| People v Blandford |
| 2021 NY Slip Op 00058 [190 AD3d 1033] |
| January 7, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Reginald E. Blandford, Appellant. |
Peter D. Salton, Ithaca, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Chemung County (Baker, J.),rendered March 25, 2019, convicting defendant upon his plea of guilty of the crime of attemptedcriminal possession of marihuana in the second degree.
In November 2017, state troopers conducted a traffic stop of defendant's vehicle, followed bya canine sniff search that disclosed marihuana and paraphernalia associated with drug sales in thevehicle. Defendant was charged with one count of criminal possession of marihuana in thesecond degree. After County Court denied defendant's motion to suppress the evidence found inthe vehicle, defendant pleaded guilty to one count of attempted criminal possession of marihuanain the second degree. In accordance with the plea agreement, the court sentenced defendant, as asecond felony offender, to a prison term of 1
We reject defendant's contention that County Court should have found that the traffic stopand the canine search were unlawful. The testimony at the suppression hearing established that aState Police investigator in the City of Elmira, Chemung County saw defendant drive past him atabout 5:00 p.m. without wearing a seatbelt. Based upon past surveillance and general policeknowledge, the investigator knew that defendant was involved in the illegal sale of narcotics. Asthe investigator followed defendant's vehicle, he contacted a state trooper who was a caninehandler, advised the trooper of what he had seen and asked the trooper to come to the scene toconduct a traffic stop of defendant's vehicle. The investigator watched defendant drive into theparking lot of a convenience store that was familiar to the investigator as a "trouble spot" fordrug transactions. Defendant got out of his vehicle and entered the store, where he remained forabout five minutes. When defendant left the store, he made physical contact with at least one ofseveral people outside the store, which the investigator described as "a handshake, type hugthing." The investigator did not see anything in defendant's hands during this contact, but hetestified that, in his professional experience, it was common for participants in outdoor drugtransactions to "hug somebody, tap them up, and make an exchange" of currency and narcotics.He described the convenience store as "notorious" for such activity. Defendant and a malepassenger then got into defendant's car and drove away.
After being contacted by the investigator, the trooper drove with his canine partner to theconvenience store. As he arrived, he saw defendant leaving the building with no purchases in hishands. The trooper watched defendant conversing with people outside the store and "giving handshakes, high fives, [and] hugs," behaviors that, in the trooper's experience, occurred "routinely"during [*2]drug transactions. The trooper followed defendant'svehicle and, at 5:10 p.m., observed that the license plate was inadequately lit. The trooper turnedon his emergency lights to initiate a stop and observed a "slow roll response," in which defendantslowed down but did not immediately stop his vehicle. The trooper saw defendant make "furtivemovements" inside the car, ducking down in his seat, moving around, reaching over thepassenger seat and doing something that the trooper could not see "in the floorboard area and/orthe backseat." He stated that, in his professional experience, this behavior was not typical of mostdrivers, who usually came to an immediate stop and "s[a]t easy within the seat" when pulledover.
After the vehicle stopped, the trooper spoke with defendant at the driver side window andobtained identification information for defendant and the passenger. The trooper permitted thepassenger to leave, asked defendant to step out of the vehicle and spoke with him briefly aboutsuch matters as his reason for visiting the store without making a purchase and the movements hehad made in the vehicle. In response, defendant "talked in a circle" and gave inconsistentanswers. The trooper then asked defendant for permission to search the vehicle. Defendant gavelimited consent, agreeing only to a search of the backseat and passenger seat area. The trooperretrieved his canine partner from his vehicle and, at 5:19 p.m., conducted a canine sniff search ofthe outside of defendant's car. The canine alerted to the outside of the trunk and, when the trunkwas opened, to a bag that contained multiple bags of marihuana, digital scales and otherparaphernalia associated with drug sales.
First addressing the traffic stop, a police officer who has probable cause to believe that adriver has committed a traffic infraction may stop a vehicle without violating either the FourthAmendment of the US Constitution or article I, § 12 of the NY Constitution, even ifthe officer's primary motivation is to conduct another investigation (see People vRobinson, 97 NY2d 341, 346 [2001]). The Vehicle and Traffic Law requires vehicles to have"a white light which shall illuminate the numerals on [the rear license] plate in such manner as torender such numerals legible for at least [50] feet from the rear" (Vehicle and Traffic Law§ 375 [2] [a] [4]). This requirement applies in certain circumstances, including theperiod between 30 minutes after sunset and 30 minutes before sunrise—but also "at suchother times as visibility for a distance of [1,000] feet ahead of such motor vehicle is not clear"(Vehicle and Traffic Law § 375 [2] [a]). Thus, contrary to defendant's argument, thefact that 30 minutes had not yet passed after sunset did not render the stop improper.[FN1] The trooper testified that it wasfully dark at the time of the stop and that he and defendant had their vehicles' headlights on, asdid other vehicles passing on the roadway. When [*3]the trooperturned off his headlights briefly to check the license plate light, he observed that it did notilluminate the plate. Thus, it was "objectively reasonable" for the trooper to conclude that therequisite visibility did not exist and that a traffic violation had been committed (People v Guthrie, 25 NY3d 130,134 [2015]).[FN2]Additionally, the trooper was entitled to rely upon the investigator's previous observation thatdefendant was driving without a seatbelt—a separate traffic violation that also providedprobable cause for the stop (see Vehicle and Traffic Law § 1229-c [3]; People v Patterson, 173 AD3d1737, 1738 [2019], affd 34 NY3d 1112 [2019]; People v Robinson, 134 AD3d 1538, 1539 [2015]). Accordingly,County Court did not err in finding that the traffic stop was lawful (see People v Gibbs, 167 AD3d1580, 1580 [2018], lv denied 33 NY3d 976 [2019]; People v Williams, 132 AD3d1155, 1155-1156 [2015], lv denied 27 NY3d 1157 [2016]).
