of 810 Henderson Avenue, in Staten Island. The Nissan had no licence plate on the front of the vehicle. Elliassen turned on his vehicle's lights and blocked the Nissan from entering its intended parking spot. The defendant exited the Nissan and stood outside of the driver's side door, which remained open. Upon exiting his police vehicle and approaching the defendant, Elliassen noticed that the Nissan did not display a registration sticker.
Elliassen asked the defendant for his license, registration and insurance information. The defendant indicated that he had no forms of identification, for himself, nor for the vehicle.
At this point, Elliassen and Sergeant Warshefski approached the defendant, in order to arrest him for a violation of VTL 509. The defendant was frisked without incident. Officers Fopeano and DelPrete approached the gold Nissan and peered into the vehicle, aided by a flashlight. After briefly viewing the interior of the vehicle, Fopeano directed Elliassen's attention to the interior of the car. Elliassen turned toward the vehicle and observed what appeared to be a round of ammunition on the rear passenger seat of the vehicle. The rear seat's armrest was down.
Although the officers could have merely issued the defendant a summons, the defendant had no identification.
One hundred and ninety-three dollars in cash and three cell phones were recovered from the defendant's person.
Fopeano simply said "hey".
Officer Elliassen testified that, at this point, he feared for his safety.
Although the officers thought the positioning of the armrest might lead to easy access to the vehicle's trunk, no evidence was presented that this suspicion was warranted.
Officer Fopeano then opened the trunk of the vehicle and announced "hot lunch", a pre-determined code word for finding a gun.
No evidence was presented as to how the trunk was opened, but the keys remained in the vehicle and the front driver's side door was open during the defendant's entire encounter with the police.
The defendant then became visibly agitated and tried to flee the scene. The officers apprehended the defendant and eventually subdued him. After the defendant was handcuffed, a pistol was removed from the floorboard of the trunk and vouchered as arrest evidence.
CONCLUSIONS OF LAW
When a defendant seeking suppression of physical evidence has put forward sufficient factual allegations to warrant a pre-trial Mapp hearing, such defendant "bears the ultimate burden of proving that the evidence should not be used against him" ( People v Berrios, 28 NY2d 361, 367). Although a defendant carries the burden of proof at a suppression hearing, "the People are nevertheless put to the burden of going forward to show the legality of the police conduct in the first instance'" ( Berrios, 28 NY2d at 367, citing People v Malinsky, 15 NY2d 86, 91, n 2; People v Whitehurst, 25 NY2d 389, 391) ( emphasis in original).
"[T]he degree of suspicion required to justify a car stop is minimal. Nothing like probable cause, as that term is used in the criminal law, is required" ( People v Ingle, 36 NY2d 413, 415; People v Howell, 111 AD2d 768, 769, lv denied 65 NY2d 982). Interfering with a moving vehicle merely requires the police have reasonable suspicion ( People v Ocasio, 85 NY2d 982, 984; People v May, 81 NY2d 725, 728). An actual violation of the VTL is unnecessary to stop a moving vehicle; all that is required is reasonable suspicion of such a violation ( Ingle, 36 NY2d at 414-415). In the case before this court, Officer Elliassen's uncontroverted testimony was that the gold Nissan did not have a front license plate, a violation of VTL 509.
Defendant contends that the police used the VTL violation as a pretext to stop the defendant's car as a result of the tip given by an apprehended suspect that a gun could be found in a gold Nissan Maxima. It is now settled law that a stop based on probable cause of a traffic violation is not invalid merely because the officer used the otherwise lawful stop as a pretext for a different investigative end ( People v Robinson, 97 NY2d 341; Whren v United States, 317 US 806).
Once a valid stop is made, a police officer has the right to ask the driver or a passenger in the vehicle to exit the vehicle ( Pennsylvania v Mimms, 434 US 110, 116). This became moot when the defendant voluntarily exited his vehicle.
If there is probable cause to believe that a car contains contraband and there are exigent circumstances, the police need not obtain a warrant ( Chambers v Maroney, 399 US 42, 48-49; People v John BB, 56 NY2d 482, 489, cert denied 459 US 1010). Under New York law, "a valid arrest for a crime authorizes a warrantless search — for a reasonable time and to a reasonable extent — when the circumstances give reason to believe that the vehicle or its visible contents may be related to the crime for which the arrest is being made (as possibly containing contraband or as having been used in the commission of a crime) or there is reason to believe that a weapon may be discovered or access to means or escape thwarted" ( People v Belton, 55 NY2d 49, 55; People v Langen, 60 NY2d 170, 181, cert denied 465 US 1028; People v Tomassi, 112 AD2d 747; People v Jackson, 111 AD2d 412, 413). Under this exception, there must be probable cause to search the car and a nexus between the arrest and the probable cause to search ( People v Blasich, 73 NY2d 673, 680). In addition, before a vehicle may be searched, under this exception, there must be a valid arrest ( People v Savona, 112 AD2d 328, 330 [Second Department sustains suppression of gun found in the car trunk where car stopped merely for a traffic violation and other aggravating factors not present]).
