| People v Edwards |
| 2009 NY Slip Op 06356 [65 AD3d 829] |
| August 28, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ThomasEdwards, Jr., Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered April 3,2008. The judgment convicted defendant, upon his plea of guilty, of criminal possession of acontrolled substance in the first degree and assault in the third degree.
It is hereby ordered that the judgment so appealed from is reversed on the law, the plea isvacated, that part of the motion seeking to suppress tangible property is granted, the first throughfourth counts of the indictment are dismissed, and the matter is remitted to Erie County Court forfurther proceedings on the fifth count of the indictment.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, ofcriminal possession of a controlled substance in the first degree (Penal Law § 220.21 [1])and assault in the third degree (§ 120.00 [2]), defendant contends that his extendeddetention at a roadside traffic stop by Sheriff's Deputies (Deputies) was unconstitutional and thatCounty Court therefore erred in refusing to suppress the evidence seized as a result thereof.Although defendant does not challenge the initial stop of the vehicle that he was operating, hecontends that he was then detained for a period of time and purpose that exceededconstitutionally permissible limits. We agree with defendant that the People did not establish atthe suppression hearing that the Deputies had reasonable suspicion to extend the traffic stop afterits initial justification was exhausted and thus that the court erred in denying that part of hisomnibus motion seeking suppression.
At the suppression hearing, the Deputies testified that, after completing the investigation ofdefendant's vehicle for excessively tinted windows in violation of Vehicle and Traffic Law§ 375 (12-a) (b) (2), they had the information necessary for issuing a traffic ticket basedon that violation. The Deputies admitted that, at that point in time, they had not observed anyindicia of criminality during the course of the encounter. Nevertheless, the Deputies testified thatthey chose not to issue the traffic ticket and instead detained defendant because they "wanted tofurther investigate" in view of defendant's nervous appearance, based upon a "gut" feeling andtheir experience as narcotics officers. During the course of the further detention andinvestigation, one of the Deputies allegedly observed crumbs of crack cocaine on defendant'sright palm. The Deputies directed defendant to exit his vehicle and demanded that he surrenderthe keys to the vehicle. The Deputies did not advise defendant that he was under arrest, but they[*2]continued to demand that he surrender his keys and orderedhim to step to the rear of the vehicle. When defendant refused to surrender his keys, the Deputiesattempted to brace defendant up against his vehicle, and a struggle ensued. The Deputies anddefendant fell to the ground, and one of the Deputies was injured. The Deputies admitted thatdefendant "never once tried to strike [them]." Defendant was arrested, and when his vehicle wasimpounded and an inventory search of the vehicle was conducted, 8.892 ounces of cocaine werefound in the vehicle. Following the denial of that part of his omnibus motion seekingsuppression, defendant entered his plea of guilty but did not waive his right to appeal. Thus, hischallenge to the court's suppression ruling is properly before us (cf. People v Kemp, 94NY2d 831, 833 [1999]).
"A traffic stop constitutes a limited seizure of the person of each occupant" (People vBanks, 85 NY2d 558, 562 [1995], cert denied 516 US 868 [1995]). Furthermore,such a seizure and detention must be reasonably related in scope, including length, to thecircumstances that justified the seizure and detention in the first instance (see United States vSharpe, 470 US 675, 682 [1985]). In other words, "[t]he scope of the detention must becarefully tailored to its underlying justification" (Florida v Royer, 460 US 491, 500[1983]). Here, although the initial seizure was justified, we conclude that the length andcircumstances of the ensuing detention were not (see Banks, 85 NY2d at 562). Indeed,according to the testimony of the Deputies at the suppression hearing, they delayed theirissuance of the traffic ticket to defendant for the specific purpose of further investigatingdefendant and his vehicle in the hope that the initial traffic stop would escalate into a druginvestigation. The alleged observation of crumbs of crack cocaine on defendant's right palm byone of the Deputies occurred during the course of the extended detention, and the inventorysearch of defendant's vehicle that led to the discovery of the narcotics "was the product of aninseparable illegal detention of defendant" (id. at 561). The Deputies' observation thatdefendant appeared to be nervous did not, by itself, provide the requisite reasonable suspicion ofcriminality to justify the extension of the initially valid traffic stop (see People v Milaski,62 NY2d 147, 156 [1984]).
