People v. Turriago

219 A.D.2d 383, 644 N.Y.S.2d 178, 1996 N.Y. App. Div. LEXIS 6438

Opinions

OPINION OF THE COURT

Rubin, J.

This appeal presents a case in which the permission granted State Police to search a vehicle, found by Supreme Court to be consensual as a matter of fact, represents the product of official coercion as a matter of law. As the Court of Appeals stated in People v Cantor (36 NY2d 106, 112): "Street encounters between the patrolman and the average citizen bring into play the most subtle aspects of our constitutional guarantees. While the police should be accorded great latitude in dealing with those situations with which they are confronted it should not be at the expense of our most cherished and fundamental rights. To tolerate an abuse of the power to seize or arrest would be to abandon the law-abiding citizen to the police officer’s whim or caprice — and this we must not do. Whenever a street encounter amounts to a seizure it must pass constitutional muster.” In order to uphold the constitutionality of the search undertaken in this matter, this Court would be required to ignore clear pronouncements of the high courts of this State and the United States.

As found by Supreme Court, Criminal Term, in its ruling on defendant’s suppression motion, at approximately 2 o’clock on the morning of November 20, 1990, New York State Troopers John O’Leary and James Van Cura were parked in their troop car on Route 17, about three fourths of a mile west of the Wood-bury Toll Plaza. After observing a westbound U-Haul van that appeared to be speeding, the State Troopers followed, pacing the vehicle, and ascertained that it was travelling at 70 miles per hour on a highway where the speed limit is 55 miles per hour. They activated their emergency lights and pulled the van over. Trooper O’Leary approached on the driver’s side and Trooper Van Cura on the passenger’s side.

Defendant Leonardo Turriago was driving, and codefendants Dennis Torres and Edwin Sepulveda were seated next to him.

Footnotes

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* Trooper O’Leary advised defendant that he had been stopped for speeding and inquired in regard to his origin and destination. Defendant stated that he was traveling from New York City to Binghamton. When requested, defendant produced his driver’s license and the rental agreement for the van, signed by him.

The State Troopers testified that the previous day was the first day of deer hunting season, bringing an influx of vehicles from New York City, some carrying loaded hunting weapons as well as animals taken in violation of hunting regulations. Trooper Van Cura had participated in a number of patrols in conjunction with the Department of Environmental Conservation for the purpose of detecting these unlawful weapons and animals. He testified that the procedure employed is to stop vehicles, either through a roadblock or roving patrol, and ask the occupants for consent to search the vehicle, conducting a search if consent is granted, but refraining if consent is denied unless there is some indication of criminal activity. It is not disputed, however, that early on that November morning, the assignment was, as Trooper O’Leary testified, "Regular road patrol.” The Troopers had just completed responding to the scene of an accident and were about to have some coffee when the speeding U-Haul van came into sight.

After receiving the driver’s papers from defendant, Trooper O’Leary asked what defendant had in the cargo area of the van. Defendant replied that it contained clothing and construction equipment he was moving for his father. On cross-examination, the Trooper explained, "During hunting season, we have problems with people hunting deer at night without licenses, carrying loaded weapons in their car, [or] van, just curious what they had in the back.” He testified that he made his request to inspect the cargo area of the van within approximately two minutes of stopping the vehicle. Trooper O’Leary stated that, on the way to the back of the van, "I just patted his pockets, made sure he didn’t have any weapons on him.” Defendant rolled up the cargo door and entered the back of the vehicle, accompanied by Trooper Van Cura. Trooper O’Leary then proceeded to the passenger side to talk with Sepulveda and Torres.

In the cargo area of the vehicle, Van Cura saw a cardboard box, a tool box, a steamer trunk and several other items. He asked defendant what the cardboard box contained and was informed that it held clothing and construction equipment. Van Cura then asked defendant if he would open the box, defendant obliged, and the Trooper saw that the box contained pillow cases, clothing and a hammer. Van Cura then inquired about the contents of the trunk and was told by defendant that it contained more clothing. Van Cura asked if he would mind opening the trunk, and defendant replied "sure” but stated he would have to use a key to open the latches.

