The People, Appellant,v.Ricky D. Gates, Respondent.BriefN.Y.April 24, 20181 JEFFERSON COUNTY DISTRICT ATTORNEY’S OFFICE Jefferson County Office Building, Seventh Floor 175 Arsenal Street Watertown, New York 13601 Telephone: (315) 785-3053 Facsimile: (315) 785-3371 District Attorney Kristyna S. Mills John P. Asiello, Esq. Chief Clerk and Legal Counsel to the Court Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Re: People v Gates (Ricky D.) APL-2017-00199 May It Please the Court: Pursuant to the Court’s letter dated November 9, 2017, the People hereby submit this Appellant’s filing in the above-entitled matter pursuant to the Court's Rules of Practice § 500.11. Nature of the Case On May 15, 2014, defendant was stopped by NYS Trooper Travis Smithers at about 10:00 p.m. for driving 82 miles per hour in a 65 mile an hour zone on Interstate 81 northbound. As Trooper Smithers approached the vehicle he noticed the rear was sagging excessively, as if there was a heavy object in the rear or in the trunk. The Trooper also noticed, in plain view, several large bags filling up the rear <4 C5 2 driver’s seat area on the floor and seat leaving just enough room for the petite back seat passenger. When he approached the vehicle, Trooper Smithers noted the passengers were acting nervously. Basic questions were asked of the driver regarding his destination, and where he was coming from. He learned that the trio had travelled from Ohio where they had stayed for a few days and had driven straight through stopping only for food and bathroom breaks during the trip. The Trooper inquired if the defendant had luggage in the bags and the defendant’s answers did not appear to match the Troopers plain view observations of the bags in the vehicle. The answers the defendant provided became increasingly more deceptive and incredible based on the Troopers visual observations. The defendant was asked to step out of the vehicle and a separate interview was conducted with the passengers. The passengers indicated that the bags did not belong to them and they claimed no ownership of the contents of the bags. When the Trooper returned to the defendant at the rear of the vehicle, and confronted the defendant with the new information he had received from the passengers, the defendant admitted that the bags contained a large quantity of unstamped cigarettes. Defendant was charged with violating NYS Tax Law §1814 (c)(2), Possessing/Transporting 30,000 unstamped cigarettes for the purpose of sale, and VTL § 1180D Speeding 82/65 mph zone. Defendant, by counsel, submitted an Omnibus Motion seeking, inter alia, a Mapp and Huntley hearing. A combined 3 Mapp/Huntley hearing was held, after which the court stated from the bench: “Record should indicate that we have had the benefit of a conference. I shared my tentative findings with both counsel, and after assessing the credibility of the witnesses, that I felt the levels were met that are called for by the People versus Debour, which would be the main case law that I would follow, and that the suppression sought by the defense would not be granted.” (Appendix at 73). Thereafter, the defendant pleaded guilty to NYS Tax Law § 1814 (c)(2). On appeal to the Appellate Division, Fourth Department, defendant made several claims. As relevant here, he claimed that his statements were made while he was in custody and that the trooper lacked probable cause to search his vehicle. Additionally, the appellant claimed that the Trooper did not comply with De Bour during the roadside colloquy that transpired. In an opinion and order dated July 7, 2017, a three-judge majority of the Appellate Division reversed the Jefferson County Court’s suppression decision. The Court held that 1) defendant was “not precluded from challenging the court’s suppression ruling simply because he did not request that it be memorialized in writing;” and 2) that the court erred in refusing to suppress the physical evidence and statements made by defendant. The latter conclusion was based on the majority’s determination that “the Trooper’s initial inquiry concerning the contents of the bags constituted a level two common-law inquiry, which required a founded 4 suspicion of criminality that was not present at the time.” People v Gates, 152 AD3d 1222, 1223 (4th Dept. 2017). The dissenters disagreed that County Court had erred in refusing suppression, concluding that a level two inquiry was justified based on “defendant’s apparently untruthful responses to level one inquiries, the Trooper’s observation of the sagging trunk and the number of bags in the backseat, the nervous demeanor of defendant and the passengers, and the Trooper’s experience that illegal contraband was transported on that route.” Id at 1224-1226. The People moved for leave to appeal in the Fourth Department, and on September 29, 2017, the Honorable Joanne M. Winslow, Associate Justice of the Appellate Division, Fourth Department, granted leave to appeal to this Court, pursuant to CPL § 460.20 (2)(a) and 22 NYCRR § 1000.13(p)(4)(iii). On November 