| People v Holmes |
| 2014 NY Slip Op 01855 [115 AD3d 1179] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v MichaelAnthony Holmes, Respondent. |
—[*1] Peter J. Glennon, Rochester, for defendant-respondent.
Appeal from an order of the Supreme Court, Monroe County (Alex R. Renzi, J.),dated March 26, 2012. The order granted the motion of defendant to suppress evidence.
It is hereby ordered that the order so appealed from is unanimously reversed on thelaw, the motion to suppress the firearm is denied and the matter is remitted to SupremeCourt, Monroe County, for further proceedings on the indictment.
Memorandum: The People appeal from an order granting defendant's motion tosuppress a handgun seized by the police during a search of his motor vehicle. We agreewith the People that Supreme Court erred in granting the motion. The evidence adducedat the suppression hearing established that an identified citizen called 911 and reportedthat she witnessed a man being forced at gunpoint into a brown Ford Explorer near theintersection of Brooks Avenue and Genesee Street in the City of Rochester. A dispatchwith that information was then broadcast over the police radio. Within minutes ofhearing the dispatch, a police officer observed a brown Ford Explorer on Genesee Streetapproximately one quarter of a mile from Brooks Avenue. The officer further observedthat the Ford Explorer was being followed by a vehicle whose driver, later identified asthe person who called 911, was waving her hand outside the window and yelling, "That'sthem, that's them," while pointing at the Ford Explorer.
The officer proceeded to stop the Ford Explorer and ordered its three occupants outof the vehicle. Defendant was the driver, and it was determined by another officer at thescene that his driver's license had been suspended. Defendant was therefore charged withaggravated unlicensed operation of a motor vehicle in the second degree, a misdemeanor,along with unlicensed operation of a motor vehicle, a traffic infraction. At the scene, thewoman who called 911 informed the police that the person who had been abducted washer boyfriend, and that she had seen one of the other two occupants of the Ford Explorerput what appeared to be a gun to her boyfriend's head and force him into the vehicle. Thepolice decided to tow the vehicle, and before doing so an officer searched the vehicle andfound a loaded firearm secreted near the center console in the front seat. Defendant andhis codefendant were charged with criminal possession of a weapon in the seconddegree, and the codefendant also was charged with kidnapping in the second degree.[*2]
Following indictment, defendant moved tosuppress the firearm seized by the police, contending that the search of the vehicle wasunlawful. In their responding papers, the People argued that the search was lawfulbecause the police had probable cause to believe that defendant had committed a crime.Following the hearing, defense counsel did not dispute that the police lawfully stoppedthe vehicle defendant was driving or that defendant was lawfully arrested. Defensecounsel argued, however, that the police conducted an unlawful inventory search of thevehicle. The People responded that the search was a lawful inventory search and that, inany event, it was supported by probable cause to believe that defendant had committed acrime. The court granted defendant's motion and suppressed the firearm. We nowreverse.
It is well settled that, " 'where police have validly arrested an occupant of anautomobile, and they have reason to believe that [it] may contain evidence related to thecrime for which the occupant was arrested or that a weapon may be discovered ora means of escape thwarted, they may contemporaneously search the passengercompartment, including any containers found therein' " (People v Blasich, 73NY2d 673, 678-679 [1989], quoting People v Belton, 55 NY2d 49, 55 [1982],rearg denied 56 NY2d 646 [1982] [emphasis added]; see People v Galak,81 NY2d 463, 467 [1993]).
Here, as noted, there is no dispute that defendant was lawfully stopped and arrested.Rather, the issue before us is whether the police lawfully searched the vehicle defendantwas driving. Even assuming, without deciding, that the police did not conduct a lawfulinventory search, we conclude that a search was authorized because the police hadprobable cause to believe that a gun was inside the vehicle. Probable cause arose fromthe information provided to the police by the identified citizen informant, who stated thatshe observed one of the occupants of defendant's vehicle in possession of what appearedto be a handgun used in the abduction of her boyfriend. "An identified citizen informantis presumed to be personally reliable" (People v Parris, 83 NY2d 342, 350[1994]; see People v VanEvery, 1 AD3d 977, 978 [2003], lv denied 1 NY3d 602 [2004]) and,here, the informant had a sufficient basis of knowledge inasmuch as she personallyobserved the weapon in question (see generally People v Rodriguez, 52 NY2d483, 491 [1981]). Present—Smith, J.P., Peradotto, Lindley, Valentino and Whalen,JJ.