In the present case, it is uncontroverted that the defendant was being stopped for a violation of the VTL, a traffic infraction. However, the police were authorized to arrest the defendant because he did not possess any form of identification.
In People v Diaz ( 213 AD2d 270, lv denied 85 NY2d 972), the First Department held that a legal stop of a vehicle, followed by the observation of an empty bullet box, gives the police probable cause to search the car for a gun. "Where there is a substantial likelihood that a weapon is present in a vehicle, thereby giving rise to an actual and specific' danger to officer safety, a limited police search is justified" ( People v Carvey, 89 NY2d 707, 710-711; see also People v Mundo, 99 NY2d 55, 62). In People v Berroa ( 259 AD2d 624, lv denied 93 NY2d 966), the defendant's vehicle was validly stopped. When the defendant opened the glove compartment, the officer saw an ammunition case. The Second Department held that "[u]pon observation of the ammunition case, the police had probable cause to believe that the case contained bullets and that there was a gun in the car, thereby justifying the search of the car which led to the recovery of the gun" ( id. at 624).
Although these cases deal with observation of ammunition cases, the issue before this court is the effect of the discovery of a bullet in the backseat of the defendant's car.
The defendant relies on People v Torres ( 74 NY2d 224), where our Court of Appeals held that "[a] police officer acting on reasonable suspicion that criminal activity is afoot and on an articulable basis to fear for his own safety may intrude upon the person or personal effects of the suspect only to the extent that it is actually necessary to protect himself from harm while he conducts the inquiry authorized by CPL 140.50 (1)" ( id. at 226). The Court held that absent probable cause, it is unlawful for a police officer to invade the interior of a stopped vehicle once the suspects have been removed and patted down without incident, as any immediate threat to the officer's safety has consequently been eliminated. The Court noted an exception, however: "there may well be circumstances where, following a lawful stop, facts revealed during a proper inquiry or other information gathered during the course of the encounter lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officers' safety sufficient to justify a further intrusion, notwithstanding the suspect's inability to gain immediate access to that weapon) ( Torres, 74 NY2d at 231).
In People v Carvey ( 89 NY2d 707), police officers observed the defendant, a passenger in a lawfully stopped vehicle, place something beneath his seat. When the police approached the vehicle, they noticed that the defendant was wearing a bulletproof vest. The Court concluded that the bulletproof vest, in combination with the suspicious action of the defendant in appearing to place something underneath his seat was sufficient evidence to support a determination that the officers could reasonably have concluded that "a weapon located within the vehicle present[ed] an actual and specific danger' to their safety" ( Carvey, 89 NY2d at 712, quoting Torres, 74 NY2d at 231, n 4)( see also People v Hutchinson, 22 AD3d 681; People v Fludd, 20 AD3d 351, lv denied 5 NY3d 852; People v Cheek, 18 AD3d 475, lv denied 5 NY3d 786; People v Anderson, 17 AD3d 166; People v Worthy, 261 AD2d 277, lv denied 93 NY2d 1029; People v Cisnero, 226 AD2d 279, lv denied 88 NY2d 1020) ( compare In re Karif B., 301 AD2d 520; In re Terrell W., 301 AD2d 529).
In People v Mundo ( 99 NY2d 55), the Court of Appeals upheld the search of the trunk of a vehicle after the police had followed said vehicle on a wild, high speed chase. During the chase, in which the speeding vehicle nearly struck a pedestrian, the police observed the rear passenger turn, look in their direction, and then make a movement as if he were hiding something. After stopping the vehicle, the police removed all the occupants and noticed that the rear seat had an armrest that contained an access panel leading to the trunk. Smelling the odor of a chemical compound used to cut cocaine, the police opened the trunk of the vehicle and removed a bag of cocaine. The Court upheld the search of the trunk, finding that "[t]he limited police intrusion in that area within the vehicle where the furtive movements had been seen was therefore justified" ( Mundo, 99 NY2d at 59; Carvey, 89 NY2d at 712; People v Hutchinson, 22 AD3d 681, 683).