Turning to the canine search, the detention of a motorist after a traffic stop "must bereasonably related in scope, including its length, to the circumstances which justified thedetention in the first instance, unless circumstances arise which furnish the police with a foundedsuspicion that criminal activity is afoot" (People v Banks, 148 AD3d 1359, 1360 [2017] [internal quotationmarks and citations omitted]). Such a founded suspicion permits the extension of the stop beyondits original purpose and "authorizes a request for consent to search and [a] canine search of thevehicle's exterior" (People v Boler,106 AD3d 1119, 1122 [2013]; seePeople v Devone, 15 NY3d 106, 113-114 [2010]; People v Blanche, 183 AD3d 1196, 1199 [2020], lv denied35 NY3d 1064 [2020]). We agree with County Court that, taken together, the trooper'sobservations of defendant engaging in behaviors commonly seen in outdoor drug transactions ata location known for such activity, his "slow roll response" and furtive movements after thetrooper initiated the stop and his evasive, inconsistent answers to the trooper's questions created afounded suspicion that criminal activity was afoot (see People v Devone, 15 NY3d at113-114; People v Sanders, 185AD3d 1280, 1282 [2020], lv denied 35 NY3d 1115 [2020]; People v Hawkins, 45 AD3d 989,991 [2007], lv denied 9 NY3d 1034 [2008]). Thus, the trooper properly extended the stopbeyond its initial justification and conducted the canine search—which, in any event, tookplace only nine minutes after the initial stop and, according to the trooper, was completed in lessthan a minute (compare People v Blanche, 183 AD3d at 1199; People v Banks,148 AD3d at 1361-1362). Finally, the search of the trunk's interior was justified when the caninealerted to the outside of the trunk (see People v Sanders, 185 AD3d at 1282; People vBoler, 106 AD3d at 1122). Accordingly, County Court did not err in denying defendant'ssuppression motion.
Lynch, Mulvey and Reynolds Fitzgerald, JJ., concur.
Clark, J. (dissenting). I agree with the majority that the initial traffic stop was valid.However, in my view, the evidence fell short of establishing a founded suspicion that criminalitywas afoot, so as to justify the canine search. Accordingly, I respectfully dissent.
As the majority notes, testimony at the suppression hearing established that, prior to thetraffic stop, a State Police investigator and a state trooper observed defendant at a conveniencestore that is known to be a "trouble spot" for drug sale activity and that defendant spent a fewminutes in the store, but did not walk out with any observable merchandise. The testimony alsodemonstrated that, after exiting the store, defendant engaged at least one person in a "hand shake,type hug thing." At no point, however, was defendant observed to have exchanged money, drugsor anything else. The evidence established that defendant then got back into his car and thatsomeone from the store got into his front passenger seat. As discussed by the majority, thetrooper thereafter initiated a lawful traffic stop of defendant's vehicle. The trooper testified thatdefendant did not immediately stop in response to his emergency lights and that, upon coming toa stop, defendant engaged in "furtive movements" within the vehicle.
The trooper's testimony regarding his ensuing interaction with defendant was general, vagueand, at times, confusing. The trooper testified that he asked defendant various questions,including why he visited the convenience store and that, in response, defendant "talked in acircle." However, the trooper's testimony revealed that defendant had provided an explanation forhis presence at the store. Indeed, according to the trooper, defendant indicated that he was givinga ride home to his passenger, who was related to the owner of the convenience store. Thetrooper's testimony did not reveal why he was dissatisfied with defendant's explanation. Rather,without providing any specificity as to defendant's statements, the trooper stated that defendant'sstatements were "not consistent" with what he had observed of defendant. The trooper did notidentify those inconsistencies, and merely emphasized that he did not observe defendant leave thestore with any merchandise. Defendant's seemingly plausible explanation for visiting the store,corroborated by the presence of the passenger, could dispel—at least in part—anysuspicion of criminality arising from defendant's presence and interactions at the store. In myopinion, the remaining circumstances, including the "slow roll" stop and the furtive movements,did not give rise to a founded suspicion that criminality was afoot, so as to justify the caninesearch (compare People v Devone,15 NY3d 106, 113-114 [2010]; People v Sanders, 185 AD3d 1280, 1282 [2020], lv denied35 NY3d 1115 [2020]; People vBlanche, 183 AD3d 1196, 1198-1199 [2020], lv denied 35 NY3d 1064 [2020]).As such, I would grant defendant's motion [*4]to suppress thephysical evidence.
Ordered that the judgment is affirmed, and matter remitted to the County Court of ChemungCounty for further proceedings pursuant to CPL 460.50 (5).
Footnote 1:We find that the time of sunset isa fact that "may be determined by resort to easily accessible sources of indisputable accuracy" (Matter of National Fuel Gas Supply Corp. vSchueckler, 35 NY3d 297, 329 [2020] [internal quotation marks and citations omitted]),and thus take judicial notice of the fact that sunset took place at 4:45 p.m. in Elmira on the day inquestion, less than 30 minutes before the stop at 5:10 p.m.
Footnote 2:As the stop was objectivelyreasonable for these reasons, the trooper's testimony about his inaccurate belief regarding theapplicability of the 30-minute time period does not affect the stop's lawfulness (see People vPena, 36 NY3d 978, 980-981 [2020]).