Opinion
2896/2006.
Decided October 10, 2008.
Marika Meis, Esq., The Bronx Defenders, Attorney for Defendant.
Jennifer Cruz, Esq., Assistant District Attorney.
The defendant is charged with the following: Criminal Possession of a Weapon in the Third Degree (PL 265.02), Criminal Possession of a Weapon in the Third Degree (PL 265.02), Criminal Possession of a Weapon in the Fourth Degree (PL 265.01), Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03), Unlawful Possession of Marijuana (PL 221.05), Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (VTL 511[a]), and Possession of Ammunition (AC 10-131[i][3]).
On October 25, 2006, defendant moved to suppress all physical evidence seized as a result of an inventory search of his vehicle and all statements as the tainted fruit of an unlawful arrest. The People responded on December 19, 2006 and, on January 26, 2007, Justice Peter Benitez ordered a Mapp/Huntley hearing. Justice Seymour Rotker thereafter sent the case to this Court for a hearing. On August 6, 2008, a Mapp/Huntley hearing was held before me. Defendant submitted a Post-Hearing Memorandum of Law on September 3, 2008 and the People submitted an Opposition Memorandum of Law on September 12, 2008.
I Findings of Fact
At the August 6, 2008 Mapp/Huntley hearing, the People called one witness, Police Officer James McCrain, to testify. The defendant did not call any witnesses.
On July 12, 2006, Officer McCrain, while on routine patrol, was traveling northbound on Third Avenue in a busy area commonly known as "the hub." As he approached the intersection of 149th Street and Third Avenue, he observed a four-door blue sedan facing southbound on Third Avenue blocking a bus stop. He motioned to the motorist, subsequently identified as the defendant, by hitting the siren to move his vehicle out of the bus stop. The defendant motioned that he would comply. However, after he had passed, Officer McCrain looked in his rearview mirror and observed the defendant still in the bus stop. Officer McCrain made a U-turn, pulled alongside the vehicle, and again told the defendant to move the vehicle from the bus stop. Again the defendant indicated that he would comply. It took Officer McCrain approximately one minute to make the U-turn and return to the bus stop (H:18). Officer McCrain looked in his rearview mirror again and saw that the defendant had not complied. He made a U-turn, turned on his turret lights and initiated a car stop (H:6-7). This process took approximately a minute and a half (H:18). Defendant's car was towards the rear of the bus stop; defendant was seated in the driver's seat and the motor was running.
Officer McCrain approached the vehicle on the driver's side and his partner approached it on the right side. Officer McCrain issued the defendant a parking violation for the offense of "no standing bus stop" in violation of New York City Traffic Rules4-08(c)(3) (H:21). Officer McCrain then asked the defendant for his license, registration and insurance. Officer McCrain did a license check which revealed that the license was suspended (H:7). Officer McCrain returned to the vehicle, informed the defendant that his license was suspended, asked him to exit the vehicle and placed him under arrest. When informed that his license was suspended, the defendant responded that he was fighting some tickets and was not aware of the suspension (H:45).
When issuing a parking violation, a police officer is not required to ask for a motorist's information (H:21).
Defendant was charged with VTL 511[a], operating a vehicle with a suspended license, a misdemeanor requiring arrest (H:38; 44). Officer McCrain then placed the defendant in the back of his RMP vehicle and called for a second police vehicle to help transport the defendant's vehicle back to the 40th precinct. It took the other police vehicle approximately two to three minutes to arrive.
Officer McCrain did not attempt to contact the defendant's wife or any other civilian to pick up the vehicle (H:27).
Upon returning to the precinct, Officer McCrain conducted an inventory search of the vehicle pursuant to the routine procedures of the Police Department whereby vehicles are searched to safeguard any personal items in the vehicle, to insure against unwarranted claims and to make sure there are no dangerous instruments in the vehicle (H:10; 31). Officer McCrain testified that he was familiar with police procedures for conducting inventory searches (H:30-31).
Officer McCrain discovered in an unlocked glove compartment a .9 millimeter gun and a magazine for that gun with seven live rounds in the magazine. From the unlocked center console, Officer McCrain recovered a plastic bag containing marijuana, a blunt cigarette, a marijuana cigarette and a glassine envelope containing crack cocaine. A supervisor safeguarded the weapon while the inventory search was completed. All of the items recovered were vouchered after completion of the inventory search. While the car was searched, it was never impounded because the District Attorney's Office authorized its release; Jasmine Reynolds, the defendant's wife, retrieved the car from the precinct that day.
