Opinion
Ind No. 71957-23/001
07-30-2024
The People of the State of New York v. Brandon Moore and KENDALL MCCLAINE, Defendants.
MICHAEL J. KEANE, Acting Erie County District Attorney John Schoemick, Esq. Appearing for the People Nicholas Texido, Esq. James Maloney, Esq. Appearing for Defendant Moore Louis Mussari, Esq. Appearing for Defendant McClaine
MICHAEL J. KEANE, Acting Erie County District Attorney
John Schoemick, Esq.
Appearing for the People
Nicholas Texido, Esq.
James Maloney, Esq.
Appearing for Defendant Moore
Louis Mussari, Esq.
Appearing for Defendant McClaine
Susan M. Eagan, J.
HON. SUSAN M. EAGAN, J.C.C.
On June 30, 2023, defendant Moore was arraigned before this Court on an indictment charging him with one count of Reckless Endangerment in the First Degree (P.L. §120.25) and one count of Criminal Possession of a Weapon in the Second Degree (P.L. §265.03[3]). Attached to the indictment was a notice pursuant to Criminal Procedure Law (CPL) § 710.30, indicating that the defendant made oral statements to Buffalo Police Department Officers captured on body worn camera and at the station during interviews.
On July 5, 2023, defendant McClaine was arraigned before this Court on an indictment charging him with one count of Criminal Possession of a Weapon in the Second Degree (P.L. §265.03[3]). Attached to the indictment was a notice pursuant to Criminal Procedure Law (CPL) § 710.30, indicating that the defendant made oral statements to Buffalo Police Department Officers in a patrol vehicle and at the station during an interview.
In defendant Moore's Omnibus Motion dated September 13, 2023, defendant requested Brady material; disclosure of additional discoverable materials; disclosure of the grand jury instructions; preclusion/suppression of statements; preclusion of identification; suppression of physical evidence; suppression of digital data found on cell phones; severance of counts; severance of co-defendants; Sandoval hearing. After finding the moving papers sufficient, this Court conducted an evidentiary hearing pursuant to CPL § 710.60(4) on December 12, 2023, January 12, 2024, February 27, 2024, and May 30, 2024. On December 12, 2023, the People withdrew their intention to use any statements made to law enforcement by the defendant as well as the identification of the defendant by Detective Whiteford with respect to Count 1 of the indictment. Defendant Moore filed a motion requesting a Jones hearing, alleging that the traffic stop herein was racially motivated and therefore unlawful. The People opposed the motion. After considering the defendant's application as well as the response from the People, this Court granted the hearing. The hearing was conducted contemporaneously with the pre-trial hearings on the dates indicated above.
In his Omnibus Motion dated September 27, 2023, defendant McClaine requested review of the grand jury minutes, disclosure of grand jury instructions, and suppression of his statements and tangible evidence. After finding the moving papers sufficient, this Court conducted an evidentiary hearing pursuant to CPL § 710.60(4) on December 12, 2023, January 12, 2024, February 27, 2024, and May 30, 2024.
The People called a Buffalo Police Department Officer and Detective as witnesses at the hearing and introduced three exhibits, body worn camera footage as People's Exhibit 1; body worn camera footage as People's Exhibit 2; and a DVD of defendant's interview as People's Exhibit 3.
Defendant Moore called a quantitative geographer as a witness at the hearing. Jointly the defendants offered the following exhibits, Defense Exhibit A, a CD containing BPD Manual of Procedures; Defense Exhibit B a vehicle tow report; Defense Exhibit C a U-Haul contract; Defense Exhibit F a document containing GPS coordinates; and Defense Exhibit J, the expert's Curriculum Vitae which were entered into evidence.
FINDINGS OF FACT
Buffalo Police Officers conducted a vehicle and traffic stop on May 5, 2023, at approximately 11:40 pm. The officers were conducting a "directed patrol" at Genesee and Wende in the City of Buffalo, County of Erie. The officer testified that a directed patrol is sitting for about 15 minutes in a marked patrol car with the overhead lights in a "hotspot" area as designated by the Buffalo Police Department. Following the directed patrol their attention was drawn to a U-Haul truck bearing an Arizona plate traveling directly in front of the patrol vehicle on Kiefer. While the driver employed the turn signal when already stopped at the stop sign, the truck failed to use its turn signal within 100 feet when turning onto Walden from Kiefer at a stop sign. The officer initiated a traffic stop on that basis. The officers did not call dispatch to tell them they were engaged in a traffic stop.
