People v. Gomez

50 A.D.3d 407, 859 N.Y.S.2d 621

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 2008
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered December 13, 2005, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 372 years, reversed, on the law, defendant’s suppression motion granted, the plea vacated, and the indictment dismissed.

Defendant does not dispute that the police lawfully stopped his car, arrested him, and then impounded the car, after observing him driving erratically and determining, by a computer run, that his driver’s license had been suspended. However, defendant does challenge the ensuing warrantless search of the car that yielded the narcotics evidence providing the basis for the criminal possession charge to which he pleaded guilty.¹ Supreme Court denied defendant’s motion to suppress this evidence based on its finding that the People established at the suppression hearing that the evidence was recovered in the course of a valid inventory search. We now reverse.

An inventory search is “a search designed to properly catalogue the contents of the item searched” (People v Johnson, 1 NY3d 252, 256 [2003]). “The specific objectives of an inventory search, particularly in the context of a vehicle, are to protect the property of the defendant, to protect the police against any claim of lost property, and to protect police personnel and others from any dangerous instruments” (id., citing Florida v Wells, 495 US 1, 4 [1990]). To establish that evidence was recovered in the course of a valid inventory search of a vehicle, the People are required to offer proof that the search was “conducted pursuant to ‘an established procedure clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably’ ” (Johnson, 1 NY3d at 256, quoting People v Galak, 80 NY2d 715, 719 [1993]). In addition, the People are required to establish that the search actually produced “a meaningful inventory list” (Johnson, 1 NY3d at 256; see also Galak, 80 NY2d at 720 [an inventory search must “create a usable inventory”]).

In this case, the People failed to meet their initial burden of coming forward with evidence that the search of defendant’s car was conducted in accordance with a standardized procedure established by the Police Department that was “rationally designed to meet the objectives that justify the search in the first place” and “limit[ed] the discretion of the officer in the field” so as to “assure[ ] that the searches are carried out consistently and reasonably and do not become little more than an excuse for general rummaging to discover incriminating evidence” (Galak, 80 NY2d at 719). While it was not necessarily fatal to the People’s case that they did not place in evidence the Patrol Guide’s written guidelines for conducting an inventory search, the People also failed to elicit from the police witness the relevant content of those guidelines. The only testimony the People elicited about the content of the Patrol Guide’s inventory search procedure was that it permits such a search to be conducted either at the scene or at the precinct and that it provides that such a search should be conducted “of a vehicle that is going to be vouchered.” No additional relevant details of the procedure for inventory searches were adduced. In particular, although the drugs in this case were found in the trunk of defendant’s car, and other evidence was found inside a door panel, the People did not establish the circumstances that would justify opening a closed trunk or a door panel under the Patrol Guide procedure (see People v Colon, 202 AD2d 708, 708 [1994], lv denied 84 NY2d 824 [1994] [drugs found during inventory of vehicle “in a paper bag located in the trunk and hidden behind some of the vehicle’s interior paneling” were suppressed due to failure to establish that trooper was “acting pursuant to any standardized procedure in conducting the inventory”]; cf. People v Lesane, 284 AD2d 249, 250 [2001] [locked metal compartment in vehicle was opened during inventory search in accordance with applicable procedure]; People v Watson, 213 AD2d 996, 997 [1995], lv denied 86 NY2d 804 [1995] [vehicle’s door panel was opened during inventory search in accordance with applicable procedure]; People v Walker, 194 AD2d 92, 94 [1993], lv denied 83 NY2d 811 [1994] [vehicle’s trunk was opened during inventory search in accordance with applicable procedure]).²

