| People v Mosquito |
| 2021 NY Slip Op 04620 [197 AD3d 504] |
| August 4, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jahvon Mosquito, Appellant. |
Patricia Pazner, New York, NY (Chelsea F. Lopez of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy FitzpatrickTalcott, and Margaret Iocco of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ronald D.Hollie, J.), rendered December 10, 2018, convicting him of criminal possession of a forgedinstrument in the second degree (three counts), unlawful possession of marihuana (two counts),and failing to stop at a stop sign, upon a jury verdict, and imposing sentence. The appeal bringsup for review the denial, after a hearing (Gene R. Lopez, J.), of those branches of the defendant'somnibus motion which were to suppress certain physical evidence and statements he made to lawenforcement officials.
Ordered that the judgment is reversed, on the law, on the facts, and as a matter of discretionin the interest of justice, that branch of the defendant's omnibus motion which was to suppressthree credit cards recovered from the defendant's vehicle is granted, the indictment is dismissed,and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering anorder in its discretion pursuant to CPL 160.50.
The defendant was charged under an indictment with three counts of criminal possession of aforged instrument in the second degree (Penal Law § 170.25), two counts ofunlawful possession of marihuana (former Penal Law § 221.05), and one count offailing to stop at a stop sign (Vehicleand Traffic Law § 1172 [a]). After a hearing, the Supreme Court denied thosebranches of the defendant's omnibus motion which were to suppress physical evidence andstatements he made to law enforcement officials.
After a jury trial, the defendant was convicted of three counts of criminal possession of aforged instrument in the second degree, two counts of unlawful possession of marihuana, andfailing to stop at a stop sign. He was subsequently sentenced to concurrent indeterminate terms ofimprisonment of 3
This Court assigned the defendant counsel to prosecute his appeal from the judgment. Onappeal, the defendant contends, inter alia, that the Supreme Court should have granted that [*2]branch of his omnibus motion which was to suppress three creditcards that were recovered from his vehicle by law enforcement officers. The defendantcompleted serving the entire incarceratory portion of his sentence before his appellate brief wasfiled with this Court. Under the circumstances, the defendant contends that the entire indictmentshould be dismissed. We agree.
"The motive force for the constitutional safeguards precluding unreasonable searches andseizures (NY Const, art I, § 12; US Const, 4th Amdt) is protection against arbitrarygovernmental invasion of privacy" (People v Hodge, 44 NY2d 553, 557 [1978]; seeUnited States v Chadwick, 433 US 1, 11 [1977]). "To assure that, save for few specificallyestablished and well-defined exceptions, the determination of whether the desire of the police toconduct a search or seizure is supported by probable cause is entrusted in the first instance to aneutral Magistrate" (People v Hodge, 44 NY2d at 557). " 'All warrantlesssearches presumptively are unreasonable per se' " (People v Jimenez, 22 NY3d 717, 721 [2014], quoting People vHodge, 44 NY2d at 557). "Where a warrant has not been obtained, it is the People who havethe burden of overcoming that presumption" (People v Hodge, 44 NY2d at 557; seePeople v Jimenez, 22 NY3d at 721).
"Under the State Constitution, to justify a warrantless search incident to arrest, the Peoplemust satisfy two separate requirements" (People v Jimenez, 22 NY3d at 721). "The firstimposes spatial and temporal limitations to ensure that the search is 'not significantly divorced intime or place from the arrest' " (id., quoting People v Smith, 59 NY2d454, 458 [1983] [internal quotation marks omitted]). "The second, and equally important,predicate requires the People to demonstrate the presence of exigent circumstances" (People vJimenez, 22 NY3d at 722; cf. Arizona v Gant, 556 US 332, 345 [2009]).