After the vehicle pulled over, the officer activated his body worn camera (BWC) and approached the vehicle on the driver's side of the truck. The officer testified that he observed in the U-Haul side mirror that the driver, defendant McClaine, was wearing a ski mask covering his entire face. That cannot be seen in the BWC footage. McClaine can be seen in the BWC wearing a knit winter hat on his head when the officer approaches the driver's door. The officer asked McClaine for his license and the rental agreement for the U-Haul without informing him of the reason for the stop. McClaine produced an identification card but did not have a paper copy of the rental agreement. The officer allowed McClaine to reach around in the cab of the truck in search of a second cell phone on which he claimed to have a copy of the rental agreement. The officer returned to his squad car to run the McClaine's name while McClaine continued to look for the rental agreement. Once the officer verified that McClaine had a valid license he returned to the vehicle and asked McClaine if he had found the rental agreement. McClaine indicated that he had not but was on the phone with someone who could provide the agreement. The occupants were asked to step out of the vehicle "because [the officer couldn't] prove that he didn't steal the vehicle, so [he was] trying to do a further investigation to see what's going on." The defendants were placed in the back of a patrol vehicle, uncuffed. According to the BWC, this was approximately 6 minutes after the vehicle was pulled over.
The officer testified on direct examination that he declined McClaine's request to speak with the individual on McClaine's phone, however on cross examination he testified that he did in fact speak to the female on McClaine's phone and told her to text the rental agreement to McClaine's phone. As reflected by the BWC, immediately after asking her to text the rental agreement the officer opened the front passenger door of his patrol car, tossed the phone on to the seat, closed the door and never looked at the phone again.
When the defendants were placed into the patrol car it was the officer's intention was to tow and impound the vehicle because neither occupant could not prove it was theirs, there was no rental agreement, and it was obstructing traffic on Walden Avenue.
While these events were unfolding dispatch put out a call regarding a domestic disturbance. The officers notified dispatch that they would accept that call without telling dispatch that they were actively engaged in a vehicle and traffic stop and then proceeded to conduct an inventory search. About eight and half minutes later, a second officer can be heard on BWC telling dispatch that they were delayed in getting to the domestic call by an unavoidable traffic stop.
During the search, the officer first located the second phone upon which McClaine alleged the rental agreement could be found. Upon finding the second phone wedged behind and slightly under the driver's seat, the officer can be heard on BWC laughing about finding the phone. McClaine was not given the opportunity to check the phone for the rental agreement, nor did the officer go back to check the phone that he had tossed on the seat in his patrol car. The officers instead continued to search the vehicle. While continuing the search of the U-Haul, a gun was found inside the unlocked glove compartment and ammunition inside a bag. The officer who found the gun handed the revolver to the testifying officer to make it safe and clear by unloading it. No rental agreement was ever found or ever attempted to be retrieved from either of the phones.
The officer testified that an inventory search form can be filled out on scene or at a later time. In this case the form was filled out at the station house which is inconsistent with Buffalo Police policy regarding inventory searches, and the form failed to include items of value found in the vehicle. Curiously, the officer testified that if the ammunition and revolver were not found in the vehicle, the driver would have been issued traffic tickets and free to leave. Instead, the vehicle was towed, and defendants were placed under arrest. About 20 minutes into the traffic stop and only in response to a direct question from McClaine did the officer inform McClaine that he was stopped due to a failure to signal at the appropriate time.
The defendants were brought to the police station to speak with detectives and placed into an interview room. During the officer's interaction with the defendants at no time did they say they did not want to speak with law enforcement, did not request an attorney, and no threats or promises were made to induce the defendants to speak with law enforcement. The officers did not ask the defendants any questions related to the traffic stop or the gun. When the defendants were finished with the detectives, they were transported to the cell block where they were booked and processed.
A Buffalo Police Detective testified that on May 5, 2023, into May 6, 2023, she was asked to interview two individuals regarding a gun arrest. The interviews were conducted separately and captured in an audio and video recording in evidence as People's Exhibit 3. When she first encountered each defendant in the interview room, she read them their Miranda warnings directly from a card which was captured on People's Exhibit 3. The defendants were separately asked if they understood the rights and whether they would speak with the Detective and both defendants indicated they would. Throughout the interviews, neither defendant stated they no longer wished to speak with detectives or requested an attorney, and no promises or threats were made to get either defendant to speak with law enforcement.
