[*1]Decided on May 6, 2010

The People of the Stateof New York against Ali Abdul-Akim and Marcus Ayala, Defendants.

5518/09



For the People:

Cary S. Fischer, Esq.

Kings County District Attorney

350 Jay St

Brooklyn, NY 11201-2900

(718) 250-4846

For Defendant Marcus Ayala:

Kleon C. Andreadis, Esq.

111 Broadway

Suite 1502

New York, NY 10006-1978

(212) 227-8150

For Defendant Ali Abdul-Akim

Tarsha N. Ricks, Esq.

The Legal Aid Society

111 Livingston St, 9th Fl.

Brooklyn, NY 11201

Mark Dwyer, J.

Defendants are charged under Indictment 5518/09 with Criminal Possessionof a Weapon in the Second Degree [PL § 265.03 (3)] and in the Fourth Degree [PL §265.01 (1)]. Defendant Abdul-Akim is also charged with Unlawful Wearing of a [*2]Body Vest [PL § 270.20]. Both defendants seek to suppress afirearm recovered from an automobile during an inventory search and defendant Abdul-Akimseeks to suppress the vest. A Dunaway/Mapp hearing was held before me on March 5,2010, and March 8, 2010. Concluding arguments were heard on April 14, 2010. The courtreserved decision and all parties submitted memoranda of law. After having observed andevaluated the credibility of the witnesses, examined the exhibits presented, read the legalmemoranda submitted and reviewed the applicable law, the court resolves defendants' motions asfollows.

THE EVIDENCE AT THE HEARING

A. The Prosecution Case

The people called one witness, Police Officer Joseph Armenio. According to OfficerArmenio, on June 16, 2009, at the morning roll call at the 75th Precinct, he received informationthat there might be retaliation for a recent murder that had occurred in front of 330 HinsdaleAvenue. He was shown a photograph of Ali Abdul-Akim ["Akim"], the brother of the murdervictim.

Officer Armenio and his partner Officer Noeldechen then conducted foot patrol on New LotsAvenue. At approximately 1:50 p.m. the officers were reassigned to a post in front of 330Hinsdale Avenue. On the way to 330 Hinsdale, the officers walked down Sutter Avenue. OfficerArmenio observed a Mercedes slowly moving eastbound on Sutter Avenue. The driver washolding a cell phone with both hands. When asked on cross-examination whether he was sayingthere were no hands on the wheel, Officer Armenio replied "Correct." Officer Armenio wasapproximately 15 feet away and on the opposite side of the street.

Officer Armenio directed the driver to pull over. The Mercedes pulled over to the curb at thecorner of Sutter and Williams Avenues. The driver was defendant Ayala. There were two otherindividuals in the car, one in the front passenger seat and one in the back seat. The front seatpassenger was defendant Akim. The passenger in the back seat was Jeffrey Brown. OfficerArmenio walked to the driver's side of the car and asked defendant Ayala to produce a license,registration and insurance.

Officer Armenio testified that defendant Ayala handed him a Virginia "permit", along with avalid Virginia registration in Mr. Ayala's name and valid insurance. Officer Armenio did notrecall whether Mr. Ayala showed him a New York State learner's permit, although a New Yorklearner's permit issued to Mr. Ayala was later vouchered at the precinct.

Officer Armenio believed that Mr. Ayala's Virginia "permit" did not [*3]authorize him to drive in New York. Officer Armenio testified thathe determined at the scene that the document was not a driver's license and arrested defendantAyala for unlicensed driving, as well as for operating a motor vehicle while unlawfully using acell phone. He did not recall what, if any, result he obtained from a later computer check withthe Virginia Department of Motor Vehicles as to Mr. Ayala's driving status.

While Officer Armenio had been speaking to Mr. Ayala, he had observed that his partnerwas interacting with the front seat passenger, defendant Akim. He observed Mr. Akim exit thevehicle and approach a corner store. Officer Armenio recognized Mr. Akim as the individualwhose photograph he had viewed at the roll call before his tour. Officer Armenio could tell thatdefendant Akim was wearing a body vest. Shortly thereafter, two other officers arrived on foot,Police Officer Demonda and Police Officer Schwartz. Officer Schwartz stopped defendantAkim, searched his person, and confirmed that Mr. Akim was wearing a bulletproof vest underhis hooded sweatshirt. A pair of gloves was recovered from the pocket of the sweatshirt.

Defendant Akim was arrested for Unlawful Wearing of a Body Vest (see PL § 270.20).Jeffrey Brown was not arrested and was told that he was free to leave. During the stop, both Mr.Brown and Mr. Akim produced identification for the police. A valid New York State driver'slicense was vouchered for Mr. Brown.

