| People v Gates |
| 2017 NY Slip Op 05549 [152 AD3d 1222] |
| July 7, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Ricky D.Gates, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
Kristyna S. Mills, District Attorney, Watertown (George R. Shaffer, III, of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedAugust 6, 2015. The judgment convicted defendant, upon his plea of guilty, of possessing ortransporting 30,000 or more unstamped cigarettes.
It is hereby ordered that the judgment so appealed from is reversed on the law, the plea isvacated, that part of the omnibus motion seeking to suppress physical evidence and statements isgranted, the indictment is dismissed, and the matter is remitted to Jefferson County Court forproceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofpossessing or transporting 30,000 or more unstamped cigarettes (Tax Law § 1814[c] [2]). When a State Trooper pulled over defendant for speeding on Interstate 81, he noticed"several large nylon bags" with "square edged contours" filling the area behind the driver's seat.The Trooper initially asked defendant what was inside the bags, i.e., whether there was luggagein the bags, and defendant gave a series of increasingly implausible answers, including"clothing," "presents," "riding toys," and "bicycles." Defendant asked if he could leave, but theTrooper instead requested that he exit the vehicle while the Trooper spoke to two passengers.When the Trooper returned to speak to defendant, but before he advised defendant of hisMiranda rights, defendant admitted that the bags contained nearly 300 cartons of untaxedcigarettes purchased from an Indian reservation.
Defendant contends that County Court erred in refusing to grant that part of his omnibusmotion seeking to suppress physical evidence seized from his vehicle and the statements he madeto the police. Initially, we note that, contrary to the People's contention, defendant's challenge tothe suppression ruling was adequately preserved. Although the court did not issue a writtendecision addressing the suppression issues raised by defendant, the record establishes that thecourt implicitly but conclusively denied that part of defendant's omnibus motion seeking tosuppress physical evidence and statements that he made to the police. Defendant is not precludedfrom challenging the court's suppression ruling simply because he did not request that it bememorialized in writing (see People vElmer, 19 NY3d 501, 509 [2012]; People v Allman, 133 AD2d 638, 639[1987]).
We conclude that the court erred in refusing to suppress the physical evidence and statementsat issue. Contrary to defendant's contention, however, our rationale is not grounded in custodyand/or Miranda issues. "In light of the heightened dangers faced by investigating policeofficers during traffic stops, a police officer may, as a precautionary measure and withoutparticularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car"(People v Garcia, 20 NY3d317, 321 [2012]). Here, defendant was not in custody during his temporary roadsidedetention, and it was permissible for the Trooper to engage in a reasonable interrogation ofdefendant without first advising him of his Miranda rights (see People v Brown, 107 AD3d1305, 1305-1306 [2013], lv dismissed 23 NY3d 1018 [2014]).
We conclude, however, that the Trooper's initial inquiry concerning the contents of the bagsconstituted a level two common-law inquiry, which required a founded suspicion of criminalitythat was not present at the time (seePeople v Hightower, 136 AD3d 1396, 1396-1397 [2016]; People v Carr, 103 AD3d 1194,1195 [2013]; see generally People v De Bour, 40 NY2d 210, 223 [1976]). Indeed, wenote that nervousness, fidgeting, and illogical or contradictory responses to level one inquiries donot permit an officer to escalate an encounter to a level two De Bour confrontation(see Garcia, 20 NY3d at 320-322; People v Dealmeida, 124 AD3d 1405, 1407 [2015]). Here, the factsare even more strongly in favor of defendant inasmuch as defendant's evasive and inconsistentanswers were themselves induced by a level two inquiry from the Trooper. Because a foundedsuspicion of criminality did not arise until after the Trooper asked defendant what was inside thebags, the court erred in refusing to suppress the evidence.
As a result, defendant's guilty plea must be vacated and, because our determination hereinresults in the suppression of all evidence in support of the crimes charged, the indictment must bedismissed (see Hightower, 136 AD3d at 1397). In light of our determination, we do notaddress defendant's remaining contentions.
All concur except Winslow and Scudder, JJ., who dissent and vote to affirm in the followingmemorandum.
Winslow and Scudder, JJ. (dissenting). We respectfully disagree with the majority'sconclusion that County Court erred in refusing to suppress physical evidence seized fromdefendant's vehicle and statements that defendant made to the police, and we thus also disagreewith the majority's further conclusion that the plea must be vacated and the indictment dismissed.We therefore dissent.