Officer McCrain filled out numerous documents in connection with the search of the vehicle and the arrest of the defendant. He filled out a property clerk's motor vehicle invoice, which indicated that the vehicle had been searched, what items were inventoried and that the car was approved for release by the District Attorney's Office. Property Vouchers were also completed. No detailed inventory was created, however, because the car was not impounded (H:33). Officer McCrain filled out a New York City Police Department arrest report charging the defendant with, inter alia, both Unlicensed Operator [VTL 509] and Aggravated Unlicensed Operation of a Vehicle [VTL511[1][a]]. Officer McCrain also filled out a "Certificate Concerning Violation of Law Relating to Vehicles," a New York State Motor Vehicles Form on which he charged the defendant with VTL 509, a traffic violation (H:42-43).
II. Conclusions of Law A. Officer McCrain's Stop of Reynolds was Lawful; Reasonable Suspicion was not Required
In People v. Ocasio, 85 NY2d 982 (1985), the Court of Appeals held that in order to approach a stationary vehicle, the police must have an articulable basis for requesting information. See also People v. Harrison, 57 NY2d 470 (1982); People v. DeBour, 40 NY2d 210 (1976). Contrary to the defendant's assertion, reasonable suspicion is reserved for stops of moving vehicles. People v. May, 81 NY2d 725 (1992).
In the instant matter, Officer McCrain had an articulable basis to approach defendant's car and request information: defendant was parked at a bus stop and was told twice to move his vehicle by Officer McCrain. Defendant was cited with violating New York City Traffic Rules, Section 4-08(c)(3) which states:
No person shall stand or park a vehicle other than an authorized bus in its assigned bus stop when any such stop has been officially designated and appropriately posted except that the operator of the vehicle may temporarily stand therein for the purpose of expeditiously receiving and discharging passengers provided such standing does not interfere with any bus about to enter or leave such zone.
[Emphasis supplied]. Defendant argues that he was legally parked in the bus stop lane because Section 4-08(c)(3) permits stops for expeditiously receiving and discharging passengers. That assertion notwithstanding, Officer McCrain's testimony revealed that the defendant was parked at the bus stop for two to three minutes, an amount of time that cannot be considered expeditious. He was also told twice to move his vehicle by Officer McCrain and failed to comply. Indeed, Officer McCrain issued a summons to the defendant for the traffic violation of section 4-08(c)(3). Based on the foregoing, an articulable basis existed for Officer McCrain to approach the defendant's parked vehicle.
B. Officer McCrain Acted Within the Scope of the Fourth Amendment and Article I, § 12 of the New York State Constitution When He Requested Defendant's Information, Ran a Computer Search and Arrested Defendant for Driving with a Suspended License.
In Atwater v. City of Lago Vista, 532 US 318 (2001), the Supreme Court held that the Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor violation punishable only by a fine. In Atwater, Texas law authorized the arrest of the defendant for a misdemeanor seatbelt violation but permitted a citation in lieu of arrest. The Supreme Court confirmed that the standard of probable cause "applie[s] to all arrests, without the need to balance' the interests and circumstances involved in particular situations." Atwater at 354 citing Dunaway v. New York, 442 US 200, 208 (1979). Officer McCrain testified that although he is not required to request a motorist's information for a parking violation, he normally requests the driver's license of the operator if the driver is present (H:21). Contrary to defendant's argument, as stated in Illinois v. Lafayette, 462 U.S. 640, 648 (1983)the Fourth Amendment does not require officers to choose the less intrusive option of citation over arrest.
Indeed, even when state law does not permit an arrest, the Supreme Court has held that the arrest does not violate the Fourth Amendment if probable cause to arrest exists. Virginia v. Moore, US, 128 SCt 1598 (April 23, 2008). In Moore, the police arrested defendant for driving with a suspended license. According to Virginia law, the officers were only authorized to issue a citation. The Supreme Court held that "warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections." Moore at 1607.
Defendant's argument fails equally under the New York State Constitution. NY Const. Art. I, § 12. While case law supports citation over arrest for a traffic violation, People v. Troiano, 35 NY2d 476 (1974); People v. Howell, 49 NY2d 778 (1980), once it was determined that defendant's license was suspended, the charge became elevated to a misdemeanor and the defendant became subject to arrest. Defendant's reliance, therefore, on Troiano and Howell is misplaced. It should be noted that Troiano and Howell precede the Supreme Court decisions of Atwater and Moore. In any event, in Troiano, the Court of Appeals found the search incident to arrest for a misdemeanor traffic violation, driving with a suspended license, was authorized. Moreover, while the Court of Appeals suppressed the evidence in Howell, that case involved an unjustified response guns drawn followed by a frisk to a claim of erratic driving for which that defendant was never even charged. In the case at bar, it was determined that defendant's license was suspended a misdemeanor violation which authorized the officers to arrest defendant. Even from a practical standpoint, citation is not a viable alternative to arrest when faced with a sole driver with a suspended license; the suspended driver cannot be allowed to drive off in his car, citation in hand.
In People v. Alvarez, 70 NY2d 375 (1987), the Court of Appeals stated: We have long recognized that while this court is, of course, bound by the decisions of the Supreme Court in matters of Federal law, in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States. (Quotations Omitted).
