| People v Taylor |
| 2012 NY Slip Op 01622 [92 AD3d 961] |
| February 28, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v DavidTaylor, Respondent. |
—[*1] Randall D. Unger, Bayside, N.Y., for respondent.
Appeal by the People from an order of the Supreme Court, Queens County (Grosso, J.), datedMarch 24, 2010, which, after a hearing before a Judicial Hearing Officer (Cooperman, J.H.O.),granted that branch of the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the order is reversed, on the law and the facts, that branch of the defendant'somnibus motion which was to suppress physical evidence is denied, and the matter is remitted tothe Supreme Court, Queens County, for further proceedings consistent herewith.
The Supreme Court erred in granting that branch of the defendant's omnibus motion whichwas to suppress physical evidence. "An inventory search is . . . designed to properlycatalogue the contents of the item searched. The specific objectives of an inventory search,particularly in the context of a vehicle, are to protect the property of the defendant, to protect thepolice against any claim of lost property, and to protect police personnel and others from anydangerous instruments" (People vJohnson, 1 NY3d 252, 256 [2003]). " '[A]n inventory search must not be a ruse for ageneral rummaging in order to discover incriminating evidence' " (id., quoting Floridav Wells, 495 US 1, 4 [1990]). "To guard against this danger, an inventory search should beconducted pursuant to 'an established procedure clearly limiting the conduct of individualofficers that assures that the searches are carried out consistently and reasonably' " (People vJohnson, 1 NY3d at 256, quoting People v Galak, 80 NY2d 715, 719 [1993]). "Theprocedure must be standardized so as to 'limit the discretion of the officer in the field' "(People v Johnson, 1 NY3d at 256, quoting People v Galak, 80 NY2d at 719)."While incriminating evidence may be a consequence of an inventory search, it should not be itspurpose" (People v Johnson, 1 NY3d at 256).
"[W]hen determining the validity of an inventory search, 'two elements must be examined:first, the relationship between the search procedure adopted and the governmental objectives thatjustify the intrusion and, second, the adequacy of the controls on the officer's discretion' " (People v Gomez, 13 NY3d 6, 10[2009], quoting People v Galak, 80 NY2d at 719).
As is relevant to this appeal, "courts may take judicial notice of the standardized [*2]search procedure. While this procedure need not be offered intoevidence, a description of what the procedure requires must be proffered" (People vGomez, 13 NY3d at 11). Here, contrary to the finding of the Supreme Court, the procedureutilized "d[id] what it must do: create[d] a usable inventory" (People v Galak, 80 NY2dat 720, see People v Gomez, 13 NY3d at 11; People v Cochran, 22 AD3d 677, 678 [2005]).
Significantly, the Court of Appeals has explained that the failure to use an "inventory searchform" is "not fatal to the establishment of a valid inventory search as long as (1) the search, inaccordance with the 'standardized procedure,' is designed to produce an inventory and (2) thesearch results are fully recorded in a usable format" (People v Gomez, 13 NY3d at 11).Here, contrary to the finding of the Supreme Court, the arresting officer specifically testified thatthe procedure routinely followed was to use a "property clerk's invoice" form, also referred to asa "voucher," to record the items removed from a vehicle during an inventory. Moreover, thesearch results were fully recorded in this manner by the officer in this case (id.; seePeople v Cochran, 22 AD3d at 678).
Contrary to the further finding of the Supreme Court, there is nothing in the hearingtestimony to support the conclusion that the back seat of the vehicle was "removed." The Peopleestablished that the lifting up of the middle seat of the back row of the vehicle, underneath whichthere was a "metal," "square" storage area, was justified under the established police inventoryprocedure (see generally People v Gomez, 13 NY3d at 11). The record supports theconclusion that the search was conducted in accordance with the New York City PoliceDepartment Patrol Guide, of which we take judicial notice (see People v Gomez, 13NY3d at 11), which states that officers should search areas under the seats and any closedcontainers in a vehicle as part of an inventory search (see NYPD Patrol Guide §218-13). Moreover, all of the items were removed and inventoried, and no property was left inthe vehicle when the search was complete (cf. People v Gomez, 13 NY3d at 10-11;see generally People v Galak, 80 NY2d at 718-719). Furthermore, the evidence adducedat the suppression hearing was sufficient to establish that the motivation of the police officers inconducting the inventory search was caretaking rather than criminal investigation (see Peoplev Galak, 80 NY2d at 718-719; People v Cochran, 22 AD3d at 677).