In addition to a warrantless search incident to an arrest, the Court of Appeals has separately"recognized a 'narrow' automobile exception to the State Constitution's warrant requirement"(People v Langen, 60 NY2d 170, 180 [1983], quoting People v Belton, 55 NY2d49, 54 [1982]). In Belton, the Court of Appeals held that when "police have validlyarrested an occupant of an automobile, and they have reason to believe that the car may containevidence related to the crime for which the occupant was arrested or that a weapon may bediscovered or a means of escape thwarted, they may contemporaneously search the passengercompartment, including any containers found therein" (People v Belton, 55 NY2d at 55;see People v Langen, 60 NY2d at 180; cf. Arizona v Gant, 556 US at 343).
The Court of Appeals has further recognized that " '[if] probable cause justifies thesearch of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and itscontents that may conceal the object of the search' " (People v Ellis, 62 NY2d393, 398 [1984], quoting United States v Ross, 456 US 798, 825 [1982]; see People vYancy, 86 NY2d 239, 245 [1995]; see also Arizona v Gant, 556 US at 347).However, "[a] police officer's entry into a citizen's automobile and [the police officer's]inspection of personal effects located within are significant encroachments upon that citizen'sprivacy interests" (People v Torres, 74 NY2d 224, 229-230 [1989]; see Arizona vGant, 556 US at 345). "Under . . . long-standing precedent, such intrusions mustbe both justified in their inception and reasonably related in scope and intensity to thecircumstances which rendered their initiation permissible" (People v Torres, 74 NY2d at230; see generally People v De Bour, 40 NY2d 210, 215 [1976]).
At the suppression hearing in this case, Police Officer Craig Zaleski testified that he had beena police officer for three years and had previously made approximately 80 arrests, approximately30 of which had been with respect to marihuana and approximately 20 of which had been forforged or fraudulent credit cards. Officer Zaleski also had training with respect to theidentification of marihuana and with regard to forged or fraudulent credit cards.
At approximately 2:15 a.m. on December 10, 2016, Officer Zaleski, who was working inplain clothes with a partner in an unmarked vehicle, observed a white Honda fail to stop at thestop sign at 38th Avenue and 32nd Street in Queens. Officer Zaleski activated the emergencylights and siren on his vehicle, pulled over the Honda, exited his vehicle, and approached theHonda. Officer Zaleski testified that when he approached the Honda, he smelled an odor ofmarihuana. [*3]When he looked into the driver's side window, hesaw a small bag on the floor between the door and the driver's seat. Based upon his visualobservation of the contents of the small bag and his training and experience, Officer Zaleskibelieved that the bag contained marihuana.
Officer Zaleski asked the defendant, the driver of the Honda, for his license and registration,which the defendant provided. Officer Zaleski then asked the defendant to step out of the vehicleand directed him to the back of the vehicle near the trunk. At the back of the vehicle, OfficerZaleski asked the defendant if there was anything else in the car that he needed to know about,and the defendant said there was more marihuana in the car in a bag in the back seat.
Thereafter, while the defendant and the other individual in the vehicle were at the back of thevehicle with Officer Zaleski's partner, Officer Zaleski searched the vehicle, looking for moremarihuana. Officer Zaleski recovered several bags of what appeared to be marihuana from theinside of a black backpack that was located in the back seat of the vehicle. Officer Zaleski alsorecovered three credit cards from a small zippered wallet that was in the center console of thevehicle. Officer Zaleski testified that, based on his training and experience, he believed that thecredit cards were forged because the names on the credit cards did not match the names of theindividuals in the vehicle and the signature pads on the cards were not "raised."
The Supreme Court denied those branches of the defendant's omnibus motion which were tosuppress physical evidence and statements he made to law enforcement officials. With regard tothe physical evidence, the court credited Officer Zaleski's testimony that he smelled an odor ofmarihuana coming from the vehicle and observed a small bag of marihuana on the floor betweenthe driver's seat and the door. The court concluded that those observations provided OfficerZaleski with probable cause to believe the vehicle contained more contraband, and thus, theensuing search of the vehicle, which resulted in the seizure of additional marihuana and creditcards, was lawful pursuant to the automobile exception to the warrant requirements of the Stateand Federal Constitutions.
