| People v Robinson |
| 2015 NY Slip Op 09742 [134 AD3d 1538] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Laron Robinson, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered May 23, 2011. The appeal was held by this Court by order entered November14, 2014, decision was reserved and the matter was remitted to Onondaga County Courtfor further proceedings (122 AD3d 1282 [2014]). The proceedings were held andcompleted.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: We previously held this case, reserved decision, and remitted thematter to County Court to determine whether the police had probable cause to believethat defendant had committed a traffic infraction (People v Robinson, 122 AD3d1282, 1283-1284 [2014]). Upon remittal, the court denied defendant's request forsuppression, and we now affirm.
This prosecution arises from an incident in which a captain in the Onondaga CountySheriff's Office, who was a lieutenant at the time of the incident, was observing an areafor possible drug activity, and observed defendant park his vehicle in that area. Thecaptain saw defendant leave that vehicle, reenter it shortly thereafter, and then pick upand drink from a can, which the captain concluded was a beer can based on its distinctivesize and color. The officer who stopped defendant's vehicle testified that he did so basedon, inter alia, the fact that he heard the captain broadcast that he observed defendantdrinking from a can of beer. After defendant was stopped, a search revealed a loadedhandgun, cocaine, a bag of bullets and an open can of beer. Defendant pleaded guilty toattempted criminal possession of a weapon in the third degree (Penal Law§§ 110.00, 265.02 [5] [ii]) and, on appeal, he challenges only thepropriety of the stop of the vehicle.
It is well settled that a law enforcement officer may stop a vehicle where, inter alia,the officer has "probable cause to believe that the driver . . . has committeda traffic violation" (People v Robinson, 97 NY2d 341, 349 [2001]). "Probablecause requires, not proof beyond a reasonable doubt or evidence sufficient to warrant aconviction . . . , but merely information which would lead a reasonableperson who possesses the same expertise as the officer to conclude, under thecircumstances, that a crime is being or was committed" (People v McRay, 51NY2d 594, 602 [1980]; seePeople v Guthrie, 25 NY3d 130, 133 [2015], rearg denied 25 NY3d1191 [2015]). It is also well settled that the credibility determinations of the suppressioncourt " 'are entitled to great deference on appeal and will not be disturbed unlessclearly unsupported by the record' " (People v Spann, 82 AD3d 1013, 1014 [2011]; seegenerally People v Prochilo, 41 NY2d 759, 761 [1977]).
Here, the court credited the captain's testimony, and properly concluded that thepolice had probable cause to stop the vehicle based on defendant's violation of Vehicleand Traffic Law § 1227 (1), which prohibits the "drinking of alcoholicbeverages, or the possession of an open container containing an alcoholic beverage, in amotor vehicle located upon the public highways or right-of-way public highway."Finally, although the officer who stopped defendant's vehicle [*2]did not personally observe defendant drink from the beercan, he was acting upon information provided by the captain who made that observation,and an "officer is deemed to act with probable cause when acting at the direction ofanother law enforcement officer who has the requisite probable cause" (People vMaldonado, 86 NY2d 631, 635 [1995]).
All concur except Whalen, J., who dissents and votes to reverse in accordance withthe following memorandum.
Whalen, J. (dissenting). I respectfully dissent. In my view, the evidence at thesuppression hearing does not support County Court's conclusion that the police hadprobable cause to believe that defendant violated Vehicle and Traffic Law§ 1227 (1). The stop of defendant's vehicle therefore violated theconstitutional protections against unreasonable seizures (US Const Fourth Amend; NYConst, art I, § 12), and the evidence obtained as the result of that stopshould have been suppressed.
The determination of probable cause hinges upon the testimony of the police captain(then a lieutenant) who first observed defendant and, based upon his observations,directed other officers to stop defendant's vehicle. Under the fellow officer rule, theofficer who stopped defendant's vehicle was "entitled to act on the strength of a radiobulletin . . . from a fellow officer . . . and to assume itsreliability" (People v Lypka, 36 NY2d 210, 213 [1975]; see People vRosario, 78 NY2d 583, 588 [1991], cert denied 502 US 1109 [1992]), and an"officer is deemed to act with probable cause when acting at the direction of another lawenforcement officer who has the requisite probable cause" (People v Maldonado,86 NY2d 631, 635 [1995]). Where, as here, a stop based upon a Vehicle and Traffic Lawviolation "is challenged by a motion to suppress, the prosecution bears the burden ofestablishing that the officer imparting the information had probable cause to act"(People v Ketcham, 93 NY2d 416, 420 [1999]; see People vRamirez-Portoreal, 88 NY2d 99, 113-114 [1996]).
