Opinion
847 KA 19–00389
09-27-2019
The PEOPLE of the State of New York, Appellant, v. Kenneth PASTORE, Defendant–Respondent.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR APPELLANT. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT–RESPONDENT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the amended order so appealed from is unanimously affirmed and the indictment is dismissed.
Memorandum: The People appeal from an amended order granting that part of defendant's omnibus motion seeking to suppress physical evidence seized following a limited search of his vehicle and defendant's statement made after the seizure. The evidence at the suppression hearing established that officers responded to the complainant's home after receiving a call that he had been threatened by defendant. The complainant told an officer that defendant threatened to shoot him and that he believed the threat was serious because defendant had been in possession of a black handgun prior to the instant incident. Defendant, who was seated in his truck, which was parked in front of the complainant's home, acknowledged that he had previously said he would shoot the complainant if the complainant entered defendant's property. Based on that information and defendant's admissions that he owned a rifle, which was at his home, and that he had a Virginia pistol permit but no New York pistol permit, the officers searched defendant's person but recovered no weapons. The officers then searched the area near the driver's seat of defendant's truck, from which they recovered a loaded handgun.
We conclude that, contrary to the People's contention, Supreme Court properly suppressed the handgun recovered from defendant's vehicle. The automobile exception to the warrant requirement permits a police officer to " ‘search a vehicle without a warrant when [the officer has] probable cause to believe that evidence or contraband will be found there’ " ( People v. Johnson, 159 A.D.3d 1382, 1383, 72 N.Y.S.3d 672 [4th Dept. 2018], lv denied 31 N.Y.3d 1083, 79 N.Y.S.3d 105, 103 N.E.3d 1252 [2018], quoting People v. Galak, 81 N.Y.2d 463, 467, 600 N.Y.S.2d 185, 616 N.E.2d 842 [1993] ). "Probable cause does not require proof beyond a reasonable doubt, but merely requires a reasonable ground for belief" ( People v. Ray, 159 A.D.3d 1429, 1430, 73 N.Y.S.3d 325 [4th Dept. 2018], lv denied 31 N.Y.3d 1086, 79 N.Y.S.3d 107, 103 N.E.3d 1254 [2018] [internal quotation marks omitted] ). "[A]bsent probable cause, it is unlawful for a police officer to invade the interior of a stopped vehicle once the suspects have been removed and patted down without incident, as any immediate threat to the officers' safety has consequently been eliminated" ( People v. Mundo, 99 N.Y.2d 55, 58, 750 N.Y.S.2d 837, 780 N.E.2d 522 [2002] ; see People v. Torres, 74 N.Y.2d 224, 226, 544 N.Y.S.2d 796, 543 N.E.2d 61 [1989] ). Here, the police did not have probable cause to search defendant's vehicle after they searched him and determined that there was no immediate threat to their safety (see Torres, 74 N.Y.2d at 227, 544 N.Y.S.2d 796, 543 N.E.2d 61 ), inasmuch as defendant was not alleged to have brandished a gun at the scene, there was inconclusive evidence that he actually threatened the complainant at the scene, defendant did not engage in any suspicious or furtive movements, and the officers did not observe any weapons or related contraband in the vehicle or on defendant's person (cf. Johnson, 159 A.D.3d at 1383, 72 N.Y.S.3d 672 ; People v. Page, 137 A.D.3d 817, 817, 26 N.Y.S.3d 567 [2d Dept. 2016], lv denied 27 N.Y.3d 1137, 39 N.Y.S.3d 119, 61 N.E.3d 518 [2016] ).
Contrary to the People's further contention, the officers' search of defendant's vehicle was not justifiable as a limited safety search. Probable cause is not required for a limited search of a vehicle " ‘where, following a lawful stop, facts revealed during a proper inquiry or other information gathered during the course of the encounter lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officers' safety sufficient to justify a further intrusion’ " ( People v. Jones, 39 A.D.3d 1169, 1171, 834 N.Y.S.2d 810 [4th Dept. 2007], quoting Torres, 74 N.Y.2d at 231 n 4, 544 N.Y.S.2d 796, 543 N.E.2d 61 ). However, the Court of Appeals has "emphasized ... that a reasonable suspicion alone will not suffice" and that "the likelihood of a weapon in the [vehicle] must be substantial and the danger to the officer's safety actual and specific" ( People v. Carvey, 89 N.Y.2d 707, 711, 657 N.Y.S.2d 879, 680 N.E.2d 150 [1997] [internal quotation marks omitted] ). Here, the People failed to tender any evidence demonstrating a substantial likelihood that a weapon was in the vehicle or that the presence of two passengers in the vehicle presented a specific danger to the officers (cf. People v. Grullon, 44 A.D.3d 516, 517, 843 N.Y.S.2d 612 [1st Dept. 2007], lv denied 10 N.Y.3d 765, 854 N.Y.S.2d 327, 883 N.E.2d 1262 [2008] ; People v. Alston, 195 A.D.2d 396, 397–398, 600 N.Y.S.2d 688 [1st Dept. 1993] ; People v. Ponce, 182 A.D.2d 1103, 1103, 582 N.Y.S.2d 885 [4th Dept. 1992], lv denied 80 N.Y.2d 836, 587 N.Y.S.2d 921, 600 N.E.2d 648 [1992] ).
In light of the foregoing, defendant's post-seizure statement to a law enforcement agent was properly suppressed as fruit of the poisonous tree (see generally People v. James, 27 A.D.3d 1089, 1091, 811 N.Y.S.2d 245 [4th Dept. 2006], lv denied 6 N.Y.3d 895, 817 N.Y.S.2d 630, 850 N.E.2d 677 [2006] ).