9, 2017, this Court notified the parties that it had, on its own motion pursuant to section 500.11 of the Court’s Rules of Practice, determined that the case may be determined on the Appellate Division record and briefs, the writings of the courts below and letter submissions from counsel. Summary of the Argument Reversal of the Appellate Division, Fourth Department’s decision is warranted on two grounds. First, the Appellate Division erred in holding that no written order concerning denial of suppression was needed. To be sure, a written 5 order is not required when the record makes clear that the oral order is final and when the oral order provides an adequate basis for appellate review. The order in the case at bar met neither criterion. CPL § 710.60(6) requires that the hearing court, upon determining a suppression motion, “must set forth on the record its findings of fact, its conclusions of law and the reasons for its determination.” In cases like People v Cooper, 19 NY3d 501 (2012), the court had made a clear record of the required information, even though it had not reduced its holding to writing. Thus, there was a sufficient record on which the appellate court could review the determination. In the case at bar, however, no such record was made; it is not clear that this was the court’s final order, and it is impossible to know the basis upon which the court based its determination. In the absence of a record, no informed appellate review was possible. People v Bonilla, 82 NY2d 825 (1993). The Appellate Division ought to have ruled that defendant had forfeited his right to appeal when he plead guilty before a final ruling was put on the record. In the alternative, it should have remitted the case with instructions to the hearing court to make an appropriate record of its findings of facts and conclusions of law. People v LaFontaine, 92 NY2d 470, 474-475 (1998); People v Sykes, 110 AD3d 1437 (4th Dept. 2013); People v Talbot, 44 AD2d 641 (3rd Dept. 1974). The second issue raised by this case concerns the legal question of when an inquiry moves from a level one requiring only some objective credible reason, to a 6 level two requiring a founded suspicion of criminality. People v De Bour, 40 NY2d 210, 223 (1976). In the case at bar, the hearing court did not make a finding of fact or conclusion of law regarding what level of De Bour inquiry was implicated by the officer’s questions to defendant. The majority at the Appellate Division, however, determined that “the Trooper’s initial inquiry concerning the contents of the bags constituted a level two common-law inquiry.” (Emphasis added). This conclusion is, however, not supported by the record, which showed an incremental progression of questions that moved more slowly toward the De Bour level two category. The holding of the majority of the Appellate Division in the present case expands the scope of what constitutes a level two inquiry and forecloses appropriate inquiry in these roadside stop situations. Although determinations of what constitutes a certain De Bour level of inquiry may generally be considered to be mixed questions of law and fact, and thus reviewable by the Court of Appeals only when there is no record support for the determination, when the issue involves, as it does here, the question of “spelling out the difference between those questions that constituted a request for information and those that constituted a common-law inquiry” it is the clear province of this Court. See People v Hollman, 79 NY2d 181, 190 (1992). In Hollman this Court recognized that the distinction between the two levels is “a subtle one” that “rests on the content of the questions, the number of 7 questions asked, and the degree to which the language and nature of the questions transform the encounter from a merely unsettling one to an intimidating one.” Hollman at 192. There is no indication that the majority in the Appellate Division properly considered these factors. Because this issue has been preserved, and because it is an important issue arising daily in the interactions between police and citizens, it is important that this Court provide more guidance to police and to reviewing courts as to the difference between level one and level two inquiries. The hearing court gave only a tentative indication of what its ruling would be. In the absence of a final order, there was no appealable order, and the Appellate Division should have held that defendant had forfeited his right to appellate review or remanded the case to allow appropriate findings of fact and conclusions of law to be put on the record, either orally or in writing. This Court has clearly ruled that appeal from an order denying suppression is not foreclosed merely because the final order is not issued in writing. In People v Cooper (19 NY3d 501, 509-510 ([2012]), this Court held that defendant could appeal from the denial of his suppression motion even though it was decided orally, because “it is evident that it was ‘an order finally denying a motion to suppress