Since the People failed to establish the content of any standardized procedure for inventory searches promulgated by the New York City Police Department, it necessarily follows that the People also failed to come forward with evidence that the search of defendant’s car was conducted in accordance with any such standardized procedure. Further, even if the People had established that the search was otherwise conducted in accordance with a reasonable standardized procedure for conducting inventory searches, suppression would still be required on the ground that the People completely failed to establish that the police created any actual inventory list of the items found in the car, such a list being “the hallmark of an inventory search” (Johnson, 1 NY3d at 256). While the police witness testified that a voucher and forfeiture papers were prepared for the car itself, there is no indication that such paperwork included any itemization of the car’s contents. As to the officer’s testimony that he prepared vouchers for the various items found in the car that were to be held for use as evidence, such disparate and selective documentation of the car’s contents could not substitute for a single “meaningful inventory list” (id.; see also Galak, 80 NY2d at 720 [the requirement of “a detailed and carefully recorded inventory” was not satisfied where, inter alia, “no record was kept of what property, if any, was left in the car or returned to defendant”]). The People did not place in evidence any comprehensive inventory list “cataloguing] the contents of the [vehicle] searched” (Johnson, 1 NY3d at 256) and noting the disposition of each item found therein, whether or not that item was retained by the police. Further, not only did the police witness not testify that any such list had been created, he affirmatively testified that he believed that no official form for inventory lists had been promulgated:

“Q. But there is a special form when you do an inventory search of what was in the vehicle, what was recovered from the vehicle, if it was brought somewhere for safekeeping, correct?

“A. No, there is not.

“Q. There’s no form at all?

“A. No.”³

We observe that, if vouchers for items held as evidence were deemed to constitute, collectively, an inventory list of the contents of the vehicle from which those items were recovered, the requirement that an inventory search produce an inventory list would be eviscerated, since the police create vouchers, as a matter of course, for items being retained for use as evidence. Moreover, to the extent the police document only those contents of a vehicle that have potential evidentiary value (as appears to have been the case here), it tends to show that the purpose of the search of the vehicle was “a general rummaging in order to discover incriminating evidence” (Johnson, 1 NY3d at 256, quoting Florida v Wells, 495 US at 4), which is not an appropriate aim of an inventory search. “While incriminating evidence may be a consequence of an inventory search, it should not be its purpose” (Johnson, 1 NY3d at 256).⁴

Contrary to the view of the dissent, defendant preserved both the issue of the People’s failure to establish that the search of the vehicle was conducted in accordance with an established procedure for inventory searches and the issue of the failure of any meaningful inventory list to result from the search of the vehicle. Indeed, the People—who are not reticent to argue that arguments have not been preserved for appellate review—do not argue that defendant failed to preserve the arguments he makes on this appeal. The following excerpts from defense counsel’s argument at the Mapp hearing demonstrate the preservation of these issues:

“[The cases] all say, if there is going to be an inventory search, certain safeguards and certain procedures have to be followed. There needs to be a form that’s filled out. And although the officer denied there is a form, there actually is one, and I have the form number here, somewhere. I have it listed somewhere. But there is a form that has to be filled out. This officer said he never filled out an inventory search form.

“And the reason they have to have procedures is, the cases say this can’t be some sort of rouse [sic] to search a vehicle, if you have no other reason to search the vehicle. This officer testified that on an arrest for driving with a suspended license, with the car double-parked, with one car, one door unable to be opened, where he couldn’t even do an entire inventory search, he had to bring the car to the precinct to open up the [panel of the] door, where the glassine envelopes [sic] were allegedly found, with two other police officers there. It was unknown whether cars could pass, because he said he didn’t remember.

“You are going to stop everything at 1 o’clock in the morning, and stop [sic] doing an inventory search, and you don’t have a form writing down what you are taking, why you are taking it, what you are keeping for safekeeping? The Courts are very clear, and the Court of Appeals, I believe, unanimously in [People v Johnson, supra] said that—I am going to quote from the Court of Appeals, Judge.

“They [the Court of Appeals] said [counsel here read from Johnson, 1 NY3d at 256] that ‘an inventory search must not be a rouse [sic; Court of Appeals wrote “ruse”] for general rummaging in order to discover incriminating evidence. To guard against this danger [an] inventory search [sh]ould be conducted pursuant to [an] established procedure, clearly limiting the conduct of individual officers. That assures that the searches are carried out consistently and reasonably. The procedure must be standardized, so as to limit the discretion of the officer in the field. While inventory [sic; Court of Appeals wrote “incriminating”] evidence may be [a] consequence of [an] inventory search, it should not be its purpose, and the prosecution has the initial burden of establishing a valid inventory search.’ [Here the inexact reading from Johnson ends.]