Officer Armenio brought defendant Ayala's car back to theprecinct for inventory and safekeeping. There the officer conducted an inventory search with theassistance of Sergeant Downs and Police Officer Guzman in accordance with the procedure setforth in the Patrol Guide, with which he was familiar.^[FN1]Officer Armenio looked in the driver's side ofthe car and found nothing of importance. He then went around to the front passenger side andopened the glove box. Inside he discovered a loaded nine millimeter firearm and one loose ninemillimeter round. He called the Evidence Collection Unit to come and remove the firearm. Hesubsequently resumed the search. He observed assorted personal items on the back seat of thecar. Officer Armenio also opened the trunk and found three black duffle bags filled with clothingand sneakers. Everything found in the trunk and the back seat of the car during the inventorysearch was vouchered for safekeeping.

B. The Defense Case

In June, 2009, defendant Ayala was on active duty in the Coast Guard and [*4]was stationed in Virginia. On June 15, 2009, defendant Ayalaobtained a temporary driver's license from the Department of Motor Vehicles in Virginia. Hewas told that his photo ID license would follow in the mail within seven business days. He wasdirected by the Virginia Department of Motor Vehicles to carry other photo identification withthe temporary license as proof of his licensed driving status. On the same day, he purchased a2005 Mercedes X240.

Defendant Ayala left Virginia about midnight, arriving in Brooklyn about nine to ten hourslater, on June 16, 2009. In the afternoon of June 16, he was on his way to visit family when hesaw his friend, Ali Abdul-Akim, exiting the building at 330 Hinsdale Avenue, about two blocksaway from where Mr. Ayala's son and fianc�e live. He stopped his car and Mr. Akim got in thefront passenger side. Mr. Brown came out of the building about thirty seconds later and got inthe back seat of the car. Mr. Ayala drove the car to Sutter Avenue between Williams Avenue andHinsdale Avenue at the request of Mr. Akim and Mr. Brown. Mr. Brown went inside a store andMr. Akim went across the street and into a barber shop to talk to someone about his brother.

Mr. Ayala crossed the street as well, but did not enter the barber shop. While outside the car,he saw Officer Armenio, who greeted him, saying "How are you doing?" Mr. Ayala replied"How are you doing?" On the way back to his car Mr. Ayala called his fianc�e and had aconversation lasting forty-five seconds to one minute. He ended the call before his got back intohis car. Mr. Akim and Mr. Brown got back in the car just after defendant Ayala. Mr. Ayalastarted the ignition and, as he was about to pull away, Officer Armenio walked up to the driver'sside of the car. Officer Armenio asked for his license, registration and insurance.

Mr. Ayala gave Officer Armenio his temporary Virginia driver's license, his militaryidentification, his registration and his insurance. Officer Armenio told Mr. Ayala that his driver'slicense was not a valid license. Mr. Ayala then gave Officer Armenio his New York Statelearner's permit and told Officer Armenio that Mr. Brown was a licensed driver in the state ofNew York. He also told Officer Armenio that it was "okay" for Jeffrey Brown to drive thevehicle. Officer Armenio did not respond.

When a sergeant arrived shortly thereafter, defendant Ayala was handcuffed and placed inthe back of the police car. He asked the sergeant to check the validity of his Virginia license andthe sergeant replied that he had checked and could not find anything. Mr. Ayala received a photolicense in the mail seven business days after being issued the temporary license on June 15,2009.[*5]

Defendant Ayala offered a document into evidence,Defense Exhibit A. It is a Commonwealth of Virginia "Temporary Driving Permit" bearing anissue date of February 10, 2010. Defendant testified that he had lost his photo driver's license andwent to the Virginia Department of Motor Vehicles in February, 2010, for a replacement. He wasissued the temporary license and told to use it as a driver's license and to carry photo ID alongwith it. Mr. Ayala received a photo license in the mail in seven business days. Mr. Ayalatestified that the document he gave Officer Armenio on June 16, 2009, was identical toDefendant's Exhibit A, with the exception of the issue date, which was June 15, 2009.

The document letterhead on Defendant's Exhibit A reads "Virginia Department of MotorVehicles." There is a document number on the top right, and below the number, in the center, thedocuments states: "COMMONWEALTH OF VIRGINIA TEMPORARY DRIVING PERMIT."The first line contains an issue date of 2/5/2010 and an expiration date of 11/29/2016. The thirdline reads: "LICENSE TYPE: DRIVER'S LICENSE."

On June 21, 2009, Mr. Ayala went to the 75th Precinct to pick up items that were taken fromhim at the arrest, as well as the items that were on the back seat of the car and in the trunk. Aproperty clerk index sheet given to defense counsel as part of Open File Discovery indicated thatitems vouchered under the voucher number ending in 186 were returned to Mr. Ayala on June21. One of the items listed on the voucher was a New York State ID, No 931387778, Mr. Ayala'sNew York State learner's permit. The Virginia document was not listed on the voucher. Mr.Ayala testified that he never received the Virginia document back from the police.

