Opinion
162-2018
03-06-2019
The PEOPLE of the State of New York, Plaintiff, v. Mark YUNAEV, Defendant.
Attorney for Defendant: John Ferrara, Esq., 548 Broadway, Monticello, NY 12701 Attorney for the People: Hon. James R. Farrell, Sullivan County District Attorney, 414 Broadway, Monticello, NY 12701, By: Julie M. Mohl, Executive Assistant District Attorney
Attorney for Defendant: John Ferrara, Esq., 548 Broadway, Monticello, NY 12701
Attorney for the People: Hon. James R. Farrell, Sullivan County District Attorney, 414 Broadway, Monticello, NY 12701, By: Julie M. Mohl, Executive Assistant District Attorney
Frank J. LaBuda, J.
This matter comes before the Court by way of Defendant's Omnibus Motion request for Huntley /Mapp /Suppression hearings regarding the alleged lack of probable cause for the stop of the Defendant's vehicle and the Defendant's arrest, and subsequent statements made by the Defendant to the New York State Police Investigators on November 6, 2017, as well Defendant's request to suppress all evidence obtained from the warrantless search of the Defendant's vehicle. The People submitted an Affirmation in Opposition. This Court granted Defendant's request for Huntley /Mapp /Suppression hearings, which were held on January 8, 2019.
New York State Police Investigators Timothy Dowling and Michael Kelly.
The Defendant herein is charged with two (2) counts of Grand Larceny in the Second Degree pursuant to Penal Law § 155.40(1), a Class C Felony. These charges stem from the Defendant's alleged theft of newly minted international postage stamps from a warehouse located in Monticello, New York owned by the Inter-Governmental Philatelic Corporation. The allegedly stolen international postage stamps were valued at approximately $350,000.00 in United States currency. The Defendant was at the time an employee of the Inter-Governmental Philatelic Corporation.
The Inter-Governmental Philatelic Corporation is a licensed company based in Brooklyn, New York that manufactures and sells postage stamps for numerous countries around the world. This Corporation stores their inventory of postage stamps at their Monticello, New York warehouse.
On January 8, 2019, this Court held pre-trial suppression hearings and heard the testimony of Investigator Timothy Dowling. Investigator Dowling, the only witness at the hearing, testified that the New York State Police were notified by Joseph Malamud, the owner of Inter-Governmental Philatelic Corporation, that his inventory was being stolen from the Monticello warehouse and sold for below-value on eBay. Mr. Malamud told Investigator Dowling that he believed an employee of the Corporation, the Defendant Mark Yunaev, was responsible for the thefts and subsequent sales of the postage stamps on eBay. Investigator Dowling interviewed several members of the Corporation in order for the Investigators to understand the Corporation's operation, including how the postage stamps are produced in Brooklyn, New York, and then stored and transferred from the warehouse in Monticello, New York.
Investigator Dowling further testified that his investigation culminated in the set up of vehicle surveillance in the vicinity of the Inter-Governmental Philatelic Corporation warehouse in Monticello on November 6, 2017. The surveillance provided him with an unobstructed view of the entrance to the warehouse and its parking lot. On that date, Mr. Malamud directed the Defendant to obtain three (3) boxes of Mongolian postage stamps from the warehouse in Monticello and transfer them to the Inter-Governmental Philatelic Corporation headquarters in Brooklyn, New York. The Investigators then monitored the outside area of the warehouse from their vehicle. Investigator Dowling testified that he observed a white sedan vehicle arrive at the warehouse and one (1) individual, the Defendant herein, exiting the vehicle. The individual entered the warehouse, then returned to his vehicle with six (6) boxes from the warehouse and placed them into the trunk of his vehicle.
Knowing that Mr. Malamud had directed the Defendant to obtain only three (3) boxes of Mongolian postage stamps, Investigator Dowling arranged to have the vehicle stopped by a uniformed New York State Trooper in his marked New York State Police vehicle. Investigator Dowling testified that Trooper Brian Powell executed the vehicle stop a short distance from the warehouse in a Dunkin' Donuts parking lot, and that he arrived at the scene of the stop shortly thereafter. Upon a search of the vehicle's locked trunk, Investigator Dowling found the three (3) boxes of Mongolian postage stamps as requested by Mr. Malamud, as well as three (3) additional, "unauthorized" boxes each containing an assortment of different postage stamps for various countries. The Defendant was then placed under arrest and transferred to the New York State Police Barracks, wherein he received his Miranda warnings, was interviewed, and gave a written statement to the Investigators.
