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Defendant Challenges the Legality of a Search



The Defendant is charged with two counts Criminal Possession of a Controlled Substance in the Seventh Degree and Unlawful Fleeing of a Police Officer in the Third Degree, in violation of Penal Law §§ 220.03 and 270.25, respectively, along with Driving While Ability Impaired by Drugs, four counts of Failing to Stop at a Stop Sign, and Passing a Steady Red Light, in violation of VTL §§ 1192(4), 1172(a) and 1111(d)(1), respectively.

A hearing was held to determine issues involving probable cause for the Defendant’s arrest, suppression of all tangible evidence seized from the Defendant and/or his vehicle, and the suppression of statements allegedly made by the Defendant.

At the hearing, where a defendant challenges the legality of a search and seizure, along with statements allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. Once the prosecution has met this burden, the defendant has the ultimate burden to establish the illegality of the police conduct, by a fair preponderance of the evidence. The burden is also on the People to prove, beyond a reasonable doubt, that the statements in question were voluntarily made before their admission into evidence on the People’s case in chief at trial.

The People attempt to meet their burden through the testimony of a Police Officer. The Defendant did not call any witnesses. After listening to the witness and observing his demeanor, the court finds his testimony to be credible.

The police officer is a fifteen year veteran of the Nassau County Police Department, having received training at the Nassau County Police Academy in 1994, been involved in approximately one hundred driving while intoxicated investigations and a few hundred traffic stops.

In the evening of January 27, 2007, the police officer was in uniform, on duty and alone in a marked police vehicle traveling northbound on Bellmore Avenue near its intersection with Newbridge Road. At that time, the Officer observed a white Toyota Forerunner, traveling northbound on Newbridge Road, at a speed greater than the posted thirty five mile an hour limit, pass through a steady red light. He made a right onto Newbridge Road, activated his lights and siren, and attempted to pull over the Forerunner. The Forerunner failed to pull over, accelerated to a speed twenty five miles per hour over the speed limit and made a left turn onto Waring Street. To this point, the officer did not see the driver of the Forerunner or the vehicle’s license plate, and only saw the vehicle’s tail lights.

The Defendant was placed under arrest for driving while impaired by drugs, possession of a controlled substance, speeding, passing numerous stop signs, and fleeing a police officer. The Defendant was handcuffed and placed on the grass on the opposite side of the street. The Defendant complained of pain; and, an ambulance was called. Shortly after the arrest, the Office recovered thirteen pills in an unmarked bottle from the center console of the Forerunner. The Officer did not know what kind of pills he recovered. He further testified that the search of the Defendant’s vehicle was “done for inventory.”

The Defendant was removed to Nassau University Medical Center by ambulance. While in the emergency room, the Defendant stated to the Officer, and other officers who were present, in sum and substance, “I’m sorry I put you guys in that spot. I got scared. I was smoking crack and had to get home. A worker turned me on to crack and I got a problem. I have two young kids and wrecked the family car.” This statement was not made in response to any question posed to him.

“A police officer is authorized to stop a motor vehicle on a public highway when the officer observes or reasonably suspects a violation of the Vehicle and Traffic Law.” The Officer’s observation of the Defendant operating his vehicle in excess of the posted speed limit and passing a steady red light provided him with a sufficient basis for stopping the Defendant’s vehicle.

Once the Officer activated his lights and siren and the Defendant continued to operate his vehicle at a high rate of speed, make numerous turns and fail to stop at numerous stop signs, in an effort to avoid apprehension, the Officer had probable cause to arrest the Defendant for Unlawful Fleeing of a Police Officer in the Third Degree, as well as numerous Vehicle and Traffic Law offenses. In addition thereto, upon observing the manner in which the Defendant operated his vehicle, the Defendant’s unsteadiness on his feet, his rapidly fluttering eyelids and the presence of what appeared to be a crack pipe on the driver’s side floor mat, the Officer had probable cause to arrest the Defendant for Driving While Under the Influence of drugs.

The court is not persuaded by the Defendant’s argument that, due to the brief period of time that the Forerunner was out of the Officer’s sight, the officer could not say that the vehicle he encountered up against a tree just east of Merrick Avenue was the same vehicle he had just been pursuing moments before. The court is similarly unconvinced by the Defendant’s argument that probable cause to arrest the Defendant for Driving While Impaired by Drugs did not exist due to the fact that his accident may have caused a head injury, resulting in his unsteadiness and fluttering eyelids.