Received into evidence as Defense Exhibit C was a certified document ^[FN2] from the Virginia Department ofMotor Vehicles entitled, "Transcript of Driver History Record as of 03/06/2010","REQUESTED FOR: AYALA, MARCUS JONATHAN." The document indicates "DRIVERLICENSE STATUS: LICENSED." The document shows that a license was issued on June 15,2009, reading "DATE ISSUED: 06/15/09", " EXPIRES: 11/29/2016," "LICENSE TYPE:DRIVERS LICENSE," "ISSUE TYPE: ORIGINAL."

FINDINGS OF FACT

At a Mapp/Dunaway hearing, the People have the initial burden of going [*6]forward to establish facts which demonstrate that the arrest of thedefendant was supported by probable cause and that the contested evidence was legally obtained.In effect, the People's proof must make out a prima facie case: the People's evidencemust, if fully credited, provide a legal basis for the police action (see People v. Wise, 46NY2d 321, 329 [1978]; People v. Calder, 44 AD2d 683 [2d Dep't, 1974]). The burdenthen shifts to the defendant to persuade the court, by a preponderance of the evidence, that theseizure was in reality unlawful (see People v. Berrios, 28 NY2d 361, 367 [1971];People v. Merola, 30 AD2d 963, 964 [2d Dep't, 1968]).

In this case the People's evidence and the defense evidence contain discrepancies on anumber of points. The court considers two of them to be critical, and concludes that they shouldbe resolved in this way:

1. There was no factual basis for an arrest of defendant Ayala for the unlicensedoperation of a motor vehicle.

Defendant Ayala testified that in June, 2009, he was stationed at a Coast Guard facility inVirginia. On June 15, 2009, just after purchasing a car in that state, he procured a Virginiadriver's license. The license was "temporary," in that it was to be replaced in a week by awallet-sized license bearing his photograph. It was a valid driver's license nonetheless, and it wasthis document that he handed to Officer Armenio when the officer spoke with him the next day,in Brooklyn.

The court credits that testimony because it was overwhelmingly corroborated. In the firstplace, the court takes notice of relevant provisions in the Virginia Code Annotated. Section46.2-344 provides for the issuance of temporary driver's permits, upon a determination that anapplicant is qualified to receive a license. A temporarypermit is valid until receipt of the driver'slicense in the mail but in no case shall be valid for more than 90 days from the date of issuance.Section 46.2-335 provides for issuance of learner's permits which are valid until the holder isissued a driver's license. Temporary driving permits are also issued to learner's permit applicantsand are valid until they receive their learner's permits in the mail.A document of either type willbe labeled a "Temporary Driving Permit" but will specify whether it is a license or a learner'spermit.^[FN3]

Defendant Ayala introduced into evidence a "Temporary Driving Permit" [*7]issued to him by the Commonwealth of Virginia on February 5,2010. He testified that, with the exception of this 2010 issue date, the document is identical tothe one he obtained in Virginia on June 15, 2009, and gave to Officer Armenio on June 16, 2009.Line 3 of the document plainly states "Type of License: Driver's License." Perhaps mostcritically, defendant Ayala introduced into evidence his "Transcript of Driver HistoryRecord,"obtained from the Virginia Department of Motor Vehicles. That transcript indicated thata driver's license was issued to defendant Ayala on June 15, 2009. The transcript provides noindication that Virginia ever issued defendant Ayala a learner's permit. There thus is everyreason to believe that what Officer Armenio saw on June 16, 2009, was a driver's license.

No other circumstance provides a reasonable basis for concluding that Officer Armenio wasinstead shown a "learner's permit." Of course, Officer Armenio's testimony was that on June 16,2009, defendant Ayala gave him a Virginia learner's permit. However, he conceded that, exceptfor the issue date, the 2010 temporary driver's license placed in evidence by the defense lookedlike the document that he had been shown.

In addition, the People and the defense attribute to each other the responsibility for thefailure to produce the 2009 document at the hearing, and ask that the court draw a negativeinference. However, the document, whether a driver's license or a learner's permit, was takenfrom defendant Ayala when he was arrested. The People suggest that the document was givenback to Mr. Ayala after the arrest, but he denies that it was among the papers returned to him bythe police. On this front, the evidence reveals that unspecified items were vouchered as "personalpapers" on June 16, 2009, and returned to defendant Ayala on June 21, 2009. Officer Armeniocould not state that the 2009 Virginia document was among these personal papers, and there isno other indicator that it was. The People simply offer speculation to that end.^[FN4] The court concludes that neitherside can fairly be charged with responsibility for the failure to produce the Virginia documentdisplayed to Officer Armenio on June 16, 2009.

