| People v Boler |
| 2013 NY Slip Op 03126 [106 AD3d 1119] |
| May 2, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vNatasha Boler, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Cindy B. Chavkin of counsel), forrespondent.
Spain, J. Appeal from a judgment of the Supreme Court (Czajka, J.), renderedFebruary 4, 2011 in Ulster County, convicting defendant upon her plea of guilty of thecrimes of criminal possession of a controlled substance in the third degree (two counts)and criminal possession of a controlled substance in the fourth degree, and the violationof unlawful possession of marihuana.
On February 19, 2010 at approximately 9:00 p.m., Officer Joseph Garvila, a caninedivision officer with the Town of Ulster Police Department, received a call from hisdispatcher that he had received a phone call with a tip regarding two black womenshooting heroin in a gold or tan Nissan Maxima with a specific license plate, in theparking lot of a particular discount store. Garvila, with his canine partner, a dog namedDak, proceeded to that location and was directed by a store security employee to a carparked in the lot matching that description (the license plate was one number off) inwhich two black women were sitting. Garvila parked his car to the rear of that car andNancy Girard exited the passenger side of the vehicle. Garvila noted that she was "veryantsy, jittery," "couldn't stand still," "waving her hands around" "very excited, movingaround a lot" and appeared to be under the influence of "some type of substance." As theofficer approached, defendant exited the driver's side holding a small black purse; heobserved a white powdery substance under her nostrils, and that her speech was "slurred"and "very slow." He asked for identification and engaged in a brief conversation until abackup officer, Megan Sutton, arrived and the women were separated on either ends ofthe car, briefly questioned, and patted down for weapons. Sutton then informed Garvilathat she found [*2]two "crack pipes" on Girard's person,and defendant refused Garvila's request for consent to search. Garvila then informed thewomen that he was going to walk his canine partner around the vehicle exterior; he askedthe women to step away and wait with Sutton at her adjacent patrol car, directingdefendant to place her purse on the hood of her car (hereinafter the hood purse).
During an exterior pass, the narcotics detection-trained canine alerted on the hoodpurse and at the passenger door handle, signs that his sniff had detected the odor ofdrugs. Inside the car, the canine indicated on the right rear passenger floor area, where asecond purse was found (hereinafter the car purse), reflecting that he had zeroed in on thesource of the narcotic odor. When asked by Garvila, defendant admitted that both purseswere hers; a search of the car purse disclosed a small bag of marihuana and prescriptionpill bottles bearing defendant's name. Defendant and Girard were placed under arrest andhandcuffed. Garvila then searched the hood purse and discovered money and severaldecks (i.e., glassine envelopes) of heroin and then questioned defendant about thecontents. A subsequent inventory search of the vehicle revealed over 500 decks of heroinand cocaine located in a small cardboard box inside a plastic bag in the vehicle trunk, butno needles.
A combined Mapp/Huntley suppression hearing was held at whichonly Garvila testified and a DVD recording of the incident from a dashboardcamera[FN1]in his patrol car was submitted as evidence. The source of the tip was not disclosed at thehearing. County Court (Williams, J.) issued an oral ruling denying defendant's motion tosuppress the physical evidence seized by police from the purses and vehicle. As fordefendant's statements, the court appears to have ruled that defendant's statements priorto the canine search are admissible, but otherwise suppressed any subsequent statements.Thereafter, defendant entered a guilty plea to criminal possession of a controlledsubstance in the third degree (two counts), criminal possession of a controlled substancein the fourth degree and unlawful possession of marihuana. Defendant appeals,challenging the partial denial of her motion to suppress.
