Opinion
10211-05.
Decided September 3, 2005.
David Dys, Assistant District Attorney.
John Griffen, Attorney for Defendant.
The defendant was arrested and charged with Criminal Possession of a Controlled Substance in the 7th Degree, P.L., in violation of P.L. 220.03 and False Personation, in violation of P.L. 190.23 on May 5, 2005. He was arraigned at 2:30 A.M. on May 6, 2005, and held on bail of one thousand dollars ($1,000.00) cash and two thousand five hundred dollars ($2,500.00) bond. At the arraignment the public defender's office was appointed to represent the defendant. On May 18, 2005 the defendant appeared in court with his attorney.
On June 1, 2005 the case was adjourned for argument of motions. Eventually the case was set down for a probable cause hearing on August 12, 2005. On that date, at the commencement of the probable cause hearing, the people made a motion in limine, requesting that the court hold that the defendant lacked standing to litigate the search and seizure issue relative to the search of a backpack.
Facts of the Case.
The prosecutor argued in his opening statement that the defendant lacked standing to object to a search of a backpack, which led to the arrest herein. The defense argued that the the police did not have authority to approach and inquire of the defendant or the other occupants of the vehicle, nor to make a common-law inquiry of said individuals. The defense further contends that the police lacked the authority, under the circumstances, to either frisk the defendant or search a backpack found in the back of the open pickup truck, that was driven and/or occupied by the individuals approached by the police. As a result, the defendant argues that the police lacked the probable cause to arrest the defendant. On May 5, 2005 at 11:45 P.M. Sergeant Carl Adriaansen of the Webster Police Department was speaking with Officer Sean Welch outside the North Entrance to the Webster Town Hall. From that location the officers observed a vehicle, that turned out to be a pickup truck, operating on the driveway behind the Webster Plaza located at 980 Ridge Road. Despite the hedgerow separating the town property from the plaza, the officers observed said vehicle park behind a vacant store, previously operated by Joanne Fabric. The officers then drove over in their separate police cars to investigate the situation.
Upon arriving at the scene, the officers found a female, that was in the said vehicle, but was not sitting in the driver's seat. At that time two males appeared from behind a dumpster.
The female identified herself as Dawn Glidden. One of the males identified himself as Timothy Gerlock. The defendant identified himself as "Vincent J. Torregrossa" with a date of birth of August 6, 1980. None of the three individuals was able to produce any identification documentation, such as a driver's license. The officers then accessed the records of the Department of Motor Vehicles, through their patrol car based computers. The DMV records indicated that Timothy Gerlock had a suspended license. Ms. Glidden's license was clear.
The defendant's actual date of birth is August 26, 1974.
However, Sergeant Adriaansen testified that there was a "no hit" as to a Vincent Torregrossa. In the meantime, Officer Kohlmeier, of the Webster Police Department arrived and participated in the investigation. The defendant was advised that giving a false name or date of birth to a police officer is illegal. Nevertheless, the defendant continued to maintain that his name was Vincent Torregrossa.
Sergeant Adriaansen testified that he spoke to the defendant outside the truck adjacent to the driver's seat. At that time Officer Welch was standing on the passenger side of the truck.
Officer Kohlmeier, was positioned in the rear of the pickup truck. During said conversation with the defendant, Sergeant Adriaansen observed an open 40 ounce bottle of Budweiser Beer and an open bottle of Boones Farm wine on the floor on the passenger side of the truck. He also observed three items in the back of the uncovered pickup truck, to wit: a closed backpack and two brown boxes containing packages of hot dogs.
In the meantime, all three individuals were patted down for weapons. Presumably, while that was proceeding, Officer Welch inquired as to the ownership of the backpack. Both Sergeant Adriaansen and Officer Welch testified that Officer Welch inquired as to who owned the backpack. Both testified that nobody either claimed ownership of the backpack or refused to consent to a request to search said item. Both officers testified that the defendant appeared under the influence of a an intoxicating substance.
In any event, upon no one claiming ownership of the backpack or objecting to searching same, Officer Welch searched said backpack and found a wallet, which contained a N.Y.S. driver's license, wherein the picture matched the defendant. That is when the police were able to positively identify the defendant as Jason C. Torregrossa. Officer Welch testified that he was required to search the backpack to protect the safety of the officers. This was due to the fact that the backpack was in close proximity to the individuals being questioned. In addition, Officer Welch testified that the vehicle was being towed from the scene, because all the individuals were being arrested. Thus the contents in the open truck bed needed to be inventoried and provided to the police property clerk. He indicated that items in the open truck bed could not be left there once the vehicle was towed, since they would be subject to possible loss, theft or damage, subjecting the police to liability for same.