Defendant Moore called an expert, recognized as a quantitative geographer by this Court and provided testimony on behalf of Defendant Moore. The expert was engaged by the defense to analyze whether or not there is a history of racial profiling with respect to traffic stops by the Buffalo Police Department generally and in a specific neighborhood. When conducting a traffic stop, the Buffalo Police Department has a policy that officers must either issue a traffic stop receipt, when the driver is stopped and not issued a citation, or issued a summons for a vehicle and traffic law violation. When issuing a traffic stop receipt, the date, time, location drivers age, gender and race ethnicity are recorded. The expert analyzed the racial composition as well as the driving age population of the Martin Luther King (MLK) park neighborhood, which is where the traffic stop in this case took place. His analysis concluded that the MLK neighborhood is largely a segregated majority black neighborhood and has the fifth highest concentration of driving age persons who identify as Black or African American. This data assisted the expert in concluding that there is neighborhood based racial profiling in the MLK neighborhood, defined as racial profiling based upon a person's location. In comparing the traffic stop receipts to uniform traffic tickets issued, the expert concluded that the racial makeup of the neighborhoods leads to vastly different outcomes. In predominantly white spaces anchored in South Buffalo a driver is likely to be issued a summons whereas the predominantly African American communities are given a traffic ticket receipt as they are stopped for a reason that does not rise to the level of a vehicle and traffic law violation. The expert provided an opinion as to the systemic racial profiling evident in the Buffalo Police Department, with a concentration on the MLK neighborhood as compared to predominantly white neighborhoods in the City of Buffalo. His conclusion was that a driver in the MLK neighborhood is four times as likely to be pulled over and issued a traffic stop receipt than the city average and eight out of eleven majority black neighborhoods fall in the top ten in terms of traffic stop receipt rates. His analysis concluded that drivers in predominantly black neighborhoods seem to be disproportionately likely to be stopped for reasons that do not rise to the level of uniform traffic tickets. In looking at this specific case, the expert opined that the MLK park neighborhood is one of the most targeted for that activity, therefore race appears to be a potentially motivating factor as compared to the remaining neighborhoods in the City of Buffalo, concluding the MLK park neighborhood is potentially being profiled. The expert did not examine traffic stop receipts or Uniform Traffic Tickets issued by the arresting officers. His analysis did not include examining statistics published by the Buffalo Police Department with respect to the times tickets or stop receipts are issued, the ages of the drivers they are issued to or the types of vehicles they are driving. The location of the uniform traffic tickets and traffic stop receipts was the focus of his analysis and whether it was subject to disproportionate levels of stops. The expert concluded that the racial makeup of an area leads to different outcomes based on his analysis of the traffic stop receipts, which in his opinion means the officers are either giving breaks or using it to gain access to the vehicles. With respect to the issuance of a traffic citation, the analysis remains the same as his analysis would focus on the stop itself.
CONCLUSIONS OF LAW
A. TRAFFIC STOP
Since Ingle, the Court of Appeals has made it clear that "police stops of automobiles in this State are legal only pursuant to routine, non-pretextual traffic checks to enforce traffic regulations or where there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime, or where the police have probable cause to believe that the driver has committed a traffic violation" (People v. Washburn, 309 A.D.2d 1270, 1271, 765 N.Y.S.2d 76 [4th Dept. 2003]; see People v. Robinson, 97 N.Y.2d 341, 348-349, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001]; People v. Spencer, 84 N.Y.2d 749, 752-753, 622 N.Y.S.2d 483, 646 N.E.2d 785[1995], cert. denied, 516 U.S. 905, 116 S.Ct. 271, 133 L.Ed.2d 192 [1995]; People v. White, 27 A.D.3d 1181, 812 N.Y.S.2d 208 [4th Dept. 2006]).
Further, when a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, the "stop" of that vehicle does not violate the driver's constitutional rights (People v. Ingle, 36 N.Y.2d 413 [1975]). "Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed... [t]he legal conclusion is to be made after considering all the facts and circumstances together (People v. Bigelow, 66 N.Y.2d 417, 423 [1985] [internal citations omitted]). Additionally, "neither the primary motivation of the officer nor the determination of what a reasonable traffic officer would have done under the circumstances is relevant" (People v. Howard, 129 A.D.3d 1469 [4th Dept. 2015], lv denied 26 N.Y.3d 968).
The testimony revealed that officers observed the vehicle come to a complete stop at a stop sign at the intersection of Walden Avenue and Kiefer in the City of Buffalo, then initiate its turn signal and proceed to turn onto Walden Avenue in violation of VLT 1163(b). While VTL 1163 (b) may only apply to a vehicle in continuous motion and not a vehicle at a traffic signal (VTL 1163[d]), the issue this court must decide is whether the officer's belief that McClaine violated the Vehicle and Traffic Law by not signaling 100 feet prior to the turn was objectively reasonable. The officer's interpretation of VTL 1163(b) as applying to all motorists, regardless of if they are stopping at a stop sign, is an objectively reasonable interpretation of the statute, which reads "a signal of intention to turn right or left when required shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning". Even if the officer was mistaken on the law, it was objectively reasonable for him to conclude that McClaine activating his turn signal less than 100 feet before the turn violated the Vehicle and Traffic Law (People v. Mickens, 214 A.D.3d 1073, 184 N.Y.S.3d 481 [3rd Dept. 2023]). Thus, the stop of the vehicle was justified by probable cause.
Defendant Moore relies on People v. Jones, 210 A.D.3d 150, 177 N.Y.S.3d 174 (3d Dept. 2022) in arguing that the traffic stop was motivated by racial profiling. The Jones court held that the standard set forth by the Court of Appeals in People v Robinson "does not preclude a challenge to a traffic stop predicated on racial profiling, at least under our state constitution", and the remedy for such an unconstitutional stop would be suppression of the evidence seized" (Jones, supra), reasoning that the exclusionary rule must apply for the defendant's constitutional rights to be meaningful. The First Department reached a contrary conclusion, holding that there is only a civil remedy for discriminatory law enforcement (People v. Fredericks, 37 A.D.3d 183, 829 N.Y.S.2d 78 [1st Dept. 2007]).