Regarding the physical evidence seized, defendant contends that it should have beensuppressed in that Garvila's conduct was, from its inception, unjustified andunreasonable. In evaluating police action, we consider whether it was justified at itsinception and, if so, whether it was "reasonably related in scope to the circumstanceswhich justified the interference in the first place" (People v William II, 98 NY2d93, 98 [2002] [internal quotation marks and citation omitted]; see People v DeBour, 40 NY2d 210, 215, 222 [1976]). An approach of a parked vehicle and requestfor information may be undertaken for "an objective, credible reason" (People vOcasio, 85 NY2d 982, 984 [1995], citing People v Harrison, 57 NY2d 470,475-476 [1982]). At the suppression hearing, defense counsel conceded that uponfinding the two women in the vehicle at the location as described by the anonymous tip,police had a common-law right to inquire, which is activated by a "founded suspicionthat criminal activity is afoot and permits [an officer] . . . to interfere with acitizen to the extent necessary to gain explanatory information, but short of a forcibleseizure" (People v De Bour, 40 NY2d at 223). While Garvila did not, uponapproaching the vehicle, observe the women using drugs or the presence of any needles[*3]necessary to "shoot" heroin, the fact that the scenematched the tip at the specified location allowed Garvila upon approach to requestidentification and ask general and investigative questions (see People v Moore, 6 NY3d496, 498 [2006]). He was entitled to ask the women to exit the vehicle (seePeople v Russ, 61 NY2d 693, 694 [1984]), and we defer to County Court'sfact-finding that as Garvila approached, Girard exited first, unrequested, and thendefendant alighted of her own accord at the same time as Garvila asked her to do so (see People v Culver, 69 AD3d976, 977 [2010]).
Upon observing Girard's hyper behavior and appearance of being under the influenceof drugs, which the DVD fully depicts, as well as the white powder under defendant'snostrils and her slurred and slow speech, and the crack pipes found shortly thereafter onGirard,[FN2]and considering the information relayed in the tip, Garvila had a reasonable suspicionthat defendant was involved in a crime so as to stop and detain her for questioning(see CPL 140.50 [1]). The circumstances thus also supported a "foundedsuspicion that criminal activity is afoot" (People v De Bour, 40 NY2d at 223), thelower standard which authorizes a request for consent to search and the canine search ofthe vehicle's exterior (seePeople v Devone, 15 NY3d 106, 113 [2010]; People v Anderson, 104 AD3d968, 970 [2013]; People vWhalen, 101 AD3d 1167, 1168 [2012], lv denied 20 NY3d 1105[2013]).
Moreover, once the dog alerted, probable cause existed to search the vehicle (seePeople v Gathogo, 276 AD2d 925, 927 [2000], lv denied 96 NY2d 734[2001]; see also Florida v Harris, 568 US —, 133 S Ct 1050 [2013];People v Offen, 78 NY2d 1089, 1091 [1991]; People v Abdur-Rashid, 64AD3d 1087, 1089 [2009], affd 15 NY3d 106 [2010]). Under the"automobile exception" to the Fourth Amendment search warrant requirement, police"may search a vehicle without a warrant when they have probable cause to believe thatevidence or contraband will be found there" (People v Galak, 81 NY2d 463,466-467 [1993]). Thus, the canine search of the vehicle interior was lawful. Further, theinventory search of defendant's vehicle following her and Girard's arrest, in which heroinand cocaine were discovered in the trunk, was lawful (see People v Walker, 20 NY3d122, 125 [2012]). As established by Garvila's testimony, which County Courtcredited, the inventory search was conducted pursuant to "reasonable police regulationsrelating to inventory procedures administered in good faith" (Colorado v Bertine,479 US 367, 374 [1987]). Thus, all of the evidence seized from inside the vehicle wasproperly ruled admissible.
The warrantless search of the hood purse requires a different analysis. Defendantplaced that purse on the hood of her vehicle at Garvila's direction prior to the canine passand alert. At the time the hood purse was searched, defendant had already been arrested,handcuffed and placed in Sutton's vehicle[FN3]and was, like Girard, under Sutton's control and not in the vicinity of [*4]the hood purse. Thus, the search of the hood purse withouta warrant cannot be justified as a search incident to defendant's arrest (see People vGokey, 60 NY2d 309, 312 [1983]), which is "limited to the arrestee's person and thearea from within which [she] might gain possession of a weapon or [destroy] evidence"(People v Blasich, 73 NY2d 673, 677-678 [1989]; see People v Gokey,60 NY2d at 312; People v Smith, 59 NY2d 454, 458 [1983]; People vBelton, 55 NY2d 49, 52-53 [1982]). Further, the search of the hood purse is notauthorized by the automobile exception because it was not found inside the vehicle(see People v Galak, 81 NY2d at 467); likewise, the search of the hood pursepreceded the inventory search and, in any event, it was not part of the contents of thevehicle impounded (see People v Walker, 20 NY3d at 125-126; People v Gomez, 13 NY3d6, 11 [2009]; People v Galak, 80 NY2d 715, 716, 720 [1993]; see also People v Johnson, 1NY3d 252, 256 [2003]). As the People failed to establish the legality of thewarrantless search of the hood purse, the evidence seized therein, including the heroin,must be suppressed.