Given the conclusion that defendant Ayala displayed a valid Virginia driver's license, thecourt need not resolve a separate factual dispute as to whether defendant Ayala also showedOfficer Armenio his valid New York learner's [*8]permit, whichwould itself have authorized defendant Ayala to operate the vehicle while Brown, a licenseddriver, was present in it.^[FN5]

2. There was no factual basis for an arrest of defendant Ayala for illegally usinga cell phone.

The court finds that the People have failed to meet their burden of going forward with proofthat defendant Ayala illegally used his cell phone, and in the alternative concludes that defendantAyala proved the contrary by a preponderance of the evidence. As to the People's showing,Officer Armenio testified that defendant Ayala was holding a cell phone in "both hands" whiledriving his Mercedes on June 16, 2009. Section 1225-c (2) of the Vehicle and Traffic Lawprohibits a driver's use of a cell phone while his car is in motion, but only if the cell phone isnear the driver's ear. There was no testimony that while the Mercedes was in motion defendantAyala was using his cell phone as a phone, with the instrument near his ear.^[FN6] The fact that he was holding thephone in both hands would suggest that he was using the cell phone to "text." But a driver's useof a phone to "text" was not made illegal until the enactment of VTL § 1225-d, effective onNovember 1, 2009, well after the arrests in this case.^[FN7]

The People's proof, even if fully credited, thus does not make out a VTL violation. Beyondthat, defendant Ayala himself offered testimony that he did not use his cell phone while driving.His testimony was that he parked his Mercedes, exited it, encountered Officer Armenio while onthe sidewalk, and thereafter made a call with his cell phone before re-entering his car. In theGrand Jury defendant Ayala said he concluded his call only after returning to the driver's seat ofhis parked car. But even that testimony does not suggest that defendant was speaking on his cellphone while his car was in motion. In short, the court concludes that defendant Ayala did not usehis cell phone in violation of VTL § 1225-c.^[FN8]

CONCLUSIONS OF LAW

To resolve the motion to suppress, the court must assess the legality of (1) the arrest ofdefendant Ayala; (2) the seizure and search of his automobile; and (3) the arrest of defendantAbdul-Akim that occasioned the recovery of his body vest.

1. The Arrest of DefendantAyala

Based on the testimony of Officer Armenio, the People argue that he made a traffic stop ofdefendant Ayala's Mercedes that was properly based on defendant Ayala's cell phone use. Apolice officer may lawfully stop a car where the officer has probable cause to believe to believethe driver violated the Vehicle and Traffic Law(see Pennsylvania v. Mimms, 434 US 106[1977]; People v. Robinson, 97 NY2d 341, 349 [2001]). The court, for the reasons notedabove, concludes that defendant Ayala's cell phone use provided no justification for a stop, inthat there was no evidence that defendant Ayala was using his cell phone illegally.

The People argue that an arrest was proper because Officer Armenio also had probable causeto believe that defendant Ayala was an unlicensed driver. But even if the court ignores that therewas no reason to ask defendant Ayala for his license, still the People's theory fails. Theunlicensed operation theory is based on the determination by Officer Armenio and his supervisorthat the Virginia license shown to the police was not a valid driver's license, but was a learner'spermit issued by the Virginia Department of Motor Vehicles. As already noted, however, thecourt has determined that this theory is incorrect.

But that does not end the inquiry. While the People's cell phone theory is simply defeated bythe evidence, the analysis must continue as to the theory that defendant Ayala was not a licenseddriver. Officer Armenio's testimony is that he and his supervisor looked at defendant's validVirginia license and mistook it for an invalid out-of-state learner's permit. Under controllingprecedent, should an officer make an illegal arrest based on a mistake of law and as a resultrecover evidence, the evidence must be suppressed. But generally, if the reason for an illegalarrest is a mistake about the facts supporting the officer's belief that probable cause exists, thearrest is not unlawful. "The constitutional validity of a [*9]stop isnot undermined simply because the officers who made the stop were mistaken about relevantfacts" (United States v. Jenkins, 452 F3d 207, 212 [2006]; see Saucier v. Katz,533 US 194, 206 [2001]); People v. Gonzalez, 88 NY2d 289, 295 [1996]; People v. Smith, 1 AD3d 965 [4thDep't 2003]). For example, an "officer's mistaken, but reasonable belief" that an object is anunlawful weapon "will not invalidate an otherwise lawful arrest" (People v. David, 223AD2d 551 [2d Dep't, 1996] [glove doctored to increase the power of a punch]) . And an officer'srecognition that an individual matches the description of a wanted criminal can justify intrusivepolice action, even if it later becomes clear that the individual in question is not the person whowas wanted (Colon v. City of New York, 60 NY2d 78, 82 [1983]).

