The Decision and Order dated February 5, 2025, is hereby recalled and vacated in toto, and is hereby replaced by this Amended Decision and Order.

This matter was referred to the undersigned to conduct an evidentiary hearing pursuant to Mapp. (Mapp v. Ohio, 367 U.S. 643). Hearings were held on November 12, 2024 and December 4, 2024. The top count of this indictment is Criminal Possession of a Controlled Substance, 4th Degree.

The People called one witness, Matthew Reverendo, a Special Agent with the Drug Enforcement Administration. His duties are to investigate crimes related to narcotics. On November 7, 2023, he was part of a team conducting surveillance with a partner, Special Agent Vincent Wong, in the vicinity of 14th Avenue and 80th Street, in Brooklyn. He described the area as a "known narcotics location," but when asked, couldn't identify any reports or documents about the location, nor testify about any arrests or observed drug transaction in the area. (Reverendo, hearing transcript, 11/12/24, p. 20, lines 15-25, p.21, lines 1-25, p. 22, lines 1- 8). While there, he observed an Asian male exiting a grey Lexus, retrieving a cardboard box from a residence, and then placing the box in the trunk of his vehicle. Reverendo and Wong, in separate vehicles, followed this Lexus to a residence on Staten Island. Reverendo testified that the Asian male, later identified as the Defendant Lin, backed into the driveway, took the cardboard box from the trunk, and walked toward the rear of the house.

The Asian male was then observed exiting the back of the house, entering the front door, and exiting again with some sort of bag, which he placed in his trunk. The Lexus drove away, [*2]followed by the witness and his partner. They followed the Lexus back to Brooklyn, and at 79th Street and 15th Avenue, Wong radioed the witness that the Lexus "rolled through a stop sign" and conducted a traffic stop. This witness did not observe what his partner Wong described as Defendant "rolling" through a stop sign.

The Asian male appeared not to understand English, so a Mandarin interpreter was secured. Based on "inconsistent statements" and the agents' "training and experience," they requested an NYPD narcotics canine. When the canine arrived, it "indicated" the trunk of the vehicle. Reverendo and Wong then searched the trunk, and found a "Target" bag containing plastic bags with a white powdery substance therein. The "Target" bag was located in the spare tire compartment of the trunk.

The Defendant called Vincent Wong, also a Special Agent with the Drug Enforcement Administration. He confirmed the surveillance operation of November 7, 2023 testified to by Matthew Reverendo. He and Reverendo, in their separate vehicles, followed the grey Lexus from the vicinity of 14th Avenue and 80th Street in Brooklyn to a residence on Staten Island. This witness did not observe Defendant's actions at this residence, but was advised about it by Reverendo. They followed the Defendant's Lexus back to Brooklyn, The witness testified that he observed a "violation" by Defendant at the intersection of 79th Street and 15th Avenue (Hearing testimony, 12/4/24, p.29, lines 23-24), as a "roll through a stop sign" (Id, at p. 23, lines 23-25). Defendant was traveling (presumably with the witness behind him) on 79th Street (a one-way street) at or near its intersection with 15th Avenue. (Id., page 30, lines 1-9). After such observation, the witness stopped the Lexus and detained the operator.

As indicated, the agents suspected criminal activity, i.e., that there might be narcotics in the vehicle based on their observation of Defendant placing a bag in his trunk, notwithstanding that the witness admitted he didn't know what was in the bag (Id, at p. 21, lines 23-25). When asked if he received training as to when a person should be stopped, he replied, "we don't do traffic violations" (Id., at p.28, lines 15-18). Defendant was not cited for any stop sign or other motor vehicle violation. After the canine "indicated', and a field test showed the white powdery substance to be ketamine, Defendant was placed under arrest.

In the view of this Court, the hearing raises two primary issues for consideration: the propriety of the initial stop of Defendant's vehicle, and the existence of probable cause to search its trunk.