At first, defendant appeared to be having difficulty opening the trunk, stating that he thought the lock might be broken. After suggesting that defendant keep trying, the Trooper heard the lock click open, at which point defendant ran away from the vehicle. As Trooper Van Cura released the latch, the lid opened and human legs protruded from the trunk, revealing the body of the victim, Fernando Cuervo.

Defendant was apprehended after a brief chase. The three men were read their Miranda rights, arrested and transported to the State Police barracks at Monroe. Only then did Trooper O’Leary issue defendant summonses for speeding and failing to wear a seat belt. Trooper Van Cura ran a computer check of defendant’s license, which revealed that it was suspended, for which he issued defendant a summons for aggravated operation of a motor vehicle without a license pursuant to Vehicle and Traffic Law § 511 (1) (a). Department of Motor Vehicle records further disclosed that none of the three men possessed a valid driver’s license.

Based on statements made by defendant and his companions on the morning of their apprehension, warrants were obtained for the apartment where the murder had been committed and for another apartment used by defendant Turriago as his residence. In the course of the searches, police recovered 11 pounds of cocaine, three loaded firearms, a box of .25 calibre ammunition, bullet casings, cellophane and duct tape of the type with which the body of the victim was wrapped, and blood samples. A police scuba team recovered a .25 calibre handgun from the Hudson River at 125th Street, the location where defendant admitted he disposed of the weapon. Defendant stated that he had killed Fernando Cuervo over a "drug thing” by shooting him in the face with a .25 calibre Raven firearm and then striking him in the head with a hammer. An autopsy confirmed that the injuries described were the cause of death and that the hammer, which was recovered from the rented van and from which defendant’s palm print was lifted, was consistent with the fractures to the victim’s skull.

With the exception of some inculpatory statements made by defendant at the end of questioning after he had invoked his right to counsel, Supreme Court denied his motion to suppress the physical evidence and his statements to police. The court found that the State Troopers had the right to make initial inquiries after stopping the van for speeding. It ruled that "suspicion based upon the onset of the hunting season, the nature and speed of the vehicle and the hour” justified the State Troopers’ request for consent "to inspect the vehicle and its contents.” "While noting that no consent to search form was obtained and that defendant was never advised that he could refuse to consent to the search, the court concluded that, under the totality of the circumstances, defendant’s consent was freely given and was neither the product of police coercion nor a mere submission to authority.

On appeal, defendant does not contest the sufficiency of the overwhelming evidence supporting his conviction. He contends only that the State Troopers had no right to ask him for consent to search the rental van, rendering the search involuntary and requiring suppression of all evidence and statements that followed from the illegal search.

At issue on this appeal is not whether, as Supreme Court found, defendant freely consented to the search of the rental van, but whether the State Troopers were justified in asking for his consent under the circumstances. Defendant’s confession and the strength of the physical evidence connecting him to the murder notwithstanding, this Court is constrained by the Court of Appeals rulings in People v Hollman (79 NY2d 181) and People v Banks (85 NY2d 558, cert denied — US —, 116 S Ct 187) to hold that the search violated defendant’s rights under New York Constitution, article I, § 12 (People v Harris, 77 NY2d 434). Suppression of the evidence that emanated therefrom, including defendant’s statements to the New York State Troopers, is required pursuant to the United States Supreme Court’s decision in Wong Sun v United States (371 US 471) as fruit of the poisonous tree (People v Gethers, 86 NY2d 159; People v Harris, supra).

The Troopers had a sound basis upon which to stop the vehicle in order to issue a speeding ticket to the operator (People v Ingle, 36 NY2d 413, 415-416). However, they neither issued a summons nor even verified the license and registration of the vehicle defendant had rented before obtaining his consent to search it (People v Banks, supra, at 561). While the initial inquiry into defendant’s origin and destination was within the bounds of a request for information (People v Hollman, supra, at 194; People v De Bour, 40 NY2d 210, 218-219), nothing transpired to justify suspicion that criminal activity was afoot so as to give rise to the common-law right to inquire (People v De Bour, supra, at 215) and justify the request to search (People v Hollman, supra, at 195).

