| People v Boyea |
| 2007 NY Slip Op 07775 [44 AD3d 1093] |
| October 18, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v Scott L. Boyea,Respondent. |
—[*1] Richard V. Manning, Parishville, for respondent.
Kane, J. Appeal from an order of the County Court of Essex County (Meyer, J.), enteredOctober 25, 2006, which, among other things, granted defendant's motion to suppress evidence.
The United States Border Patrol set up a checkpoint along Interstate 87 in Essex County. Anunidentified motorist approached a Border Patrol agent and informed him that a white GMCpickup truck with an extended cab and white tonneau cover executed a U-turn into the medianjust before the checkpoint. The agent relayed this information to Border Patrol Agent CoryWhite, who exited I-87 in an effort to encounter the truck on Route 9, a road parallel to theinterstate. White saw a truck matching the description he had received and noticed the truck crossthe center line, then overcorrect by driving right of the white fog line. After White activated hislights, the vehicle pulled over. As he approached the vehicle, defendant rolled down the window,at which time White smelled the odor of marihuana. Defendant, who was driving the truck andappeared fidgety, admitted that he had made a U-turn on I-87 to avoid the checkpoint. Inresponse to a question about whether defendant had any marihuana, defendant acknowledged thathe had smoked a little bit, but denied that there was any in the truck bed. When White stated thata canine handler could be called from the checkpoint, defendant stated, "Sir, you're going to bustme . . . This is going to be hard on my mom because there's pounds back there."Defendant then consented to a search of the truck, which revealed 88 pounds of marihuana in twohockey bags under the tonneau cover.[*2]
Defendant was arrested and indicted for criminalpossession of marihuana in the first degree. Following a hearing, County Court granteddefendant's motion to suppress the physical evidence and his statement to White, requiringdismissal of the indictment. The People appeal.
County Court erroneously determined that Border Patrol agents do not have the authority toconduct searches or arrests for violations of state law. Designated federal law enforcementofficers, including Customs and Border Patrol agents, are granted the powers accorded to peaceofficers in New York (see CPL 2.15 [7]; 2.20). Those powers include the authority toenforce state law by making warrantless arrests for offenses committed in the agent's presenceand carrying out warrantless searches when constitutionally permissible and effected pursuant tothe agent's duties (see CPL 2.20 [1] [a], [c]; see also Hodder v United States, 328F Supp 2d 335, 343-344 [2004]). Hence, White's status as a federal agent did not deprive him ofauthority to stop or search defendant's truck, if those actions could have been permissiblyexecuted by a state law enforcement agent.
White's stop and search of defendant's vehicle were justified under the circumstances. Afterreceiving a description of a truck that avoided a checkpoint, White located a vehicle matchingthat description and observed the vehicle swerving on the road. Based on his belief that thevehicle may have evaded the checkpoint because it was smuggling aliens or narcotics, Whitereasonably stopped the vehicle to question the occupant concerning his citizenship and for anexplanation of his conduct near the checkpoint (see People v Carrillo, 257 AD2d 780,781-782 [1999], lv denied 93 NY2d 967 [1999]). Once the truck was properly stopped,White's detection of the odor of marihuana and defendant's admission that he had smokedmarihuana provided probable cause to search the vehicle without a warrant (see People v Pierre, 8 AD3d 904,905 [2004], lv denied 3 NY3d 710 [2004]; People v Guido, 175 AD2d 364, 365[1991], lv denied 78 NY2d 1076 [1991]). Because White had probable cause to searchthe vehicle at that point, his statement that he would call the canine handler did not violatedefendant's constitutional rights (seePeople v Willette, 42 AD3d 674, 675-676 [2007]). Under these circumstances, Whitelawfully obtained defendant's statement that he was busted because there were pounds in thetruck, further supporting White's authority to search the vehicle (see id. at 676). Asdefendant's rights had not been violated, and White's request for consent was based upon afounded suspicion that criminality was afoot, defendant's consent to search the vehicle wasvalidly obtained and provided an additional basis for the search (see People v Hodge, 44NY2d 553, 559 [1978]; People vJohnson, 17 AD3d 932, 934 [2005], lv denied 5 NY3d 790 [2005]; People vWilliams, 300 AD2d 684, 684 [2002]).
Crew III, J.P., Peters, Spain and Lahtinen, JJ., concur. Ordered that the order is reversed, onthe law, motion denied and matter remitted to the County Court of Essex County for furtherproceedings not inconsistent with this Court's decision.