| People v McLean |
| 2012 NY Slip Op 07154 [99 AD3d 1111] |
| October 25, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Roger N.McLean, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.),rendered November 8, 2010, convicting defendant upon his plea of guilty of the crime ofcriminal possession of marihuana in the first degree.
In September 2009, a United States Border Patrol agent observed defendant driving on a statehighway in the Town of Massena, St. Lawrence County. The agent followed the vehicle andpulled defendant over when he began driving erratically. At the request of a second agent whoarrived during the stop, defendant consented to a search of the vehicle that disclosed two bags inthe trunk containing a substantial quantity of marihuana. Defendant was arrested and transportedto the Massena State Police barracks, where he received Miranda warnings and madeincriminating statements.
Defendant was indicted for criminal possession of marihuana in the first degree. He movedto suppress the marihuana and his statements, contending that the agent lacked reasonablesuspicion to stop his vehicle and that his consent to the search was invalid. After County Courtdenied this motion, he pleaded guilty to the indictment and was sentenced to a probation term offive years. He appeals, challenging the denial of the suppression motion.
We affirm. First, the agents had the same law enforcement powers as state peace [*2]officers; thus, their actions were valid if they could properly havebeen performed by state law enforcement agents (see CPL 2.15 [7]; 2.20, 140.25; People v Boyea, 44 AD3d 1093,1094 [2007]). An officer who has probable cause to believe that a driver has committed a trafficviolation may lawfully stop the vehicle even if the infraction is not the officer's primarymotivation for the stop (see People v Robinson, 97 NY2d 341, 349 [2001]; People v Viele, 90 AD3d 1238,1239 [2011], lv denied 19 NY3d 868 [2012]). Here, the agent testified that defendant hadbeen driving at approximately the highway speed limit of 55 miles per hour, but abruptly slowedhis vehicle to 40 miles per hour without apparent good cause when the agent began followinghim, and that defendant's vehicle was weaving erratically between the center line and fog line ofhis lane, apparently because he was checking his rear- and side-view mirrors rather than watchingthe road ahead (see Vehicle and Traffic Law §§ 1181, 1212; People v Blanco, 67 AD3d 923[2009]; compare People v Davis, 58 AD3d 896, 898 [2009]). These traffic infractionsgave the agent probable cause to stop defendant's vehicle; the "objective reasonableness" of thisstop was not negated by the agent's subjective intention to also investigate the possibility thatdefendant was involved in smuggling (People v Edwards, 14 NY3d 741, 742 [2010]; accord People vViele, 90 AD3d at 1239).
Indeed, the conclusion that the stop was lawful is buttressed by the agent's testimonydescribing "specific articulable facts, together with rational inferences from those facts, thatreasonably warrant[ed] suspicion" that defendant was engaged in smuggling (United States vBrignoni-Ponce, 422 US 873, 884 [1975]; accord People v Carrillo, 257 AD2d 780,782 [1999], lv denied 93 NY2d 967 [1999]; see People v Boyea, 44 AD3d at1094). The agent described the underlying facts that he observed and found consistent withtactics used by smugglers in the area. Although these facts were innocuous in themselves, viewedin light of the agent's training and experience, they provided "the quantum of knowledgesufficient to induce an ordinarily prudent and cautious [person] under the circumstances tobelieve criminal activity [was] at hand" and constituted reasonable suspicion justifying the stop(People v Cantor, 36 NY2d 106, 112-113 [1975]; see People v Mothersell, 14 NY3d 358, 366-367 [2010]; People v Solano, 46 AD3d 1223,1224-1225 [2007], lv denied 10 NY3d 817 [2008]).
Finally, we reject defendant's argument as to the search of his vehicle. The agent testified thatdefendant was visibly nervous, with hands shaking so badly that he dropped his vehicle rentaldocuments as he tried to retrieve them, and he then made several inconsistent statementsregarding the rental transaction and his residency. When defendant stated that he had beenvisiting his Canadian uncle at a casino on the nearby reservation, the agent's suspicions werefurther aroused, as he knew that goods smuggled from Canada were often transferred at thislocation. According to the agent, the fact that defendant had not rented the vehicle he was drivingwas also suggestive of smuggling, as smuggling couriers in the area were frequently providedwith vehicles rented by third parties. Based upon these facts, together with the facts justifying theinitial stop of defendant's vehicle, the request for defendant's "consent was based upon a foundedsuspicion that criminality was afoot," and the resulting search was valid (People v Boyea,44 AD3d at 1095; see People v Battaglia, 86 NY2d 755, 756 [1995]; People v Coutant, 16 AD3d 772,774 [2005]). Accordingly, County Court properly denied defendant's suppression motion.
Mercure, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.