Whether a traffic stop was premised on racial profiling requires an objective assessment of the facts and circumstances of the encounter, including whether the officers were "involved in a plausible investigation prior to executing the vehicle stop" and a consideration of the officers' actions and comments during the encounter. (People v. Jones, 210 A.D.3d 150, 177 N.Y.S.3d 174, 179 [3rd Dept. 2022]). In the Jones case, the officer observed a black male exit a vehicle and walk toward a residential area where reported narcotics activity took place and a white female exit the same vehicle and enter a store. Shortly thereafter they both returned to the vehicle and the officer observed the vehicle exit the parking lot without using a turn signal and take another left turn without using a turn signal, at which time an investigator initiated a traffic stop. During the traffic stop it was alleged, and not controverted by the People, that the investigator that initiated the traffic stop sad "you stupid little white b****, you think this black guy cares about you, but he's just using you to run drugs", which according to the decision of the Third Department warranted an objective analysis to determine whether the traffic stop was premised on racial profiling. As part of this hearing, Moore called an expert witness in support of his contention that the stop herein was racially motivated and therefore unlawful. While the expert's statistical analysis concluded that the Buffalo Police stop vehicles driven by minorities more frequently in identified areas of the City of Buffalo, the analysis was not specific to the encounter herein and therefore does not support the conclusion that the traffic stop was premised on racial profiling. The expert's analysis involved neighborhood based racial profiling as a general concept as opposed to individual level profiling. Individual level profiling analysis, including analysis of specific data related to the officers involved in this case, may have addressed the real concern of whether the officers herein "use their authority to stop persons on a selective and arbitrary basis" (People v. Jones, 210 A.D.3d 150, 177 N.Y.S.3d 174 [3rd Dept. 2022], quoting People v. Robinson, 97 N.Y.2d 341, 351 [2001]). While this Court agrees that a criminal remedy exists for a racially motivated traffic stop, defendant failed to prove that the stop herein was a result of racial profiling.
Once the vehicle was lawfully stopped, the officers properly requested identification from McClaine and to produce the rental agreement for the U-Haul truck, however the officers did not tell McClaine the reason he was pulled over. Initially, McClaine indicated that the rental agreement was on another phone that was present in the vehicle that he could not locate but was actively searching for. As the defendants could not produce the rental agreement, it was reasonable for the officer to make further inquiry into the status of the agreement (People v, Grear, 232 A.D.2d 578, 649 N.Y.S.2d 36 [2nd Dept. 1996]). The officers gave the defendants approximately four minutes to locate the agreement before asking the defendants to exit the vehicle. The inability of the defendants to produce the rental agreement for the vehicle may have provided the police with at least "a founded suspicion that criminal activity was afoot" (People v. Hale, 130 A.D.3d 1540, 1540, 14 N.Y.S.3d 603 [4th Dept. 2015]), quoting People v. Hollman, 79 N.Y.2d 181, 184, 581 N.Y.S.2d 619, 590 N.E.2d 204), however this simply justified continued investigation into the status of the agreement.
Unlike the facts in Grear where the rental agreement was produced, but the address or phone number of the individual on the rental agreement was not able to be provided, McClaine was actively trying to connect the officer with the person who rented the truck and provide the rental agreement which referenced his name as a contact person. As McClaine exited the vehicle, he advised the officers that he had the woman that rented the vehicle on the phone. The officer spoke to the purported individual that rented the vehicle, who advised him she would send the agreement to McClaine's phone. However, after speaking to the woman, the officer immediately tossed the phone on the seat in his patrol vehicle and never returned to check if the agreement was sent.
Here, the officer interrupted McClaine's attempts to locate the agreement, and nothing in the record reveals that the vehicle was reported stolen, or that the officers had any reason to believe that the vehicle was stolen. Without any evidence justifying a founded suspicion that criminal activity was afoot, directing the defendants to exit the vehicle without providing ample time within which to provide the requested documentation, may not be unlawful, but it is certainly questionable. What remains clear on the facts herein is there was no justification for searching the vehicle solely because a rental agreement was not produced.
B. SEARCH OF THE VEHICLE
A challenge to police authority to search a vehicle requires the defendant to prove some possessory interest in, dominion and control over, and right to exclude others from the vehicle and its contents (People v. Banks, 85 N.Y.2d 558, 626 N.Y.S.2d 986, 650 N.E.2d 833 [1995]). A defendant may challenge the validity of a warrantless search only after establishing a reasonable expectation of privacy in the vehicle (People v. Reynolds, 216 A.D.2d 883, 629 N.Y.S.2d 355 [4th Dept. 1995]). Defendant McClaine, being the driver of the vehicle, exercised dominion and control over the vehicle and had a reasonable expectation of privacy in the vehicle, thereby establishing standing for purposes of challenging the search of the vehicle.