The testimony given by the State Troopers who apprehended defendant and his companions was extremely forthright, and there is no reason to disturb the findings of fact made by Supreme Court. It is understatement to remark that the Troopers perceived defendant to be most cooperative. This Court is completely satisfied that Supreme Court properly accorded full credit to the testimony of Trooper Van Cura that he was acting to carry out the mandate of the Environmental Conservation Law to enforce the provisions of article 11 governing the hunting of deer and other wildlife (ECL 71-0525 [1]). However, it is notable that the Trooper did not observe any weapons, blood, gun racks, rifle or shotgun cases, other hunting implements or clothing which might suggest that the occupants of the rental van were engaged in illegal hunting (compare, People v Tejeda, 217 AD2d 932, lv denied 87 NY2d 908 [illogical and suspicious responses to initial inquiries]; People v Carter, 199 AD2d 817, affd 86 NY2d 721 [obviously false response to initial request for information]; People v Sora, 176 AD2d 1172, lv denied 79 NY2d 864 [speeding vehicle matched description, location and destination of anonymous tip]). He merely stated that it was his practice to request permission to search a vehicle in connection with environmental control enforcement efforts. Neither can People v Battaglia (86 NY2d 755), relied upon by the dissenter, be read to support the search in this case. There, a divided Court (4-3) merely declined to review, as beyond its limited jurisdiction, the ruling of the Appellate Division, Fourth Department (citing Matter of Gissette Angela P., 80 NY2d 863, 864). The dissent (Smith, J.) concluded that the search was not supported by the requisite founded suspicion of criminal activity (People v Battaglia, supra, at 758).

The Environmental Conservation Law gives State Troopers the authority to "search without search warrant any boat or vehicle of any kind * * * whenever they have cause to believe that any provision of this article or of any law for the protection of fish, shellfish, crustácea, Wildlife, game or protected insects has been or is being violated, and to use such force as may be necessary for the purpose of examination or search” (ECL 71-0525 [1] [b]). However, it is not contended that the search in this case was conducted as part of "some nonarbitrary, systematic procedure to verify compliance with the law”, such as "by uniform inspection of all vehicles at a roadblock or checkpoint” (People v Ingle, supra, at 416; People v John BB., 56 NY2d 482, 487-488, cert denied 459 US 1010). Furthermore, the statutory requirement that the officer have "cause to believe” that a provision of the law is being violated implicates the same standard enunciated in People v De Bour (supra, at 215) that there exist a founded suspicion of criminality activating the common-law right to inquire (People v Hollman, supra, at 191-192). Stated another way, just because a law enforcement official is acting pursuant to the Environmental Conservation Law does not exempt any search that he might conduct from the operation of the Fourth Amendment, as interpreted by People v De Bour and its progeny.

As explained by the Court of Appeals in People v Gonzalez (39 NY2d 122, 124), "Consent to search, a relinquishment of constitutional protection under both the Federal and State Constitutions against unjustified official intrusion, must be a free and unconstrained choice. Official coercion, even if deviously subtle, nullifies apparent consent.” As the United States Supreme Court stated the principle in Bumper v North Carolina (391 US 543, 550), "Where there is coercion there cannot be consent.”

Supreme Court’s conclusion that "[tjhere was no suggestion of intimidation or coercion in the troopers’ behavior up until the body was discovered” is contradicted by the evidence of record. As an initial consideration, the detention of defendant and his companions for a legitimate traffic infraction constitutes a limited seizure subject to constitutional constraints (People v Ingle, supra, at 418). Defendant could not reasonably " 'disregard the police and go about his business’ ” (Florida v Bostick, 501 US 429, 434, quoting California v Hodari D., 499 US 621, 628). Thus, the encounter cannot be said to be consensual, and reasonable suspicion of illegality is required to justify a search (supra).