The People failed to meet that burden. Vehicle and Traffic Law § 1227(1) prohibits the consumption or possession of an open container containing an alcoholicbeverage in a motor vehicle on a public highway. The evidence at the suppressionhearing failed to establish, however, that the police had probable cause to believe eitherthat defendant consumed or possessed an open container or that the container containedan alcoholic beverage. At the suppression hearing, the captain testified that he observeddefendant get into the driver's seat of a vehicle, and he "saw the driver pick up a red canthat appeared to be a forty-ounce beer can . . . , but [he] couldn't tell. . . whether it was or it wasn't." The captain's only explanation for his beliefthat the preposterously large red can contained beer was that beer comes in red 40-ouncecans. In addition, the captain's only testimony concerning whether the can was open andwhether he saw defendant drink from it was confusing at best. The captain was askedwhether he "believed at the time that [he] saw the driver pick up an open can of alcoholand drink from it," and he responded that he "thought that it was a good possibility that'swhat it was, yeah." The most reasonable interpretation of the captain's response is that he"thought it was a good possibility" that the can contained alcohol, i.e., "that's what itwas." In any event, considering the sum of the captain's testimony concerning hisobservations, I conclude that defendant's behavior was "susceptible of innocent as well asculpable interpretation," and thus did not amount to probable cause to believe thatdefendant was violating Vehicle and Traffic Law § 1227 (1) (People vDe Bour, 40 NY2d 210, 216 [1976]).
I agree with the majority that "[p]robable cause does not require proof to amathematical certainty, or proof beyond a reasonable doubt" (People v Mercado,68 NY2d 874, 877 [1986], cert denied 479 US 1095 [1987]). It does require,however, that based upon the facts before the captain, it was "at least more probable thannot" that defendant was violating the open container law (People v Carrasquillo,54 NY2d 248, 254 [1981]). The facts as recounted by the captain do not meet thatstandard, and I cannot agree with the majority that his unsubstantiated subjective beliefthat he observed a beer can warranted the intrusion into defendant's liberty of movement.Indeed, the reasoning of the majority would support the conclusion that an officer'sobservation of a clear glass bottle is sufficient to establish probable cause whencombined with the officer's subjective belief that the bottle contained vodka or gin,because vodka and gin are sold in clear glass bottles. "The basic purpose of theconstitutional protections against unlawful searches and seizures is to safeguard theprivacy and security of each and every person against all arbitrary intrusions bygovernment" (De Bour, 40 NY2d at 217). Forcibly stopping a vehicle because thedriver possessed a large red can strikes me as an arbitrary intrusion.
[*3] Finally, I note that the subsequent observation of anopen beer can by the officer who stopped the vehicle cannot be considered in theprobable cause determination, inasmuch as "[t]he police may not justify a stop by. . . subsequently acquired [probable cause] resulting from the stop"(id. at 215-216; see People v Bordeaux, 182 AD2d 1095, 1097 [1992],appeal dismissed 80 NY2d 915 [1992]). The People, therefore, failed to meettheir burden of showing the legality of the police conduct in the first instance (seePeople v Berrios, 28 NY2d 361, 367 [1971]), and defendant's suppression motionshould have been granted (seePeople v Lazcano, 66 AD3d 1474, 1475 [2009], lv denied 13 NY3d 940[2010]).
I would therefore reverse the judgment, vacate the guilty plea, grant that part ofdefendant's omnibus motion seeking to suppress physical evidence, and dismiss theindictment (see People v Washburn, 309 AD2d 1270, 1271 [2003]).Present—Smith, J.P., Peradotto, Valentino, Whalen and DeJoseph, JJ.