"Probable cause exists if the facts and circumstances known to the arresting officer warrant areasonable person to conclude that a crime is being or was committed" (People v Yancy,86 NY2d at 245; see Texas v Brown, 460 US 730, 741-742 [1983]). Here, given the odorof marihuana and his visual observation of what he believed to be a small bag of marihuana onthe floor of the vehicle, Officer Zaleski had probable cause to arrest the defendant for unlawfulpossession of marihuana. The defendant does not contest otherwise. The testimony at the hearingdemonstrated that "functionally, if not formally, [the] defendant was arrested when he was taken"to the back of his vehicle where he was secured by Officer Zaleski's partner while Officer Zaleskisearched the vehicle for additional marihuana (People v Blasich, 73 NY2d 673, 681[1989]). As the People correctly contend, Officer Zaleski's testimony at the suppression hearing,credited by the Supreme Court, demonstrated that upon the defendant's arrest for unlawfulpossession of marihuana, Officer Zaleski had probable cause to believe that additional marihuanamight be located elsewhere in the defendant's vehicle (see People v Galak, 81 NY2d 463,467 [1993]; People v Langen, 60 NY2d at 180; People v Belton, 55 NY2d at 55;cf. Arizona v Gant, 556 US at 335-336). Under such circumstances, Officer Zaleski"could properly search the entire [vehicle]" (People v Langen, 60 NY2d at 181-182), andthe search of the vehicle could lawfully include any closed containers found therein "in whichthere was probable cause to believe that [marihuana] may be found" (United States vRoss, 456 US at 825; see People v Ellis, 62 NY2d at 398). The record hereestablished that Officer Zaleski had probable cause to search the center console of thevehicle—and the small zippered wallet that was contained within it—for thepresence of marihuana (see People vDiMatteo, 62 AD3d 418, 419 [2009]; People v Bonilla, 199 AD2d 519, 520[1993]; cf. People v Ponder, 195AD3d 123 [2021]).
The People assert that Officer Zaleski lawfully encountered the credit cards during the courseof his search of the zippered wallet for the presence of marihuana. The People further contendthat the seizure of the three credit cards was justified by Officer Zaleski's testimony that thenames on the cards did not match the names of the occupants in the vehicle, and that the raisedsignature pads on the cards led him to believe that they were forged.
[*4] "It is well established that under certain circumstances thepolice may seize evidence in plain view without a warrant" (Coolidge v New Hampshire,403 US 443, 465 [1971]). "An example of the applicability of the 'plain view' doctrine is thesituation in which the police have a warrant to search a given area for specified objects, and inthe course of the search come across some other article of incriminating character" (id. at465). "Where the initial intrusion that brings the police within plain view of such an article issupported, not by a warrant, but by one of the recognized exceptions to the warrant requirement,the seizure is also legitimate" (id.). "Of course, the extension of the original justification[for the search] is legitimate only where it is immediately apparent to the police that they haveevidence before them" (id. at 466). "[T]he 'plain view' doctrine may not be used to extenda general exploratory search from one object to another until something incriminating at lastemerges" (id.).
"Under the plain view doctrine, if the sight of an object gives the police probable cause tobelieve that it is the instrumentality of a crime, the object may be seized without a warrant ifthree conditions are met: (1) the police are lawfully in the position from which the object isviewed; (2) the police have lawful access to the object; and (3) the object's incriminating natureis immediately apparent" (People v Diaz, 81 NY2d 106, 110 [1993]). "The plain viewdoctrine, it must be emphasized, establishes an exception to the requirement of a warrant not tosearch for an item, but to seize it" (id. at 110). "[T]he fundamentaljustification for the plain view doctrine is that when the police are already lawfully in a positionto make the observation, the discovery and seizure of contraband in plain view involve nointrusion on the individual's constitutional rights beyond that already authorized by the warrant orsome exception to the warrant requirement" (id. at 111).