The stop of a vehicle, which is a seizure under the Fourth Amendment, for a traffic violation or infraction, requires probable cause (People v. Hinshaw, 35 NY3d 427, 430). Hinshaw also informs us that such stops are lawful when based on reasonable suspicion that the driver has committed, or is committing, a crime. (Id, citing People v. Spencer, 84 NY2d 749, 752-753). This lesser reasonable suspicion standard is inapplicable here in that, inasmuch as Special Agent Wong testified that at the time of the stop and the calling of a canine unit, he "had absolutely no idea whether or not (defendant) had any contraband in his vehicle." (Wong hearing testimony, at p. 22, lines 10-13). "Reasonable suspicion" is that amount of knowledge sufficient to convince an ordinary person under the circumstances to believe criminality is afoot. (People v. Howard, 147 AD2d 177, 179 , app. Dism. 74 NY2d 943 (citations omitted). Mere hunch or gut reaction will not do (Id.).Nor will innocuous behavior do. (Id.). Defendant's behavior, prior to the stop of his vehicle in Brooklyn, was equivocal at best. His actions were [*3]consistent with wholly innocent behavior. It is noted that Reverendo did not observe Defendant placing a shopping bag in the spare tire compartment which might have heightened suspicions. He said only that he observed Defendant place it in the trunk. (Reverendo, hearing transcript, 11/12/24 p. 7, lines 7-15).

Addressing now the asserted traffic infraction, Special Agent Wong testified that he witnessed a "violation," a "roll through a stop sign" by Defendant, who was traveling on 79th Street, at 15th Avenue, in Brooklyn. Special Agent Reverendo wrote in his report (Defendant's Exhibit "A") that members of their task force "conducted a routine stop." These characterizations of what allegedly occurred are insufficient legal conclusions that Defendant violated Vehicle and Traffic Law §§ 1142 and 1172. The People have failed to elicit any factual basis for this conclusion. The witness conceded he had no training or experience regarding traffic stops when he agreed that "the Drug Enforcement Agency isn't in the business of issuing traffic tickets" (Wong hearing transcript, 12/4/24, p. 17 lines 8-12) and that he "didn't have any documentation to issue any type of violation or summons" (Id., at p. 17, lines 13-15). (People v. Nektalov, 42 NY3d 363).

In Nektalov, detectives pulled over a vehicle for "excessively tinted windows." At a suppression hearing, a detective merely testified that the windows were "excessively tinted," without more. The Court of Appeals pointed out that not all tinted windows are illegal, that there was no testimony from the witness that he could not see into the vehicle, that the witness did not testify as to any training or experience in identifying excessively tinted windows, or that he measured the tint levels. The Court of Appeals found that the witness' testimony was merely conclusory and thus insufficient to meet the People's burden.

Here, too, Special Agent Wong's testimony was merely a legal conclusion and characterization that Defendant violated the Vehicle and Traffic Law.

The requirements of Vehicle and Traffic law §§ 1142(a) and 1172(a) are very specific. They provide in pertinent part:

VTL § 1142. Vehicle Entering Stop or Yield Intersection

"(a) Except when directed to proceed by a police officer, every driver of a vehicle approaching a stop sign shall stop as required by section eleven hundred seventy-two and after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection."

VTL 1172. Stop Signs and Yield Signs

"(a) Except when directed to proceed by a police officer, every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line, but if none, then shall stop before entering the crosswalk on the near side of the intersection, or in the event there is no crosswalk, at the point nearest the intersecting roadway where the driver has a view of the approaching traffic on the intersecting roadway before entering the intersection and the right to proceed shall be subject to the provisions of section eleven hundred forty-two."

There was absolutely no evidence adduced at the hearing describing the intersection at [*4]79th Street and 15th Avenue. There was no evidence regarding whether there was a clearly marked stop line, or if none, a crosswalk, or if none, whether Defendant stopped at the point nearest 15th Avenue before entering the intersection where he had a view of approaching traffic. There was no evidence of the location of a stop sign, the distance between the witness and Defendant's car, whether he had an unobstructed view of Defendant's car, or of any lighting or weather conditions (compare, U.S. v. Stewart, 604 F. Supp 2d 676, 679, in which an officer gave a detailed account of his observations of the Vehicle and Traffic law stop sign violation). The witness in no way described what he meant by the conclusory statement that Defendant "rolled through the stop sign" and in no way related his observations to the requirements of the statutory violation of failure to stop at a stop sign.

The witness's characterization of Defendant "rolling" through a stop sign, without more, is merely a summary statement based on the witness's conclusion, that sufficient cause existed, and it "will not do." The Court needs "facts, not assurances." (People v. Neklatov, supra).

Assuming arguendo that the witness's conclusions are sufficient, another factor lurks. Defendant points to a Google Maps search, dated June 2022, i.e., prior to this incident, which shows that 79th Street, at its approach to 15th Avenue, as testified to (Wong, hearing transcript, 12/4/24, p. 30, lines 1-9), is controlled not by a stop sign, but by a traffic light. The Court can and will take judicial notice of information revealed by Google Maps. (Ryebaya v. City of New York, 220 AD3d 903 (2d Dept.); Paul S. V. Thomas, 718 F. 3d 1210, 1216, fn.1; Connor v. City of New York, 29 Misc 3d 1208(A); see also, People ex rel. Johnson v. Superintendent, Adirondack Correctional Facility, 36 NY3d 187, 249, fn. 14 (Wilson, J., in dissent).

