Opinion
2013-02-8
The PEOPLE of the State of New York, Respondent, v. Todd E. CARR, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.
MEMORANDUM:
On appeal from a judgment convicting him, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03[3] ), defendant contends that County Court erred in refusing to suppress the physical evidence obtained from his vehicle because it was seized as the result of an illegal search. We agree.
At the suppression hearing, the arresting police officer testified on direct examination that, on October 10, 2007 at approximately 4:00 a.m., he approached defendant's vehicle because the vehicle was illegally parked. The officer asked defendant, “what's going on?” and observed that defendant appeared to be very nervous. After the officer inquired as to why defendant was so nervous, defendant replied that he was seekinga prostitute. The officer described the area where the encounter occurred as an “open air drug market” characterized by a high incidence of prostitution and noted that, in his experience, persons seeking prostitutes were often found to possess illegal drugs. The officer thereafter sought and obtained defendant's permission to search the vehicle and, during the ensuing search, discovered a handgun underneath the passenger seat. On cross-examination, the officer acknowledged that, before he sought defendant's permission to search the vehicle, he asked defendant if there was “anything in the car that [the officer] should be aware of.” The officer could not recall whether he posed that question before or after defendant made the admission concerning the prostitute.
We analyze defendant's contentions pursuant to the four-tiered framework for citizen-police encounters set forth in People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562;see People v. Garcia, 20 N.Y.3d 317, 320, 959 N.Y.S.2d 464, 983 N.E.2d 259;People v. Hollman, 79 N.Y.2d 181, 184–185, 581 N.Y.S.2d 619, 590 N.E.2d 204. At its inception, the encounter was a request for information, and defendant does not dispute that “[t]he police had an objective, credible reason for approaching [his] car ... inasmuch as the car was illegally parked” ( People v. Valerio, 274 A.D.2d 950, 951, 710 N.Y.S.2d 497,affd.95 N.Y.2d 924, 721 N.Y.S.2d 601, 744 N.E.2d 136,cert. denied532 U.S. 981, 121 S.Ct. 1623, 149 L.Ed.2d 485). Nevertheless, once the officer asked if there was anything in the vehicle he “should be aware of,” the encounter became a common-law inquiry under De Bour, requiring a “founded suspicion that criminal activity is afoot” ( De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562;see generally Garcia, 20 N.Y.3d at 324 n. 1, 959 N.Y.S.2d 464, 983 N.E.2d 259; People v. Ponder, 43 A.D.3d 1398, 1399, 844 N.Y.S.2d 542,lv. denied10 N.Y.3d 770, 854 N.Y.S.2d 332, 883 N.E.2d 1267). We conclude that the People failed to meet their burden of establishing the legality of the police conduct, i.e., that the officer possessed the requisite founded suspicion to make such an inquiry ( see generally People v. Riddick, 70 A.D.3d 1421, 1423, 894 N.Y.S.2d 260,lv. denied14 N.Y.3d 844, 901 N.Y.S.2d 150, 927 N.E.2d 571). Although defendant ultimately admittedthat he was seeking a prostitute, as noted the officer could not recall whether defendant made that admission before or after the officer inquired regarding the contents of the vehicle. Absent defendant's admission, the evidence demonstrated only that defendant appeared nervous and that the encounter took place in a “high-crime” area. Such factors alone are insufficient to elevate the encounter to a common-law inquiry ( see generally Garcia, 20 N.Y.3d at 324, 959 N.Y.S.2d 464, 983 N.E.2d 259;People v. Banks, 85 N.Y.2d 558, 562, 626 N.Y.S.2d 986, 650 N.E.2d 833,cert. denied516 U.S. 868, 116 S.Ct. 187, 133 L.Ed.2d 124;People v. Boulware, 130 A.D.2d 370, 374, 515 N.Y.S.2d 238,appeal dismissed70 N.Y.2d 994, 526 N.Y.S.2d 432, 521 N.E.2d 439).
Inasmuch as defendant's consent to the search was obtained immediately after the improper inquiry concerning the contents of the vehicle, we cannot conclude that defendant's consent was acquired by means “ sufficiently distinguishable from the taint” of the illegal inquiry ( Banks, 85 N.Y.2d at 563, 626 N.Y.S.2d 986, 650 N.E.2d 833;see generally Hollman, 79 N.Y.2d at 194, 581 N.Y.S.2d 619, 590 N.E.2d 204). As a result, the evidence seized during the search of the vehicle must be suppressed.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, that part of the omnibus motion seeking to suppress evidence is granted, the indictment is dismissed, and the matter is remitted to Monroe County Court for proceedings pursuant to CPL 470.45.