| People v Mabeus |
| 2009 NY Slip Op 05215 [63 AD3d 1447] |
| June 25, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DavidMabeus, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Schenectady County (Eidens,J.), rendered August 9, 2004, convicting defendant upon his plea of guilty of the crime ofrobbery in the first degree.
The pertinent facts of this case, in which defendant challenges the legality of certainevidence obtained by the police during a search and seizure following his arrest, are set forth inour prior decision (47 AD3d 1073 [2008]). There, we withheld decision and remitted the matterto County Court for the purpose of conducting "a Mapp/Dunaway hearing to furtherdevelop the record with respect to the circumstances surrounding the applications for the sealedorder and search warrants and the execution thereof, as well as the manner in which evidencesought to be suppressed was recovered" (id. at 1075). Following remittal, County Court(Drago, J.) undertook further review of the application for the sealed order authorizing theplacement of a global positioning system (hereinafter GPS) tracking device on defendant'svehicle, which the parties stipulated is the only search warrant at issue.[FN1]County Court concluded, based upon the four corners of the warrant and supportingdocumentation, that it was supported by probable cause [*2]andthat no hearing was necessary. Defendant subsequently moved to, among other things, suppressall evidence obtained as a result of the search of his pick-up truck, home and person, as well asfor an order directing that a Franks hearing be conducted to determine the veracity ofstatements by State Police Investigator Brendan Moran, which were contained in the searchwarrant application. In response, County Court issued an order directing that a suppressionhearing be conducted to address (1) the search warrant application and supportingdocumentation, including the allegations in Moran's affidavit, (2) the manner and circumstancessurrounding the installation of the GPS tracking device, and (3) the circumstances surroundingthe seizure of the axe, black ski mask and bundled currency from defendant's vehicle.
In July 2008, a hearing was conducted by a Judicial Hearing Officer (hereinafter JHO). Atthe outset, the JHO noted on the record that there was no basis for a Mapp/Dunawayhearing concerning the legality of the initial stop of defendant and he proceeded to conduct aFranks hearing. At the hearing, Moran gave testimony concerning information containedin the application for the search warrant as well as his conversations with the confidentialinformant. The confidential informant was called as a witness, but refused to testify and invokedhis Fifth Amendment right against self-incrimination. The final witness, former State PoliceInvestigator Thomas Larson, gave testimony concerning the installation of the GPS trackingdevice in defendant's vehicle. At the conclusion of the testimony the JHO found that the searchwarrant was supported by probable cause and recommended that defendant's suppression motionbe denied. County Court adopted the JHO's recommendation.
The matter is now again before us and we must consider the merits of defendant's challengeto the evidence seized in light of the information disclosed at the hearing. We note that defendantonly challenges the legitimacy of the police action under the US Constitution. We start ouranalysis with the search warrant authorizing the placement of the GPS tracking device, as it is,pursuant to the parties' stipulation, the only search warrant at issue.
As a threshold matter, we must address whether it was necessary, in the first instance, for thepolice to obtain the search warrant authorizing the placement of the GPS tracking device ondefendant's vehicle. We note that while the United States Supreme Court has held that the meretracking of a vehicle on a public street by means of a beeper is not a search within the meaningof the Fourth Amendment (see United States v Knotts, 460 US 276, 284-285 [1983]), ithas not definitively ruled on whether the installation of a GPS tracking device on a vehicletransforms it into a search (see id. at 279 n 2). The federal courts appear to be divided onthe issue (compare United States v McIver, 186 F3d 1119, 1126-1127 [1999], certdenied 528 US 1177 [2000], United States v Pretzinger, 542 F2d 517, 520 [1976],and United States v Moran, 349 F Supp 2d 425, 467-468 [2005], with United States vShovea, 580 F2d 1382, 1388 [1978], cert denied 440 US 908 [1979], and UnitedStates v Moore, 562 F2d 106, 110-112 [1977]). While the New York Court of Appeals hasdeclined to rule on whether the warrantless placement of a GPS device on the exterior of avehicle transgresses the Fourth Amendment, it recently held that such intrusion violates the NYConstitution (see People v Weaver,12 NY3d 433, 445 [2009]). Key to the Court's analysis was its finding that there had been aninfringement of the defendant's reasonable expectation of privacy, the same inquiry that isrelevant when evaluating the legitimacy of police action under the Fourth Amendment (seeid. at 444-445).
