People v. Faines

297 A.D.2d 590, 747 N.Y.2d 484, 747 N.Y.S.2d 484, 2002 N.Y. App. Div. LEXIS 8819
CourtAppellate Division of the Supreme Court of the State of New York
DecidedSeptember 26, 2002
StatusPublished
Cited by22 cases

This text of 297 A.D.2d 590 (People v. Faines) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Faines, 297 A.D.2d 590, 747 N.Y.2d 484, 747 N.Y.S.2d 484, 2002 N.Y. App. Div. LEXIS 8819 (N.Y. Ct. App. 2002).

Opinion

At a combined Mapp/Huntley/Dunaway hearing held prior to trial, Police Officer Brendan Regan testified that on April 17, 1998, he was on duty with his partner, when he observed de[591]*591fendant, who was driving a 1992 Mazda, change lanes without signaling and make an “erratic,” “short-cut” left turn. Officer Regan pulled defendant over. Both defendant and his passenger, codefendant Calvin Langhorn, rolled down their windows. Officer Regan approached the driver’s side and his partner, Police Officer Kimberly Ferrino, approached the passenger side. Regan informed defendant that he had not signaled when he turned and asked defendant for his license and registration. Defendant produced his license but could not find the registration or insurance card for the Mazda, which he claimed belonged to his girlfriend. The officer ascertained that the car was insured and was registered to the name defendant gave as the owner. Nevertheless, Officer Regan testified that defendant was “very, very nervous, shaking!,]” observing further that “[i]t was in April!,]” and “[h]e began to really sweat!.]” Langhorn also noticed the sweat coming from defendant’s forehead.

The hearing court specifically credited the testimony of Officer Regan in which he stated that he asked defendant if there was any reason why he was so nervous. Defendant replied that he had “a bag of weed” on him, took a bag of marijuana from his jacket pocket, and handed it to Officer Regan.

Langhorn also testified for the People at the hearing, but his differing version was not fully credited by the hearing court. He related that Officer Regan had stated, “why do you look so nervous” and then asked “is there anything in the car that shouldn’t be there?” After neither responded, again according to Langhorn, Officer Regan said, “if you got anything in the car you ain’t supposed to have, we work deals out in Washington Heights.” Defendant did not reply, but after a minute or two, while, according to Langhorn, Officer Regan repeated this “over and over,” defendant then reached into his pocket and handed the officer a bag of marijuana.

Officer Regan testified that since defendant turned over the marijuana, he advised defendant that he and his partner were going to search the car, and, if there was anything else inside, they “should know about it now.” According to Langhorn, Officer Regan repeated this remark. Defendant then turned to Langhorn, extended his hand to him and said “give me that.” Langhorn reached between his legs and handed defendant a bag containing over four ounces of cocaine. Defendant gave the bag to Officer Regan, and the police arrested both defendant and Langhorn.

In a written decision, dated February 3, 1999, the hearing court credited, as limited by its findings, the testimony of the [592]*592People’s witnesses. Specifically, the court found that upon observing that defendant was “shaky” and “sweat was forming on his head,” Officer Regan asked “if there were [sic] any reason why he was so nervous.” The court accepted this testimony, finding that Officer Regan had an objective reason to stop defendant for the traffic violation; that he had made an appropriate inquiry as to why defendant was so nervous; and that once defendant volunteered the marijuana, Officer Regan possessed probable cause to arrest him and to search the car for additional contraband. The court also found that Officer Regan’s inquiry, after defendant voluntarily turned over the marijuana, as to whether there was anything else in the car that the officers should know about, was not a custodial interrogation requiring Miranda warnings.

At defendant’s first trial, the jury convicted him of unlawful possession of marijuana, acquitted him of the charge of possession with intent to sell, and was unable to come to a unanimous verdict on the first-degree possession charge. Upon retrial, the jury convicted defendant of criminal possession of a controlled substance in the first degree (weight in excess of four ounces).

Defendant now argues that the court should have granted his motion to suppress the drugs and his verbal statements and nonverbal expressions to the police. He reasons that Officer Regan made improper accusatory inquiries and the police should have read defendant his Miranda rights before asking the final question, to wit, whether there was anything the police should know about before they searched the car.

Initially, we note that defendant does not challenge the initial stop, which was clearly justified based on the traffic infraction the arresting officer saw (People v Robinson, 97 NY2d 341, 348-349).

In making his suppression arguments, defendant relies upon the codefendant’s testimony as to the encounter, rather than the officer’s. At the hearing, although the codefendant was a People’s witness and testified that Officer Regan asked several questions before defendant turned over the marijuana, Officer Regan testified he asked only one. The hearing court, however, credited the officer’s version. Notably, defendant does not challenge the factfinder’s determinations made at the suppression hearing. These findings are entitled to great weight on appeal (People v Prochilo, 41 NY2d 759). As defendant does not specifically contest these fact findings, we need not exercise our independent factual review power to evaluate the hearing testimony with an eye toward making or entertaining new credibility [593]*593determinations. In any event, were we to do so, we would find ample evidentiary support for the hearing court’s factual decisions.

After considering the uncontested findings of fact the hearing court made, we find that defendant’s motion to suppress was properly denied. Pursuant to People v De Bour (40 NY2d 210, 223), “[t]he minimal intrusion of approaching to request information is permissible when there is some objective credible reason for that interference not necessarily indicative of criminality [a level I inquiry].” As clarified by People v Hollinan (79 NY2d 181, 185), a request for information pursuant to a level I inquiry “involves basic, nonthreatening questions regarding, for instance, identity, address or destination” (emphasis added). However, “[o]nce the officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing and is the focus of the officer’s investigation, the officer is no longer merely seeking information” and the level of inquiry has been raised to a “common-law inquiry that must be supported by a founded suspicion that criminality is afoot” (id.).

Notably, the Hollman Court, by employing the phrase “for instance,” has told us that level I inquiries are not necessarily, nor always, limited to questions which only seek a person’s “identity, address or destination.” The Court’s language makes two requirements of a lawful level I inquiry clear to us. First, it may not involve “pointed questions,” which transform an encounter from one with a merely business-like tint to one with an intimidating or accusatory tone. Second, level I inquiries, when viewed in the aggregate, may not create a reasonable belief that the approached person is an investigatory target. If the encounter meets these two tests, the officer has not crossed the line into prohibited level II territory.

We find that, based on the suppression court’s findings of fact, Officer Regan’s lone question in response to defendant’s manifest nervousness was in no way inappropriate.

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Bluebook (online)
297 A.D.2d 590, 747 N.Y.2d 484, 747 N.Y.S.2d 484, 2002 N.Y. App. Div. LEXIS 8819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-faines-nyappdiv-2002.