However, as a passenger in the vehicle, defendant Moore must establish standing at the hearing to challenge the search of the vehicle as the automatic standing rule does not apply because he was not charged under the statutory presumption (People v. Wesley, 73 N.Y.2d 351, 540 N.Y.S.2d 757, 538 N.E.2d 76).Based upon an affidavit Moore signed after the People had rested their proof for the hearing but not submitted to the Court until after the hearing, Moore alleges he has standing to challenge the traffic stop because he was listed as a contact on the rental agreement, and he was unlawfully seized and detained prior to the search. Moore also contends that because the People relied on the statutory presumption at the felony hearing to prevent CPL 180.80 release, he is granted standing.
In considering the reasons set forth by Moore, being listed on the rental agreement as a contact does not equal a reasonable expectation of privacy in the vehicle. Additionally, this Court has already concluded Moore was not unlawfully seized and detained prior to the search. With respect to the affidavit of standing submitted after the close of the hearing, this Court cannot consider the contents as it was not subject to cross examination by the People. Lastly, the People did not rely on the statutory presumption when presenting the case to the grand jury, therefore, Moore does not have automatic standing for this reason.
While an analysis of the facts and circumstances of this case requires a finding that Moore lacks standing to challenge the search of the vehicle, this Court strongly believes applying the law to the facts of this case offends fundamental fairness. Moore was charged along with McClaine in the indictment for possession of the same firearm. As the driver of the vehicle, the McClaine, having a reasonable expectation of privacy in the vehicle under the law, challenged the search and this Court found that the search violated McClaine's constitutional rights. The remedy for such violation was suppression of the evidence obtained during the search as well as statements obtained as fruit of the poisonous tree. It is fundamentally unfair that Moore, merely because he was a passenger in the vehicle charged with constructive possession of a weapon rather than the automobile presumption, is denied the right to question the same actions of law enforcement, which have been deemed as violative of McClaine's constitutional rights. Denying the passenger of the right to challenge the search based on the prosecution's choice of how to charge the case undermines the intent and purpose of our constitutional rights. Requiring Moore in this circumstance to establish standing creates a potential catch-22 scenario wherein he may be in the position of having to sacrifice his right against self-incrimination in order to challenge an unlawful search. That is not to say that this court would abandon the requirement of establishing standing in all cases. This Court believes under these facts, Moore should be afforded the same protection under the law as McClaine, suppression of the evidence obtained, when the search is deemed unlawful. However, given the manner in which this case was charged, in the absence of a finding of standing the evidence against Moore shall not be suppressed at trial.
As it pertains to McClaine only, this Court now turns to the question of whether the search of the vehicle was lawful under Buffalo Police Department procedures and concludes that it was not. An inventory search is a search designed to properly inventory the contents of the vehicle or other item searched and the Galak court has specified three objectives advanced by any inventory search. Those objectives are "protecting an owner's property while it is in the custody of the police; insuring police against claims of lost, stolen, or vandalized property; and guarding police and others from dangerous instrumentalities that would otherwise go undetected" (People v. Galak, 80 N.Y.2d 715 [1993]). The Court of Appeals has held that "even where a vehicle has been lawfully impounded, the inventory search itself must be conducted pursuant to an established procedure that is related to the governmental interests it is intended to promote and that provides appropriate safeguards against police abuse" (People v. Walker, 20 N.Y.3d 122 [2012], Galak, supra; see also People v. Johnson, 1 N.Y.3d 252 [2003]; People v. Gomez, 13 N.Y.3d 6 [2009]). To meet their burden the People must show that a standardized police procedure existed at the time of the inventory search and that the procedure was followed by the law enforcement official who conducted the inventory search. When a vehicle has been lawfully impounded, the inventory search must be conducted pursuant to an "established procedure" that is related "to the governmental interests it is intended to promote" and that provides "appropriate safeguards against police abuse" (People v. Walker, 20 N.Y.3d 122, 980 N.E.2d 937, 957 N.Y.S.2d 272 [2012].
Even if the car is lawfully impounded, the police may not conduct any search they want and call it an inventory search. A reasonable procedure must be followed, and the police must prepare a "meaningful inventory list" (Johnson, supra at 256). If a constitutionally adequate inventory procedure exists, the inventory search will not be upheld unless the evidence demonstrates "that the particular officer conducted the search properly and in compliance with the established procedures" (Johnson, supra at 256). Furthermore, an inventory search is not constitutionally valid when the search was a pretext to search for evidence of a crime (Johnson, supra).
In determining whether the inventory search was valid, this Court considered the testimony presented at the hearing and the standardized policy in effect at the time of the search. The Buffalo Police Department Manual of Procedures was admitted into evidence at the hearing.
