| People v Leonard |
| 2014 NY Slip Op 05468 [119 AD3d 1237] |
| July 24, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vHenry Leonard, Appellant. |
Martin J. McGuinness, Queensbury, for appellant.
James A. Murphy III, District Attorney, Ballston Spa (Ann C. Sullivan of counsel),for respondent.
Clark, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered January 4, 2013, convicting defendant upon his plea of guiltyof the crime of criminal possession of a controlled substance in the third degree (twocounts) and the traffic infraction of speeding.
On August 2, 2012 at 12:40 a.m., defendant was stopped for speeding on State Route4 in the Town of Fort Ann, Washington County. Upon checking the validity ofdefendant's driver's license, the state trooper effectuating the traffic stop discovered thatthere was an active warrant for defendant's arrest. Defendant, the sole occupant andregistered owner of the vehicle, was placed into custody and arrangements were made forhis vehicle to be towed. Prior to towing the vehicle, an inventory search was conductedand, among other things, a baggie containing a substance later identified as 41 grams ofheroin was discovered inside a shoe found in an open, clear plastic bag behind thedriver's seat.
Defendant was subsequently charged in an indictment with two counts of criminalpossession of a controlled substance in the third degree and speeding. Following thedenial of defendant's motion to suppress the heroin, defendant pleaded guilty to theindictment without waiving his right to appeal. He was sentenced to an aggregate prisonterm of 10 years to be followed by three years of postrelease supervision. Defendant nowappeals, challenging County [*2]Court's refusal tosuppress the heroin. Among other things, defendant argues that the decision to impoundhis vehicle was not made pursuant to standardized police procedure[FN1]and that the resultinginventory search was not reasonable.
We reverse. Following a lawful arrest of the driver of a vehicle, "the police mayimpound the car, and conduct an inventory search, where they act pursuant to 'reasonablepolice regulations relating to inventory procedures administered in good faith' "(People v Walker, 20 NY3d122, 125 [2012], quoting Colorado v Bertine, 479 US 367, 374 [1987]). Tothis end, "courts have insisted that an inventory search be conducted according to afamiliar routine procedure and that the procedure meet two standards of reasonableness"(People v Galak, 80 NY2d 715, 719 [1993] [citation omitted]; see Colorado vBertine, 479 US at 371). Specifically, the procedures must be "designed to meet thelegitimate objectives of the search while limiting the discretion of the officer in the field"(People v Briggs, 21 AD3d1218, 1219 [2005], lv denied 5 NY3d 851 [2005]; see Florida vWells, 495 US 1, 4 [1990]; People v Johnson, 1 NY3d 252, 256 [2003]; People vGalak, 80 NY2d at 719).
Here, the transcript of the November 2012 suppression hearing fails to support adetermination that the conduct of the police was reasonable. Although not fatal to theirargument against suppression (see People v Gomez, 13 NY3d 6, 11 [2009]), the Peoplefailed to offer a copy of the State Police procedure manual into evidence. Additionally,the People also failed to ask any substantive questions of their witnesses so as tootherwise establish (1) that the State Police had a standardized procedure, (2) that suchprocedure was reasonable, and (3) that it was followed here. In this regard, the testimonyof the troopers demonstrates little discussion of their professional experience so as tohelp illustrate an established departmental procedure, only a vague explanation of theirdecisions made at the time of the search, and meager proof that such decisions resultedfrom an established procedure designed to limit their discretion. In fact, Trooper JasonGutowski's testimony, coupled with the incomplete vehicle impound inventory form heprepared following defendant's arrest, exposed an exercise of his unfettered personaldiscretion. Specifically, while acknowledging that one of the main purposes for aninventory search is to protect the property of the defendant, Gutowski repeatedlyindicated that, if certain items were not included on his inventory list—i.e., money,CDs, a CD changer, a GPS—it was because he did not consider the items to be ofany value. Gutowski also explained that he prepared the inventory search form only fromhis memory after returning to the barracks and that a copy of the form was not providedto defendant. Thus, based upon the record before us, we are unable to determine that thepolice conduct was sufficiently standardized and designed to produce a meaningfulinventory of the contents of defendant's vehicle so as to be reasonable (cf. People vWalker, 20 NY3d at 127).
[*3] Furthermore,we respectfully disagree with our dissenting colleague that the decision to impounddefendant's vehicle was the only option available[FN2]
and, further, that a reasonable, standardized procedure for the ensuing inventorysearch was properly established. Rather, due to the insufficiency of the proof at thesuppression hearing, we lack the information necessary to arrive at such conclusionsabsent conjecture. For example, we know that the traffic stop occurred on State Route 4 alittle after midnight. However, we do not know if, perhaps, defendant was stopped in ornear the parking lot of a gas station, business or other property where he could havesafely left his vehicle without the need for towing. We also do not know whether anacquaintance of defendant was available and able to take possession of the vehicle,making impoundment unnecessary. Nor do we know if State Police procedure requiredthat the troopers check into any of these alternatives before making the decision toimpound. Further, the testimony of Gutowski merely establishes his recollectionof the contents of the State Police inventory search manual that he had received yearsearlier, not what the manual actually directs or the obligations imposed by the policiescontained therein. As stated above, absent admission of the manual into evidence ordiscussion regarding Gutowski's experience and conduct in similar situations, we feel histestimony was insufficient to ensure compliance with constitutional mandates. While weagree that officers in the field are to be afforded a certain minimal amount of discretion,the lack of proof here makes it impossible to characterize this trooper's discretion asconsistent with a reasonable standardized procedure.