Accordingly, considering the police testimony elicited on both direct and cross-examination,we find that the hearing evidence amply demonstrated that the search in this case was performedpursuant to an established and standardized procedure which limited the discretion of the police,safeguarded the defendant's constitutional rights, and fulfilled the legitimate purposes of a validinventory search. Mastro, A.P.J., Chambers and Roman, JJ., concur.
Belen, J., dissents and votes to affirm the order with the following memorandum: Themajority's upholding of the purported inventory search of the defendant's vehicle despite the lackof any evidence demonstrating that the police officer who conducted the search was familiar withdepartmental regulations regarding inventory searches or that the search was conducted pursuantto any such regulations is inconsistent with precedent of both the United States Supreme Court(see e.g. Colorado v Bertine, 479 US 367 [1987]; Illinois v Lafayette, 462 US640 [1983]), and the Court of Appeals (see e.g. People v Gomez, 13 NY3d 6 [2009]; People vGalak, 80 NY2d 715 [1993]). I therefore dissent, and would affirm the Supreme Court'sorder granting that branch of the defendant's omnibus motion which was to suppress evidencefound in his vehicle.
Inventory searches are an exception to the warrant requirement under the Federal and Stateconstitutions (see US Const 4th, 14th Amends; NY Const, art I, § 12; Coloradov Bertine, 479 US at 371; Illinois v Lafayette, 462 US at 643; Cady vDombrowski, 413 US 433, 441-442 [1973]; People v Galak, 80 NY2d at 719). Thepurpose of an inventory search is "to protect an owner's property while it is in the custody of thepolice, to insure against claims of lost, stolen, or vandalized property, and to guard the policefrom danger" (Colorado v Bertine, 479 US at 372; see Florida v Wells, 495 [*3]US 1, 4 [1990]; South Dakota v Opperman, 428 US 364,369 [1976]; People v Johnson, 1NY3d 252, 256 [2003]; People v Galak, 80 NY2d at 718, 720). "While the discoveryof incriminating evidence may be a consequence of an inventory search, it should not be itspurpose" (People v Russell, 13AD3d 655, 657 [2004]; see Florida v Wells, 495 US at 4; People v Johnson,1 NY3d at 256).
For an automobile inventory search to withstand a defendant's suppression motion, thePeople must establish that it was conducted pursuant to a standard departmental procedure thatconforms with constitutional dictates (see Colorado v Bertine, 479 US at 374-375;People v Galak, 80 NY2d at 716; People v Elpenord, 24 AD3d 465, 467 [2005]). Specifically, "theprocedure must be rationally designed to meet the objectives that justify the search in the firstplace," and "the procedure must limit the discretion of the officer in the field" (People vGalak, 80 NY2d at 719, citing Florida v Wells, 495 US at 4; see South Dakota vOpperman, 428 US at 384 [Powell, J., concurring]; People v Banton, 28 AD3d 571, 571-572 [2006]). "The underlyingrationale for allowing an inventory exception to the Fourth Amendment warrant rule is thatpolice officers are not vested with discretion to determine the scope of the inventory search. Thisabsence of discretion ensures that inventory searches will not be used as a purposeful and generalmeans of discovering evidence of crime" (Colorado v Bertine, 479 US at 376 [Blackmun,J., concurring] [citations omitted]).
Recently, in People v Gomez(13 NY3d 6 [2009]), the Court of Appeals advised: "As relevant to the particular case, courtsmay take judicial notice of the standardized search procedure. While this procedure need not beoffered into evidence, a description of what the procedure requires must be proffered.
"Here, the People did not sustain their initial burden of establishing a valid inventory search.Although the NYPD has a standardized, written protocol governing inventory searches in itsPatrol Guide and the arresting officer testified that he was familiar with it, the People offeredno evidence that the police officers conducted this search in accordance with the protocol.Even assuming it was reasonable for the officers to search the immediate area of thepassenger compartment of defendant's car for contraband to ensure the safety of the officerdriving the car back to the police precinct, the People did not establish the circumstancesunder which opening and searching a closed trunk or a door panel would be justified under theprotocol" (id. at 11 [emphasis added]).