Investigator Dowling testified that he was engaging in the surveillance in plain clothes and in his unmarked vehicle.
The three unauthorized boxes included the first box containing loose sheets of Mongolian stamps; the second box containing twenty eight (28) bundles of Sierra Leone "2010 World Cup" stamps, one (1) bundle of Republique Gabonaise "dinosaur" stamps, and one (1) bundle of St. Vincent and Grenadines "2010 World Cup" stamps; and the third box containing three (3) bundles of Greater Kudu stamps, two (2) bundles of Turks and Caicos "underwater" stamps, two (2) bundles of Micronesia "Mandarin fish" stamps, one (1) bundle of Mocambique "Fundo Mundial Para A Naturica" stamps, three (3) bundles of Sierra Leone "2010 World Cup" stamps, four (4) bundles of assorted Indonesia stamps; ten (10) pads of Ghana "Birds of Ghana" stamps, ten (10) pads of Mocambique "Animals Que Dominaram A Terra" stamps, and ten (10) pads of Lesotho "World Wide Fund For Nature" stamps.
The Mapp issue before this Court is whether Investigator Dowling's observation of the Defendant placing six (6) boxes into his vehicle's trunk instead of three (3) boxes authorized by Mr. Malamud provides sufficient probable cause to stop the Defendant's vehicle. The Defendant argues that there was insufficient probable cause to stop and search the Defendant's vehicle and to arrest the Defendant in violation of the Defendant's constitutional rights under the Fourth Amendment, Fifth Amendment, and Fourteenth Amendment of the United States Constitution, the New York Constitution, and New York Criminal Procedure Law. The Defendant argues that Investigator Dowling's reliance solely on Mr. Malamud's instruction of "only three (3) boxes" is insufficient to obtain probable cause to stop and search the Defendant's vehicle when the Investigators saw six (6) boxes removed from the warehouse. In his moving papers, the Defendant claims that there are other owners and staff of the Inter-Governmental Philatelic Corporation, and that is was unclear if anyone other than Mr. Malamud instructed the Defendant as to how many boxes to obtain and remove from the warehouse.
The Defendant further contends that the "automobile exception" allowing a warrantless search is not applicable to a vehicle that is stopped off of a public highway and secured in a parking lot. As such, the Defendant argues that a search warrant should have been obtained before any search of the Defendant's locked trunk took place, assuming arguendo that there was probable cause to stop the vehicle. The Defendant asserts that any evidence obtained as a result of the stop of the vehicle and warrantless search of the locked trunk, as well as the statements made by the Defendant during his interview at the New York State Police Barracks, should be suppressed as a matter of law. As such, the issue before this Court is whether the Investigator's observation of the Defendant removing three (3) additional, unauthorized boxes from the warehouse and placing them into his vehicle's trunk is sufficient probable cause to stop the Defendant's vehicle, engage in a warrantless search of the Defendant's vehicle under the "automobile exception," and to support the Defendant's subsequent arrest.
It is well settled law that police may stop a vehicle and detain its occupants when there is a reasonable suspicion that an occupant of that vehicle "has committed, is committing, or is about to commit a crime." People v. Pettigrew , 161 AD3d 1306 (3d Dept 2018), quoting People v. Cook , 134 AD3d 1241 (3d Dept 2015). See also , People v. Coffey , 107 AD3d 1047 (3d Dept 2013) ; People v. Portelli , 116 AD3d 1163 (3d Dept 2014). In the case at bar, Investigator Dowling clearly observed what he reasonably believed was a larceny in progress— the unauthorized taking of the three (3) additional boxes of international postage stamps from the Inter-Governmental Philatelic Corporation warehouse. Thus, Investigator Dowling had probable cause to authorize a uniformed New York State Trooper to stop the Defendant's vehicle, as it was leaving the scene of a crime.
