People v Richards (2007 NY Slip Op 50309(U))

People v Richards

2007 NY Slip Op 50309(U) [14 Misc 3d 1235(A)]

Decided on February 23, 2007

District Court Of Nassau County, First District

Pardes, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through March 2, 2007; it will not be published in the printed Official Reports.

The defendant's motion to suppress statements made on the date of his arrest as the product of custodial interrogation without the benefit of the necessary warnings is granted. The defendant's motion to suppress property seized from the defendant's vehicle as fruit of an unlawful search and seizure is granted.

The defendant is accused, inter alia, by Simplified Traffic Information, of Aggravated Unlicensed Operation of an Automobile in the Second Degree (VTL §511.2); Leaving the Scene of an Accident (VTL §600[i]) and by District Court Information, of Unlawful Possession of Marijuana (PL §221.05). This matter came on for a suppression hearing on January 22, 2007, pursuant to an order (Kluewer, J.), dated August 2, 2006. At issue are statements made by the defendant at the scene of his arrest and subsequent to his arrest which he contends were the product of custodial interrogation without benefit of Miranda warnings. In addition the defendant asserts that a quantity of marijuana seized from the vehicle driven by the defendant on the date of the arrest was the result an unlawful search and seizure.

The People called three witnesses to testify at the hearing: Sergeant Michael Shea and Patrick Muchow of the Eight Precinct, Nassau County and Police Officer Edward Carlson of the First Precinct, Nassau County. Sergeant Shea testified that on April 21, 2005 at approximately 4:00 p.m. he received a call to report to an automobile accident at Hempstead Turnpike and Wolcott Road in Levittown. When he arrived he saw a black Honda parked on the median and a woman standing outside the vehicle. He stated that he asked the woman if she was hurt and she said "No". Upon further questioning she told him she was struck from behind by a vehicle described as a "large older model, gray Suburban-type" driven by "a male-white heavy set with a bandana". Sergeant Shea testified that the woman told him that the driver of the vehicle fled the scene driving eastbound on Hempstead Turnpike. Sergeant Shea notified police dispatch with a description of the vehicle and the driver and the license plate number of the vehicle "DFK 4970". Shortly thereafter he received radio notification that a civilian witness was following the vehicle that had left the scene. [*2]

Police Officer Carlson testified that on April 21, 2005 he was patrolling in a marked RMP and received notification that Eight Precinct officers were looking for a vehicle that had left the scene of an accident and was heading for a Birch Street address in Merrick. The notification described a gray Suburban driven by "a male white with a bandana." P. O. Carlson testified that he drove to Birch Street in Merrick and arrived to see the vehicle "stopping in front of the house" at approximately 4:30 p.m.. P.O. Carlson stated that he saw the defendant exit the driver's side of the vehicle as he approached it. When he came up to the vehicle he saw a small infant in a rear car seat. P.O. Carlson stated that he knew the vehicle had been in an accident and he asked the defendant if he was OK. He then asked the defendant for the "registration and insurance card, which he did provide" and noted that the vehicle was registered to the defendant's father at the Birch Street address. P.O. Carlson stated he did not read the defendant his Miranda rights because he did not place him under arrest. Shortly after P.O. Carlson arrived at the scene another First Precinct Police Car driven by a Police Officer Markey arrived and P.O. Markey was nearby when he spoke to the defendant.

P.O. Carlson testified further that after his conversation with the defendant two Eighth Precinct patrol cars arrived on the scene. P.O. Carlson stated that "he handed one of the officers the registration and insurance card and then left them to speak with him." Shortly thereafter P.O. Carlson testified that he saw the Eighth Precinct officers place the defendant under arrest and then they asked him to impound the vehicle.

Police Officer Patrick Muchow testified he received a radio notification at or about 4:00 p.m. on April 21, 2005 for a person who left the scene of an auto accident. As he headed toward the site of the accident he received another call advising him that a civilian was following the vehicle that left the scene. P.O. Muchow then responded to the radio notifications that led him to 2256 Birch Street in Merrick. On the way there he met P.O. Kenney in another Eighth Precinct RMP and Kenney followed him to the location. When he arrived he saw the defendant standing outside his vehicle along with two Nassau County First Precinct police officers. He and Kenney parked their marked police cars on the corner of Birch Street. P.O. Carlson approached him and handed him the registration and insurance cards for the vehicle and identified the defendant as the person who was driving the vehicle.

P.O. Muchow testified that he approached the defendant, identified himself and asked him if he was involved in an automobile accident.

P.O. Muchow stated that P.O. Kenny was standing right next to him when he was questioning [*3]the defendant. After he spoke to the defendant he called Sergeant Shea who "advised he was going to have the defendant arrested." P.O. Muchow stated that he returned to the defendant and told him "unfortunately, I'm going to have to place you under arrest and take you to the Eight Precinct for leaving the scene of an auto accident." P.O. Muchow testified that prior to leaving the Birch Street location he "investigated" the vehicle in question and noticed damage to the front end. P.O. Muchow identified a photo taken of the defendant's vehicle while it was parked on Birch Street. (People's Exhibit 2) P.O. Muchow stated that they took the defendant back to the Eight Precinct in his vehicle with Officer Kenney sitting on the back seat.