Officer McCrain acted within his discretion in requesting defendant's information and then running a standard check on his driver's license to see if it was valid. Once Officer McCrain determined that defendant's license was suspended, he had probable cause to arrest defendant pursuant to VTL § 511(1)(a), a misdemeanor.
Defendant argues that Officer McCrain lacked probable cause to charge him with violation of VTL § 511(1)(a) because that section requires knowledge of the suspension and, when presented with information of the suspension, defendant replied that his license was not suspended because he was fighting tickets. [Def. Mem. at 13]. However, section 511(1)(a) states, "while knowing or having reason to know". [Emphasis supplied]. Clearly defendant had reason to know that his license was suspended.
C. Impounding Defendant's Car was Lawful as Well as the Subsequent Inventory Search
i. Impounding the Vehicle
Once the police have probable cause to arrest for the misdemeanor violation of driving with a suspended license in violation of VTL § 511(1)(a), and defendant is the sole occupant of the vehicle, standard police procedure calls for impounding the vehicle. See People v. Figueroa , 6 AD3d 720 (2d Dep't 2004); People v. Kearney, 288 AD2d 398 (2d Dep't 2001); People v. Irizarry, 282 AD2d 483 (2d Dep't 2001); People v. Johnson, 298 AD2d 281 (1st Dep't 2002) rev'd on other grounds 1 NY3d 252 (2003). People v. Jackson, 241 AD2d 557 (2d Dep't 1997).
In the instant matter, defendant, the sole occupant of the vehicle, was arrested in a busy area and his car was parked at a bus stop. The officers called for a second police vehicle, which arrived minutes later to bring the car to the precinct. Officer McCrain immediately began to conduct an inventory search of the vehicle in compliance with police procedures. In New York v. Belton, 453 U.S. 454, 458 (1981), the Supreme Court averred: "[a] single familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.'" quoting Dunaway v. New York, 442 U.S. 200, 213-214, (1979). Clearly, case law, police standard procedures and practicality support the officers' actions to remove the car as quickly as possible and bring it to the precinct. Once the police determine that no driver is available to remove the car from the area of arrest, the police may impound the vehicle.
Defendant points to a continuing obligation on the part of the police to attempt to locate an alternate driver; neither case law nor police procedure so dictates and reasonableness does not so require.
ii. Inventory Search of the Vehicle
In Colorado v. Bertine, 479 US 367 (1987), the Supreme Court held that as long as the police were following standard caretaking procedures and not acting in bad faith for the sole purpose of investigation in conducting an inventory search, evidence discovered during the search was admissible. See also Lafayette, supra at 648; People v. Gonzalez, 62 NY2d 386, 390 (1984). In Lafayette at 644, the Supreme Court defined inventory searches as "not an independent legal concept but rather an incidental administrative step following arrest and preceding incarceration." In support of forgoing the warrant requirement and probable cause for inventory searches, the Supreme Court cited the strong governmental interests in protecting an owner's property while it is in police custody, insuring against claims of lost, stolen, or vandalized property, and guarding the police from danger. Bertine at 372.In the instant matter, Officer McCrain cited the same governmental interests as the basis for the police procedure in general and his search in particular. Furthermore, no sinister motive can be attributed to Officer McCrain's actions. After the car was brought to the precinct, he began the established standard procedure of inventorying the items in the car. See People v. Johnson 1 NY3d 252 (2003) (Following a lawful arrest of the driver of an automobile that must then be impounded, the police may conduct an inventory search of the vehicle).
Defendant, citing People v. Gomez , 50 AD3d 407 (2008), claims that because the police seized and vouchered only illegal items and no personal items, the inventory search did not follow police procedure and therefore was unreasonable. See also People v. Galak, 80 NY2d 715 (1993). However, in Gomez, the Court of Appeals determined, inter alia, that the People did not elicit testimony as to proper Police procedure and that no inventory list was generated. Gomez is readily distinguished.
The most glaring difference between the case at bar and Gomez is that in Gomez, the vehicle was not released. Officer McCrain explained that upon learning that the District Attorney's Office had authorized the release of the vehicle and that defendant's wife would be retrieving the vehicle, he did not fill out a detailed inventory. Rather, he filled out a property clerk's motor vehicle invoice, which indicated that the vehicle was searched, what items were inventoried and that the car was approved for release by the District Attorney's Office. The record is clear that Officer McCrain testified to and followed the police procedure for inventory searches. Accordingly, evidence seized during the inventory search of the vehicle is admissible.
While Officer McCrain was unfamiliar with the specific procedure number 218.13 of the Patrol Guide, he did state that he was familiar with the provisions that outline the procedure for an inventory search (H:30-31).
Suppression of all physical evidence and statements is denied. This shall constitute the Decision and Order of this Court.