Under People v. Robinson, 97 NY2d 341, 349, a traffic violation provides probable cause to stop and detain a vehicle and its driver, regardless of the primary motivation of the officer. However, there must still be an actual violation of the law. The Court concludes that the People have not met their burden on this issue. The evidence presented was not sufficient to establish an objective basis to find that the vehicle stop was based upon probable cause of a motor vehicle violation. Therefore, the Court finds that the vehicle stop was not justified.

Another issue raised by the evidence at the hearing needs to be addressed. Assuming arguendo that the stop and detainment of Defendant was justified by a traffic violation, there remains the question of whether the People met their burden of demonstrating the existence of probable cause to search the trunk of Defendant's vehicle.

The agents had a founded suspicion of criminal activity based on their "training and experience" and observations both prior to and during the stop. (People v. Blanford, 37 NY. 3d 1062). Thus, summoning a canine to sniff the vehicle was appropriate and raises no legal issue.

However, no evidence was adduced as to the reliability of the canine that performed the sniff. All that was adduced was that it was an NYPD narcotics canine named Drew. In People v. Dunn, 155 AD2d 75, 79, aff'd 77 N.Y 2d 19, as an illustration, an application for a search warrant, which, if granted, constitutes probable cause, included evidence of the canine's background and experience in detecting drugs. The canine was certified and annually evaluated by the Canine Training Center and was trained to scratch when drugs were detected. Also, past occurrences of a correct alert were noted. In People v. James, 135 AD2d 832 (2d Dept.), proof was presented at a suppression hearing regarding the dog's certification number via permissible hearsay information (CPL § 710.60(4)) from a named detective in Houston who in turn was advised by [*5]a Customs Officer of his trained dog's reaction while sniffing defendant's suitcase at the airport. The New York police officer/witness was acquainted with the Houston detective through many past interactions and knew him to be reliable. This information was relayed to police in New York who detained and later arrested defendant when he landed at LaGuardia Airport.

In People v. Adams, 25 Misc 3d 1205(A), at a suppression hearing, evidence was adduced about the training and reliability of the canine named "Maverick" via the testimony of his partner K-9 Officer Michael LaSala. He explained the dog's training and experience in detecting drugs and giving an "active alert" by becoming excited and scratching at the area. Similarly, in finding that a canine sniff "alert" provided probable cause, the Court in People v. Devone, 57 AD3d 1240, 1243, aff'd, 15 NY3d 106 (2010), noted that the dog's "training and reliability was established at the hearing." (See also, Fla. v. Harris, 568 U.S. 237, 246 (2013)( a probable cause hearing focusing on a dog's alert should proceed much like any other. The state should produce its evidence of the dog's reliability [including certifications and performance in controlled settings], the Defendant should be given the opportunity to dispute the dog's reliability, and the court should then weigh the competing evidence) and United States v. Foreste, 780 F.3d 518, 528—29 (2d Cir. 2015)(citing Harris).

In contrast, here there was no proof at bar as to the dog's training and reliability, which the Court likens to the need for a "reasonable showing" that a police informant is reliable and has a basis for his or her knowledge. (People v.Griminger, 71 NY2d 635, 639); see, e.g. People v. Cerrato, 24 NY2d 1,5 (probable cause established by proof that informant previously purchased narcotics from defendant, and previously supplied information which led to an arrest and conviction). Nor has there been any testimony by the witnesses that the canine is reliable by reason of any prior observations of accurate sniffs.

There being no evidence of the canine's reliability, apart from the testimony of Special Agent Reverendo, who was not the dog's handler, and had no personal knowledge, that the dog was a drug sniffing dog and that the dog "indicated the presence of narcotics" (Reverendo, hearing testimony, 11/12/24 p. 10 lines 17-18), the Court concludes that there was no probable cause for the search of the trunk of the vehicle Defendant operated. Without probable cause to believe that the trunk of Defendant's vehicle contained contraband, the search was impermissible (See People v. Romeo, 15 AD2d 420 (2d Dept.)).

For the foregoing reasons, the Defendant's motion to suppress the drugs and all other physical evidence found and seized from the defendant's vehicle, a grey Lexus SUV, NY licence LCG7509, is hereby GRANTED, and same are hereby SUPPRESSED.