“It is the prosecution’s burden to prove that this was a valid inventory search. I think the officer’s testimony after arresting someone for driving with a suspended license, that he was going to just start an inventory search, without having the form to fill out, right in the middle of the street, at 1 o’clock in the morning, is ludicrous.

“I submit to the Court that what this officer was doing was attempting to search the car, perhaps because the defendant, the day before, was taken to a hospital, maybe suspected there may have been drugs in the car. He was trying to find a reason to search that car, and that is what he was doing. Whether or not he thought of that reason afterwards, because he realized that you can’t search a car when you stop somebody and arrest someone for driving with a suspended license unless you have probable cause to believe there is contraband, I don’t know when he decided that. But at some point, he thought up this rouse [sic].

“Well, this was [not] an inventory search. It is obvious what this is. This is very similar to the Johnson case, where the officer went into a glove compartment to look, and he said, to inventory the car at the scene, and a gun was recovered. And the Court of Appeals unanimously held that you can’t do that. An inventory search has to be a standardized procedure.

“If this vehicle had been brought back and if they had a search of the vehicle, and if they have a form listing what they were taking out, it would be a different story. That is not what happened here, Judge. So based upon the evidence, and based upon the leading cases in this state, I am going to ask the Court to suppress all of the evidence that was removed from the vehicle. There was absolutely no probable cause to search this vehiele, and this was obviously not an inventory search, it was just rouse [sic] by the officer to justify searching the vehicle.”⁵

In sum, because the People failed to establish that the Police Department’s inventory search procedure was reasonable and that the search of defendant’s car was conducted in accordance with that procedure and produced a legitimate inventory list, defendant was entitled to have the evidence produced by that search suppressed. We note that the People did not raise an argument of inevitable discovery in opposition to the suppression motion, and we therefore have no occasion to consider such a theory. Concur—Mazzarelli, J.P., Friedman, Williams and Malone, JJ.

1 . Such evidence included the following items found in the car’s trunk at the scene of the arrest: a “Banana Republic” bag containing a clear plastic bag apparently filled with cocaine powder, an electric scale, and an empty, clear plastic bag apparently coated with cocaine residue, and (outside the “Banana Republic” bag) a brown manila envelope containing several red pills. In addition, after the car was driven to the precinct, 45 empty plastic “baggies” were found inside the panel of the driver’s door.

2 . The police witness testified that the search of defendant’s car was motivated in part by the officer’s recollection that, during an encounter he had with defendant in an apartment the night before the arrest, defendant had claimed to have a gun. However, the officer never explained how defendant’s claim the night before (which had not prompted any search at the time) affected the manner in which the inventory search of defendant’s car could properly be conducted under the Patrol Guide’s standards. The People have not argued that defendant’s prior statement that he had a gun created probable cause for searching his car when he was arrested on an unrelated charge the next day.

3 . In their brief, the People concede that, contrary to the officer’s testimony, “[p]olice officers operating under the Patrol Guide are directed to voucher valuables recovered in an inventory search on a Property Clerk’s Invoice (Document Number PD521-141),” as set forth in Patrol Guide Procedure No. 218-13 (“Inventory Searches of Automobiles and Other Property”). The People do not argue that the voucher that was filled out for the evidence found in defendant’s car constituted the functional equivalent of PD521-141, the inventory form prescribed by Procedure No. 218-13.

4 . The dissent’s remark that the People showed “that all of the items of contraband were recorded in the voucher” (emphasis added) underscores the point that the purpose of the search of defendant’s car was to discover incriminating evidence, not to produce a general inventory of all of the vehicle’s contents. Moreover, we do not share the dissent’s view that it is a “more reasonable inference” from the officer’s testimony that he “recorded all of the items found in the vehicle.” In this regard, we reiterate that it was the People’s initial burden to come forward with affirmative evidence that an inventory list was, in fact, created.

5 . Even if we were to accept (which we do not) the dissent’s position that defendant did not preserve the issue of the People’s failure to show that the arresting officer followed an established procedure for inventory searches (although, to reiterate, the People have made no such argument), the above-quoted portions of the hearing transcript establish to our satisfaction that, contrary to the dissent’s view, defendant preserved the issue of the People’s failure to produce any actual inventory list that resulted from the search of the vehicle. The latter issue, by itself, suffices to require a reversal.