This law/fact distinction is not always satisfactory. For example, the Fourth Departmentignored it while refusing to order suppression when the police made a good faith mistake aboutforeign law — in particular, a mistake as to whether the tinting of a car's windows wasillegal in Georgia (People v.Estrella, 48 AD3d 1283 [4th Dep't, 2008] aff'd 10 NY3d 945 [2008]).Moreover, it will not always be easy to classify a particular mistake as one of law or fact. In People v. Jean-Pierre (47 AD3d445 [1st Dep't, 2008]), officers saw that the defendant's New Jersey license plate bore asticker with the number "03", assumed that the car's registration was from 2003, and concludedthat the registration was out-of-date. In fact the sticker indicated that the car registration hadbeen renewed in March. The Court concluded that the officers had made a reasonable mistake offact, but the misunderstanding of New Jersey's registration display regulations could as readilybe viewed as an error of law. And in the David case noted above, the Court opined thatthe officer made a mistake of fact when he concluded that a doctored glove was an illegalweapon. But one could as easily say that the officer made a mistake about the reach of the law.

The error in this case likewise straddles the line. Officer Armenio's mistake could beclassified as one of law, and thus to require suppression: in thinking that defendant Ayala wasnot licensed, he did not recognize the legal significance of a Virginia "Temporary Driver'sPermit" which announced itself as a "driver's license." Alternatively, the mistake could beclassified as one of fact: defendant Ayala displayed a license, and Officer Armenio mistook it fora permit.

In any event, this court is of course bound by the test set out in People v. Gonzalez(88 NY2d at 295). It will therefore accept the law/fact dichotomy specified in that case andothers, and will assume, in the People's favor, that in examining defendant's license OfficerArmenio made a mistake of fact.[*10]

But that still does not end the inquiry. As noted, incases like David it has been held that intrusive action may be justified by a "reasonable"mistake of fact. For example, when a police officer concludes, based on a name or a description,that an individual is "wanted," his ensuing action may be valid even though the person arrested isnot in fact the wanted man (see e.g. People v. Roberts, 196 AD2d 665 [2d Dep't 1993]).What is demanded is not that agents of the government "always be correct but that they alwaysbe reasonable" (Illinois v. Rodriguez, 497 US 177, 185-86 [1990]; see also Colon vCity of New York, 60 NY2d 78, 82 [1983]["A party may act with probable cause eventhough mistaken . . . if the party acted reasonably under the circumstances in good faith."];People v. Gonzalez, 88 NY2d at 294-95). Courts must examine police conduct and attendantcircumstances under this reasonableness standard (People v. Cantor, 36 NY2d 106, 111[1975]; People v. Chestnut, 51 NY2d 14, 23 [1980]["Of course, the key principle of theFourth Amendment and the constitutional analogue of New York State is reasonableness"(Chestnut, fn 7 at 23).]; People v Carrasquillo, 54 NY2d 248, 254 [1981]). Thequestion, therefore, is whether the mistaken determination by Officer Armenio and hissupervisor that defendant Ayala was not a licensed driver was reasonable under thecircumstances.

Applying that principle, in People v. Jennings (54 NY2d 518 [1981]), the Court ofAppeals held that notwithstanding the reasonableness of the arresting officer's reliance upon amistaken communication that there was a valid parole warrant outstanding for the driver, thearrest and subsequent seizure of items from the defendant's person and the trunk of his car wasinvalid. The court noted that good faith cannot validate an arrest based upon the purportedauthority of a document which objectively furnished no justification for the intrusion. In a 1990Bronx County case, the court reached a similar result where an arrest was based upon inaccurateinformation in the police computer database that a car had been stolen. The court held thatalthough the police officer acted rightfully, the apprehension and search nonetheless must fall(People v. McElhaney, 146 Misc 2d 748 [Sup. Ct, Bx Co., 1990]).

This court concludes that the mistake that led Officer Armenio to arrest defendant Ayala wassimply not reasonable. First and foremost, the document proffered by defendant Ayala indicatedon its face that it was a "driver's license." Apparently both a Virginia temporary license and aVirginia temporary learner's permit are headed "Temporary Driving Permit." But the "type" ofauthorization granted — for example, driver's license or learner's permit — isplainly specified. Here defendant Ayala's document announced itself as a "license," and the court[*11]cannot ratify as "reasonable" police conduct based onobliviousness to the plain facial contents of a license. To be mistaken about the windshield"tinting" laws of Georgia, or to misunderstand the registration stickers of New Jersey, is onething. To ignore documentation overtly bearing the term "driver's license" is another matterentirely.

Beyond that, defendant Ayala indisputably produced Virginia registration and insurancepapers for his vehicle, a circumstance clearly at odds with any thought that he had only alearner's permit. In addition, as indicated by the 2010 Virginia documents in evidence, thedocument which defendant Ayala produced on June 16, 2009, bore a number which, whenchecked, should have readily revealed that defendant Ayala was licensed. A check on thatnumber was either done and the results ignored, as indicated by defendant Ayala's testimony, ornot done in time to avoid an inappropriate arrest.