In the case at hand, the police action was much more intrusive than in People v Weaver (12 NY3d 433[2009], supra). Larson, the former police investigator who actually [*3]installed the GPS tracking device, testified that a duplicate key fordefendant's vehicle was obtained by the police and the vehicle was physically removed from itslocation outside the parole office, where defendant was attending an appointment, to the StatePolice garage. He stated that, once the vehicle was moved to the garage, the GPS tracking devicewas hardwired by placing it under the hood of the vehicle and the antenna was most probablyplaced under the dashboard by accessing it through the glovebox. Larson indicated that, after theGPS tracking device was installed, defendant's vehicle was moved back to the parking space thatit previously occupied. As is clear from Larson's testimony, the police not only gained access tothe interior of defendant's vehicle to install the device, but actually moved the vehicle to alocation where the device could be more easily installed.
The United States Supreme Court has acknowledged that "[w]hile the interior of anautomobile is not subject to the same expectations of privacy that exist with respect to one'shome, a car's interior as a whole is nonetheless subject to Fourth Amendment protection fromunreasonable intrusions by the police" (New York v Class, 475 US 106, 114-115[1986]). Under the circumstances presented here, defendant, who was not even present in thevehicle, had a legitimate expectation of privacy in its interior, which could only be accessed byusing a key, and could reasonably assume that the vehicle would not be physically moved in hisabsence. In view of this, and given the Court of Appeals' recent decision in Weaver, weconclude that the search warrant was necessary in order to comport with the requirements of theFourth Amendment in the case at hand.
Turning to the search warrant application, defendant asserts that it was defective because theinformation supplied by the confidential informant did not comply with the requirements of thetwo-prong Aguilar-Spinelli test (see Spinelli v United States, 393 US 410[1969]; Aguilar v Texas, 378 US 108 [1964]) and, therefore, probable cause for itsissuance was lacking. New York courts have adopted the Aguilar-Spinelli test inevaluating hearsay information from an undisclosed informant when making probable causedeterminations (see People v Johnson, 66 NY2d 398, 402 [1985]; People vHanlon, 36 NY2d 549, 556 [1975]). "Under this test, the application for a search warrantmust demonstrate to the issuing [m]agistrate (i) the veracity or reliability of the source of theinformation, and (ii) the basis of the informant's knowledge" (People v Griminger, 71NY2d 635, 639 [1988] [citations omitted]). Notably, where the information is based upon doublehearsay, the foregoing requirements must be met with respect to each individual providinginformation (see People v Ketcham, 93 NY2d 416, 421 [1999]; People v Parris,83 NY2d 342, 347-348 [1994]). An informant's reliability may be established by the fact that heor she provided accurate information in the past, gave a statement against penal interest or underoath, or by police investigation which corroborates the details of the informant's statement(see People v DiFalco, 80 NY2d 693, 697-698, 697 n 2 [1993]; People vJohnson, 66 NY2d at 403; People v Rodriguez, 52 NY2d 483, 489 [1981];People v Elwell, 50 NY2d 231, 237 [1980]). An informant's basis of knowledge may beestablished by self-verification through the informant's provision of sufficient details from whichthe magistrate can reasonably infer that the informant had personal knowledge of the criminalenterprise or through independent police verification of facts suggestive of criminal activity(see People v DiFalco, 80 NY2d at 698 n 3; People v Elwell, 50 NY2d at 236;People v Hanlon, 36 NY2d at 556).
In the instant case, the search warrant application consisted of Moran's affidavit, as well asthe handwritten deposition of the confidential informant that he interviewed on July 23, 2003,who had been in prison with Jeffrey Monroe, a friend of defendant. According to the informant,Monroe frequently spoke with defendant over the telephone while in prison and told him that[*4]defendant lived with Monroe's sister in the Town of CliftonPark, Saratoga County, had robbed a McDonald's restaurant several times, for which he had beenincarcerated, and also that defendant had escaped from prison. The informant further related thatMonroe told him that defendant admitted to robbing a McDonald's restaurant in the Town ofBallston, Saratoga County and fleeing on a motorcycle that he had hidden in the woods nearby.The informant also stated that Monroe told him that defendant wore body armor and blackclothing, including leather gloves, during this robbery, was armed with a pistol and owns acouple of different handguns.