The Defendant confuses proof beyond a reasonable doubt and probable cause to make an arrest. “Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place.”

The court finds that it was more than reasonable for the Officer to conclude that the white Forerunner he saw pass the red light at Newbridge Road and Bellmore Avenue and then lead him on a high speed chase, which lasted just three to five minutes, was the same white Forerunner which crashed into a tree east of Merrick Avenue seconds after the Officer lost sight of the vehicle. Similarly, while the Defendant’s accident may explain his unsteadiness on his feet and fluttering eyelids, he is free to argue this at the time of trial. Of course, the accident does nothing to explain the presence of a crack pipe on the driver’s floor mat.

Having probable cause to arrest the Defendant and remove him from his vehicle, the object described by the Officer as a crack pipe, and observed in plain view on the driver’s floor mat, was properly recovered by the officer.

Accordingly, that branch of the Defendant’s application to suppress this object is denied.

The Officer testified that after placing the Defendant under arrest, handcuffing him and removing him to the other side of the street he searched the center console of the Defendant’s vehicle, “for inventory,” where he found thirteen unidentified pills. The officer was not asked, nor did he offer any testimony concerning the standard departmental inventory procedures of the Nassau County Police Department and whether or not such procedures where followed in this case. In the absence of any such testimony, the People have utterly failed to meet their initial burden of coming forward with evidence of the existence of such a procedure and that the search was conducted in accordance therewith.

Clearly, from the testimony presented, the search of the center console of the Defendant’s vehicle, and the recovery of the pills located therein, cannot be sustained as an inventory search. This, however, is not the end of the court’s inquiry.

It is well established “that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Recognizing that “[a] police officer’s entry into a citizen’s automobile … [is a] significant encroachment upon that citizen’s privacy interests, with limited exception, warrantless searches of the interior of an automobile are proscribed.

On remand, the Court of Appeals found the search passed muster under both the Federal and State Constitutions. Although the defendant was initially stopped for the Vehicle and Traffic Law violation of speeding, based upon the presence of the aroma of marijuana and an envelope filled with marijuana found in plain view, the court validated the defendant’s arrest and a search of the passenger compartment of the vehicle, including the defendant’s jacket therein, holding, “that where police have validly arrested an occupant of an automobile, and they have reason to believe that the car may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered or a means of escape thwarted, they may contemporaneously search the passenger compartment, including any containers found therein.”

Nevertheless, while noting that “the rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search” In a case, the court did not return to its holding in the prevailing case, which limited a search incident to a lawful arrest to one for weapons or destructible evidence within an arrestee’s “grabable area.”

Instead, the Supreme Court grafted an additional exception onto the original holding, permitting the search of the passenger compartment of an arrestee’s vehicle where the officer reasonably believes that the vehicle may contain evidence of the crime for which the vehicle’s occupant has been arrested. Although seemingly at odds with the court’s own recognition that “if there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply”

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.

As such, the Supreme Court’s application of the automobile exception to warrantless searches and seizures, under the Fourth Amendment of the United States Constitution, is consistent with the Court of Appeals’ application of this exception, under the New York State Constitution, as set forth in Belton II.

Applying these principles to the matter before this court, the search conducted of the Defendant’s vehicle immediately upon his arrest for Driving While Impaired Due to Drugs was permissible pursuant to the Federal and State Constitutions. The very reasons which lead to the Defendant’s arrest for this crime, i.e., the manner in which he operated his motor vehicle, his unsteadiness on his feet, his rapidly fluttering eyelids and the presence of what was described to be a crack pipe on the driver’s floor mat, provided the Officer with a reasonable basis to believe the vehicle contained further evidence of one of the crimes for which the Defendant was arrested.

Accordingly, that branch of the Defendant’s application which seeks to suppress the pills found in the center console of his vehicle is denied.

It is well established that “both the elements of police custody’ and police interrogation’ must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by a case. It is clear from the Officer’s credible and uncontroverted testimony that the Defendant was not in custody at the time he freely and voluntarily responded to his question concerning his reason for not stopping when signaled to do so.

Accordingly, that branch of the Defendant’s application seeking to suppress his statements is denied.

If you are a victim of any form of abuse, contact Stephen Bilkis and Associates. We will provide you with advice and a free consultation.

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