The officer testified that he is familiar with the procedures of the Buffalo Police Department with respect to towing and impounding a vehicle and that he has discretion whether to impound a vehicle. Standardized procedures with respect to towing and impounding vehicles are meant to safeguard against police abuse by removing officer discretion. In fact, the policy clearly states that a vehicle shall be towed "whenever it comes under the control of the Department and it is necessary to safeguard the vehicle and its content from damage or theft; or when the vehicle is evidence or an instrumentality of a crime; or when a vehicle presents a hazard or inconvenience to the public" (Buffalo Police Department Manual of Procedures Section 6.1). Here, there was no evidence presented at the hearing that the vehicle was under the control of the department, evidence, or an instrumentality of a crime, or that the vehicle was presenting a hazard or inconvenience to the public. The body camera footage reveals that traffic continued to flow during the stop. If the vehicle was presenting a hazard or inconvenience to the public, it begs the question why the officers chose to stop the vehicle there or why the vehicle would not have been moved from the area prior to the search. A further review of the policy reveals that a damaged, broken down, or illegally parked vehicle may be towed when the vehicle is obstructing traffic or creating a hazardous traffic condition. (Buffalo Police Department Manual of Procedures Section 6.3). The officer's testimony was equivocal as to whether the vehicle was in fact parked unlawfully on that portion of Walden Avenue, and this Court is not persuaded that the vehicle was illegally parked as it was stopped there by police and part of an ongoing traffic stop. Further, the officers' decision to search the vehicle at the site of the stop contradicts the officer's testimony that the vehicle was obstructing traffic or creating a hazardous traffic condition. The evidence failed to establish that the decision to tow and impound the vehicle was consistent with Buffalo Police Department policy.
It is important to also note that Section 6.5(C) of the policy requires in each instance a vehicle is towed, the member of the department shall gather all necessary information and fully complete a "Vehicle Tow Report; and (D) notify the vehicle's owner, if possible. The policy further requires the officer requesting the tow to inspect the vehicle for obvious damage; if unlocked, conduct a thorough and complete inventory of all the contents of the vehicle, including an inspection of the glove compartment and trunk, if they are unlocked, and the opening and inspection of any unlocked and unsealed containers; complete the vehicle inventory form while conducting the inventory, noting the disposition of each item of inventory; secure the property in the vehicle unless any single item has a value in excess of $50.00 or aggregate of $200.00, there is a reasonable threat that the property would be lost or stolen if left in the vehicle, or the property constitutes contraband or evidence. The officer testified that the inventory search form, P31, was not completed contemporaneously with the inventory search as required by Buffalo Police Department policy. Additionally, the P31 did not contain all items located in the vehicle pursuant to the search. The officers' failure to complete an inventory form contemporaneous with the search of the vehicle and the lack of justification or explanation for this error is exactly the kind of officer discretion the standardized procedure is intended to guard against. A list made after the search is complete is of little use to the police or the owner of the vehicle if there is a dispute as to the whereabouts of an item or the accuracy of the inventory form. Review of the BWC footage reveals that the officer located the phone McClaine stated the rental agreement was on, laughed and continued to search the vehicle without providing McClaine an opportunity to check the phone for the agreement. The officer's testimony that the phone was located after the weapon is inconsistent with the body worn camera footage presented at the hearing. Additionally, the officer continued to search the vehicle without ever going back to check if the agreement was sent to the phone he placed in his patrol vehicle. This, coupled with the officer's inconsistent testimony that had the rental agreement been found during the search, the defendants would have been free to go with a few traffic violations, is a strong indication that the purported inventory search was a pretext to search for contraband. McClaine had a valid license and the inability to produce the rental agreement within a subjectively determined amount of time by the officer merely served as a pretext to search the vehicle. Once the phone was located, the search of the vehicle should have ceased and investigation into the status of the rental agreement continued.
McClaine was clearly not under arrest as the officers had no probable cause to effectuate an arrest. Therefore, the search was not permissible incident to an arrest. The People failed to prove that the U-Haul was properly towed, impounded and searched pursuant to the standardized procedures of the Buffalo Police Department. Even if permitted, evidence at the hearing failed to establish that the officers conducted the search properly and in compliance with the established procedures or that the primary purpose of the vehicle search was to safeguard property and protect against possible claims of loss. (Johnson, supra). The procedure here was so unrelated to the underlying justification for inventory searches that it was arbitrary and irrational and the search it generated was unreasonable. (Galak, supra) Therefore, McClaine's motion to suppress the tangible evidence is granted.
With respect to McClaine's motion to suppress statements made to law enforcement, as discussed supra, McClaine was subjected to an unreasonable search or seizure, therefore use of his statements will be barred by the exclusionary rule.
With respect to Moore's motion to suppress statements made to law enforcement, there are two questions before the Court: (1) whether defendant's statements should be suppressed as a Fruit of a Fourth Amendment violation and (2) whether the statements made by defendant were obtained in violation of his Fifth and Sixth Amendment rights. As discussed supra, defendant failed to establish standing to challenge the search of the vehicle, therefore, the remaining issue is whether defendant's statements were obtained in violation of his constitutional rights.
The Fifth Amendment to the United States Constitution and Article I, Section 6 of the New York State Constitution precludes the use of confessions or admissions that were made involuntarily. The Sixth Amendment to the United States Constitution prevents the People from introducing an accused's statement if it was elicited in violation of his right to consult counsel. Collectively, these protections are codified under CPL.