evidence.’” (emphasis added). In that case, the suppression court “issued its findings of fact on the record; found sufficient probable cause for the stop, arrest and search of defendant; denied the motion to suppress; noted defendant’s exception and immediately set the matter for a trial date.” Id at 509. This Court cited People v Allman (133 AD2d 638, 639 [2nd Dept. 1987]), in which that court 8 held that it could not be stated that “the hearing court’s express denial of the defendant’s omnibus motion does not constitute ‘(a)n order finally denying a motion to suppress evidence.’” (emphasis added). In both Cooper and Allman the oral suppression orders were clearly final. In the case at bar, however, the hearing court put only a tentative ruling on the record: “Record should indicate that we have had the benefit of a conference. I shared my tentative findings with both counsel, and after assessing the credibility of the witnesses, that I felt the levels were met that are called for by the People versus Debour, which would be the main case law that I would follow, and that the suppression sought by the defense would not be granted.” (Appendix at 73). Defendant then immediately pleaded guilty to violating NYS Tax Law § 1814 (c)(2) after the People outlined the terms of the offer. These “tentative findings” did not constitute a final order as required under CPL § 710.70(2) before a defendant who pleads guilty may challenge a denial of suppression on appeal. The lack of finality comes not from the fact that it was delivered orally, but from the court’s own characterization of it as “tentative.” CPL § 710.70 is derived from Code of Criminal Procedure § 813-c, which was enacted in 1962 (1962 McKinney's Session Laws of NY, at 3147). That statute provided: “If the motion is denied, the order denying such may be reviewed on appeal from a judgment of conviction notwithstanding the fact that 9 such judgment of conviction is predicated upon a plea of guilty” (id.). When the Legislature passed the CPL in 1970, this exception to forfeiture by guilty plea was retained, but altered to its present form: “An order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty” (1970 McKinney's Session Laws of NY, at 2441). “The Legislature, by enacting an amendment of a statute changing the language thereof, is deemed to have intended a material change in the law” (Statutes § 193 [a]). Thus, it is not enough that there be an indication from the court that it intends to deny a suppression motion. The Legislature intentionally changed the law to require an order “finally” denying the motion. The question presented by this appeal, therefore, is what constitutes a final order in the context of a motion to suppress evidence. A guilty plea generally “marks the end of a criminal case, not a gateway to further litigation” People v Taylor, 65 NY2d 1, 5 (1985). The final and prompt conclusion of litigation is an important goal of public policy in criminal as well as civil litigation, provided always that the settlement is fair, free from oppressiveness, and sensitive to the interests of both the accused and the People” People v Seaberg, 74 NY2d 1, 8 (1989). That important public policy goal is advanced by the requirement of a final order, as opposed to merely a tentative 10 indication from the bench of what the court’s order would be, so that a defendant avoids forfeiting a challenge to a suppression ruling by pleading guilty and a clear record is made to permit informed review on appeal. In the case at bar, the court characterized its findings as tentative and did not expand on what those findings were. Its only “conclusions of law” were that the De Bour “levels were met,” without even any indication of which “levels” were being referenced or in what way they were “met.” Defendant then immediately pleaded guilty. In this context it cannot be said that there was an “order finally denying a motion to suppress” that in any meaningful way met the requirements of the letter or spirit of the statute. The court’s reference to its “tentative findings” and failure to set forth reasons in any useful way, not only transgressed CPL § 710.60(6), but also “effectively preclude[d] informed appellate review.” People v Bonilla, 82 NY2d 825, 828 (1993). In these circumstances, the Appellate Division ought to have found that there was no final order and that, accordingly, the defendant had forfeited his right to appellate review of the undecided issue. People v Fernandez, 67 NY2d 686 (1986). In the alternative, the Court should have remitted the case with instructions to the hearing court to make an appropriate record of its findings of fact and conclusions of law as part of a final decision. People v LaFontaine, 92 NY2d 470 (1998); People v Sykes, 110 AD3d 1437 (4th Dept. 2013). No public policy is 11 advanced by permitting the significant violation of CPL § 710.70(2) that occurred here. The Appellate Division failed to distinguish between level one and level two inquiries, and thus expanded the scope of what constitutes a level two