On cross examination P.O. Muchow testified that prior to his first approaching the defendant in front of his vehicle on Birch Street there were four uniformed police officers near the defendant and four marked police cars on the street. He stated that the defendant was not in custody but he was "not free to walk away", in light of the presence of the police and police cars, and as defense counsel phased it, their "implied authority." P.O. Muchow acknowledged that he did not advise the defendant of his rights prior to questioning him P.O. Muchow also elaborated on his initial conversation with the defendant. He stated that he initially asked him if he was involved in an auto accident and if he was hurt. After the defendant responded in the negative, he asked him if anyone else was in the vehicle and if they were hurt. The defendant told him his daughter was in the vehicle and she was not hurt. Muchow stated that he had not asked the defendant another question when the defendant made the first inculpatory statement that is the subject of this hearing.

In addition, on cross examination, Muchow stated that defendant made a second statement to the effect that he received a lot of tickets a few years ago and his lawyer said they were taken care of. Muchow stated that this statement was given either in the patrol car when they were transporting the defendant to the precinct, or while he was sitting in the holding cell at the precinct. At no time did Officer Muchow state that the defendant was given a Miranda warning either before or after he was placed under arrest.

With respect to the initial statements made by the defendant, the court finds that the description of the events presented by Police Officers Carlson and Muchow justify the finding that the questioning of the defendant by Officer Muchow was a custodial interrogation and not mere investigation. On the date in question, the defendant was closely followed by two uniformed police officers in two marked patrol cars as he was pulling up in front of his father's house. P.O. Carlson approached him as he was stepping out of his car and immediately began questioning him about his involvement in an automobile accident. The defendant handed over the registration and insurance papers for the car in response to the officer's request. Several minutes later, two more marked patrol cars pulled up and two more uniformed police officers surrounded the defendant. P.O. Carlson conferred with P.O. Muchow and advised him that the defendant was the driver of the car that they had been searching for. P.O. Muchow then approached the defendant and continued to question him about leaving the scene of an accident,( the crime for which he was arrested a few minutes later). Based on this description of the events the court finds that a reasonable person innocent of any crime would, in the same circumstances, have thought that he or she was in custody. (People v Yukl, 25 [*4]NY2d 585, 589 [1969]; People v Duncan, 241 AD2d 566 [3rd Dept., 1997]). " Custodial interrogation is not limited to police station questioning or that occurring after a formal arrest'"( see, People v. P. 21 NY2d 1,8[1967]; quoting Commonwealth v. Jefferson,423 PA 541,546[1967])

With respect to the second statement made by the defendant, P.O. Muchow acknowledged that the defendant was under arrest when he made this statement and P.O. Muchow did not testify that anyone advised the defendant of his Miranda rights after he was placed under arrest.

Based on the above, the court finds that both of these statements were the product of custodial interrogation without benefit of Miranda warnings and therefore must be suppressed.

With respect to the search of the defendant's car and seizure of the marijuana, a car that is lawfully in police custody is appropriately subject to an inventory search. It is well established that the purpose of an inventory search 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" (People v Johnson, 1 NY3d 252, 256 [2003]). In order to guard against misuse of inventory searches the police are required to conduct the search according "an established procedure clearly limiting the conduct of individual officers that assure that searches are carried out consistently and reasonably and do not become little more than an excuse for general rummaging to discover incriminating evidence." (People v Galack, 80 NY2d, 715, 719 [1993]).

An inventory search is unlawful if the arrest is not lawful. However, even if arrest is lawful it does not necessarily justify impoundment of a vehicle.

In the instant case the People failed to present a valid reason for impounding the automobile driven by the defendant. Both Police Officers Carlson and Muchow testified that the vehicle was registered to the defendant's father who lived at 2256 Birch Street in Merrick and that the vehicle was legally parked within a few feet of the owner's house on Birch Street. There was no suggestion that the car had to be impounded to examine it in connection with the charge that the defendant left the scene of an accident. The People submitted into evidence a photograph of the damage to the front end of the defendant's vehicle that was taken while the vehicle was parked on Birch Street [*5](People's Exhibit 2).

Additionally, P.O. Carlson's statement that they "normally" impound a car when someone is arrested for a violation of VTL 511.2 does not constitute a valid reason. The testimony given at the hearing established that the defendant was arrested for leaving the scene of an accident, a traffic infraction. The defendant's statement alone that he had a suspended license doesn't justify the conclusion that he would be charged with a violation of VTL 511.2. The police did not ask for or check the defendant's license at the scene. They only requested the registration and insurance documents for the vehicle. In fact when defense counsel suggested that Officer Carlson gave Police Officer Muchow the defendant's license, Muchow corrected him; "I believe it was registration and insurance."

Moreover, even if the police had established a valid reason for impounding the defendant's car, the People failed to establish that the inventory search was lawful. In response to the question "under what circumstances would you impound a vehicle? P.O. Carlson responded "Somebody is arrested for 511.2...of the Vehicle and Traffic Law we normally impound the vehicle...We normally take an inventory of the items in the car that are of value. We list them on the impound sheet...." In this case the police officer noted that he found a baby's seat and baby's blanket. He also testified that he found three small bags of marijuana on the driver's door panel which he did not list on the impound sheet because they would not be returned to the owner. On cross examination P.O. Carlson explained that Nassau County's "protocol" is to call desk officer at the precinct and that officer authorizes the impound over the phone. Aside from these explanations the People's witness offered no evidence or testimony with respect to any established procedure clearly limiting the conduct of individual officers or "the existence of any departmental policy regarding inventory searches" (People v Johnson, 1 NY3d 252, 256 [2003]).

Accordingly, based on the above, the court finds that the impoundment and the inventory search of the defendant's car was unlawful and that the marijuana seized from the defendant's vehicle is the fruit of an unlawful search and must be suppressed.