Defendant's vehicle was stopped by a State Trooper for speeding while traveling north onInterstate 81. The Trooper testified at the suppression hearing that, as he approached the vehicle,he observed that the rear of the vehicle was "sagging excessively" as if there were a "heavyobject" in the trunk. In response to the Trooper's question, defendant stated that he and his twopassengers had visited family in Ohio for a couple of days and that they were en route to theirhome. The Trooper observed several large nylon bags with sharp edges protruding from the innerwall of the bags. The bags filled the backseat behind the driver's seat, as well as the floor of thebackseat, leaving just enough space for the petite passenger to sit in the rear passenger seat. TheTrooper asked defendant whether "this was [defendant's] luggage in the bags," and defendantresponded that it was his clothing. Because he could observe sharp edges protruding through thebags, the Trooper asked defendant whether his clothing was in boxes because it looked like therewere boxes inside the bags, and defendant answered "yes," the clothing was in boxes. Defendantthen stated that it was not clothing in the bags, but presents that he bought in Ohio for childrenand other family members. He explained that there were toys for children in the bags. Whenasked what kind of toys, defendant replied, "riding toys," which he clarified as "bicycles." TheTrooper testified that, based upon the nervous demeanor of defendant and the passengers, theresponses to the questions that did not comport with the Trooper's observations of the bags, andhis experience related to the transportation of illegal contraband, he was suspicious that there wascriminal activity afoot—specifically, that defendant was transporting something illegal"north."
Defendant advised the Trooper that he was a retired federal law enforcement officer and herequested that he be "on his way." The Trooper asked defendant whether he would unzip a bag,and defendant declined, stating that he did not want to have the vehicle searched. The Trooperadvised defendant that it was his right to refuse to have the vehicle searched, but stated that hebelieved there was a crime being committed and therefore asked him to step out of the vehicle, atwhich point the Trooper observed that defendant's pockets were bulging. The Trooper remindeddefendant that his responses with respect to the contents of the bags had changed from clothingto bicycles, and defendant reiterated that there were bicycles inside the bags. The Trooper spoketo the passengers in the vehicle, both of whom denied that any of the bags belonged to them, andthey denied knowing what was in the bags or in the trunk. The Trooper advised defendant thatboth passengers denied having luggage in the vehicle after a trip to Ohio, at which pointdefendant lowered his head and asked if he could just be truthful. Defendant then stated that hehad cigarettes in the vehicle. The Trooper asked whether the cigarettes were taxed or untaxed,and defendant stated that they were untaxed, that there were approximately 300 cartons in thevehicle, and that he sold them to family and friends.
We agree with the majority's conclusion that defendant was not in custody during histemporary roadside detention and thus that it was permissible for the trooper to engage in a"reasonable initial interrogation attendant to a roadside detention that was merely investigatory"(People v Brown, 107 AD3d1305, 1306 [2013], lv dismissed 23 NY3d 1018 [2014]).
We disagree with the majority's conclusion that the Trooper lacked a founded suspicion ofcriminal activity. We would therefore affirm the judgment based upon, inter alia, the court'simplicit determination that a level two De Bour inquiry was justified (see generallyPeople v De Bour, 40 NY2d 210, 223 [1976]). As an initial matter, we note that, in responseto the level one inquiry regarding defendant's destination, and after defendant advised him that hewas en route to his home from Ohio (seePeople v McCarley, 55 AD3d 1396, 1396 [2008], lv denied 11 NY3d 899[2008]), the Trooper followed up with what we conclude was an additional appropriate level onequestion, i.e., whether defendant's luggage was in the bags, which were numerous, were in plainview, and looked unusual based upon the sharp edges protruding through the nylon fabric (seePeople v Hollman, 79 NY2d 181, 191 [1992]; see also People v Moore, 47 NY2d911, 912 [1979], revg for reasons stated in dissenting opn 62 AD2d 155, 157-160[1978]). Defendant responded with an answer that did not correspond to the Trooper'sobservation, i.e., that the bags contained clothing. The Trooper properly made a further level oneinquiry whether the clothing was in boxes based upon the "unusual" observation of multiplenylon bags containing what appeared to be boxes (Hollman, 79 NY2d at 191). At thatpoint, defendant responded affirmatively, but then changed his answer, stating that the bagscontained gifts including toys. At that point, the Trooper asked what kind of toys, and defendantultimately responded that the bags contained bicycles.
We conclude that, based upon defendant's apparently untruthful responses to level oneinquiries, the Trooper's observation of the sagging trunk and the number of bags in the backseat,the nervous demeanor of defendant and the passengers, and the Trooper's experience that illegalcontraband was transported on that route, the Trooper had a founded suspicion that there wascriminal activity afoot (see Hollman, 79 NY2d at 193; People v Sykes, 122 AD3d 1306, 1307 [2014], lv denied26 NY3d 972 [2015]; McCarley, 55 AD3d at 1396-1397; cf. People v Garcia, 20 NY3d 317,321 [2012]; People v Hightower,136 AD3d 1396, 1396-1397 [2016]; see generally People v Devone, 15 NY3d 106, 114-115 [2010]). Hewas therefore justified in asking more invasive questions "focusing on the 'possiblecriminality' " of defendant, as well as in asking defendant to unzip a bag (People vTejeda, 217 AD2d 932, 933 [1995], lv denied 87 NY2d 908 [1995], quotingHollman, 79 NY2d at 191; see McCarley, 55 AD3d at 1396-1397).Present—Carni, J.P., Curran, Troutman, Winslow and Scudder, JJ.