inquiry. Contrary to the holding of the Appellate Division’s majority, the record below does not support the finding that the Trooper’s initial inquiry was a level two De Bour inquiry based on all of the Trooper’s observations at the time and the manner in which the questions were asked. That decision is reviewable by this Court because the Appellate Division held, as a matter of law, that the Trooper’s question to defendant about what was inside the bags in his car was a level two inquiry. That legal determination expanded the scope of what constitutes a De Bour level two inquiry beyond this court’s guidance in People v. Hollman, 79 NY2d 181 (1992) and the People v. De Bour, 40 NY2d 210 (1976) line of cases. Thus, this case presents a pure legal question for this Court’s review. People v. Albro, 52 NY2d 619, 622-624 (1981); CPL§ 450.90(2)(a). This Court should overturn the majority decision of the Appellate Division because the record simply does not support the conclusion that the Trooper had ventured into a level two De Bour inquiry with his initial questions. The rules set forth by this Court in the De Bour/Hollman line of cases clearly apply to the facts present here. The Appellate Division’s holding has blurred the distinction between 12 what constitutes level one and level two inquiries based upon the facts and circumstances presented in this case. In People v. De Bour, this Court set out the four-tiered system for evaluating street encounters between police and members of the public when the police are acting within their law enforcement capacity. De Bour supra. As the intrusiveness of each level increases, so does the requisite justification for police action. These rules are the result of a combination of federal Constitutional requirements (levels three and four) and New York case law (levels one and two). Levels one and two are not required under the New York Constitution, but are instead based upon considerations of reasonableness and sound State policy. Hollman supra. This Court has further expanded the application of the guidelines established in De Bour to include encounters with private citizens following a vehicle and traffic stop. People v. Garcia, 20 NY3d 317 (2012). De Bour Level One Inquiry—The Right to Approach Under level one of the four-tiered De Bour/Holloman analysis, law enforcement officers must have an objective credible reason, not necessarily indicative of criminality, to approach a private citizen with a simple request for information which may include basic, non-threatening questions such as a person’s name, address, destination, or reason for being in an area. Hollman at 191. If an individual is carrying something that would appear to a trained police 13 officer to be unusual, the police officer can ask about that object. Id. It is clear that at this stage, a police officer’s questions must be non-accusatory in nature and limited in scope to be permissible; however, through appropriate level one questions, it is possible for an officer to develop a founded suspicion that criminal activity is afoot and proceed to a level two inquiry. See generally Hollman and De Bour. This Court has recognized that the “tone of police-initiated encounters with civilians can be subtle and ever-shifting, that words and gestures are susceptible to many varying interpretations, and that suspicion can grow based on intangibles evident only to the eyes of a trained police officer.” Hollman at 191. De Bour Level Two Inquiry—common-law right of inquiry Under level two of the De Bour/Hollman analysis, “[o]nce the police officer's questions become extended and accusatory and the officer's inquiry focuses on the possible criminality of the person approached, this is not a simple request for information.” Hollman at 191. Thus, where the person approached, based on the questions posed by the officer, would believe that he or she is suspected of some wrongdoing, the officer is no longer merely asking for information. Id. At this point, the encounter has become a common-law inquiry that must be supported by founded suspicion that criminality is afoot regardless of how polite the police officer is during the encounter. Id. A request to search a bag 14 is intrusive and intimidating and would cause reasonable people to believe that they were suspected of criminal conduct. Id at 191-92. Level One and Level Two Distinguished The distinction between level one and level two is often a subtle one. In Hollman, this Court reaffirmed De Bour and clarified the type and number of questions asked, along with the degree to which the encounter becomes intimidating, are factors to determine whether the encounter is a level one encounter or a level two encounter. Hollman at 185. During its exploration of the level one boundaries, the Hollman Court clearly stated that Moore (47 NY2d 911), sets forth the outer limits of a permissible level one inquiry, and while it will not always be permissible to ask such pointed question related to an object the defendant is carrying, such as those posed by