People v. Gates

2017 NY Slip Op 5549, 152 A.D.3d 1222, 59 N.Y.S.3d 636

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 7, 2017
• Docket: 864 KA 16-02069
• Status: Published

Opinions

Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), rendered August 6, 2015. The judgment' convicted defendant, upon his plea of guilty, of possessing or transporting 30,000 or more unstamped cigarettes.

It is hereby ordered that the judgment so appealed from is reversed on the law, the plea is vacated, that part of the omnibus motion seeking to suppress physical evidence and statements is granted, the indictment is dismissed, and the matter is remitted to Jefferson County Court for proceedings pursuant to CPL 470.45.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of possessing or transporting 30,000 or more unstamped cigarettes (Tax Law § 1814 [c] [2]). When a State Trooper pulled over defendant for speeding on Interstate 81, he noticed “several large nylon bags” with “square edged contours” filling the area behind the driver’s seat. The Trooper initially asked defendant what was inside the bags, i.e., whether there was luggage in the bags, and defendant gave a series of increasingly implausible answers, including “clothing,” “presents,” “riding toys,” and “bicycles.” Defendant asked if he could leave, but the Trooper instead requested that he exit the vehicle while the Trooper spoke to two passengers. When the Trooper returned to speak to defendant, but before he advised defendant of his Miranda rights, defendant admitted that the bags contained nearly 300 cartons of untaxed cigarettes purchased from an Indian reservation.

Defendant contends that County Court erred in refusing to grant that part of his omnibus motion seeking to suppress physical evidence seized from his vehicle and the statements he made to the police. Initially, we note that, contrary to the People’s contention, defendant’s challenge to the suppression ruling was adequately preserved. Although the court did not issue a written decision addressing the suppression issues raised by defendant, the record establishes that the court implicitly but conclusively denied that part of defendant’s omnibus motion seeking to suppress physical evidence and statements that he made to the police. Defendant is not precluded from challenging the court’s suppression ruling simply because he did not request that it be memorialized in writing (see People v Elmer, 19 NY3d 501, 509 [2012]; People v Allman, 133 AD2d 638, 639 [1987]).

We conclude that the court erred in refusing to suppress the physical evidence and statements at issue. Contrary to defendant’s contention, however, our rationale is not grounded in custody and/or Miranda issues. “In light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car” (People v Garcia, 20 NY3d 317, 321 [2012]). Here, defendant was not in custody during his temporary roadside detention, and it was permissible for the Trooper to engage in a reasonable interrogation of defendant without first advising him of his Miranda rights (see People v Brown, 107 AD3d 1305, 1305-1306 [2013], lv dismissed 23 NY3d 1018 [2014]).

We conclude, however, that the Trooper’s initial inquiry concerning the contents of the bags constituted a level two common-law inquiry, which required a founded suspicion of criminality that was not present at the time (see People v Hightower, 136 AD3d 1396, 1396-1397 [2016]; People v Carr, 103 AD3d 1194, 1195 [2013]; see generally People v De Bour, 40 NY2d 210, 223 [1976]). Indeed, we note that nervousness, fidgeting, and illogical or contradictory responses to level one inquiries do not permit an officer to escalate an encounter to a level two De Bour confrontation (see Garcia, 20 NY3d at 320-322; People v Dealmeida, 124 AD3d 1405, 1407 [2015]). Here, the facts are even more strongly in favor of defendant inasmuch as defendant’s evasive and inconsistent answers were themselves induced by a level two inquiry from the Trooper. Because a founded suspicion of criminality did not arise until after the Trooper asked defendant what was inside the bags, the court erred in refusing to suppress the evidence.

As a result, defendant’s guilty plea must be vacated and, because our determination herein results in the suppression of all evidence in support of the crimes charged, the indictment must be dismissed (see Hightower, 136 AD3d at 1397). In light of our determination, we do not address defendant’s remaining contentions.

All concur except Winslow and Scudder, JJ., who dissent and vote to affirm in the following memorandum.