| People v Perez |
| 2011 NY Slip Op 07659 [88 AD3d 1016] |
| October 25, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Cristobal Perez, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Sandra Courbois of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.),rendered August 20, 2009, convicting him of criminal possession of a controlled substance in thefirst degree, false personation, operating a motor vehicle while using a mobile telephone underVehicle and Traffic Law § 1225-c (2) (a), operating a motor vehicle without using a safetybelt under Vehicle and Traffic Law § 1229-c (3), and failing to stay in a designated laneunder Vehicle and Traffic Law § 1128 (a), upon his plea of guilty, and imposing sentence.The appeal brings up for review the denial, after a hearing (Hudson, J.), of those branches of thedefendant's omnibus motion which were to suppress physical evidence and his statements to lawenforcement officials.
Ordered that the judgment is reversed, on the law, the plea is vacated, that branch of thedefendant's omnibus motion which was to suppress physical evidence is granted, that branch ofhis omnibus motion which was to suppress his statements to law enforcement officials is grantedto the extent indicated herein, and the matter is remitted to the County Court, Suffolk County, forfurther proceedings on the indictment.
After a traffic stop, the defendant was arrested for, inter alia, driving with a suspendedlicense and his car was impounded by the Suffolk County Police Department. While the vehiclewas impounded in a secure location at the police station, the police conducted several warrantlesssearches of it. The defendant moved to suppress evidence seized during those searches on thegrounds that the police lacked a warrant and that the searches did not satisfy the requirements foran inventory search. He also moved to suppress his subsequent statements to law enforcementofficials as the fruits of the alleged unconstitutional searches. The defendant's motion wasdenied, after which he entered a plea of guilty. This appeal ensued.
As the People correctly concede on appeal, the evidence was not lawfully seized pursuant toan inventory search (see People v Galak, 80 NY2d 715, 718-719 [1993]; see also People v Gomez, 13 NY3d6 [2009]).
"Where the special mobility of automobiles is no longer a factor because the vehicle [*2]itself has been seized and impounded by the police, a warrantlesssearch of the vehicle or of a closed container in the passenger compartment made afterimpoundment of the vehicle has been held justified only when the contents were by their naturesufficiently discernible to be said to be openly visible or some special exigency existed"(People v Belton, 55 NY2d 49, 54 [1982]; see People v Quackenbush, 88 NY2d534, 541 [1996]). Here, the police officer's initial entry of the defendant's impounded car to leafthrough notebooks located in the back seat was an unjustified unconstitutional search, and thenotebooks and any information gleaned therein by the officer must be suppressed. Further, theplain view doctrine does not apply, because the incriminating character of the notebooks was notimmediately apparent (see People v Carbone, 184 AD2d 648, 650 [1992]; see also People v Mais, 71 AD3d1163, 1166 [2010]).
After the officer searched the notebooks, the police returned with a canine, which signaledthat the car contained narcotics. Regardless of whether the police were justified in conducting acanine sniff of the air immediately outside the vehicle (see People v Devone, 15 NY3d 106, 113 [2010]), the subsequentwarrantless entry of the car by two police officers, during which they pried open a compartmentunder the rear dashboard speaker and observed what appeared to be United States currency andwrapped bundles, was an unjustified violation of the defendant's constitutional rights. Although acanine sniff indicating the presence of narcotics may be used to establish probable cause for theissuance of a warrant (see People vEstrella, 48 AD3d 1283 [2008], affd 10 NY3d 945 [2008], cert denied555 US —, 129 S Ct 608 [2008]), or to permit the immediate search of a readilymobile vehicle (see People vDevone, 57 AD3d 1240, 1243 [2008], affd 15 NY3d 106 [2010]; People vGathogo, 276 AD2d 925, 927 [2000]; see also Pennsylvania v Labron, 518 US 938,940 [1996]), here, the defendant's car was impounded in a secure location and there was "ampletime for the law enforcement officials to secure a warrant in order to make this significantintrusion" (People v Spinelli, 35 NY2d 77, 81 [1974]). Accordingly, the fruits of thisunconstitutional search, including the contents of the compartment, must be suppressed.
The People note that the police obtained a search warrant before removing anything from thevehicle. To the extent the People argue that suppression is not warranted because the evidencewould inevitably have been discovered, the doctrine of inevitable discovery may not be used torehabilitate "primary evidence," such as the evidence sought to be suppressed in this case, thevery evidence obtained during an unconstitutional search (see People v Stith, 69 NY2d313, 318 [1987]; see also People vLindsey, 13 AD3d 651, 652 [2004]). Thus, obtaining a warrant to search a vehicle thathad already been searched could not cure the violation of the defendant's constitutional rights.
Under the circumstances of this case, the defendant's subsequent statements to lawenforcement officials, made after these unconstitutional searches, must be suppressed as thefruits of the poisonous tree (see People vPearson, 59 AD3d 743, 744 [2009]; see also Wong Sun v United States, 371 US471, 485 [1963]). However, any statements made by the defendant prior to the searches need notbe suppressed. Rivera, J.P., Florio, Dickerson and Lott, JJ., concur.