In the traditional Fifth Amendment sense, a statement will be deemed voluntarily made when the People demonstrate beyond a reasonable doubt that the defendant's decision to speak with law enforcement agents was the "product of his free and rational choice" (Greenwald v Wisconsin, 390 U.S. 519 [1968]; People v Huntley, 15 N.Y.2d 72 [1965]). More particularly, if the statement was the product of custodial interrogation, the People must establish that the defendant was "adequately apprised" of his Fifth and Sixth Amendment rights, and that he knowingly and voluntarily waived them prior to the initiation of any questioning (Miranda v Arizona, 384 U.S. 436 [1966]; Moran v Burbine, 475 U.S. 412 [1986]). Finally, once a person in custody unequivocally invokes his Fifth Amendment right to be silent or Sixth Amendment right to counsel, any statements elicited by the police thereafter may be considered "involuntarily made" (People v Harris, 57 N.Y.2d 335 [1982]; People v Ferro, 63 N.Y.2d 316 [1984]).
"It is well settled that Miranda warnings must be given when a defendant is subject to custodial interrogation" (People v. Hughes, 199 A.D.3d 1332, 1334 [4th Dept. 2021]). "In determining whether suppression is required, the court "should consider: (1) the amount of time the defendant spent with the police, (2) whether his or her freedom of action was restricted in any significant manner, (3) the location and atmosphere in which the defendant was questioned, (4) the degree of cooperation exhibited by the defendant, (5) whether he or she was apprised of his or her constitutional rights, and (6) whether the questioning was investigatory or accusatory in nature" (Hughes at 1334, People v. Lunderman, 19 A.D.3d 1067, 1068-1069 [4th Dept. 2005], lv. denied 5 N.Y.3d 830 [2005]).
Miranda's safeguards are triggered whenever there is a custodial interrogation and the test of whether questioning by police is custodial is not whether a person is under arrest, but, rather, whether a reasonable person similarly situated to the defendant, and innocent of any crime, would have thought that his freedom was significantly restricted. (Matter of Ricardo S., 297 A.D.2d 255, 746 N.Y.S.2d 707 [1st Dept. 2002]). Interrogation occurs where the investigating officer's inquiries, comments, or actions are "reasonably likely to elicit an incriminating response" (Rhode Island v. Innis, 446 U.S. 291 [1980]; People v. Lynes, 49 N.Y.2d 286 [1980]). An effective waiver will be found only where the "totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension", in the rights (Burbine, supra; People v. Cunningham, 49 N.Y.2d 203 [1980]).
"Volunteered statements are admissible provided the defendant spoke with genuine spontaneity and the statements were not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed" (People v. Barrondo, 150 A.D.3d 1644, 54 N.Y.S.3d 245 [4th Dept 2017], see People v. Rivers, 56 N.Y.2d 476, 479 [1982], rearg. denied 57 N.Y.2d 775 [1982]). Such statements must be proven to be spontaneous in the literal sense, without external cause, and it must at least be shown that they were in no way the product of an interrogation environment. (People v. Barrondo, 150 A.D.3d 1644, 54 N.Y.S.3d 245 [4th Dept 2017]). The statements made by defendant in the patrol vehicle were made prior to being advised of his Miranda rights, however they were spontaneous or not the result of questioning or conduct that was reasonably likely to elicit an incriminating response. Therefore, the statements shall not be suppressed.
With respect to statements made by Moore during the interview at the station, the evidence presented at the hearing revealed that while Moore was clearly in custody, prior to any questioning Moore was adequately apprised of his Miranda warnings and in answering questions posed to him, knowingly waived his rights (People v. Goncalves, 288 A.D.2d 883, 732 N.Y.S.2d 765 [4th Dept. 2001]; People v. Spoor, 50 N.Y.S.3d 232 [4th Dept. 2017]). Here, Moore was advised of his rights and immediately thereafter willingly answered questions during interrogation, and "no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant implicitly waived those rights" (People v. Jones, 120 A.D.3d 1595, 992 N.Y.S.2d 823 [4th Dept. 2014], quoting Goncalves, supra at 884). While Moore was not free to leave, there was no evidence that he invoked his right to remain silent or that he ever asked for the presence of counsel prior to making his statements. Additionally, the credible evidence at the hearing revealed Moore was not threatened, coerced, or made any promises to induce him to speak with the detective. For these reasons, this Court finds that the statements during the interview were voluntarily made and therefore will not be suppressed at trial.
SEVERANCE
Defendant Moore's motion for severance of codefendants was granted by this Court November 8, 2023.