the officer in Moore, it is clear that “the tone of citizen and police encounters is ever shifting, that words and gestures are susceptible to many varying interpretations, and that suspicion can grow based on intangibles only evident to the eyes of a trained police officer.” Hollman at 190. It was made clear by the Court in Hollman that so long as there is an objective, credible reason for a police officer to make the inquiry based on the attendant circumstances, even a pointed question can be permissible. The Court emphasized that: 15 “a request for information is a general, nonthreatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area. If the individual is carrying something that would appear to a trained police officer to be unusual, the police officer can ask about the object. A pillow case containing a television set is clearly unusual. A zippered blue bag carried by an individual about to board a bus is not.” Hollman at 191. “…[O]ur distinction rests on the content of the questions, the number of questions asked, and the degree to which the language and nature of the questions transform the encounter from a merely unsettling one to an intimidating one. We do not purport to set out a bright line test for distinguishing between a request for information and a common-law inquiry. These determinations can only be made on a case-by-case basis.” Hollman at 192. The Hollman Court utilized case analysis to further distinguish between levels one and two. The Court first considered the facts of the case as it pertained to Mr. Hollman. In Mr. Hollman’s fact pattern, the defendant was observed by an undercover officer at a bus terminal in New York City going up and down the escalator looking around and carrying an orange bag. He was later observed with another male carrying a black bag. The two stood on the platform a few feet apart for ten minutes, grabbed their bags and entered a restroom together. The pair were later observed exiting a restroom and entering a bus together. The defendants placed their bags overhead a few seats up from their seats. The two sat together on the bus. Officer Canales approached the two, identified himself and asked if he could pose a few questions. The officer asked the pair if they were travelling 16 together and where they were headed. The pair told the officer they had just met and were travelling to different places. The officer next asked if they had any luggage or carryon bags to which the duo responded that they did not have any luggage or carryon bags. The two denied ownership of the black backpack and orange bag they were seen carrying. The officer confirmed that the bags didn’t belong to anyone else on the bus. He then opened the bags and found cocaine and other paraphernalia. The defendants were arrested. Hollman at 185-188. In the fact pattern analyzed by the Court as it pertained to Mr. Saunders, the defendant was observed on a bus terminal platform. The defendant looked around nervously, scanned the room, and at one point gave his place in line to another passenger. The defendant eventually went to step on a bus. The officer approached the defendant, asked to speak with him and identified himself as an officer. Defendant agreed and stepped off the line. The officer asked where he was going and whom he was going to visit. The officer then asked the defendant if he could search his bag. Cocaine was found in the bag and the defendant was arrested. Hollman at 187-188. This Court held that that the police acted properly in their encounter with Mr. Hollman, but improperly as to Mr. Saunders. Id at 192. The Court relied upon its analysis in the remainder of Hollman to distinguish between the officer’s actions in the two cases as well as comparing other cases to provide guidance to lower courts as to what factors should enter into the analysis. The fact 17 pattern in Hollman clearly establishes the appropriate way for a police officer to escalate through the levels of De Bour, while Saunders clearly establishes the inappropriate manner for a police officer to escalate an encounter under this analysis. Indeed, this Court stated, “[i]n evaluating the propriety of police-initiated encounters. . . suppression courts should consider the factors we have identified above in determining whether a request for information or a common-law inquiry has occurred.” Hollman at 192. Gates Appellate Decision In Gates, the Appellate Division majority concluded that, “the Trooper’s initial inquiry concerning the contents of the bags constituted a level two common-law inquiry, which required a founded suspicion of criminality that was not present at the time[.]” Gates at 1223. In so holding, the majority cited prior Fourth Department decisions in People v. Hightower (136 AD3d 1396 ([4th Dept. 2016]) and People v. Carr (103 AD3d 1194 ([4th Dept. 2013]), as well as citing generally to De Bour. In the Hightower case cited by the majority, the defendant was pointedly asked, “whether he had any weapons or drugs.” Hightower at 1396- 97. In Carr, the defendant was