Similarly, here, the People did not sustain their initial burden under Gomez ofestablishing a valid inventory search. Although the New York City Police Department(hereinafter NYPD) issues a Patrol Guide containing a standardized, written protocol regardinginventory searches, of which the hearing court appeared to have taken judicial notice, the Peopledid not proffer any description of what the protocol requires, and "offered no evidence that thepolice officers conducted this search in accordance with the protocol" (id.; compareFlorida v Wells, 495 US at 5 [Brennan, J., concurring] [purported inventory search wasunconstitutional since "there was no evidence that the inventory search was done in accordancewith any standardized inventory procedure"] with South Dakota v Opperman, 428 US at380 [Powell, J., concurring] [explaining that the majority upheld the search of the unoccupied carimpounded for traffic violations because the search "was limited to an inventory of theunoccupied automobile and was conducted strictly in accord with the regulations of the (local)Police Department"]).
Indeed, in the case at bar, there is no dispute, as the Judicial Hearing Officer found, that thePeople proffered "no testimony concerning . . . the [NYPD's] standardprocedure . . . with respect to inventory searches" (emphasis added). Notably,Police Officer Michael Thompson, who was one of the officers who conducted the search of thedefendant's vehicle, testified on direct examination at the suppression hearing on the issue of theinventory search only that his lieutenant informed him that "the [defendant's] car had to bevouchered" because the defendant was being charged with reckless endangerment, and that "allitems from the vehicle had to be removed in order [*4]for the carto be sent down to the College Point Auto Pound." I respectfully submit that Officer Thompson'sdirect testimony was woefully inadequate and did not satisfy the People's burden of proffering "adescription of what the [inventory search] procedure requires" (People v Gomez, 13NY3d at 11; see Colorado v Bertine, 479 US at 374-375; People v Johnson, 1NY3d at 256; People v Galak, 80 NY2d at 716; People v Elpenord, 24 AD3d at467; People v Russell, 13 AD3d at 657). Significantly, Officer Thompson's testimony didnot demonstrate, as the People are required to show, that he conducted the search to protect thedefendant's property, insure against claims of lost, stolen, or vandalized property, or safeguardthe police, nor did it demonstrate that he lacked discretion in conducting the search (seeFlorida v Wells, 495 US at 4; South Dakota v Opperman, 428 US at 384 [Powell, J.,concurring]; People v Johnson, 1 NY3d at 256; People v Galak, 80 NY2d at 719;People v Banton, 28 AD3d at 571-572; People v Jeffrey, 18 AD3d 776, 777 [2005]; People vRussell, 13 AD3d at 657).
I also note that the fact that Officer Thompson understood that the defendant was beingcharged with a crime raises the question as to whether the purpose of the search wasinvestigatory or to create an inventory and thereby protect the defendant's property, insure againstclaims of lost, stolen, or vandalized property, and safeguard the police (see Colorado vBertine, 479 US at 372; cf. Cady v Dombrowski, 413 US at 447). Similarly, in theabsence of any direct testimony regarding departmental procedures, the People did not establishthat Officer Thompson lifted the middle seat of the back row of the defendant's vehicle where thesubject evidence was found, pursuant to NYPD procedures or in his own discretion, withoutregard to NYPD procedures or in contravention thereof (see Florida v Wells, 495 US at4; South Dakota v Opperman, 428 US at 384 [Powell, J., concurring]; People vGalak, 80 NY2d at 719; People v Banton, 28 AD3d at 571-572).
Moreover, although on cross-examination by defense counsel, Officer Thompson testifiedthat he created an inventory list using a "property clerk's invoice" or a "voucher," which Iconcede is an important factor in determining the validity of a purported inventory search (seePeople v Johnson, 1 NY3d at 256; People v Cochran, 22 AD3d 677, 678 [2005]), given the completeabsence of any testimony indicating Officer Thompson's familiarity with the NYPD's inventorysearch protocol or that he conducted the search in accordance with such protocol, the creation ofan inventory list cannot cure the constitutional deficiencies (cf. People v Johnson, 1NY3d at 256).
In sum, to find, as the majority does, that the People met their burden of establishing that thepurported inventory search was proper based on the bare testimony of Officer Thompson, ondirect examination, that his lieutenant told him that "the car had to be vouchered," and instructedhim that "all items from the vehicle had to be removed in order for the car to be sent down to theCollege Point Auto Pound," runs contrary to precedent requiring the People to establish that thepolice officers conducted the search pursuant to departmental procedures and, thus, justify anotherwise unconstitutional search.
I therefore respectfully dissent.