The level of intrusion upon defendant’s freedom of movement is exemplified by Trooper O’Leary’s pat down, which cannot be justified under the standards enunciated in People v De Bour (supra). Even if it could be said that the attendant circumstances warranted more than a mere informational inquiry, it is well settled that "the right to request information as delineated in De Bour (supra) and the common-law right to inquire do not extend to a frisk” (People v De Bour, supra, at 223). The authority to frisk is incidental to the right conferred by CPL 140.50 to forcibly stop and temporarily detain for questioning a person reasonably suspected of committing a crime, and it requires that the officer entertain a reasonable suspicion that his physical safety is in danger (supra, at 223; People v Brandon, 149 AD2d 907, 908, lv denied 74 NY2d 736; see, People v Mikel, 152 AD2d 603). Neither of these criteria is established by the record in. this case. Defendant’s explanation of his journey did not arouse any suspicion so as to confer the common-law right to inquire; a fortiori, there was no ground for reasonable suspicion of his involvement in a crime (see, People v Dugan, — AD2d —, —, 1995 NY Slip Op 10943 [3d Dept, Dec. 7, 1995]). Nor did either of the State Troopers express any concern for his physical safety (supra). Nevertheless, Trooper O’Leary’s pat down of defendant indicates, quite plainly, that defendant was treated by the Troopers as though he were being detained (People v Milaski, 62 NY2d 147, 155-156, n 3) and not merely being subjected to a request for information or common-law inquiry.

Finally, there is no merit to the People’s bootstrap argument that, irrespective of the lack of legal predicate for the search of the vehicle, the body of Fernando Cuervo would inevitably have been discovered (People v De Bour, supra, at 215-216). It is the People’s contention that the police were bound to learn, as ultimately they did, that none of the three men had a valid operator’s permit to drive the van. Therefore, they assert, the vehicle was required to have been impounded (Vehicle and Traffic Law § 511-b) and would have been subject to an inventory search. Overlooking, for the time being, the infirmity of this reasoning, it must be emphasized that, while the State Troopers properly obtained the vehicle registration and the operator’s license (Vehicle and Traffic Law § 401 [4]; § 507 [2]), the record indicates that they made no attempt to verify the documentation before proceeding to seek defendant’s permission to search it (People v Banks, supra, at 561). This sequence of events only lends further support to the conclusion that the search "was the product of an inseparable illegal detention” (supra, at 561).

In any event, the law on this subject is settled. "The doctrine of inevitable discovery may not be used to excuse unlawful police actions by admitting what was obtained as a direct result of the misconduct” (People v Burr, 70 NY2d 354, 360, n 3 [citing People v Stith, 69 NY2d 313, 319], cert denied 485 US 989; People v Solano, 148 AD2d 761, 763). The inevitable discovery theory propounded by the People is exactly the one rejected in People v Stith, a case involving remarkably similar circumstances, in which the Court of Appeals observed (supra, at 319):

"The courts below simply assumed the chain of events which would customarily have been set in motion following defen dant Newton’s failure to produce a registration certificate: that a radio check would have revealed that the truck was stolen, defendants would have been arrested, the truck would have been impounded and the gun would have been found in an inventory search.

"We hold that applying the inevitable discovery rule in these circumstances, and effecting what would amount to a post hoc rationalization of the initial wrong (see, Nix v Williams [467 US 431], at 448), would be an unacceptable dilution of the exclusionary rule.”

Logically, the subsequent discovery that none of the persons in the rental van was authorized to operate the vehicle cannot serve as a predicate to the request to search (People v Hollman, supra, at 191-192; People v De Bour, supra, at 222; People v Boyd, 188 AD2d 239, 243). As the Court of Appeals stated in People v Banks (supra, at 562), "A traffic stop constitutes a limited seizure of the person of each occupant (People v May, 81 NY2d 725, 727; People v Harrison, 57 NY2d 470, 476). For a traffic stop to pass constitutional muster, the officer’s action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance”. While, as in Banks, the traffic stop was justified, the "circumstances of the detention were not. Consequently, the evidence ultimately seized must be suppressed” (supra, at 562; People v Woods, 189 AD2d 838, 842; People v Mikel, supra). The inevitable discovery rule cannot be applied to any evidence recovered from the U-Haul van because the Court of Appeals "has never applied the rule where, as here,' the evidence sought to be suppressed is the very evidence obtained in the illegal search” (People v Stith, supra, at 318; People v Grovner, 172 AD2d 1035).