Because the Deputies' detention of defendant was unlawful by the time of the alleged assault,they were not engaged in the performance of a lawful duty to support the second count of theindictment, charging defendant with assault in the second degree (Penal Law § 120.05[3]). That count therefore should have been dismissed (see People v Voliton, 190 AD2d764, 767 [1993], affd 83 NY2d 192 [1994]). In addition, the fourth count of theindictment, charging defendant with resisting arrest, should have been dismissed because it iswell settled that an essential element of the crime of resisting arrest is that the arrest be"authorized" (Penal Law § 205.30; see Matter of Iyona G., 60 AD3d 1403 [2009]). Where, as here, adefendant's arrest is not authorized, the defendant cannot be guilty of resisting arrest (seePeople v Peacock, 68 NY2d 675 [1986]).
Similarly, a defendant may not be convicted of obstructing governmental administration inthe second degree (Penal Law § 195.05) unless it is established that the public servants inquestion, here, the Deputies, "were engaged in authorized conduct" (People v Lupinacci,191 AD2d 589 [1993]), and that was not the case herein. Thus, the third count of the indictment,charging defendant with obstructing governmental administration in the second degree, alsoshould have been dismissed.
All concur except Scudder, P.J., and Peradotto, J., who dissent and vote to affirm in thefollowing memorandum.
Scudder, P.J., and Peradotto, J. (dissenting). We respectfully dissent and would affirmbecause we do not agree with the majority's conclusion that the cocaine crumbs were observedby the police after the completion of the vehicle and traffic investigation (see People vBanks, 85 NY2d 558, 562-563 [1995], cert denied 516 US 868 [1995]).
The Sheriff's Deputies testified at the suppression hearing that they stopped defendant's[*3]vehicle because it appeared that the front driver andpassenger windows were more darkly tinted than allowed by statute (Vehicle and Traffic Law§ 375 [12-a] [b]). After pulling defendant's vehicle over, one Deputy (hereafter, firstDeputy) approached the driver's window of the vehicle, while the second of the two Deputies(hereafter, second Deputy) approached the front passenger window. Defendant rolled down bothwindows, and the first Deputy asked to see defendant's license and registration. The first Deputynoticed that defendant's right hand was trembling and shaking when defendant handed thosedocuments to him, while the second Deputy noticed that defendant's legs were shaking, thatdefendant's voice was cracking, and that defendant's breathing was heavy. The first Deputyexplained to defendant why his vehicle had been stopped, and that he was going to his policevehicle to retrieve a tint meter to measure the light transmittance of defendant's windows. Thefirst Deputy then noticed that defendant's chest was rising and falling at a rapid pace, and thatdefendant's right leg was bouncing at a constant rate. Both Deputies testified that defendant'snervousness was excessive, far greater than that usually exhibited by individuals who arestopped for a vehicle and traffic violation. The first Deputy further testified that, in hisexperience, nervousness can reach a point where it is alarming, "and the end result is the personhad a gun or drugs or something. So you have to be conscious of that." That Deputy retrieved thetint meter from his vehicle and measured the tint of the front windows, both of which had avisible light transmittance far below that required by law. He then walked back to the policevehicle to put the tint meter away, conferring with his fellow Deputy en route, and they bothagreed that defendant was excessively nervous for a mere vehicle and traffic investigation.Consequently, after replacing the tint meter in the police vehicle, the first Deputy approacheddefendant's vehicle for a third time, to conduct further questioning. Before he had theopportunity to do so, he observed that defendant had cocaine crumbs, known as "shake," on hislower right palm. He then directed defendant to exit his vehicle, explaining that there were someissues concerning his license that the Deputies wanted to address. Defendant ultimately exitedthe vehicle, but when he was asked for his car keys, a standard request employed to prevent keysfrom being used as a weapon, defendant refused to let go of the keys. A struggle ensued, the firstDeputy was injured, and defendant was arrested.
Based on these facts, the majority concludes that, because the Deputies had all of theinformation they needed to issue a traffic ticket at the conclusion of the second approach, thevehicle and traffic investigation was completed as of that point in time. The majority thusconcludes that the Deputies' subsequent conduct constituted an illegal detention in violation ofBanks. We cannot agree.