With respect to the fact Trooper Powell stopped the Defendant's vehicle instead of Investigator Dowling, it has been held that police officers may rely upon the statements of fellow police officers in an investigation if "both prongs of the Aguilar-Spinelli test are satisfied at every link in the hearsay chain." People v. Tarver , 292 AD2d 110 (3d Dept 2002). As set forth in People v. Ketcham , 93 NY2d 416 (Ct App 1999) :
Under the fellow officer rule, a police officer can make a lawful arrest even without personal knowledge sufficient to establish probable cause, so long as the officer is acting upon the direction of or as a result of communication with a fellow officer or another police agency in possession of information sufficient to constitute probable cause for the arrest. Information received from another police officer is presumptively reliable... Where, however, the People demonstrate— through direct or circumstantial evidence— how a reliable hearsay informant acquired the information, both prongs of Aguilar-Spinelli may be satisfied. When, for example, the hearsay informant is a police officer who imparts to fellow officers information gathered while personally participating in or observing an undercover drug transaction, there is little doubt as to the reliability of the information or the basis of knowledge.
Investigator Dowling testified that he conducted the investigation at the Inter-Governmental Philatelic Corporation warehouse in plain clothing and in his unmarked police vehicle. Upon observing the Defendant place the three (3) additional, unauthorized boxes in his trunk, Investigator Dowling radioed to Trooper Powell, a fellow police officer, his request to stop the Defendant's vehicle because Trooper Powell was in uniform and in the area driving a marked New York State Trooper vehicle. Investigator Dowling arrived at the vehicle stop shortly thereafter and was present for the vehicle search and subsequent arrest of the Defendant. Based on the "fellow officer rule," it is of no consequence that Trooper Powell undertook the stop of the Defendant's moving vehicle upon a public road instead of Investigator Dowling. Trooper Powell had sufficient information from Investigator Dowling to stop the Defendant's vehicle before it was able to completely leave the area.
Regarding the warrantless search of the Defendant's vehicle, a search conducted by police without a warrant issued by an impartial magistrate is per se unreasonable under the Fourth Amendment of the United States Constitution unless an established exception applies. People v. Galak , 81 NY2d 463 (Ct App 1993). See generally , California v. Acevedo , 500 US 565 (1991) ; Katz v. United States , 389 US 347 (1967). Commonly known as the "automobile exception," the United States Supreme Court has held that a warrantless search of a vehicle stopped by law enforcement who had probable cause to believe that the vehicle contained contraband was reasonable within the meaning of the Fourth Amendment. Carroll v. United States , 267 US 132 (1925). The "automobile exception" warrantless search is also authorized contemporaneously with the valid arrest of the driver or an occupant of that vehicle "when the circumstances give reason to believe that the vehicle or its visible contents may be related to the crime for which the arrest is being made (as possibly containing contraband or as having been used in the commission of a crime)..." People v. Belton , 55 NY2d 49 (Ct App 1982).
Thus, the issue of the stop and search of a vehicle begins with the probable cause to stop. It is well settled law that probable cause exists if the arresting officer knows facts and circumstances that would cause a "prudent man" to believe that an offense has been committed. People v. Oden , 36 NY2d 382 (Ct App 1975) ; Henry v. United States , 361 US 98 (1959) ; Brinegar v. United States , 338 US 160 (1949) ; People v. Wilmer , 90 AD2d 918 (3d Dept 1982). "Probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observe as trained officers. In dealing with probable cause, we deal with probabilities; these are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." People v. Alaxanian, 76 AD2d 187, 189 (3d Dept. 1980), quoting People v. Tolentino , 40 AD2d 596 (1st Dept 1972) [internal citations removed]. In addition, probable cause exists when an officer has "knowledge of, or reasonable trustworthy information as to, facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested." Zellner v. Summerlin , 494 F.3d 344, 366 (2d Cir. 2007). See also , Wilmer , supra. Whether probable cause existed is a mixed question of law and fact. Oden , supra ; People v. Joseph , 27 NY3d 1009 (Ct App 2016). In the case at bar, Investigator Dowling's personal observations and investigation lead him to believe that the Defendant's vehicle contained the unauthorized three (3) boxes of stolen property as the Defendant as leaving the warehouse parking lot.