The People nevertheless argue, in conclusory and perfunctory fashion, that "secondary” evidence is admissible under the inevitable discovery rule, that is, "evidence obtained indirectly as a result of leads or information gained from th[e] primary evidence” (People v Stith, supra, at 318). Without elaboration, the People contend that the secondary evidence in this case is comprised of defendant’s statements; the murder weapon; the bullets, shell casings, duct tape, plastic wrap and blood samples taken from defendant’s apartments; the autopsy findings; and the testimony of Fernando Cuervo’s wife.

The two cases relied upon to support the inevitable discovery theory both involve evidence which might have been obtained by canvassing dealers in the particular items sought to be admitted into evidence (People v Payton, 45 NY2d 300, 313-314, revd on other grounds 445 US 573, on remand 51 NY2d 169 [rifle shell casing]; People v Watson, 188 AD2d 501, 502 [ring]). In Watson (supra, at 502), routine police procedures included "a well established system of checks on local establishments which bought and sold silver and gold items” that would inevitably have resulted in the discovery of the victim’s antique engagement ring. In Payton, the procedure was not "well established” (it was apparently unprecedented) and would have required canvassing approximately half of the registered gun dealers in the State, prompting the dissent to suggest that the discovery of the dealer who sold the murder weapon was far from "inevitable” (45 NY2d, supra, at 316-317 [Wachtler, J., dissenting]). Be that as it may, there is no suggestion in the case before us that the police routinely drag the East River for evidence or that such a procedure would be likely to lead to the recovery of a handgun (cf., People v Dempsey, 177 AD2d 1018, lv denied 79 NY2d 946 [grid search in vicinity of apprehension]).

Defendant’s statements, made within six hours of his arrest, were not sufficiently attenuated from the illegal search by reason of "the temporal proximity of the arrest and the statement[s], the absence of intervening circumstances and the purpose * * * of the police misconduct” (People v Harris, supra, at 441). The State Troopers’ testimony that, while not assigned to an environmental control detail on the night in question, their search of defendant’s vehicle was made in furtherance of the protection of wildlife is quite plausible. In particular, Trooper O’Leary’s testimony that he sought defendant’s permission to conduct the search because he was "Q]ust curious, basically” is remarkably candid. However, "attenuation is not established by showing that the police conduct was undertaken in good faith” (People v Harris, 72 NY2d 614, 622 [citing Taylor v Alabama, 457 US 687], reversed 495 US 14, on remand 77 NY2d 434, supra; 4 LaFave, Search and Seizure § 11.4 [b], at 397-398 [2d ed]). "An otherwise inadmissible confession may not be admitted into evidence simply because there has been no showing of purposeful misconduct” (supra, at 622). Moreover, idle curiosity does not remotely rise to the level of reasonable suspicion of criminality required to justify the encroachment upon defendant’s privacy interest in the vehicle (People v Banks, supra, at 561-562 [lessee has dominion and control over vehicle and, therefore, a privacy interest]). As stated in People v De Bour (supra, at 217): "The basic purpose of the constitutional protections against unlawful searches and seizures is to safeguard the privacy and security of each and every person against all arbitrary intrusions by government. Therefore, any time an intrusion on the security and privacy of the individual is undertaken with intent to harass or is based upon mere whim, caprice or idle curiosity, the spirit of the Constitution has been violated and the aggrieved party may invoke the exclusionary rule or appropriate forms of civil redress.”