asked, “is there anything in the car that I should be aware of,” and then the officer requested permission to search the vehicle. Carr at 1195. The reliance by the majority on these cases given the set of facts present in this case was error and is not supported by the record. As is clear from analyzed 18 cases in Hollman, an officer may ask questions about a bag if it seems unusual to a trained officer, but an officer cannot request permission to search a bag until a founded suspicion that criminal activity is afoot. Furthermore, the type and nature of the questions are important in the analysis. There is a drastic difference between the question posed by the Trooper here, (“is that your luggage in the bags?”) and those relied upon by the majority (“do you have any weapons or drugs?” or “is there anything in the car that I should be aware of?”). The first question would unlikely lead anyone to believe they are the subject of a criminal investigation. The latter questions arising from the cases relied upon by the majority would cause most to believe they are being subjected to a police investigation. The two Justices that dissented from the majority in this case appropriately applied the analysis of the law that was articulated by this Court in Hollman, and determined that “in response to the level one inquiry regarding defendant’s destination and after the defendant advised him that he was en route to his home from Ohio, the Trooper followed up with an additional appropriate level one question, i.e., whether defendant’s luggage was in the bags, which were numerous, were in plain view, and looked unusual based upon the sharp edges protruding through the nylon fabric.” Gates at 1223. For this proposition, the dissent cited generally to Hollman and Moore, a case decided shortly after De 19 Bour where the majority at the Appellate Division was overturned by this Court based on an erroneous decision regarding a level one versus a level two distinction in the Appellate Court. The facts in Moore are similar to the facts in this case. In Moore, the police officers observed the defendant, who was bleeding, limping, and covered in snow walking quickly away from the officers. The defendant was carrying a pillowcase and the officers could see the outline of what appeared to be a television set. The officers approached, asked the defendant where he was coming from and what was in the bag. The Court determined this to be a level one inquiry based on the circumstances present at the time. People v. Moore (47 NY2d 911, rev’g for reasons stated in dissenting opinion 62 AD2d 155). Based on the Court’s De Bour/Hollman analysis, it was not until the police were told that the pillowcase contained a television set and a fur coat and then asked to look in the pillowcase that the situation reached a level two common-law inquiry. Hollman at 190, citing Moore, supra. Accordingly, the dissent here relied upon this Court’s holding in Moore and concluded that, based upon the defendant’s “apparently untruthful responses to level one inquiries, the Trooper’s observation of the sagging trunk and the number of bags in the back seat, the nervous demeanor of the defendant and the passengers, and the Trooper’s experience that illegal contraband was transported 20 on that route, the Trooper had a founded suspicion that there was criminal activity afoot.” Therefore, the Trooper was justified in asking more invasive questions focusing on the possible criminality of the defendant as well as in asking the defendant to unzip a bag. People v Gates, 152 AD3d 1222, 1226 (4th Dept. 2017). In the instant case, Trooper Smithers observed a situation that seemed very unusual. Upon approach following a lawful stop, the vehicle was clearly sagging in the rear as if something was heavy in the vehicle. The entire back seat was filled up with heavy nylon bags that had sharp protruding corners that left only enough room for the petite passenger to fit in the back seat. All of the occupants in the vehicle appeared nervous during Trooper Smither’s basic questions related to where they had come from and where they were going. After Trooper Smithers learned that they had been in Ohio for a few days, and had driven straight through the night only stopping for gas and food, his appropriate first question was whether the bags in the rear seat contained their luggage. Defendant indicated that they contained clothing from their trip. Trooper Smithers then pointed out the obvious issue with that response and asked, “are your clothes inside boxes inside these bags?” (Appendix at 8). Trooper Smithers then indicated to the defendant that he asked the question because it looks like there are boxes inside the bags. Mr. Gates responded that the clothes were in boxes, and then changed his story to presents and not clothing. He further indicated that the presents were purchased 21 for children and that he purchased them in Ohio. The defendant was asked whether there was more luggage in the trunk and pointed out that the vehicle was sagging excessively. When