The dissent challenged the majority's decision, in the absence of the police observing something that demonstrated the suspect's "readiness and willingness to use a deadly weapon'" ( Mundo, 99 NY2d at 62, quoting Carvey, 89 NY2d at 712). However, while arguing that the police didn't have sufficient information to justify the search, the dissent stated that the observation of bullets in the back seat of a car, or the discovery of a suspect wearing a bulletproof vest, would justify a warrantless search of the unoccupied vehicle. "Similar to a bulletproof vest, lawful discovery of bullets may also create a heightened level of suspicion justifying police intrusion into a vehicle. Bullets, like a vest, give rise to their owner's readiness and willingness to use a deadly weapon'" (Mundo, 99 NY2d at 62, Ciparick, J., in dissent, quoting Carvey, 89 NY2d at 712). The dissent concluded that the nature of "articles such as a bulletproof vest and bullets may justifiably heighten officer suspicions" ( id., at 62).
Following Mundo, it would appear to be black letter law that the discovery of bullets in the interior of a car, standing alone, creates a heightened level of suspicion justifying a police search of the vehicle. Accordingly, the defendant's reliance on Torres is misplaced.
Indeed, in People v Shin ( 192 AD2d 684), the police observed bullets in the rear seat of the defendant's properly stopped vehicle. In upholding the search of the glove compartment, the Second Department held that "[o]nce the officer observed bullets in the back seat of the car, he had probable cause to believe a gun was inside the car, and thus the search of the passenger compartment and the glove compartment was proper" ( id., at 684-685).
In the present case, it is undisputed that the defendant was under arrest at the time of the vehicle search. The defendant claims, however, that the police did not have the right to search the trunk, absent the further discovery of any incriminating evidence in the passenger compartment or absent some furtive conduct directly relating to the trunk of the vehicle.
In People v Jackson ( 111 AD2d 412), the defendant was arrested for driving while intoxicated. A search of his person revealed foil packets that the police believed contained cocaine. The subsequent search of his vehicle, including the trunk, was upheld, under the automobile exception to the warrant requirement ( see People v Belton, 55 NY2d 49). The Second Department held that "the search of the box and gym bag found in the vehicle's trunk was proper because [i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search'" ( id., at 413, quoting United States v Ross, 456 US 798, 825; People v Ellis, 62 NY2d 393, 398)( see also People v Morgan, 10 AD3d 369 ["The same circumstances that furnished the probable cause to arrest the defendant also provided the officer with probable cause to believe that the car might contain more marijuana. Thus, the officer acquired the right to conduct a warrantless search of the entire car, including the trunk"]).
Defendant claims that merely because appellate courts have authorized a search of a suspect's trunk under the automobile exception does not also authorize a search of the trunk under the exception to the Torres doctrine. However, this court finds the exception even more compelling when the issue involves "a weapon located within the vehicle present[ing] an actual and specific danger' to [the officers'] safety" ( Carvey, 89 NY2d at 712, quoting Torres, 74 NY2d at 231, n 4).
Defendant's reliance on People v Savona ( 112 AD2d 328), is also unpersuasive. In Savona, the defendant's vehicle was stopped solely on the basis of a traffic violation. The police noticed a bullet on the back seat. After ordering everyone out of the car, a search of the vehicle's interior proved fruitless. The police then opened the car's trunk, which contained two guns wrapped inside a bag. In suppressing the guns, the Second Department noted that the defendant had not been under arrest at the time of the search of the vehicle, and that this was the key factor that distinguished the case from People v Ellis ( 62 NY2d 393), not that the trunk had been opened during the search.
The Second Department might have ruled differently had this case been decided after Carvey and Mundo ( see People v Morgan, 10 AD3d 369, 371).
In the case before this court, the uncontested evidence was that a bullet was observed on the rear seat of the vehicle, which had an armrest giving access to the trunk of the vehicle and that the armrest was in a down, or open, position.
The police had also received a tip, earlier that evening, from a person within their custody, informing them that a gun could be found in a gold Nissan Maxima. Under the totality of the circumstances, I find that the officers were entitled to search the area of the car where they had observed the bullet and to extend that search to the trunk, since that area was accessible to the rear passenger seat via the center armrest.
Based on all the evidence, I find that the People have satisfied their initial burden of coming forward demonstrating the legality of the police conduct in the first instance, but that the defendant has failed to sustain his "ultimate burden of proving that the evidence should not be used against him" ( Berrios, 28 NY2d at 367).
Accordingly, the defendant's motion to suppress the weapon and bullet recovered in this case is hereby denied.
This constitutes the decision, opinion and order of the court.