In Banks, the Court of Appeals held that, where the police stop a defendant forviolating a provision of the Vehicle and Traffic Law, the defendant may be detained with respectto that traffic violation only for as long as is necessary to complete an investigation into thetraffic charge (85 NY2d at 562-563). However, neither Banks nor the FourthAmendment provide that a traffic investigation is completed immediately after the police firstobtain probable cause to issue a traffic summons (see generally Hoffa v United States,385 US 293, 310 [1966], reh denied 386 US 940 [1967]; People v Middleton, 54NY2d 474, 481 [1981]). Notably, in Banks, it was the continued detention of thedefendant after the Trooper had already concluded the traffic investigation and decided to issue atraffic ticket that was found unconstitutional. His investigation prior to that point in time wasneither challenged nor found objectionable even though the Trooper, who had personallyobserved the defendant not wearing a seat belt, would have been warranted in issuing a trafficticket based on the defendant's failure to wear a seat belt as soon as he stopped the defendant'svehicle.
The touchstone of Fourth Amendment analysis has always been the reasonableness of thesearch or seizure in issue (see Illinois v Rodriguez, 497 US 177, 185-186 [1990];Pennsylvania v Mimms, 434 US 106, 108-109 [1977]; People v Hall, 10 NY3d 303, 308[2008], cert denied 555 US —, 129 S Ct 159 [2008]; People v Batista, 88NY2d 650, 653 [1996]). The holding of Banks was also based on [*4]principles of reasonableness. Thus, in Banks the Court heldthat, for a traffic stop to pass constitutional muster, "the officer's [or Deputies'] action in stoppingthe vehicle must be justified at its inception and the seizure must be reasonably related in scope,including its length, to the circumstances which justified the detention in the first instance" (85NY2d at 562). It clearly was reasonable for the Deputies in this case to obtain an objectivemeasurement of the tint level of the windows before issuing a traffic ticket, instead of relyingonly on their visual observations. It was also reasonable for the first Deputy to return the tintmeter to the police vehicle before issuing a traffic ticket, and to approach defendant's vehicleagain after putting the tint meter away. Even if that Deputy had all of the information he neededto issue a traffic ticket prior to the third approach, he still could not complete the investigationwithout approaching defendant's vehicle one last time, either to issue a ticket or to allowdefendant to leave the scene. That Deputy observed the cocaine crumbs as soon as he reacheddefendant's vehicle on the third approach, before he had a chance to say or do anything. Thus, hisobservations were made during the course of the vehicle and traffic investigation, not after thatinvestigation was completed. Of course, as soon as the first Deputy observed the cocaine crumbson defendant's palm, he had probable cause to arrest defendant for possession of a controlledsubstance (see generally People v Mizell, 72 NY2d 651, 656 [1988]; People vRives, 237 AD2d 312, 313 [1997], lv denied 90 NY2d 1013 [1997]).
The majority concludes that defendant was detained after the traffic investigation wascompleted because the Deputies never intended to issue a traffic ticket when they approached thevehicle on the third occasion, but instead intended to question defendant further based on hisexcessive nervousness. The validity of police conduct is not measured by the subjectiveintentions of the law enforcement officers, however (see Brigham City v Stuart, 547 US398 [2006]; People v Cooper, 38AD3d 678 [2007]; People v Bandera, 204 AD2d 340 [1994], lv denied 83NY2d 1002 [1994]). Rather, it is measured by the objective circumstances, determined pursuantto a reasonable person standard (see People v Hicks, 68 NY2d 234, 240 [1986]; seealso People v Ellerbe, 265 AD2d 569, 570 [1999], lv denied 94 NY2d 903 [2000];People v Jones, 172 AD2d 265, 266 [1991], lv denied 78 NY2d 923 [1991];People v Hunt, 155 AD2d 957, 958 [1989], lv denied 75 NY2d 814 [1990]). Thefirst Deputy never relayed his intentions to defendant in this case. Thus, from a reasonableperson's viewpoint, the only actions of the first Deputy were to approach defendant's vehicle thefirst time to advise defendant why he had been stopped and to inform defendant that he intendedto measure defendant's windows with a tint meter; to approach defendant's vehicle a second timeto measure the windows using the tint meter; and to approach defendant's vehicle a third timeafter putting away the tint meter to complete the traffic investigation by either issuing a trafficticket or allowing defendant to leave. Such conduct does not constitute anything more than aroutine investigation pursuant to Vehicle and Traffic Law § 375 (12-a) (b).