Finally, the People's evidence showed that the police had been alerted at roll call to thepossibility that defendant Akim might seek retribution for the murder of his brother. Whilehardly conclusive of any other fact, this circumstance provided a motive for the police speedilyto jump to the unreasonable conclusion that defendant Ayala, who was chauffeuring Mr. Akim,should be detained. The police must be alert to possible violence and must safeguard thecommunity from criminal activity. But crime prevention may not be effected at the expense ofdisregarding the constitutional requirement that citizens be free of unreasonable searches andseizures. While we will never know whether the police action in this case promoted communitysafety, the method utilized here - a custodial arrest of defendant Ayala based on the indefensibledetermination that his Virginia license was a learner's permit - cannot be said to be reasonable.

In short, in view of the "driver's license"notation on the Virginia document, it wasunreasonable for the police to conclude that defendant Ayala was not a licensed driver. All theevidence corroborated the conclusion that the document was a license, not a learner's permit.Moreover, the resources available to the police to determine the status of a driver should haveenabled the police to confirm the validity of defendant Ayala's driver's license at the scene,obviating any need to transport defendant and his vehicle to the station house. The court earlierconcluded that defendant Ayala was not properly arrested for the unlawful use of a cell phone.The arrest was simply illegal, and it follows that the seizure of defendant Ayala's car and therecovery of the firearm from the glove box were actions taken in violation of defendant Ayala'sstate and federal constitutional rights.[*12]

2. The seizure of the Mercedes based on atraffic infraction.

As noted above, the record does not permit the court to conclude that defendant Ayala couldbe arrested for unlawfully using a cell phone while driving. But if that conclusion is wrong, evena legal arrest for the cell phone offense would not have made the recovery of the firearm fromthe glove box of defendant Ayala's Mercedes proper.

Unlawfully using a cell phone while driving is a traffic infraction (VTL § 1800 [a]).One who is guilty of this infraction is punishable by a fine of not more than one hundred dollars(VTL § 1225-c [4]). A jail term is not authorized. The Vehicle and Traffic Law and theCriminal Procedure Law provide that a warrantless arrest may be made for thisoffense.^[FN9]Unsurprisingly, however, an officer may issue an appearance ticket in lieu of making awarrantless arrest (CPL 150.20 [1]).

Thus, had Officer Armenio seen defendant Ayala unlawfully using a cell phone whiledriving, under New York's governing statutes he could either have issued a summons, or madean arrest. But that does not end the inquiry. As noted above, the reasonableness of police conductis the key consideration in analyzing that conduct under the Fourth Amendment and its NewYork counterpart, Article I § 12 of the state constitution. And in this case an arrest ofdefendant Ayala for unlawful cell phone use, with the ensuing seizure of his automobile and theinventory of its contents, would simply not have been reasonable.

The New York Court of Appeals has on several occasions addressed the question ofcustodial arrests for minor traffic infractions in the context of examining the legality of searchesincident to such arrests, and has expressed a preference for the issuance of an appearance ticketin lieu of arrest. In People v. Marsh (20 NY2d 98, 100-101 [1967]), the Court held thatthe police are not authorized to conduct a search incident to an arrest for a traffic infractionunless the officer has reason to fear an assault or has probable cause for believing that the drivercommitted a crime. In the Court's view, the Legislature did not intend traffic offenders to beregarded as and treated like criminals. Thus, the Vehicle and Traffic Law expressly provides thata traffic infraction is not a crime, and our statutes authorize issuance of a summons in lieu ofarrest.[*13]

In People v. Troiano (35 NY2d 476, 478[1974]), the police placed the defendant under arrest pursuant to a warrant issued six days earlieron a misdemeanor charge of driving with a suspended license. The Court upheld a friskfollowing the arrest, noting that "[S]o long as an arrest is lawful, the consequent exposure tosearch is inevitable" (Troiano at 478). The Court again acknowledged, however, thatthere might be an area of traffic violation "arrest" where a full-blown search would not bejustified because the alternative of issuing a summons was available or because the arrest was asuspect pretext (id.).

The Court of Appeals decided in People v. Howell (49 NY2d 778 [1980]) that thecircumstances fell within the traffic infraction exception articulated in Troiano (seeHowell at 780). The defendant was pulled over for erratic driving, and the trial courtconcluded that a frisk of the defendant was inevitable and proper because reckless driving was amisdemeanor. The Court of Appeals held that this conclusion was error: "An arrest in a situationsuch as was presented in this case was neither called for nor the preferred procedure (citationomitted)" (People v. Howell at 779; see also People v. Adams, 32 NY2d 451,454-55 [1973]).

