| People v Mercado |
| 2014 NY Slip Op 06010 [120 AD3d 441] |
| August 28, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jeffrey Mercado, Appellant. |
Center for Appellate Litigation, New York (Robert S. Dean of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bruce Allen, J., at suppressionhearing; Thomas Farber, J., at plea and sentencing), rendered April 9, 2013, convictingdefendant of criminal possession of a controlled substance in the third degree, andsentencing him, as a second felony drug offender, to a term of 3
The court properly denied defendant's suppression motion. The totality of theinformation available to the police justified their request to search the trunk ofdefendant's car, and defendant validly consented to that search.
While patrolling a crime-prone neighborhood, in an unmarked car, nearing midnighton October 4, 2012, the arresting officer and his partner observed defendant in thedriver's seat of a vehicle illegally parked near a fire hydrant. Defendant's companionexited the car and went briefly inside a nearby deli. While defendant was alone, anunidentified man approached the car. Defendant immediately exited the car and theofficer observed the men having a very brief and seemingly wordless interaction inwhich they shook hands and either hugged or chest bumped each other. Although thearresting officer did not see anything exchanged between them, his suspicion wasaroused about the possibility of a drug transaction.
Defendant's original companion returned and the two men drove off. The policefollowed the car and they observed defendant's companion lean forward in a mannersuggestive of secreting something under his seat. They then observed defendantcommitting a second traffic violation and lawfully stopped the car, asking defendant forhis license and registration. Defendant who was "sweating profusely" and crying, toldpolice he did not have a license and that he did not want to go back to jail. Defendantcould not produce any form of identification, and the car registration belonged tosomeone other than defendant or his companion.
At the police officer's request, defendant exited the vehicle; he was still visiblyagitated and repeated that he did not want to go back to jail. The arresting officer patteddefendant down and found nothing. Defendant was then asked by the officer whether heand the car were "straight." After defendant confirmed that they were, the arrestingofficer asked for defendant's consent to search the car, which was given. The interior ofthe car was searched and nothing was found. The arresting officer then asked defendantwhether he could search the trunk of the car, and defendant consented to that search aswell. Over 120 glassine envelopes of heroin were [*2]ultimately discovered in the trunk, and defendant admittedthey belonged to him.
Once defendant revealed that his license was suspended, the officer had probablecause to arrest him for a misdemeanor (Vehicle and Traffic Law § 511) andwas entitled to conduct a search of his person incident to the arrest (see People vTroiano, 35 NY2d 476 [1974]). In order to ask defendant for his consent to searchthe car, however, the police needed a founded suspicion that criminality was afoot (People v Garcia, 20 NY3d317, 324 [2012]; People v De Bour, 40 NY2d 210, 223 [1976]). Weconclude that based on the totality of known circumstances, the police had a foundedsuspicion that criminality was afoot. That suspicion justified a common-law inquiry inthe form of a request for defendant to consent to a search of the car, which also includedthe subsequent request to search the trunk (see People v Battaglia, 86 NY2d 755,756 [1995]; People vLoretta, 107 AD3d 541 [1st Dept 2013], lv denied 22 NY3d 1157[2014]). While nervousness, by itself, does not establish a founded suspicion ofcriminality (Garcia, 20 NY3d at 324), here it was coupled with other relevantfactors, including the observed interaction between defendant and an unidentified man,defendant's admission that he was driving with a suspended license, his completeinability to provide any form of identification, that the car's registration was in the nameof someone other than defendant or his passenger, and defendant's expressed concernthat he would face reincarceration for a Vehicle and Traffic Law infraction (see People v Devone, 15 NY3d106, 114 [2010]; People vMajor, 115 AD3d 1, 4-5 [1st Dept 2014]).
The request for defendant's consent to search the trunk of the car was reasonablyrelated in scope to the circumstances that justified the interference in the first place(see People v William II, 98 NY2d 93, 98 [2002]). Thus, the same foundedsuspicion that permitted the police to ask for consent to search the car extended to therequest to search the trunk (see Battaglia, 86 NY2d at 756). The Court ofAppeals' decision in People v Battaglia is directly on point. In Battaglia,the Court of Appeals held that a vehicle stopped at 3:00 a.m. for proceeding the wrongway down a one-way street, coupled with the driver producing a false identification,supported a finding that criminality was afoot sufficient to justify a common-law inquiryin the form of a request for consent to search the defendant's vehicle, including the trunk(id.). While defendant is correct that any concern the police may have had aboutsome illegal object hidden under the passenger seat dissipated after the interior of the carwas searched by the police, the other factors still present, which included driving withouta license, identification and apparent connection to the registered owner of the car,supported a basis to request consent for a more thorough search of the vehicle. Contraryto the conclusion reached by the dissent, there was more than continued nervousness tosupport the request to search the trunk.