Nor does the frank testimony of the Deputies that they used traffic violations as a tool forinvestigating possible narcotics violations render the third approach of defendant's vehicleunconstitutional. Even if the underlying motive of the Deputies throughout this vehicle andtraffic investigation was to uncover the possibility that defendant possessed drugs, thatmotivation does not render their conduct unconstitutional (see People v Johnson, 1 NY3d 252, 257 [2003]; People vRobinson, 97 NY2d 341, 349 [2001]). The fact of the matter is that defendant was lawfullystopped for a suspected violation of Vehicle and Traffic Law § 375 (12-a) (b), and that theDeputies' subsequent conduct was completely in accord with an investigation pursuant to thatstatute. The subjective intentions of the Deputies during the course of the ensuing trafficinvestigation are therefore irrelevant (see Robinson, 97 NY2d at 349).
Finally, even if the subjective intent of the first Deputy to question defendant further uponhis third approach of the vehicle was somehow relevant to the determination of whetherdefendant's arrest was lawful, we conclude that there was nothing improper about such [*5]additional questioning. Both Deputies testified that they wanted toquestion defendant further because he was excessively nervous, entirely out of proportion withrespect to a vehicle and traffic violation. That excessive nervousness constituted an articulablereason for asking defendant further questions independent from the Vehicle and Traffic Lawcharge, if for no other reason than to ensure defendant's well-being (see People v Faines,297 AD2d 590 [2002], lv denied 99 NY2d 558 [2002]). Because that articulable reasonwas lawfully obtained during the course of the vehicle and traffic investigation, the Deputieswere well within their rights to question defendant commensurate with an articulable reasoninquiry as set forth in People v De Bour (40 NY2d 210 [1976]; see Faines, 297AD2d at 593-594; see generally People v Noonan, 220 AD2d 811, 812-813 [1995]).
We respectfully disagree with the majority to the extent that the majority asserts that thecontinued investigation of an individual following the completion of a traffic investigation mustin every case be supported by a reasonable suspicion of criminality. As with any police-citizenencounter, the scope of police conduct following the completion of a traffic stop is determinedby weighing the degree of the police intrusion against the known level of criminality (seegenerally De Bour, 40 NY2d 210 [1976]; People v Nelson, 266 AD2d 730, 731-732[1999], lv denied 94 NY2d 865 [1999]). Thus, if the police conduct following thecompletion of the traffic investigation constitutes a detention, the police must have a reasonablesuspicion of criminality independent from the traffic violation in order to render that detentionlawful (see Banks, 85 NY2d at 562; People v May, 52 AD3d 147, 151-152 [2008]). However, if thepolice conduct following the completion of the traffic violation constitutes something less than adetention, reasonable suspicion is not required. If the police conduct is commensurate with acommon-law inquiry pursuant to the second level of De Bour, the conduct is lawfulprovided that the police have a founded suspicion of criminality (see People v Kelly, 37 AD3d 866,867 [2007], lv denied 8 NY3d 986 [2007]; People v Leiva, 33 AD3d 1021, 1023 [2006]). If the police conductis commensurate with an approach to inquire pursuant to the first level of De Bour, theconduct is lawful so long as the police have an articulable reason for making such inquiry(see Faines, 297 AD2d at 593-594). In this case, the police conduct that in the majority'sview was objectionable consisted of the approach by the first Deputy on the third occasion to askdefendant further questions. Even assuming, arguendo, that such conduct occurred after thecompletion of the traffic investigation, we conclude that it at most constituted only an approachto inquire pursuant to the first level of De Bour, for which only an articulable reason forthe inquiry was necessary. Defendant's excessive nervousness constituted an articulable reasonjustifying that inquiry (see id.).
We therefore conclude that the Deputies' conduct prior to discovering the cocaine crumbs ondefendant's palm was neither unconstitutional nor in violation of Banks. Once the firstDeputy observed the cocaine crumbs, the Deputies had probable cause to arrest defendant basedon his possession of narcotics, justifying their subsequent conduct in asking defendant to exit thevehicle and in forcibly placing him under arrest. Present—Scudder, P.J., Fahey, Peradotto,Carni and Green, JJ.