| People v Savage |
| 2009 NY Slip Op 01256 [59 AD3d 817] |
| February 19, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v Kevin Savage,Respondent. |
—[*1] Kindlon & Shanks, P.C., Albany (Terence L. Kindlon of counsel), for respondent.
Lahtinen, J. Appeal from an order of the County Court of Albany County (Herrick, J.),entered December 27, 2006, which granted defendant's motion to suppress evidence anddismissed the indictment.
On May 18, 2006, Eugene Duda, an Albany County Sheriff's Investigator, was conducting adrug interdiction at the City of Albany bus terminal with another plain clothed sheriff'sinvestigator and a city police detective wearing a police vest and jacket. Duda observeddefendant, carrying a backpack and plastic bag, exit a bus from New York City and lingerbriefly. Another male passenger, Stephen Mazier, exited the bus, spoke with defendant, and thepair proceeded into the terminal. As they walked toward the detective who was wearing the vestmarked "police," defendant stopped and Duda overheard him remark to Mazier "there's thepolice." Defendant and Mazier then walked out to the front of the terminal near the taxi area, andDuda observed defendant repeatedly turning around, watching the detective. Once outside,defendant walked up to a pole, put his bags down, walked three to four feet away and waited oneto two minutes, continuing to look back at the detective; Mazier walked over to a garbage canand stood. When the detective went to speak with a person in the terminal, defendant retrievedhis bags, he and Mazier "hurried[ly]" walked directly to a waiting three-row minivan taxi and sat[*2]in the third seat. Duda approached the van and spoke withdefendant through the open sliding passenger-side door. The other investigator spoke withMazier. Duda identified himself, explained that they were conducting drug interdiction andasked defendant for identification and a bus ticket. According to Duda,[FN*]defendant removed his wallet from his backpack, took out his license, returned the wallet to hisbackpack, and then voluntarily exited the van so that he did not have to talk over the passengerin the middle seat. Defendant gave Duda his Georgia driver's license and produced two bustickets for that date from New York City bearing names other than defendant's and Mazier'snames. Defendant confirmed his correct name and, when asked, defendant replied thatAmsterdam was his destination and pointed to Mazier as his travel companion. When Dudaasked if he had any luggage, defendant replied "no," which he repeated when asked if he wassure. Duda then summoned the detective to stand by defendant, and Duda removed the bags thatdefendant had been carrying from the third seat; defendant again responded that they were nothis bags. Defendant did not reply when Duda asked if he could open them and, upon opening thebackpack, found male clothing and a kilo of cocaine.
Defendant was arrested and later indicted for criminal possession of a controlled substancein the first and third degrees. Defendant moved to suppress the seized drugs and, after aMapp and Dunaway hearing at which Duda, Mazier and defendant testified,County Court granted defendant's motion to suppress and dismissed the indictment finding thatpolice did not have a sufficient basis for their initial approach and inquiry of defendant. On thePeople's appeal, we reverse.
Under well-established principles, police officers acting in their law enforcement capacitymay approach an individual and request basic information—such as identification anddestination—in a nonthreatening manner, provided they have an objective credible reasonto do so, not necessarily indicative of criminality (see People v Hollman, 79 NY2d 181,184-185 [1992]; People v De Bour, 40 NY2d 210, 223 [1976]; see also People vMcIntosh, 96 NY2d 521, 525 [2001]). Here, Duda's observations of defendant inside andoutside of the terminal, prior to his approach—commenting on police presence, keepingwatch on the detective who was wearing the vest marked "police," separating from his own bagsand from Mazier outside the terminal, and hurrying into a taxi once the detective wasdistracted—while not necessarily suggestive of criminality, provided a credible, objectivereason for Duda to approach defendant to ask general questions regarding identity, destination,his travel companion and to see his bus ticket (see People v Jennings, 39 AD3d 970, 972 [2007], lvdenied 9 NY3d 845 [2007]; Peoplev Hodges, 13 AD3d 979, 980 [2004]; People v Jordan, 9 AD3d 792, 794-795 [2004], lv denied 3NY3d 708 [2004]; cf. People v McIntosh, 96 NY2d at 527). The encounter was brief anddevoid of indicia of intimidation or harassment, and the type of questions asked fell within the"fairly broad authority" of law enforcement to approach individuals for the purpose of requestinginformation (see People v Hollman, 79 NY2d at 189-190; People v De Bour, 40NY2d at 213, 219). Notably, Duda's approach of defendant was not, under these circumstances,merely based upon "whim and [*3]caprice" or on the fact that thebus from which defendant exited had originated from a known "source city" but, rather, waspremised upon observations of certain activity that provided an articulable reason for the initialapproach under the first tier of De Bour (cf. People v McIntosh, 96 NY2d at525-527).
In this context, defendant's production of two bus tickets bearing false names and denial thathe had any bags or luggage, which was untrue, led to a founded suspicion that criminality wasafoot, permitting Duda to ask more pointed questions regarding the ownership of the bags in thethird seat of the van as part of a level-two common-law right of inquiry (see People vHollman, 79 NY2d at 184-185, 191-193; People v Jennings, 39 AD3d at 972;People v Hodges, 13 AD3d at 980; People v Jordan, 9 AD3d at 795). By denyingownership of the bags during a properly initiated police inquiry, defendant voluntarily waivedany privacy expectation that he had in the backpack and bag that he had carried into the van and,thus, he lacked standing to contest the admissibility of the cocaine seized from the abandonedbackpack (see People v Ramirez-Portoreal, 88 NY2d 99, 110 [1996]; People vJennings, 39 AD3d at 972). We are unpersuaded by the remaining contentions raised bydefendant on appeal.
Thus, defendant's motion to suppress the evidence should have been denied, and theindictment should not have been dismissed.
Mercure, J.P., Malone Jr. and Kavanagh, JJ., concur. Ordered that the order is reversed, onthe law, motion denied, and matter remitted to the County Court of Albany County for furtherproceedings not inconsistent with this Court's decision.
Footnote *: While defendant and Maziertestified that they were ordered out of the van, County Court credited Duda's testimony, findingit to be "candid and forthright." Given the court's ability to observe the witnesses' demeanor andtestimony, we discern no grounds upon which to disturb that determination (see People vQuick, 122 AD2d 296, 297-298 [1986], lv denied 69 NY2d 715 [1986]).