Defendant Moore moves for severance of counts one and two of the indictment. Criminal Procedure Law Section 200.20(2) permits joinder of two offenses when (a) they are based upon the same act or upon the same criminal transaction, as that term is defined in subdivision two of section 40.10; or (b) even though based upon different criminal transactions, such offenses, or the criminal transactions underlying them, are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first; or (c) even though based upon different criminal transactions, and even though not joinable pursuant to paragraph (b), such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law; or (d) though not directly joinable with each other pursuant to paragraph (a), (b), or (c), each is so joinable with a third offense contained in the indictment. In such case, each of the three offenses may be properly joined not only with each of the other two but also with any further offense joinable with either of the other two, and the chain of joinder may be further extended accordingly. Moore contends that counts one and two must be severed as none of the permissible conditions for joinder are present, Specifically, as there is no nexus between the weapon seized on May 5, 2023, and the shooting April 27, 2023, joinder of the offenses is not permitted under CPL 200.20 and would only prejudice Moore. The People did not address Moore's request for severance in their affidavit in response to his omnibus motion. After careful consideration of the motion, as well as the applicable caselaw, Moore's motion for severance of Counts 1 and 2 is granted.
INSPECTION OF GRAND JURY MINUTES/DISMISSAL OR REDUCTION OF INDICTMENT
Pursuant to CPL 190.65(1)(a), a grand jury is authorized to indict a person for an offense when the evidence presented is legally sufficient to establish defendant's commission of that offense. Legally sufficient evidence is defined as "competent evidence which, if accepted as true, would establish every element of the offense charged and the defendant's commission thereof, except that such evidence is not legally sufficient when corroboration required by law is absent. (CPL §70.10[2]).
Defendants Moore and McClaine have moved for inspection of the grand jury minutes and dismissal or reduction of the charges in the indictment on the grounds that the evidence before the grand jury was legally insufficient. The Court has reviewed the grand jury minutes and finds that the evidence before the grand jury was legally sufficient, therefore the charges shall not be dismissed.
DISCLOSURE OF GRAND JURY INSTRUCTIONS
Defendants Moore and McClaine have further moved for disclosure of the grand jury instructions. CPL 245.20 (1)(b) specifically requires automatic disclosure of "all transcripts of the testimony of a person who has testified before a Grand Jury, including but not limited to the defendant or a co-defendant." The statute fails to address Grand Jury instructions, which are not testimony but instead legal advice. While not subject to automatic disclosure, pursuant to the request this Court conducted an in-camera review of the Grand Jury instructions and disclosed the instructions to the defense following such review.
BRADY MATERIAL
Defendant Moore has requested the People provide Brady material to the defense. Under Brady, the People are required to disclose, in advance of trial, evidence which is favorable to the accused. (Brady v. Maryland, 373 U.S. 83 [1963]). Since the enactment of CPL Article 245, the People are required to turn over what is commonly referred to as Brady material expeditiously upon its receipt without delay and it must be reflected in the COC within 20-35 days of arraignment, depending on the defendant's custody status (CPL 245.10 (1)(a)(i) and (ii); CPL 245.20(1)(k). CPL 245.20(1)(k) defines Brady material to include "All evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to: (i) negate the defendant's guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant's identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment." Provision of this material to the defense must be memorialized in the People's COC and is a precursor to the filing of their statement of readiness.
In their response to the Omnibus motion the People acknowledge their obligations under Brady, specifically delineate the evidence/documents they have provided and advise they will continue to comply. Should any specific instances of alleged Brady violations be brought to the attention of the Court, they will be ruled on accordingly.
SANDOVAL
Defendant Moore has requested advanced rulings with respect to Sandoval. The People have consented to a Sandoval hearing, and one shall be scheduled prior to trial.
PRECLUSION OF DEFENSE EVIDENCE
Defendants Moore and McClaine are hereby ordered to comply with the provisions of CPL §245.10 (2) requiring defendant to perform his or her discovery obligations not later than thirty calendar days after being served with the prosecution's certificate of compliance.
WHEREFORE, it is hereby, ORDERED, that Moore's motion to suppress physical evidence is DENIED; and it is further
ORDERED, that Moore's motion to suppress statements made to law enforcement is hereby DENIED; and it is further
ORDERED, that the People shall be precluded from using any unnoticed statements by defendant at trial, any identification of defendant with respect to count one of the indictment, and any statements they withdrew their intention to use at trial with respect to count one of the indictment; and it is further
ORDERED, that Moore's motion for severance of Counts 1 and 2 is GRANTED; and it is further
ORDERED, that Moore's motion for reduction or dismissal of the indictment is DENIED; and it is further
ORDERED, that Moore's motion for a Sandoval hearing is GRANTED and shall be scheduled prior to trial; and it is further
ORDERED, that McClaine's motion to suppress physical evidence is GRANTED; and it is further
ORDERED, that McClaine's motion to suppress statements made to law enforcement is hereby GRANTED; and it is further
ORDERED, that McClaine's motion for reduction or dismissal of the indictment is DENIED; and it is further
ORDERED, that the People's motion for preclusion of defense evidence is DENIED and defendants are ordered to comply with the provisions of CPL §245.10 (2) within ten days of the date of this order.
This Court has considered Defendant Moore and Defendant McClaine's motions in their entirety and any requests not specifically addressed herein are DENIED.