Whatever may have been the motivation, the unauthorized search was clearly undertaken to obtain physical evidence and, thus, has "the 'quality of purposefulness’ to uncover incriminating evidence” (People v Boodle, 47 NY2d 398, 404 [quoting Brown v Illinois, 422 US 590, 605], cert denied 444 US 969). Defendant’s confession followed within hours, and interrogation was uninterrupted by sleep, meals or contact with family or counsel. The People have not sustained their obligation "to demonstrate that the statements were acquired by means sufficiently distinguishable from the arrest to be purged of the illegality” (People v Conyers, 68 NY2d 982, 983) and point to no intervening events that would break the causal connection between the police misconduct and the statements (People v Johnson, 66 NY2d 398, 407-408). And if the statements are inadmissible, the evidence recovered upon the execution of warrants acquired on information obtained from the statements made by defendant and his companions is likewise inadmissible, unless discovery is supported by independent grounds. The People have not met their burden to establish an independent basis for the discovery of otherwise tainted evidence (see, People v Fitzpatrick, 32 NY2d 499, 507). The derivative incriminating evidence, discovered as the byproduct of information supplied to police by defendant in his statements, cannot therefore be considered the result of a source unrelated to the official misconduct but must be regarded as a direct consequence of the unlawful search (People v Parris, 136 AD2d 882, 883, lv denied 71 NY2d 1031).

The remaining secondary evidence is of limited value. The testimony of the victim’s wife does not connect defendant to the murder. Nor is the medical evidence, assuming its admissibility, sufficient to connect defendant to the crime in the absence of the physical evidence subject to suppression.

In light of suggestions that New York State adopt the Federal approach to search and seizure questions, it is ap propriate to note that the result in this matter would be no different if analyzed from the Federal perspective. Similarly, justification for a frisk requires an "articulable suspicion that a person has committed or is about to commit a crime” (Florida v Royer, 460 US 491, 498, citing Terry v Ohio, 392 US 1). As illustrated by Florida v Bostick (supra) and Florida v Royer (supra), to constitute a consensual search, permission must be granted under circumstances in which the person subject to official scrutiny has not been placed under detention, even momentarily, unless the police can demonstrate reasonable objective grounds for the detention (Florida v Royer, supra, at 497; see, United States v Mendenhall, 446 US 544). As these criteria are not satisfied under the facts of this case, the search of defendant’s vehicle is likewise unconstitutional under Federal guidelines.

The scope of the constitutional problem is not immediately apparent from the circumstances of this particular case, in which a State Trooper’s intuition seems to have been rewarded and, post hoc ergo propter hoc, justified (although what he uncovered is hardly what he professed to be looking for). The constitutional ramifications are, however, much broader. When a motorist, stopped for some minor traffic infraction on a lonely stretch of road in the dead of night, is approached by two imposing State Troopers — the very personification of State authority on the highway — one of whom leans over the car and asks, "Mind if we look in the trunk?”, can the forthcoming affirmative response truly be regarded as the product of free will? The courts have confronted this problem for some 35 years, and the detailed criteria which have been formulated to balance the government’s legitimate interest in law enforcement against the encroachment upon the individual’s right to privacy and freedom of movement should not be lightly disregarded. The fruits of the search of a detainee, undertaken without founded suspicion of criminal activity, are required to be suppressed under either the State or Federal Constitution.

Finally, it is appropriate to emphasize that what is fundamentally at issue in this case is the extent to which constitutional liberties can and should be compromised for the sake of more effective law enforcement. It might appear tempting to adopt, as the Trial Justice did, the rationale advanced by the People in this case — that the search of defendant’s van is justified by a vague "suspicion based upon the onset of the hunting season, the nature and speed of the vehicle and the hour”. While, to some, this may seem acceptable in order to more ef fectively wage the war on crime, the courts have made a reasoned determination that the occasional loss of the opportunity for apprehension is outweighed by the need to preserve the freedom of movement of the general populace by requiring the police to demonstrate reasonable suspicion of criminal activity before infringing upon an individual’s liberty (see, People v Spencer, 84 NY2d 749, 759, cert denied — US —, 116 S Ct 271; People v Elam, 179 AD2d 229, 233-234 [Murphy, P. J.], appeal dismissed 80 NY2d 958).

Accordingly, the judgment of the Supreme Court, New York County (Rena Uviller, J.), rendered December 19, 1991, should be reversed, on the law, the motion to suppress physical evidence and defendant’s statements granted, and the matter remanded to Supreme Court for further proceedings.

Edwin Sepulveda entered a guilty plea to mafnslaughter in the first degree and was sentenced to three and one-third to ten years’ incarceration. Dennis Torres pled guilty to hindering prosecution and was sentenced to time served.