| People v Banks |
| 2017 NY Slip Op 01916 [148 AD3d 1359] |
| March 16, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v TrevaughnBanks, Appellant. |
Cheryl Coleman Law Offices, Albany (Cheryl Coleman of counsel), for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered December 5, 2014, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a controlled substance in the first degree.
On December 28, 2013, state troopers stopped defendant for driving a vehicle withexcessively tinted windows on the New York State Thruway in the Town of Bethlehem, AlbanyCounty. A canine sniff of the car was conducted that gave grounds for a search, after which overhalf a kilogram of cocaine was retrieved from the vehicle. Defendant was arrested and charged inan indictment with criminal possession of a controlled substance in the first degree and criminalpossession of a controlled substance in the third degree. Following an unsuccessful motion tosuppress the drugs, defendant pleaded guilty to attempted criminal possession of a controlledsubstance in the first degree and was sentenced to eight years in prison and five years ofpostrelease supervision. Defendant now appeals, focusing upon the denial of his suppressionmotion.
We affirm. The traffic stop was made after troopers observed the excessively tinted windowson defendant's vehicle and, as such, was justified (see Vehicle and Traffic Law§ 375 [12-a] [b] [2]; People v Williams, 132 AD3d 1155, 1156 [2015], lv denied27 NY3d 1157 [2016]). The limited detention that followed " 'must be reasonably relatedin scope, including its length, to the circumstances which justified the detention in the firstinstance,' unless circumstances arise which furnish the police with a founded suspicion thatcriminal activity is afoot" (People vKelly, 37 AD3d 866, 867 [2007], lv denied 8 NY3d 986 [2007], quotingPeople [*2]v Banks, 85 NY2d 558, 562 [1995], certdenied 516 US 868 [1995]; seePeople v Garcia, 20 NY3d 317, 322-323 [2012]). The hearing evidence indicated that anaverage traffic stop lasts 15 or 20 minutes, and there is no dispute that the initial justification forthe stop had dissipated before the canine sniff occurred (compare People v Banks, 85NY2d at 562-563, with People vRainey, 49 AD3d 1337, 1339 [2008], lv denied 10 NY3d 963 [2008]).Accordingly, the rub is whether the troopers had a founded suspicion of criminality that justifiedfurther inquiry and delay (see People v Garcia, 20 NY3d at 322; People v Banks,85 NY2d at 562).
County Court heard testimony at the suppression hearing from both troopers involved in thetraffic stop of defendant and found them credible, with the account given by State Trooper DavidJimenez the most pertinent here. Defendant gave Jimenez his license, registration and proof ofinsurance, stating that he had been browsing at outlet stores downstate and was returning home toAlbany County. The check of defendant's documentation that followed disclosed that he was onparole. Defendant's status as a parolee did not constitute a "surrender [of] his constitutional rightsagainst unreasonable searches and seizures" (People v Huntley, 43 NY2d 175, 181[1977]; see People v Porter, 101AD3d 44, 47 [2012], lv denied 20 NY3d 1064 [2013]). Nevertheless, it was arelevant factor that "may well be significant" in assessing the reasonableness of the troopers'subsequent conduct (People v Huntley, 43 NY2d at 181; see People v Driscoll, 101 AD3d1466, 1467 [2012]).
Jimenez testified as to how defendant's parole status, while not the cause of the canine sniff,played a major role in how the stop evolved after its inception. Jimenez understood from hisprior experience that a parolee stopped for a traffic offense must immediately alert the officer tohis or her status. Jimenez also knew from his interaction with other law enforcement officialsthat a parolee supervised in Albany County was not permitted to travel beyond an adjoiningcounty without a written permission slip from his or her parole officer. Defendant had not toldJimenez of his parole status, then admitted that he did not have permission from his paroleofficer to travel to the outlet stores and had not asked for it.
This exchange occurred within the first 10 minutes of when the stop was made and, given theindications that defendant may have violated one or more conditions of his parole (see 9NYCRR 8003.2 [c]), Jimenez properly sought to contact defendant's parole officer in order toclarify the situation (see People v Harris, 186 AD2d 148, 148 [1992]). The contactinformation for the parole officer listed in the police cruiser's computer was inaccurate, thwartingthe efforts of Jimenez to call the parole officer and prompting him to ask defendant for thecorrect information. Defendant gave his parole officer's name but not a phone number, claimingthat his cell phone was broken and would not turn on. Defendant then explained, without anyprompting and contrary to his earlier account of just wanting to browse, that he had gone to theoutlet stores to get his phone fixed. Jimenez noticed that defendant was holding the cell phonebattery in his hand, however, and the phone turned on with some screen damage after defendantreplaced the battery.[FN1]Defendant then changed his story further when the confused troopers asked if he had gotten hisphone fixed or not, relating first that he had ordered a replacement phone before eventuallyadmitting that he had not ordered anything. The troopers, considering this disingenuous andavoidable exchange in light of defendant's parole status and his nervousness throughout thetraffic stop, notified defendant that a canine sniff would be conducted and summoned the canineunit. The troopers did so about 30 minutes into the traffic stop and the canine officer arrivedabout 20 minutes later, with the canine sniff occurring soon after.