In his affidavit in support of the search warrant application, Moran related the details of thepolice investigations of four robberies occurring between December 2002 and July 2003 at twoMcDonald's restaurants, one in the Town of Ballston and the other in the Town of Malta, both inSaratoga County. In these accounts, the perpetrator was described as a white male, ranging fromfive feet, three inches to six feet in height, carrying various weapons, including a handgun, ashotgun, and a hatchet, and wearing dark clothing and ski masks of differing colors. Moranconfirmed through independent sources that defendant is approximately five feet, six inches tall,had been previously convicted of robbing two McDonald's restaurants, was incarcerated from1992 until 2002, had telephone conversations with Monroe while in prison, had escaped fromprison and, at the time of the warrant application, resided with Monroe's sister in Clifton Park. Inan effort to corroborate the information provided by the informant, Moran stated that he visitedthe McDonald's restaurants that had been robbed and noted that there are woods nearby withtrails wide enough for the passage of a motorcycle. He further indicated that motor vehiclerecords confirmed that defendant owned a motorcycle that could be driven both on and off road.
Under the circumstances presented, we are of the view that the Aguilar-Spinelli testwas satisfied and that the warrant application was sufficient to establish probable cause for theplacement of the GPS tracking device in defendant's vehicle. The confidential informant'sreliability was established by the fact that he signed his handwritten deposition under oath. Thereliability of his source, Monroe, was established by independent police corroboration of certaininformation he imparted, including that he had telephone conversations with defendant while inprison, defendant lived with Monroe's sister, defendant had prior convictions for robbing twoMcDonald's restaurants, defendant had previously escaped from prison, and defendant owned amotorcycle which could be driven on or off road, all of which was true.
Moreover, the basis of knowledge of both the informant and his source, Monroe, wasestablished by independent police verification of information provided that was suggestive ofcriminal activity. Specifically, such information included defendant's admission that he hadrobbed a McDonald's restaurant in Ballston and fled on a motorcycle that he hid in the woods,and police verification of the fact that he owned an on and off road motorcycle around the timeof the robbery and that there were woods with trails behind the restaurant.[FN2]As for the additional [*5]information that defendant wore blackclothing, body armor and gloves during the robbery, was armed with a pistol and owned differenthandguns, the police confirmed that the perpetrator of the four McDonald's restaurant robberiesoccurring between December 2002 and July 2003 was a white male, wore dark clothing as wellas ski masks of differing colors and was armed with various weapons, including a handgun, ashotgun and a hatchet. The police also confirmed that defendant's height of 5 feet 6 inches wasconsistent with the height of the alleged perpetrator of the majority of these robberies.Significantly, all of these robberies occurred shortly after defendant was released from prison onhis prior robbery conviction. In sum, the information independently gathered by the police,which was indicative of criminal activity, adequately corroborated the information supplied bythe confidential informant and his source, Monroe, so as to establish the basis of knowledge ofthese individuals as required under the Aguilar-Spinelli test. Given that theAguilar-Spinelli test was satisfied, the search warrant authorizing the placement of theGPS tracking device on defendant's vehicle was valid.
Notwithstanding the validity of the search warrant authorizing placement of the GPStracking device, the legality of the seizure of the black ski mask, axe and bundled currency fromdefendant's truck at the time of his apprehension, as well as the admissibility of defendant'sstatements to the police, remain open questions. At the time the items in question were seized, nosearch warrant was in effect authorizing a search of the interior of defendant's vehicle and it isnot known if these items were in plain view. As we noted in our prior decision, the record was,and still is, devoid of factual information concerning the circumstances surrounding defendant'sinitial detention and the manner in which the physical evidence was seized, and we previouslyremitted the matter to County Court for the very purpose of, among other things, conducting aMapp/Dunaway hearing on these issues (47 AD3d at 1075). County Court, however, didnot conduct such a hearing. Given that the failure to conduct such a hearing renders it impossibleto determine whether probable cause existed for the seizure of the physical evidence and theadmissibility of defendant's statements, we must withhold decision and again remit the matter toCounty Court to conduct this appropriate hearing.
Cardona, P.J., Spain and Kane, JJ., concur. Ordered that the decision is withheld, and matterremitted to the County Court of Schenectady County for further proceedings not inconsistentwith this Court's decision.
Footnote 1: In view of the parties'stipulation, all references herein to the search warrant shall mean the sealed order.
Footnote 2: At the Franks hearing, itwas disclosed that the robbery at the McDonald's restaurant in Ballston actually occurred justbefore midnight on April 25, 2003, instead of on April 26, 2003 as stated in the warrantapplication. It was also revealed that defendant did not acquire actual ownership of themotorcycle until April 26, 2003, the day after the robbery. Upon reviewing the transcript of theFranks hearing, we agree with County Court that such inaccuracies do not establish thatMoran made intentional misrepresentations in the warrant application. Thus, although themisinformation is relevant to defendant's guilt, it does not affect the propriety of the searchwarrant application.