Accordingly, we conclude that the People failed to meet their burden and the heroinfound in the car should be suppressed.[FN3]Defendant's remaining arguments havebeen rendered academic by our decision.
Lahtinen, J.P., McCarthy and Garry, JJ., concur.
Lynch, J. (dissenting). I respectfully dissent.[FN*]The two state troopers who testified atthe suppression hearing, [*4]each with 10 years ofexperience, explained that it is State Police policy to conduct an inventory search when avehicle is towed. Trooper Jason Gutowski, who performed the search, testified that hewas issued an inventory search manual during basic training. He explained that, pursuantto the manual, troopers "are required to perform as thorough a search as possible of thevehicle . . . and its contents," to "search every item thoroughly," "withoutobviously breaking anything," and to identify items "of value" on an inventory list. Here,the record shows that Gutowski searched the front and rear seat interior areas, the glovebox, console and trunk. During the search, he located an open plastic bag behind thedriver's seat, containing items of clothing and shoes. Consistent with the policy manual,he examined each individual item for valuables, which he described as "[j]ewelry,money, items such as that." Gutowski found the baggie containing the heroin inside asneaker removed from this bag. On the inventory form, he listed "bag of assorted clothesand sneakers, plastic baggie containing approximately 41 grams of off white powder"and a speaker box removed from the trunk. As the majority notes, the People were notobligated to submit a copy of the procedures manual into evidence, and testimony of theinventory search policy "in general terms" may be sufficient (People v Walker, 20 NY3d122, 124-125 [2012]). In my view, the record establishes that the troopers wereguided by a " 'single familiar standard' " when they conducted theirinventory search (People v Walker, 194 AD2d 92, 94 [1993], quotingColorado v Bertine, 479 US 367, 375 [1987]).
Defendant maintains that the search was invalid because the troopers were accordedtoo much discretion in deciding what items were valuable enough to be inventoried.Gutowski acknowledged that the State Police manual does not define what value an itemhas to have before being listed, leaving that determination to the trooper's discretion. Asthe majority correctly explains, the inventory procedures "must limit the discretion of theofficer in the field" (People v Galak, 80 NY2d 715, 719 [1993]). At the sametime, however, officers in the field must also be accorded certain latitude in conducting asearch (see id.). The operative point here is that the People met their burden ofproving that a reasonable, standardized procedure was utilized in conducting theinventory search. The circumstances called for the towing of defendant's vehicle, andthere is no indication that the ensuing search was prompted by a concern of othercriminal activity (see People vBriggs, 21 AD3d 1218, 1219 [2005], lv denied 5 NY3d 851 [2005]).The itemized inspection of the open bag was required under the policy and guided by thedirection to inventory items of value. Unlike the situation in People v Galak (80NY2d at 719-722), this policy imposed an obligation on the trooper to prepare a properinventory. That the task involved a discretionary call in assessing the value of an itemdoes not render the process arbitrary (see United States v Lopez, 547 F3d 364,370-372 [2d Cir 2008], cert denied 556 US 1114 [2009]). Granted, this was not amodel inventory, for Gutkowski conceded that there were "numerous items strewnabout" that he did not include in the inventory list because he did not consider the itemsto have any value. Whether he should have included certain items that may have been inthe vehicle on the inventory list, however, does not undermine what was otherwise areasonable procedure (see id.). Given the miscellaneous items of limited valuetypically found in a vehicle, a separate itemization of each item regardless of value wasnot necessary (see id.). As in People v Walker (20 NY3d at 126-127) andColorado v Bertine (479 US at 369), the inventory here was adequate.
Ordered that the judgment is reversed, plea vacated, motion to suppress the heroingranted, and matter remitted to the County Court of Washington County for furtherproceedings not inconsistent with this Court's decision.
Footnote 1:Although not preservedfor our review (see People v Jacquin, 71 NY2d 825, 826-827 [1988]; People v Durrin, 32 AD3d665, 666 [2006]), were we to address the initial decision to impound defendant'svehicle, we would agree with defendant that the People failed to meet their burden ofdemonstrating that such decision was based upon the existence of some standardizedcriteria or routine procedure (see Colorado v Bertine, 479 US 367, 374-375[1987]; People v O'Connell, 188 AD2d 902, 903 [1992]).
Footnote 2:We reiterate that thisargument is not preserved for our review. However, we address it here solely in thecontext of responding to the dissent.
Footnote 3:Inasmuch as the Peoplehave not conceded that those counts are otherwise unsupported by the evidence, we arenot dismissing counts 1 and 2 of the indictment (cf. People v Small, 110 AD3d 1138, 1141 [2013]).However, we note that "[t]he Court of Appeals has made clear that the People are entitledto one full opportunity to present relevant evidence at a suppression hearing" (Peoplev Weddington, 192 AD2d 750, 751 [1993]; see People v Malinsky, 15 NY2d86, 95-96 [1965]), and the People have already had that opportunity here.
Footnote *:Since defendant did notpreserve a challenge to the initial decision to impound the vehicle, that issue should notbe addressed (see People v Luperon, 85 NY2d 71, 78 [1995]; People vJacquin, 71 NY2d 825, 826-827 [1988]). That being said, it is also my view that thedecision by the troopers to impound the vehicle was the only option they had and was notunreasonable under either the United States or New York Constitution (see USConst 4th Amend; NY Const, art I, § 12).