Lower courts have continued to look carefully at the circumstances underlying custodialarrests for traffic infractions, holding that the proper law enforcement procedure is for the officerto issue a summons rather than place the person under arrest, unless that procedure cannot befollowed. "An ever-growing body of persuasive commentary . . ." suggests ". . . that policeofficers do not, absent some aggravating circumstance, have an unfettered discretion to make afull custodial arrest for a traffic offense and must instead merely issue the traffic summons andallow the motorist to leave" (see Santiago v. City of New York, 2002 NY Slip Op.40036[U], *18 [Sup. Ct, Bx Co., 2002]). The ready examples of aggravating circumstancesinclude a driver's lack of identification, which would make it impossible for the police to issue acitation, and his lack of a valid license, which would make it impossible for him legally to driveaway (see e.g. People v. Cooper, 38AD3d 678, 680 [2d Dep't, 2007][driver refused to identify himself]; People v.Reynolds, 21 Misc 3d 1110(A), *4 [Sup. Ct, Bx Co., 2008][license suspended]; People v.Brito, 4 Misc 3d 1004 (A)*2 [Sup. Ct, NY Co., 2004] [defendant refused to identifyherself]).

Given that backdrop, the court concludes that the police conduct here constituted anunreasonable intrusion on privacy, even on the assumption that defendant Ayala committed thecell phone infraction. There was no need to arrest defendant Ayala. Issuance of a citation waseminently practicable, for defendant [*14]Ayala had numerousitems of identification - - and, of course, a valid license. Beyond that, the back seat passenger,Brown, was licensed, and could have driven the car had defendant Ayala not been able to.Moreover, the choice to arrest defendant Ayala was accompanied by a decision to seize hisautomobile, and ultimately to inventory all its contents. Even though the arrest was authorized bystatute, the disproportionate nature of the police response to a supposed cell phone violation isapparent. That police response was unreasonable.

A custodial arrest may not be employed as a pretext to conduct a search. True, an objectivelyreasonable traffic stop is not invalidated because the primary motivation of the police was toinvestigate some other matter (see Whren v United States, 517 US 806 [1996];People v. Robinson, 97 NY2d 341[2001]. However, the scope, duration and intensity ofa seizure, and any subsequent search, "remain subject to the strictures of article I, §12, andjudicial review" (People v Troiano, 35 NY2d 476 [1974]; People v Marsh, 20NY2d 98 [1967]). A custodial arrest and impoundment for using the cell phone was not calledfor under thecircumstances in this case. When the Legislature enacted cell phone legislation and authorized afine of not more than $150 for an infraction, it could not have thought it was giving policeofficers the right arbitrarily to arrest drivers for such a violation, to seize their vehicles, and toconduct intrusive searches (People v. Marsh, 20 NY2d 98, 101 [1967]).

The United States Supreme Court visited the area in Atwater v. City of Lago Vista(532 US 318 [2001]). There the petitioner drove without a seatbelt, a misdemeanor under Texaslaw that was punishable only by a fine. The police arrested her even though the law permitted acitation in lieu of arrest, and the petitioner later sued for what she termed a violation of herFourth Amendment rights. The Supreme Court held that the Fourth Amendment authorizes thepolice to arrest for offenses punishable only by fines, and that the suit was properly dismissed.

For a number of reasons, this court does not find Atwater to be controlling or evenpersuasive authority. First, the Supreme Court was addressing a civil cause of action, in a casewith procedural rules different from those which govern here. Second, in Atwater theCourt addressed only the legality of the arrest itself, and not of an arrest coupled with anintrusive and unnecessary search; this court is not holding that a simple arrest for illegal cellphone use violates a constitutional provision. Perhaps most importantly, New York State courtsare bound to exercise independent judgment in determining the scope and effect of the rightsguaranteed by the New York State Constitution. Decisions of the Supreme Court [*15]limiting similar guarantees in the Constitution of the United Statesdo not bind New York courts (see People v. Alvarez, 70 NY2d 375, 378 [1987]).

In short, the court concludes that even if Officer Armenio had probable cause to believe thatdefendant Ayala drove his car while unlawfully using a cell phone, that was not a valid predicatefor the resultant arrest, search of the car, and recovery of the firearm.^[FN10]

Defendant Ayala of course has standing to contest the seizure of and search of his car. ThePeople have indicated that they are relying on the statutory presumption set forth in PL §265.15 (3) to establish Mr. Akim's possession of the firearm. Where the People are relying on thestatutory presumption to establish possession of contraband by all the occupants of anautomobile, a passenger in the car has standing to contest the legality of the search of the car (seePeople v. Millan, 69 NY2d 514 [1987]; People v. Wesley, 73 NY2d 351 [1989]).Defendant Akim therefore has a right to challenge the legality of the impoundment of the vehicleand the search pursuant to which the firearm was recovered (see People v. Delvas, 164AD2d 940 [2d Dep't, 1990]).