Turning to defendant's motion to suppress her statement to police admittingownership of the car purse, it was undisputed that defendant was never, at any point,advised of her Miranda rights. County Court's Huntley ruling issomewhat unclear. The DVD recording establishes that when Garvila found the car purseduring the canine sniff of the car interior, he specifically asked "whose purse is this?" towhich defendant responded "they're [i.e., the purses] both mine." Thus, defendant'sstatement was in response to police questioning and was clearly not spontaneous, asimplied by the suppression ruling (see People v Ferro, 63 NY2d 316, 322 [1984],cert denied 472 US 1007 [1985]; People v Stoesser, 53 NY2d 648, 650[1981]).
Upon our review of the testimony and evidence, we find that at the time thatdefendant was confronted by Garvila with evidence that police had received a tip thatthey were doing drugs and that their activity had been captured on the store's surveillancecamera, prior to the canine search, "a reasonable person innocent of any wrongdoingwould [not] have believed that he or she was . . . free to leave" (People v Paulman, 5 NY3d122, 129 [2005]). As such, defendant's subsequent nonsponteaneous statement thatshe owned the car purse was made during a custodial interrogation, withoutMiranda advisements, and must be suppressed (see id.). However,looking at the totality of the circumstances in which this statement was obtained, we findthat the People proved beyond a reasonable doubt that it was voluntary (see CPL60.45; People v Anderson, 42 NY2d 35, 38-39 [1977]; People v Pouliot, 64 AD3d1043, 1044-1046 [2009], lv denied 13 NY3d 838 [2009]; comparePeople v Holland, 48 NY2d 861, 862-863 [1979]). Thus, County Court properlyruled that the statement could be used at trial to impeach defendant's credibility if shewere to testify (see People v Maerling, 64 NY2d 134, 140 [1984]; People vWashington, 51 NY2d 214, 219-220 [1980]). Given our decision, the matter must beremitted to County Court to afford defendant the opportunity to withdraw her guilty plea.Defendant's remaining claims lack merit.
Lahtinen, J.P., Stein and Garry, JJ., concur. Ordered that the judgment is modified,on the law and the facts, by reversing so much thereof as denied that part of defendant'smotion seeking suppression of the purse placed on the hood of the car and defendant'sstatements related to the purse found on the floor of the car; motion granted to thatextent, sentences vacated and matter remitted to the County Court of Ulster County forfurther proceedings not inconsistent with this Court's decision; and, as so modified,affirmed.
Footnote 1: The dashboard camerawas not pointed in the direction of defendant's vehicle and, thus, the DVD captured onlyaudio at the outset of the encounter; it first visually depicts defendant and Girard whenthey stepped away from defendant's vehicle with Sutton to allow the canine pass.
Footnote 2: Nothing was found ondefendant's person during the pat down and defendant conceded that she lacked standingto challenge the pat down of Girard's person (see People v Wesley, 73 NY2d351, 357-358 [1989]).
Footnote 3: Garvila testified thatboth purses were searched prior to defendant's arrest, and County Court so found.However, the DVD reflects that defendant was already in custody and in Sutton's carwhen Garvila searched the hood purse. Even were we to find that the DVD supports thecourt's finding that defendant was arrested after the search of both purses, the evidencedoes not support the conclusion that the hood purse was within defendant's grabbablearea at the time of arrest (or even when it was searched) so as to justify it as a searchincident to her arrest.