Opinion
2005-217 QCR.
Decided July 18, 2006.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Pauline A. Mullings, J., on motion to suppress; Robert M. Raciti, J., at plea and sentencing), rendered January 31, 2005. The judgment convicted defendant, upon her plea of guilty, of criminal possession of a controlled substance in the seventh degree.
Judgment of conviction affirmed.
PRESENT: GOLIA, J.P., RIOS and BELEN, JJ.
This appeal brings up for review the propriety of the denial of that branch of defendant's motion which sought to suppress physical evidence recovered during a search incident to her arrest. Having observed defendant operating a vehicle with a license plate issued to another vehicle, the arresting officer stopped the car, and when defendant proved unable to supply any identification, the officer ordered her from her vehicle. In the course of the subsequent investigation, the officer inquired if defendant possessed marihuana. Defendant admitted she did, indicating the marihuana's location, which the officer recovered from a "coin pocket." A search of defendant's outer jacket pockets produced clear plastic bags of crack cocaine. Defendant moved to suppress her incriminating reply as well as the marihuana and cocaine. After a hearing, the court granted suppression as to defendant's admission regarding her possession of marihuana as the product of unwarned custodial interrogation, but denied suppression of the controlled substances as subject to inevitable discovery.
While an arrest for a mere traffic infraction may not in all cases justify a full-blown search of defendant's person ( People v. Howell, 49 NY2d 778, 779; People v. Marsh, 20 NY2d 98, 101; People v. Carvajales, 152 AD2d 675, 676; cf. United States v. Robinson, 414 US 218, 235), this limitation does not apply in the context of an arrest and search when a person fails, upon being stopped for a traffic infraction, to produce identifying documentation ( People v. Copeland, 39 NY2d 986, 986-987; People v. Mezon, 228 AD2d 621, 622; People v. Rodriguez, 122 AD2d 895, 896; see also People v. Ellis, 62 NY2d 393, 396; People v. Troiano, 35 NY2d 476, 478).
Given that defendant was in custody at the time the officer searched her jacket pocket, "the search of [her] person incident thereto was surely lawful" ( People v. Copeland, 39 NY2d at 986-987) even though the officer did not formally announce the arrest until after the cocaine's discovery, as "the search and arrest were contemporaneous" ( People v. Terrero, 139 AD2d 830, 831; see People v. Evans, 43 NY2d 160, 166; People v. Valenzuela, 226 AD2d 154, 155).
Assuming, arguendo, that recourse to the inevitable discovery doctrine is necessary, the determination to deny suppression would likewise be sustained. Although suppression of defendant's incriminating response to the improper question was mandated, the marihuana and cocaine did not constitute "primary evidence" irretrievably tainted by the antecedent Fourth Amendment violation ( People v. Stith, 69 NY2d 313, 318; e.g. People v. Lindsey, 13 AD3d 651, 652), but rather "secondary evidence [which] would have been found independently" ( People v. Stith, 69 NY2d at 319; e.g. People v. Fitzpatrick, 32 NY2d 499, 507) following the inevitable station house search ( People v. Bacon, 19 AD3d 287, 288). While the prosecution must demonstrate a "very high degree of probability' that normal police procedures would have uncovered the challenged evidence independently of [a] tainted source'" ( People v. Turriago, 90 NY2d 77, 86 [citation omitted]), the likelihood that a routine station house search would have produced the marihuana and cocaine is so highly probable as to satisfy Fourth Amendment requirements under the State Constitution ( e.g. People v. Beckwith, 303 AD2d 594, 595).
Golia, J.P., Rios and Belen, JJ., concur.