3. The Seizure of the Body Vest from Defendant Akim

When the Mercedes was pulled over defendant Akim was sitting in the front passenger seat.While Officer Armenio was on the driver's side of the car talking to defendant Ayala, his partnerOfficer Noeldechen was on the passenger side talking to defendant Akim. Officer Armenioobserved defendant Akim exit the car and walk towards a store. Officer Schwartz and OfficerDemonda approached defendant Akim. Officer Schwartz stopped defendant Akim, searched hisperson, and discovered he was wearing a bulletproof vest under his hooded sweatshirt.Defendant Akim was arrested for Unlawful Wearing of a Body Vest, a Class E felony, inviolation of Penal Law § 270.20:

1. A person is guilty of the unlawful wearing of a body vest when acting eitheralone or with one or more other persons he commits any violent felony offense defined in section70.02 while possessing a firearm, rifle or shotgun and in the course of and in furtherance of suchcrime he [*16]wears a body vest.

Subsectiontwo of PL § 270.20 sets forth the definition and specifications for the term "body vest".

Defendant Akim argues that wearing a body vest is not a crime unless the person wearing itcommits a violent felony offense while possessing a firearm, and wears the body vest infurtherance of such crime. The court agrees; the officers who arrested defendant Akim actedillegally because they were mistaken about the law. "A mistake of fact, but not a mistake of law,may be used to justify a search and seizure" (People v. Smith, 1 AD3d 965 [4th Dep't, 2003]; see People v.Gonzalez, 88 NY2d 289, 295 [1996]). "Where the officer's belief is based on an erroneousinterpretation of law, the stop is illegal at the outset and any further actions by the police as adirect result of the stop are illegal" (Matter of Byer v. Jackson, 241 AD2d 943, 944-945[1997]; see People v. Rose, 67AD3d 1447 [4th Dep't, 2009]).

CONCLUSION

Having found that the determination by the police that probable cause existed under thecircumstances herein was not reasonable, the Court concludes that the arrests of the defendantsand the inventory search of defendant Ayala's Mercedes were not legal. Accordingly, the motionto suppress the firearm recovered pursuant to the inventory search is granted as to bothdefendants. Defendant Akim's motion to suppress the body vest is granted as well.

E N T E R:

_________________________________________

Mark Dwyer

Justice of the Supreme Court

DATED: May 6, 2010

Footnote 1:A copy of the relevant PatrolGuide provisions was entered into evidence as People's Exhibit 1.

Footnote 2: At the hearing the documentwas marked only for identification pending any issues as to admissibility that mightsubsequently be raised. No such issues were raised in the parties' papers, and the documentaccordingly is admitted in evidence.

Footnote 3:This is based on an examinationof the Virginia Department of Motor Vehicles website. Seehttp://www.dmv.state.va.us/webdoc/general/news/temp_permits.asp

Footnote 4: The New York State learner'spermit taken from defendant Ayala was specifically identified on a voucher. No reason appearswhy that document should have been specifically listed, if the Virginia document was includedonly among miscellaneous "personal papers."

Footnote 5:Contrary to the People'sargument, VTL § 501-b (1) (a) does not require that a licensed driver be in the front seatunless the learner is under 18 years old [see VTL § 501 (2) (vi), (vii)].

Footnote 6: Indeed, at one point the officerseemed to agree that when he saw defendant with the cell phone the Mercedes was stopped at ared light, rather than in motion.

Footnote 7: The defense has argued inpost-hearing submissions that Officer Armenio and Officer Noeldechen testified in the grandjury that defendant Ayala was indeed "texting." However, no evidence of this grand jurytestimony was presented during the hearing and the court will therefore not consider thisargument.

Footnote 8: The hearing evidence madeplain that defendant Ayala was arrested for unlicensed driving and for the illegal use of a cellphone. The People have nonetheless argued in their post-hearing submissions that an arrest wasalso justified under VTL § 1212 , Reckless Driving, and VTL § 1226, Control ofSteering Mechanism. The People's belated theory is that these provisions were violated becausedefendant held his cell phone in both hands while his vehicle was in motion, and thus must havebeen driving with both hands off the steering wheel. Even overlooking that this theory is bothtechnical and late, the court concludes, essentially for the reasons noted in text, that neither thePeople's evidence nor the evidence as a whole is sufficiently clear to support a conclusion thateither traffic violation was committed.

Footnote 9: Vehicle and Traffic Law §155 reads: "For purposes of arrest without a warrant, pursuant to article one hundred forty of thecriminal procedure law, a traffic infraction shall be deemed an offense." Criminal Procedure LawSection 140.10 (1) (a) provides: "a police officer may arrest a person for: (a) any offense whenhe has reasonable cause to believe that such a person has committed such offense in his presence...."

Footnote 10: Defendants Ayala and Akimargue that the People have not shown that the search of the car was done pursuant to properinventory procedures. Given the disposition of the motion, it is unnecessary to speak of thisargument at any length. The court will note only that it disagrees with defendants' argument. ThePeople introduced ample proof of the authorized inventory procedure. Both the manner of thesearch, and the procedure through which a record of the seized property was made, fully complywith the governing authority (see South Dakota v. Operman, 428 US 364 [1976];People v. Johnson, 1 NY3d 252, 256 [2003]).