Based on said search of the backpack, Sergeant Adriaansen arrested the defendant and charged him with false personation. Now that the defendant was under arrest, for false personation, Officer Kohlmeier, searched the defendant's person, incident to said arrest. During said search a syringe and a matchbook containing heroin was discovered. Whereupon, the defendant was charged with Criminal Possession of a Controlled Substance 7th Degree. Timothy Gerlock was also charged with Criminal Possession of a Controlled Substance in the 7th Degree, P.L. 220.03, after a pat down allegedly resulted in finding a quantity of heroin. All three individuals were initially transported to the Webster Police Department. Dawn Glidden was released from the Webster Police Department and was eventually driven home by Officer Kohlemeier. The truck was then towed from the scene.
Once the identify of the defendant was confirmed, a computer check revealed that there was an outstanding warrant against the defendant for a violation of probation out of City Court of Rochester.
The defendant also testified at the probable cause hearing. He testified that he denied the request of Officer Welch to search the backpack. He also testified that he advised Officer Welch that his clothes were in the backpack. On cross-examination, the defendant testified that neither he nor either of the other individuals at the scene claimed ownership of the backpack.
Issues Presented.
Does the defendant have standing to litigate the validity of the search of the backpack?
Did the Officer have authority to approach the individuals in question to request information?
Did the Officer have authority to make a common law inquiry of the defendant?
Did the Officer have the authority to pat down the defendant for weapons?
Was the police officer justified in searching the defendant's backback?
Was the officer justified in arresting the defendant for false personation based on the search of the backpack?
Was the officer justified in searching the defendant incident to the arrest based on search of the backpack?
Was there reasonable cause to arrest the defendant for false personation based on the remaining evidence or information available to the police?
Legal Analysis.
The Fourth Amendment to United States Constitution and Article I, Section 12 of the New York State Constitution prohibits "unreasonable searches and seizures". Both of these constitutional provisions are relevant to the issue of approaching a stopped vehicle and the individual or individuals who had been riding therein. It is important to note that "Determining the legitimacy of the stop of a moving vehicle by a police officer is a lot easier than that of a police approach to a vehicle that is already stopped." Handling the DWI Case in New York (2004-2005 Edition) Section 1:6.
"The New York Constitution accords greater protection to individual privacy in search and seizure matters than does the federal constitution. Accordingly, precedents established by New York cases should be thoroughly checked. For example, in New York, encounters between a police officer and a citizen will be scrutinized for reasonableness from their inception, not just from the point where a seizure or forcible stop occurs (compare People v. De Bour, 40 NY2d 210, 386 NYS2d 375, 352 NE2d 562 (1976) with California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 [1991]); and in New York, when less intrusive alternate means to assure an officer's safety are available, the officer must use those means (compare People v. Torres, 74 NY2d 224, 544 NYS2d 796, 543 NE2d 61 [1989] with Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 [1983])." C.P.L. 140.50 Practice Commentaries (2004 Main Volume).
A. Does the defendant have standing to litigate the validity of the search of the backpack?
In searching the backpack found in the open truck bed, Officer Welch found a wallet containing a New York State Driver's License, which belonged to the defendant. Finding the license was then used by the police as a reason to arrest the defendant for false personation, pursuant to P.L. 190.23. The defendant testified at the probable cause hearing that he never told the officer that the backpack belonged to him. This confirms with the testimony of Sergeant Adriaansen and Officer Welch. However, the defendant did testify to telling Officer Welch that the backpack contained his clothes. He testified that he told Office Welch that he could not search the backpack. The fact that he told Officer Welch that the clothes in the backpack were his, gave the defendant standing to litigate the validity of the search. An individual has standing to litigate the validity of a police search and seizure if the defendant can show that he or she had a "reasonable expectation of privacy" People v. Rodriguez (1987) 69 NY2d 159, 164, 513 NYS2d 75. Therefore, the people's motion in limine is hereby denied. However, a determination that the defendant had standing to litigate the validity of the search and seizure as part of pre-trial proceedings, does not automatically mean the search and seizure was therefore improper.
The defendant took the unusual step of taking the stand at the "Probable Cause" hearing. He testified that although neither he nor the other two individuals claimed ownership of the backpack, he did tell the officer that he could not search the backpack. The testimony in this regard appeared to the court to be credible.
B. Did the Officer have authority to approach the individuals in question to request information?
In determining whether or not a police officer has authority to approach an individual and request general information about identity and the circumstances confronted by said officer, one must review the cases of People v. De Bour, (1976) 40 NY2d 210, 386 NYS2d 375 and People v. Hollman, (1992) 79 NY2d 181, 581 NYS2d 619. Both cases stand for the proposition that "The basis for this inquiry need not rest on any indication of criminal activity on the part of the person of whom the inquiry is made but there must be some articulable reason sufficient to justify the police action which was undertaken." De Bour at 213, See also Hollman at 189. In other words the police must have a valid reason to approach an individual and ask any first level questions such as name, address and destination. Mere curiosity would not be enough of a reason to subject an individual to be put in the intimidating position of being forced to answer a police officer's questions.