"[A] truly cursory inspection—one that involves merely looking at what is alreadyexposed to view, without disturbing it—is not a 'search' . . . and thereforedoes not even require reasonable suspicion" (Arizona v Hicks, 480 US 321, 328 [1987]).By contrast, the plain view doctrine is not applicable where the object must be moved ormanipulated before its illegality can be determined (see Minnesota v Dickerson, 508 US366, 378 [1993]; Arizona v Hicks, 480 US at 328; People v Diaz, 81 NY2d at110). The movement or manipulation of an object from its original state in a manner that goesbeyond the objectives of the original search constitutes an independent search or seizure withinthe meaning of the State and Federal Constitutions (see Minnesota v Dickerson, 508 USat 378; Arizona v Hicks, 480 US at 328; People v Etoll, 51 NY2d 840, 841[1980]; cf. Wilson v Layne, 526 US 603, 611 [1999] ["the Fourth Amendment. . . require(s) that police actions in execution of a warrant be related to theobjectives of the authorized intrusion"]). Such a search or seizure may not be upheld withoutproof that the officer who moved or manipulated the object had probable cause to believe that theobject was evidence or contraband at the time that it was moved or manipulated (seeArizona v Hicks, 480 US at 328; People v Etoll, 51 NY2d at 841; People vRivas, 214 AD2d 996, 996 [1995]; People v Clemente, 202 AD2d 302, 302 [1994];People v Richie, 77 AD2d 667, 668 [1980]; People v Haas, 55 AD2d 683, 683[1976]; People v Taylor, 11 Misc 3d1053[A], 2006 NY Slip Op 50190[U] [Sup Ct, Bronx County 2006]).
Here, contrary to the People's contention, Officer Zaleski did not testify that the names andsignature pads on the three credit cards were inadvertently exposed to him during the course ofhis search for marihuana (see Coolidge v New Hampshire, 403 US at 467; cf. Peoplev Guadagno, 91 AD2d 753, 753 [1982] [stolen credit cards seized from dashboard ofvehicle]). Nor did Officer Zaleski testify that he determined that the credit cards were illicitbefore he removed them from the zippered wallet or otherwise manipulated them in order toexpose them to his view. We reiterate that, on this record, any such movement or manipulationwas unlawful unless Officer Zaleski had probable cause to believe that the credit cards werestolen or illicit at the time he moved or manipulated them from their original position within thezippered wallet.
Although Officer Zaleski lawfully encountered the three credit cards when he opened thezippered wallet to see whether there was marihuana inside it, the facts available to OfficerZaleski at the time he opened the zippered wallet would not "warrant a [person] of reasonablecaution in the belief that [the credit cards] may be contraband" (Texas v Brown, 460 USat 742 [citation and internal quotation marks omitted]; cf. 1 Wayne R. LaFave, Searchand Seizure § 2.7 [c]). Indeed, at the time Officer Zaleski opened the zipperedwallet, there was no evidence connecting the defendant to any burglary, or any other reason tobelieve that [*5]the three credit cards in the zippered wallet werestolen, forged, or otherwise illicit (see Arizona v Hicks, 480 US at 323, 326[" 'plain view' doctrine would have sustained a seizure of (stereo) equipment. . . if (the law enforcement officer) had probable cause to believe that theequipment was stolen" before the officer "read and recorded their serialnumbers—moving some of the components . . . in order to do so"]; seealso People v Greene, 104 AD2d 601, 603 [1984] [seizure of stolen goods was unlawfulwhere the police "at that time had no knowledge of any burglary having been committed" andlacked probable cause to believe that the goods were stolen]; People v Cook, 85 AD2d672, 672-673 [1981] [seizure of stolen goods was unlawful where the police at that time lackedprobable cause to believe that the goods were stolen]; cf. People v Coss, 189 AD3d 1759, 1761-1762 [2020] [automobilesearch upheld where law enforcement officer who removed a drill from nylon bag to inspectserial number had probable cause to believe it was stolen before the drill was removedfrom the bag based upon, inter alia, information he received about a recent nearby burglary froman automotive shop]; People v McMahon, 238 AD2d 834, 835-836 [1997] [rejecting thedefendant's contention that "the police improperly searched property which was not in 'plainview' when they opened the camcorder case and moved certain appliances in order to acquireserial numbers" where, "(d)uring their (initial) sweep of the house, (one of the law enforcementofficers) recognized items which appeared to match descriptions of property reported stolenduring recent burglaries"]; People v Guadagno, 91 AD2d 753 [1982] [inspection andseizure of credit cards from vehicle was lawful where officers who seized the cards during thesearch of the vehicle knew prior to the search that one of the occupants of the vehicle was afugitive who was alleged to be a member of a notorious burglary ring]).
