| People v Blanche |
| 2020 NY Slip Op 03051 [183 AD3d 1196] |
| May 28, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Reginald Blanche, Appellant. |
Stephen W. Herrick, Public Defender, Albany (Leona D. Jochnowitz of counsel), forappellant.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), forrespondent.
Egan Jr., J.P. Appeal from a judgment of the Supreme Court (Lynch, J.), renderedJanuary 25, 2019 in Albany County, convicting defendant upon his plea of guilty of thecrime of attempted criminal possession of a controlled substance in the third degree.
In August 2017, a state trooper stopped a vehicle on Interstate 787 in the City ofAlbany for Vehicle and Traffic Law violations. Defendant was a passenger in thevehicle. After a canine sniff of the vehicle's exterior alerted for the presence of narcotics,the interior of the vehicle was searched and 22 grams of heroin, a quantity ofhydrocodone pills and glassine envelopes were retrieved. Defendant and the driver werearrested and thereafter indicted for two counts of criminal possession of a controlledsubstance in the third degree. Following an unsuccessful motion to suppress the evidenceseized from the vehicle, defendant pleaded guilty to one count of attempted criminalpossession of a controlled substance in the third degree and was sentenced, as a secondfelony offender, to a prison term of three years, to be followed by two years ofpostrelease supervision. Defendant appeals, contending that Supreme Court erred indenying his suppression motion.[FN*]
Defendant does not challenge the legality of the initial traffic stop, but argues that thestop was unlawfully prolonged. According to defendant, once the trooper's check of thedriver's license and vehicle registration came back as valid, the trooper should haveissued traffic tickets to the driver and terminated the stop. Hence, the argument goes, thesubsequent questioning of the driver and defendant, the search of the vehicle and thesubsequent seizure of narcotics were illegal. We disagree.
The testimony at the suppression hearing revealed that, on August 21, 2017 atapproximately 10:41 p.m., a trooper stopped a black Range Rover on Interstate 787 in theCity of Albany for excessive window tint, an obscured license plate and failure to signala lane change. The vehicle was occupied by Dimitrius Smith, the driver, and defendant.Smith provided the trooper with his license and registration, and a check of thesedocuments revealed that they were valid, but that Smith was on parole. The trooperreturned to the vehicle and asked Smith to exit the vehicle so he could explain why hehad stopped him and to question him regarding where he was coming from and where hewas going. After Smith explained that he and defendant were coming from Pennsylvaniaafter "a couple of days partying," the trooper proceeded to the passenger side of thevehicle, asked defendant to exit, requested his license and briefly asked him "where hewas coming from, where he was going to and the purpose of his travels." After defendantindicated that Smith had picked him up in New York City, the trooper ran defendant'slicense and discovered that he had an open arrest warrant in the City of Troy, RensselaerCounty. The trooper requested backup, confirmed the validity of the warrant andthereafter placed defendant under arrest. The trooper subsequently obtained Smith'sconsent to perform a search of his person but, after Smith declined to provide consent tosearch the vehicle, the trooper requested the assistance of a canine unit. Upon arrival, anexterior sniff of the vehicle by the canine alerted to the presence of narcotics, and asubsequent search of the interior revealed the subject heroin, hydrocodone and glassineenvelopes in a black backpack in the rear seat of the vehicle.
Contrary to defendant's assertion, we do not find that the trooper's conductconstituted an unlawfully prolonged detention. A traffic stop constitutes a limited seizureof a vehicle's occupants and, for such a stop "to pass constitutional muster, the officer'saction in stopping the vehicle must be justified at its inception and the seizure must bereasonably related in scope, including its length, to the circumstances which justified thedetention in the first instance" (People v Banks, 85 NY2d 558, 562 [1995],cert denied 516 US 868 [1995]; see People v Garcia, 20 NY3d 317, 322-323 [2012]; People v Banks, 148 AD3d1359, 1360 [2017]). Although Smith's parole status did not constitute a surrender ofhis constitutional right against unreasonable searches and seizures, "what may beunreasonable with respect to an individual who is not on parole may be reasonable withrespect to one who is" (People vPorter, 101 AD3d 44, 47 [2012] [internal quotation marks and citationsomitted], lv denied 20 NY3d 1064 [2013]). In addition, such status may beappropriately considered in assessing the reasonableness of the trooper's conductfollowing the initial traffic stop (see People v Banks, 148 AD3d at 1361).
Here, given the discovery of Smith's parole status and the time of the stop, thetrooper was within his discretion to have both Smith and defendant exit the vehicle(see People v Robinson, 74 NY2d 773, 774-775 [1989], cert denied 493US 966 [1989]). The brief ensuing inquiry of Smith and defendant occurred within 10minutes of the initial stop and was limited to asking nonthreatening, nonaccusatoryinformational questions regarding both Smith's and defendant's identities and travelplans, which were appropriate under the circumstances (see People v Garcia, 20NY3d at 322; see generally People v De Bour, 40 NY2d 210, 223 [1976];People v Hollman, 79 NY2d 181, 184 [1992]), including checking defendant'slicense (see People vThomas, 19 AD3d 32, 42 [2005], lv denied 5 NY3d 795 [2005]). Uponlearning that defendant had a valid outstanding arrest warrant, coupled with Smith'sparole status, the conflicting answers provided by Smith and defendant, and the trooper'sobservations at the scene—Smith's bloodshot eyes, his admission that he anddefendant had been partying all weekend and the lack of luggage within the vehicle tosupport defendant's travel plans—the trooper had garnered a founded suspicion ofcriminal activity (see People v Banks, 148 AD3d at 1361-1362; People vTejeda, 217 AD2d 932, 933-934 [1995], lv denied 87 NY2d 908[1995]).
Given this well-founded suspicion, the trooper was justified in extending the stopbeyond its initial justification and, following Smith's denial of his consent to search thevehicle, summoning a canine unit to perform an exterior sniff of the vehicle (see People v Devone, 15 NY3d106, 113-114 [2010]; People v Banks, 148 AD3d at 1362). Following thecanine's positive alert to the presence of narcotics, the trooper had probable cause tosearch the interior of the vehicle and ultimately take possession of the narcotics and drugparaphernalia subsequently discovered (see People v Banks, 148 AD3d at 1362;People v Boler, 106 AD3d1119, 1122 [2013]). In total, it was 44 minutes from the initial stop until defendant'sand Smith's arrests and, based on the evolution of the stop, we find this detentionreasonably related in scope and length to the escalating series of events so as to justifysuch detention (see People vRudolph, 170 AD3d 1258, 1261 [2019], lv denied 34 NY3d 937 [2019];People v Banks, 148 AD3d at 1361-1362; People v Rainey, 49 AD3d 1337, 1339 [2008], lvdenied 10 NY3d 963 [2008]; compare People v Banks, 85 NY2d at 562).Accordingly, we find that Supreme Court properly denied the motion to suppress theevidence seized from the vehicle. To the extent not specifically addressed, defendant'sremaining arguments have been reviewed and found to be without merit.
Clark, Devine, Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed, and matter remitted to the Supreme Court for further proceedings pursuant toCPL 460.50 (5).
Footnote *:Defendant did not waivehis right to appeal as part of his negotiated plea and, therefore, his challenge survives hisguilty plea (see People vJames, 155 AD3d 1094, 1095 [2017], lv denied 30 NY3d 1116 [2018]).