The approach of the officers in this case was initially a request for information. That type of police-citizen encounter has been referred to as a " Level 1" encounter. In determining whether or not said encounter was permitted, it is helpful to distinguish the facts of this case from those in People v. Pizzo, (4th Dept. 1988) 144 AD2d 930, 534 NYS2d 249. In that case the Appellate Division reversed the trial court and granted the motion to suppress. The facts presented involved the police approachinng two individuals who were in a parked in a car in a shopping mall at 2:00 A.M., when the last business closed at 1:00 A.M. At the time the police approached the car in question, other cars were still parked in the mall. Just prior to being approached, one of the occupants of the car got out and used a payphone.
Handling the DWI Case In New York (2004-2005 Edition) Section 1:6.
In the instant case, the vehicle and individuals were parked in a non-public area of the plaza, to wit a service road behind the stores. The vehicle was stopped with its lights off behind an empty store. Upon arriving at the scene one individual was in the truck and the officers observed two individuals come out from behind a dumptser. The location was not a lit area.
The circumstances presented by the time of night and the location in question, would give an officer pause to question what was occurring. As a result, the police were justified in approaching and making an initial inquiry as to the parties' identity, address and where they are going.
C. Did the Officer have authority to make a common law inquiry of the defendant?
A common law inquiry represents the next level of police intrusion. It has been described as a "Level 2" inquiry. Once the questions go beyond innocuous and neutral identification and destination questions, and graduate into ". . . more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing and is the focus of the officer's investigation . . ." the approach becomes a common law inquiry. Hollman, at 185.
Handling the DWI Case In New York (2004-2005 Edition) Section 1:6.
At this point the standard for allowing the higher level of intrusion is "founded suspicion that criminality is afoot" Ibid. at 185.
In this case the "Level 1" request for information resulted in the police determining that despite the truck having arrived at the scene, none of the occupants had a driver's license on their person. Even though it was never determined who drove the truck, there was "reasonable cause" as defined by C.P.L. 70.10(2) that there was a violation of Vehicle and Traffic Law 509-1, which makes it illegal to drive without the appropriate driver's license. In addition, during the initial conversation with the defendant, Sergeant Adriaansen observed open containers of alcohol on the floor in the front passenger section of the truck. Thus, there was a possible violation of V T Section 1227(1), which states "The drinking of alcoholic beverages, in a motor vehicle being driven upon the public highways is prohibited." Lastly, Sergeant Adriaansen indicated that he was attempting to determine if there was a possible trespass violation.
See People v. Miller (2nd Dept. 1989) 149 A.D.2nd 538, 539 NYS2d 809, wherein it was held that ". . . based on the defendant's failure to produce a driver's license and his admission that he was operating the car, an arrest of the defendant for driving without a license was also warranted (. . . Vehicle and Traffic Law § 509; People v. Gonzalez, 116 AD2d 661, 662, 497 NYS2d 729; People v. Griffen, 116 Misc2d 751, 758, 456 NYS2d 334)."
Again, the officers found the individuals in question behind a closed store, late at night, on a service road and in the dark. Two of the individuals, including the defendant, came out from behind a dumpster None of the three had identification. The officers were unable to verify the defendant's identity via records of the Department of Motor Vehicles, which made the officers suspicious that the defendant had given them a false name. Nevertheless, Officer Adriaansen testified that the defendant stated that the truck belonged to his grandfather. The confrontation between the police was raised to next level, i.e. Level 2 when Sergeant Adriaansen, informed the defendant that giving him a false name and date of birth is a crime. Based on the inability to confirm the identity of the defendant through the records of the Department of Motor Vehicles, plus the location and time of day of the confrontation, coupled with inability of the individuals to give a credible explanation of what they were doing, the officers had the requisite founded suspicion, that criminality was afoot. This gave the police the authority to raise the level of inquiry to that of a "common-law" inquiry. Hollman at 192.
D. Did the Officer have the authority to pat down the defendant for weapons?
Somewhere between the "Level 2" common law inquiry of the suspects, and the "Level 4" Arrest of the defendant's, the police conducted a "Level 3" pat down for weapons of all the individuals. "A corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer suspects that he is in danger of of physical injury by virtue of the detainee being armed." People v. De Bour (1976) 40 NY2d 210, 223. In order to protect the safety of police officers investigating crimes or suspicious circumstances, the authority of officers to "pat down" individuals, once the police-citizen encounter has reached the "Level 2" common law inquiry stage must be broadly construed. In this case no weapons were found, nor did the officers search the defendant beyond the said "pat down" at that time.