[*3] The prolonged diet of inconsistencies and lies provided bydefendant about his travels, when coupled with his parole situation and his nervous demeanorthroughout the encounter, combined to give the officers a "founded suspicion of criminality"(People v Kenon, 291 AD2d 246, 247 [2002], lv denied 98 NY2d 652 [2002]; see People v Whalen, 101 AD3d1167, 1168 [2012], lv denied 20 NY3d 1105 [2013]; People v Tejeda, 217AD2d 932, 932-933 [1995], lv denied 87 NY2d 908 [1995]). This founded suspicionjustified both the extension of the stop after its initial justification had been exhausted and theexterior canine sniff that followed (seePeople v Devone, 15 NY3d 106, 113-114 [2010]; see also United States vMoore, 795 F3d 1224, 1230-1231 [10th Cir 2015]; United States v Brigham, 382 F3d500, 510-511 [5th Cir 2004]).[FN2] The dog alerted during the sniff and defendant'scontention regarding the reliability of that alert, an issue that was not advanced before CountyCourt, is unpreserved for our review (see CPL 470.05 [2]; People v Neal, 133 AD3d 920, 921[2015], lv denied 26 NY3d 1110 [2016]). The alert gave the troopers probable cause tosearch the vehicle and recover the bookbag from the back seat that contained cocaine (see People v Boler, 106 AD3d1119, 1122 [2013]; People vAbdur-Rashid, 64 AD3d 1087, 1089 [2009], affd 15 NY3d 106 [2010]). Thus,County Court properly denied the motion to suppress the cocaine.
Rose and Mulvey, JJ., concur.
Garry, J.P. (dissenting). We respectfully dissent. At the outset, it bears noting that defendantwas ultimately detained by the state troopers for roughly one half hour before the canine officerwas requested. We fully agree with the majority that the initial traffic stop was valid, and that thetrooper was permitted to contact defendant's parole officer and ask defendant for this contactinformation. We dissent because defendant's parole status and his response to the request for hisparole officer's phone number did not give rise to a founded suspicion of criminality, and therewas no adequate basis stated in the troopers' testimony to justify the further interrogation, delayat the roadside or the canine sniff, all of which occurred after the initial justification for the stophad expired (see People v Garcia, 20NY3d 317, 322 [2012]; People vDevone, 15 NY3d 106, 110 [2010]; People v Dunbar, 5 NY3d 834, 835 [2005]; People vHollman, 79 NY2d 181, 191 [1992]; see generally People v De Bour, 40 NY2d 210,223 [1976]).
Although the majority places significant weight on defendant's parole status, the suspectedtechnical violation of defendant's parole, without more, did not indicate criminal activity(see 9 NYCRR 362.5; People ex rel. Piccarillo v New York State Bd. of Parole,48 NY2d 76, 80 [1979]; People ex rel. Maggio v Casscles, 28 NY2d 415, 418 [1971]; compare People v Simmons, 79 AD3d431, 432 [2010], lv denied 16 NY3d 836 [2011]). Notably, the police computersystem did not indicate any warrant of parole violation issued against defendant, and in factdisplayed a warning not to "search or detain or arrest based solely on this [parole status]information." State Trooper David Jimenez acknowledged during his testimony that adetermination of whether an individual is in violation of his or her parole is properly based uponinformation obtained from the parole officer, which was absent here.
We further disagree that defendant's response to the trooper's request for his parole [*4]officer's phone number gave rise to a founded suspicion. Defendanttold the troopers that he could not access his parole officer's phone number because his phonewould not "turn on"—and the majority notes that he was thereafter able to turn on hisphone. However, Jimenez testified that, although the phone did turn on, half of the screen wasblack and was likely not operable. Immediately thereafter, defendant explained that he went tothe shopping outlet to fix his phone, in slight contrast to his original statement during the initialstop that he went there to shop. Even taken together with his nervousness, the minimalinconsistency in these statements did not justify defendant's prolonged detention, particularlybecause the statements were made only after the initial justification for the stop had beenexhausted (see People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 US868 [1995]; People v Milaski, 62 NY2d 147, 156 [1984]; People v May, 52 AD3d 147, 152[2008]). Defendant's subsequent statements regarding his plans to fix his broken phone, madeduring his continuing detention and interrogation, were clearly beyond the scope authorized bythe circumstances of the initial stop (see United States v Sharpe, 470 US 675, 682 [1985];People v Banks, 85 NY2d at 562; People v May, 52 AD3d at 151). As thetroopers' testimony failed to demonstrate a founded suspicion of criminality once the initialjustification for the stop had dissipated, they were not allowed to continue questioning defendant,and these answers—offered during what had become an illegal seizure—may notnow be properly used to support the allegations (see People v Banks, 85 NY2d at 562;People v Sobotker, 43 NY2d 559, 565 [1978]; see also People v Freeman, 144 AD3d 1650, 1651 [2016];People v Young, 258 AD2d 604, 604 [1999], lv denied 93 NY2d 903 [1999]).Accordingly, we would reverse County Court's order denying defendant's suppressionmotion.
Clark, J., concurs. Ordered that the judgment is affirmed.
Footnote 1:Jimenez did not attempt toaccess any information in the cell phone, nor did he demand that defendant do so.
Footnote 2:Inasmuch as a founded suspicionexisted to justify the canine sniff, we need not reach the issue of whether defendant alsoconsented to the sniff.