On this record, Officer Zaleski's discovery of three credit cards stacked inside a smallzippered wallet was insufficient, without more, to justify an additional search that went beyondthe search for marihuana. "[A]n officer's inadvertent or incidental observation of an openlyvisible article that is known to have illicit uses is in and of itself insufficient to establish probablecause" (People v Yancy, 86 NY2d at 246; see People v Etoll, 51 NY2d at 841;People v Rivas, 214 AD2d at 996; People v Clemente, 202 AD2d at 302;People v Richie, 77 AD2d at 668; People v Haas, 55 AD2d at 683; see alsoPeople v Davis, 36 NY2d 280, 282 [1975]). The People here failed to sustain their burden ofdemonstrating that Officer Zaleski had "probable cause to associate the property with criminalactivity" at the time he moved or manipulated the credit cards (Payton v New York, 445US 573, 587 [1980]). "[T]his type of foray into [the] defendant's [personal papers and effects]. . . is precisely the type of general exploratory search so abhorrent to theConstitution" (People v Haas, 55 AD2d at 683; see Arizona v Hicks, 480 US at328 [" 'the "plain view" doctrine may not be used to extend a general exploratory searchfrom one object to another until something incriminating at last emerges' "]; Coolidgev New Hampshire, 403 US at 466 [same]).
The New York Constitution guarantees "[t]he right of the people to be secure in theirpersons, houses, papers and effects, against unreasonable searches and seizures" (NYConst, art I, § 12 [emphasis added]). As the Court of Appeals has recognized, "theState Constitution protects the privacy interests of the people of our State, not only in theirpersons, but in their . . . papers and effects as well, against the unfettereddiscretion of government officials to search or seize" (People v Belton, 55 NY2d at 52[emphasis added]; see NY Const, art I, § 12; People v Langen, 60NY2d at 180; see generally Vito J. Titone, State Constitutional Interpretation: TheSearch for an Anchor in a Rough Sea, 61 St John's L Rev 431, 462-466 [1987]). We reaffirmtoday that all warrantless searches or seizures of an individual's papers and effects" 'presumptively are unreasonable per se' " (People v Jimenez, 22 NY3dat 721, quoting People v Hodge, 44 NY2d at 557).
Ultimately, the People failed to sustain their burden of demonstrating that the three creditcards recovered from the defendant's vehicle were lawfully seized under the plain view doctrineduring the course of Office Zaleski's warrantless search of the vehicle for marihuana.Accordingly, that branch of the defendant's omnibus motion which was to suppress the threecredit cards recovered from the defendant's vehicle should have been granted. Under thecircumstances, we dismiss the indictment (see People v Dreyden, 15 NY3d 100, 102-104 [2010]; People vBurwell, 53 NY2d 849, 851 [1981]).
In light of the foregoing, we need not, and do not, reach any of the parties' remainingcontentions. Dillon, J.P., Miller, Barros and Connolly, JJ., concur.