Under Belton and its progeny, the "automobile exception" is only proper when not only where there is probable cause to search the vehicle, but when there is a nexus between the circumstances rising to probable cause to search the vehicle and the arrest of the vehicle occupant. Galak , supra. "[W]hen the occupant of an automobile is arrested, the very circumstances that supply probable cause for the arrest may also give the police probable cause to believe that the vehicle contains contraband, evidence of the crime, a weapon or some means of escape. If so, a warrantless search of the vehicle is authorized, not as a search incident to arrest, but rather as a search falling within the automobile exception to the warrant requirement." People v. Blasich , 73 NY2d 673 (Ct App 1989).
In the case at bar, this Court finds that the uncontradicted testimony of Investigator Dowling is credible and worthy of belief. It is evident that Investigator Dowling relied upon his personal conversations with Mr. Malamud, the purported owner of subject property, and his personal observations of the Defendant's conduct contrary to the normal and authorized procedures of the Inter-Governmental Philatelic Corporation and its warehouse. Investigator Dowling observed what he reasonably believed to be a crime of theft in progress in that the Defendant placed three (3) additional, unauthorized boxes— which he reasonably presumed to contain international postage stamps— from the warehouse into his trunk. He subsequently relayed his request to stop the Defendant's vehicle to Trooper Powell based upon those observations. It is axiomatic that there is a nexus between the probable cause for the stop— Investigator Dowling personally witnessing the Defendant place six (6) boxes in his trunk as opposed to the three (3) boxes authorized by Mr. Malamud— and the Defendant's subsequent arrest for the stolen property contained in the three (3) additional, unauthorized boxes in his vehicle. As such, this Court finds that the case at bar falls under Belton , supra , and the "automobile exception" of the Fourth Amendment protections against a warrantless search and seizure under Carroll , supra , and its progeny in that there was probable cause to stop the vehicle and a rational nexus to the search of the trunk for stolen property.
It was never established why the Investigator himself did not simply approach the Defendant in the parking lot of the warehouse.
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The permissible scope of a warrantless search of a vehicle where the "automobile exception" applies is as thorough as an impartial magistrate could authorize by warrant, including the locked glove compartment and the trunk of the vehicle. United States v. Ross , 456 US 798 (1982) ; People v. Langen , 60 NY2d 170 (Ct App 1983) ; People v. Ellis , 62 NY2d 393 (Ct App 1984). Allowing the warrantless search of a vehicle where probable cause exists is justified due to both the inherent mobility of a vehicle that allows for any evidence or contraband to be easily moved and potentially disposed, as well as the fact that motor vehicle occupants have a reduced expectation of privacy due to "the pervasive regulation of vehicles capable of traveling on highways." California v. Carney , 471 US 386 (1985). See also , Galak , supra ; Belton , supra. Here, the warrantless search of the Defendant's vehicle was limited to the trunk due to Investigator Dowling's observation of the six (6) boxes being placed therein.
The issue of whether the "automobile exception" applies to a lawfully stopped vehicle that is not on a public highway, but in a parking lot with the only occupant of the vehicle being the driver in custody, negates the necessity of a warrantless search of the vehicle is not addressed by Belton , supra , and its progeny, nor this Court. A vehicle is a vehicle. It is inherently mobile, and its location on or off the public highway is transient.
Therefore, this Court finds that Investigator Dowling personally observed what he reasonably believed to be a crime in progress by the Defendant, appropriately caused the Defendant's vehicle to be stopped, and then executed a proper and limited warrantless search of the Defendant's vehicle based upon his reasonable belief that the Defendant's vehicle contained evidence of the Defendant's crime. There is nothing in the record that contradicts Investigator Dowling's testimony. The Defendant's subsequent arrest and questioning at the New York State Police Barracks was wholly proper. Therefore, the Defendant's request to suppress any evidence or statements obtained as a result of the search of the vehicle is denied in its entirety.
Based upon the foregoing, it is hereby
ORDERED , that Defendant's request to suppress the statements made by Defendant to law enforcement, as well as any evidence obtained as a result of the warrantless search of the Defendant's vehicle is denied in its entirety.
This constitutes the Decision and Order of this Court.