We also find that the People satisfied their heavy burden of proving the voluntarinessof defendant's consent (see generally People v Gonzalez, 39 NY2d 122, 128[1976]). In determining whether the consent was voluntary or coerced, the courtconsiders the circumstances present, including whether the consent was given while theindividual was in police custody, how many officers were present, the personalbackground of the consenter, including his age and prior experience with the law,whether the consenter offered resistance and whether the police advised the consenter ofhis right to refuse to consent (id. at 128-131; Matter of Daijah D., 86 AD3d 521 [1st Dept 2011]). Noone circumstance is determinative of the voluntariness of consent (39 NY2d at 128). Thesuppression court found that the two officers testified credibly. At no time before thesearches did either of the only two officers present draw their guns. The officers did nothandcuff the defendant or his traveling companion, nor did they threaten defendant witharrest or actually arrest him before obtaining his consents. Defendant admitted to havingprior [*3]contact with the criminal justice system.Although defendant appeared to be very nervous, he was cooperative, alert and offeredno resistance to any of the actions being taken by the police before he gave his consents.The police officer's response that defendant "wasn't necessarily going back to jail" todefendant's repeated expressed concern about going to jail again was not an implicitthreat that he would go to jail unless he gave consent to a search of the car (seePeople v Sora, 176 AD2d 1172, 1174 [3d Dept 1991], lv denied 79 NY2d864 [1992]; People v Fillion, 160 AD2d 538 [1st Dept 1990], cert denied498 US 1068 [1991]).
We perceive no basis for reducing the sentence. Concur—Friedman, J.P.,Saxe, Feinman and Gische, JJ.
Acosta, J., dissents in a memorandum as follows: I would reverse, vacate the pleaand sentence, grant defendant's motion to suppress to the extent of suppressing thephysical evidence found in the trunk and statements defendant made to the police afterthe officer asked if he could search the trunk, and remand for further proceedings. Whilethe facts that defendant committed a traffic infraction and hugged another man with noindicia of a drug transaction being committed, that a passenger in the car made somewhatfurtive movements, and that defendant was nervous upon being stopped and said he didnot want to go back to jail may have justified the request to search the inside of the car,upon finding nothing therein or on the defendant after a frisk, the officers lacked afounded suspicion that criminal activity was afoot to justify the request to search thetrunk of the car (People vGarcia, 20 NY3d 317 [2012]; People v Hollman, 79 NY2d 181, 194[1992]; People v Hogencamp, 295 AD2d 808, 810 [3d Dept 2002] [orderingsuppression and dismissing indictment where police continued investigation after initialsuspicions were exhausted, notwithstanding the continued nervousness in the defendant'svoice]; People v Springer, 92 AD2d 209, 212 [2d Dept 1983] [a fruitless frisk ofthe defendant's person decreased any objective suspicion of that defendant, contributingto finding that further investigation was unreasonable]; Sampson v City ofSchenectady, 160 F Supp 2d 336, 344 [ND NY 2001] ["(a)ssuming for purposes ofthis motion that (the officers) did have reasonable suspicion to believe that (the)(p)laintiff was engaged in a narcotics transaction at the time they stopped him and thattheir search of (the) (p)laintiff was legally justified, that suspicion evaporated when theydiscovered that (the) (p)laintiff was not carrying any narcotics"]). I disagree thatPeople v Battaglia (86 NY2d 755 [1995]) is directly on point as the majorityasserts. In Battaglia, not only was the driver of the car seen driving the wrongway on a one-way street at 3:00 in the morning, when stopped, he gave the police a falsename. Under these circumstances an officer could rightfully assume that the occupants ofthe car were attempting to hide something illegal in the car. The police were thereforejustified in asking the defendant, the owner of the car and who was seated in the backseat, for consent to search the trunk. Here, contrary to the majority, the request to searchthe trunk was not reasonably related in scope to the circumstances which justified theinterference in the first place (People v William II, 98 NY2d 93, 98 [2002];People v Quackenbush, 88 NY2d 534, 541 [1996]).
Defendant's continued nervousness was simply insufficient indicium that criminalactivity was afoot. As we held in People v Garcia (85 AD3d 28, 32-33 [1st Dept 2011],mod on other grounds 20 NY3d 317 [2012]), "There must be something morethan mere nervousness on the part [*4]of the people inthe stopped vehicle to establish a founded suspicion of criminal activity. Here, bydescribing unspecified motions as furtive, the officers were making conclusory assertionsthat the conduct was suspicious. The officers' unspecific testimony does not support afinding of founded suspicion of criminal activity" (citations omitted; see also Peoplev Irizarry, 168 AD2d 377 [1st Dept 1990], affd 79 NY2d 890 [1992] [findingrequest to search improper because there was no founded suspicion, even though therecord revealed that the defendant's hands were shaking during the police encounter]). Inany event, with the information the police possessed at the time, the most plausibleexplanation for defendant's concern that he did not want to go back to jail was that hewas driving without a valid license and feared incarceration for that offense.
Furthermore, consent obtained through an illegal request to perform a search is noconsent at all (Hollman, 79 NY2d at 194 [ordering suppression "(b)ecause thedefendant's consent was a product of the improper police inquiry"]; People vIrizarry, 79 NY2d at 892). In any event, even if the request for consent wasauthorized, I think the majority ignores the reality of a police stop when it finds thatdefendant's consent was voluntary and not coerced (see People v Packer, 49 AD3d 184, 187 [1st Dept 2008],affd 10 NY3d 915 [2008] [recognizing the "inherent potential for intimidationand coercion in police initiated encounters and the daunting burden to which the Peopleare put when the voluntariness of a defendant's consent is at issue" (citations omitted)]).As we noted in People v Turriago (219 AD2d 383, 389 [1st Dept 1996], modon other grounds 90 NY2d 77 [1997]), a defendant stopped for a traffic infractioncan not "reasonably disregard the police and go about his business" (internal quotationmarks omitted). Here, defendant, already facing a possible arrest for driving without alicense and distraught and crying about the possibility of going back to jail, may have feltcompelled to consent to a search of the trunk. Under these circumstances, tellingdefendant that he "wasn't necessarily going to back jail," could be easily construed as "aslong as you cooperate and let us search the trunk."