Handling the DWI Case in New York (2004-05 Edition), Section 1:6.
E. Was the police officer justified in searching the defendant's backpack?
The facts of this case present nothing that would justify the warrantless search of the defendant's backpack. At the time of the search of the backpack, which was in the open bed of the pickup truck, no arrest had been made. As a result, there was no search of the backpack incident to an arrest. Nor was the search necessary to insure the safety of the officers, because the backpack was not on the defendant's person. Also, since there was no arrest at this point, there could not be a search of the defendant's vehicle, incident to a prior valid arrest, pursuant to the "automobile exception". See People v. Mena-Coss, (3rd Dept. 1994) 210 AD2d 745, 747, 620 NYS2d 547, 549. Therefore, the results of the search of the backpack are hereby suppressed.
F. Was the officer justified in arresting the defendant for false personation based on the search of the backpack?
Officer Kohlmeier did not arrest the defendant for false personation until the search of the backpack by Officer Welch resulted in finding the defendant's wallet, which contained his New York State picture driver's license. When the driver's license was obtained, the officers were able to correctly identify the defendant. However, since the results of the improper search of the backpack was suppressed, the arrest of the defendant, on this basis cannot be sustained.
An arrest, which is classified as a " Level 4" police encounter, could not be based solely on the results of an improper search. If the arrest was based only on the suppressed evidence, there would be no reasonable cause to arrest as that term is defined in C.P.L. 70.10(2).
Handling the DWI Case in New York (2004-05 Edition), Section 1:6.
G. Was the officer justified in searching the defendant incident to the arrest based on search of the backpack?
Upon discovering the true identity of the defendant as a result of searching through the backpack, the defendant was arrested. However the arrest was invalid because it was based on the "fruit of the poisonous tree" of the unauthorized search of the backpack. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. Therefore, the search of the defendant, which resulted in the discovery of a syringe and a matchbook containing heroin must suppressed. Absent said evidence there was no reasonable cause, pursuant to C.P.L. 70.10(2), to arrest the defendant for Criminal Possession of a Controlled Substance in the 7th Degree, P.L. 220.03. As a result, that charge must be dismissed.
H. Was there reasonable cause to arrest the defendant for false personation based on the remaining evidence or information available to the police?
In the instant case, the police had reasonable cause to arrest the defendant for false personation even without the wallet found in the defendant's backpack. The defendant gave a name that could not be verified by access to the records of the Department of Motor Vehicles. There is no testimony that either of the other two individuals attempted to verify the identify of the defendant. The defendant did not possess any written identification. Based on the location of the individuals in question in a dark alleyway, behind a closed store, late at night, in an area not generally used by the public even during business hours, all gave the police reason to believe that the defendant was not being honest with them, as far as his identity was concerned. C.P.L. 70.10(2) states as follows:
"Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it."
Based on the totality of the fact and circumstances the police had reasonable cause to arrest the defendant for false personation, pursuant to P.L. 190.23, independent of the search of the backpack. In fact, even if the defendant had refused to identify himself, based on the facts and circumstances presented, the police could have taken the defendant into custody in order to determine his identity. See People v. Brito, (2004) 4 Misc 3d 1004(A), 2004 WL 1488404 (N.Y.CityCrim.Ct.), 2004 NY Slip Op. 50661(U), and People v. Negron, (2005) 6 Misc 3d 1014(A), 2005 WL 192230 (N.Y.Co.Ct.), 2005 N.Y. Slip.Op. 50043(U).
Conclusion
The defendant had standing to litigate the issue of the validity of the search of the defendant's backpack. The officers had authority to approach the defendant and other individuals involved to ask for information about their name, address and destination. Based on what they learned the officers had the right to make a common-law inquiry as to what exactly the defendant and his friends were doing. The officers had a right to pat down the suspects for weapons in order to protect themselves from possible harm, since by this time the confrontation had become a criminal investigation. The search of the defendant's backpack violated the defendant's state and federal constitutional rights. Thus, the results of said search must be suppressed. As a result, the police were not authorized to arrest the defendant for false personation at that time, which means the search of the defendant incident to such arrest was not authorized. That would require that the results of said search be suppressed, which would require the dismissal of the charge of Criminal Possession of a Controlled Substance in the 7th Degree, P.L. 220.03, for lack of reasonable cause to arrest the defendant. However, reasonable cause existed to sustain the charge of false personation, based solely on the information gleaned from the statements of the defendant and the other facts and circumstances presented, independent of the search of the backpack.
The matter is restored to the disposition calender on September 7, 2005 at 2:00 P.M. This constitutes the decision and order of this court.