| People v Hinshaw |
| 2019 NY Slip Op 02252 [170 AD3d 1680] |
| March 22, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Robert J. Hinshaw, Appellant. |
Lipsitz Green Scime Cambria LLP, Buffalo (Herbert L. Greenman of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Ryan M. Flaherty of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), renderedSeptember 15, 2016. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the second degree and unlawful possession of marihuana.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) andunlawful possession of marihuana (§ 221.05). Contrary to defendant's contention,County Court properly refused to suppress physical evidence seized by the police after a trafficstop.
It is well settled that to conduct a traffic stop, police require either probable cause to believethat a traffic infraction has been committed, or "reasonable suspicion that the driver or occupantsof the vehicle have committed, are committing, or are about to commit a crime" (Matter of Deveines v New York State Dept.of Motor Vehs. Appeals Bd., 136 AD3d 1383, 1384 [4th Dept 2016] [internal quotationmarks omitted]; see People v Robinson, 97 NY2d 341, 349 [2001]). Here, a New YorkState Trooper properly stopped the vehicle defendant was driving based on his check ofDepartment of Motor Vehicles (DMV) computer records for the vehicle's license plate number,which revealed that the car had been impounded and thus should have been located in animpound lot (see People v Boomer, 187 AD2d 659, 660-661 [2d Dept 1992], lvdenied 81 NY2d 882 [1993]; seegenerally People v Bushey, 29 NY3d 158, 160 [2017]). The Trooper testified at thesuppression hearing that, based on the DMV records, he believed that he was required to conductan investigation—i.e., stop the vehicle—to determine whether the vehicle hadregistration problems, the license plates were suspended, the insurance was suspended, or if thevehicle was, in fact, stolen.
Our dissenting colleagues conclude that the Trooper did not have reasonable suspicion tostop defendant's vehicle because the Trooper disregarded cautionary language in the DMVimpoundment record stating that it "should not be treated as a stolen vehicle hit[, and] [n]ofurther action should be taken based solely upon this impounded response." We conclude,however, that the Trooper's testimony that the cautionary language was "generic," inasmuch as iteven "comes up with stolen vehicles," and that, based on his experience, he interpreted theimpoundment record as requiring him to conduct a further investigation because the vehicle"should not be out on the road," establishes that the stop was not unreasonable. Rather, weconclude that the impoundment record, coupled with the Trooper's explanation of its import,provided reasonable suspicion to stop the vehicle. In disregarding the Trooper's explanation thatthe cautionary language was "generic," the dissent would obligate us to find unreasonable anystops where that same message appears, irrespective of the facts surrounding the stop. We rejectsuch a categorical determination.
Furthermore, it is of no moment that the DMV impoundment record was later determined tobe erroneous, because " '[a] mistake of fact . . . may be used to justify a[stop]' " (People v Baker, 87AD3d 1313, 1314 [4th Dept 2011], lv denied 18 NY3d 857 [2011]; see People v Smith, 1 AD3d 965,965 [4th Dept 2003]). When an officer makes a mistake of fact or law in conducting a trafficstop, "the relevant question . . . is . . . whether his belief that a trafficviolation [or crime] had occurred was objectively reasonable" (People v Guthrie, 25 NY3d 130,134 [2015], rearg denied 25 NY3d 1191 [2015]; see also id. at 134 n 2). Here, theTrooper's actions in temporarily stopping the car to investigate further were objectivelyreasonable (see People v Johnson, 178 AD2d 549, 550 [2d Dept 1991], lv denied79 NY2d 920 [1992]). Once the Trooper smelled burnt marihuana and saw what he believed tobe marihuana in plain view, he had probable cause to search the vehicle and its occupants (see People v Walker, 128 AD3d1499, 1500 [4th Dept 2015], lv denied 26 NY3d 936 [2015]).
All concur except Whalen, P.J., and Centra, J., who dissent and vote to reverse in accordancewith the following memorandum.
Whalen, P.J., and Centra, J. (dissenting). We respectfully dissent. "[T]he stop of anautomobile is a seizure implicating constitutional limitations" and is lawful only if the policehave probable cause to believe a traffic infraction has been committed, or "when there exists atleast a reasonable suspicion that the driver or occupants of the vehicle have committed, arecommitting, or are about to commit a crime" (People v Spencer, 84 NY2d 749, 752-753[1995], cert denied 516 US 905 [1995]). There is no dispute that the State Trooper heredid not observe defendant committing any traffic infraction, thus the only issue is whether he hadreasonable suspicion that defendant had committed a crime, that is, whether he had " 'thequantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under thecircumstances to believe criminal activity is at hand' " (People v Johnson, 143 AD3d1284, 1285 [4th Dept 2016], lv denied 28 NY3d 1146 [2017], quoting People vCantor, 36 NY2d 106, 112-113 [1975]). The Trooper—who had not observeddefendant engage in suspicious activity—performed a license plate check on his computer,which returned a report with the heading: "Confirm record with originator. The following hasbeen reported as an impounded vehicle. It should not be treated as a stolen vehicle hit. Nofurther action should be taken based solely upon this impounded response" (emphasisadded). The Trooper testified that the significance of the notification was that the vehicle shouldhave been in an impound lot and should not have been out on the road and, based solely on thatnotification, he stopped the vehicle.
The Trooper's interpretation of the cautionary statement in the report as not restricting lawenforcement personnel from conducting an investigatory traffic stop is directly at odds with thevery language of the report that "[n]o further action should be taken based solely upon thisimpounded response." Thus, to justify the stop, the Trooper needed to make the inference that thevehicle had been stolen from the impound lot. However, the likelihood of a vehicle being stolenfrom an impound lot is quite low, and the effort necessary to confirm whether a vehicle has beenstolen from impound is minimal; further, the Trooper had the ability to continue following thevehicle while checking to see whether it had been stolen, and to stop the vehicle if its driverviolated any traffic law. Contrary to the conclusion of the majority, the question is not whether"the Trooper's actions in temporarily stopping the car to investigate further were objectivelyreasonable." Rather, the appropriate inquiry is whether the Trooper's belief that a crimeoccurred was "objectively reasonable" (People v Guthrie, 25 NY3d 130, 134 [2015], rearg denied25 NY3d 1191 [2015]). We conclude that it was not objectively reasonable for the Trooper tobelieve that any crime had been committed here to justify the stop of defendant's vehicle.
Moreover, the Trooper's actions are at odds with the constitutional "right to be let alone,"which has been recognized as "the most comprehensive of rights and the right most valued bycivilized men" (Olmstead v United States, 277 US 438, 478 [1928, Brandeis, J.,dissenting]). Although that right is not absolute, it should certainly be given more weight than theconvenience or routine of law enforcement. County Court therefore erred in refusing to suppressthe physical evidence seized after the traffic stop. Accordingly, we would reverse the judgment,vacate the plea, grant that part of defendant's motion seeking to suppress physical evidencerecovered after the traffic stop, and remit the matter to County Court for further proceedings onthe indictment. Present—Whalen, P.J., Centra, Peradotto, Curran and Winslow, JJ.