the Trooper queried as to the type of toys in the bags, the defendant indicated that they were riding toys. When asked what type of riding toys, the defendant indicated that the bags contained bicycles. At this point, Mr. Gates identified himself as a retired federal police officer, indicated that he would slow down, and asked to be allowed to leave. It was only at this point in the encounter that, based upon the increasingly implausible answers that clearly contradicted his visual observations, and the nervous demeanor of the defendant and passengers, Trooper Smithers requested that the defendant unzip a bag to verify the contents of the bags. Mr. Gates refused this request. Trooper Smithers asked Mr. Gates to step out of the vehicle to conduct a brief interview with the occupants separately from Mr. Gates. Upon his exit from the vehicle, Trooper Smithers observed large bulges in the defendant’s pockets and pat frisked him for weapons based on his nervous demeanor, bulging pockets, and previous indication that he was a police officer, which Trooper Smithers testified alerted him to the possibility that Mr. Gates might be in possession of a firearm. Trooper Smithers had a conversation with the passengers and learned that while in Ohio, Mr. Gates left them at an unknown residence for a period of time and returned with the full bags in the vehicle. Both occupants 22 indicated that all the bags in the vehicle belonged to Mr. Gates, that neither had any knowledge of the contents of the bags, and that neither of them had any luggage with them. Following this brief interview of the passengers, Trooper Smithers returned to Mr. Gates and confronted him with what he had just learned. At that point, Mr. Gates asked if he could just be honest, lowered his head and advised Trooper Smithers that he was transporting a large quantity of unstamped cigarettes that he intended to sell. Here, Trooper Smithers initial questions regarding destination and point of origin were clearly level one inquiries. See generally Hollman supra. Based upon his observations that the vehicle was sagging excessively, the bags filled up the entire back seat area of the vehicle, and the unusual protruding edges from the large nylon bags, coupled with his knowledge that this was a known smuggling route and the nervous demeanor of the driver and passengers, Trooper Smithers asked an additional level one question as to whether the bags in the rear of the vehicle contained their luggage. It was only after the initial implausible response based on his observations that he began to follow up incrementally on his initial question regarding whether the bags contained their luggage. Only after the series of questions where he received increasingly implausible answers and obvious untruths regarding what Trooper Smithers could readily observe, did the Trooper begin to inquire further as to whether there was more 23 luggage in the trunk and what the bags actually contained. The questions posed during this portion of the lawful roadside stop were based on the principle that a request for information is a general non-threatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area. See Hollman at 191. If the individual is carrying something that would appear to a trained police officer to be unusual, the police officer can ask about the object. Id. In this instance, the Trooper’s initial inquiry was clearly non-accusatory and non-threatening in nature, as well as directly related to his observations of the clearly unusual situation he encountered when he approached the vehicle. When there are three people in a vehicle, all appear nervous, the backseat passenger barely has enough room to be in the vehicle following an overnight trip back from Ohio, the bags are large nylon bags with protruding square edges, the vehicle is travelling on a known smuggling route, and the vehicle is sagging excessively, the Trooper clearly had an objective credible reason to ask the men about the bags they were transporting. The questions that were posed by Trooper Smithers were general enough in nature to be non-accusatory and were not intrusive or intimidating in such a manner that would cause a reasonable person to believe that they were suspected of criminal conduct. 24 It was not until Trooper Smithers believed that he had a founded suspicion that criminal activity was afoot that he asked the defendant to unzip a bag. At that point, Trooper Smithers entered into the level two realm of inquiry in this case. Thus, the majority’s holding that “the Trooper’s initial inquiry concerning the contents of the bags constituted a level two common-law inquiry, which required a founded suspicion of criminality that was not present at the time[.]” Gates at 1223, is in error and is not supported by the record here. This Court should reverse the Appellate Division’s majority because their decision goes beyond this Court’s prior guidance as to what constitutes a level one versus a level two line of inquiry. Trooper Smithers expertly navigated through the levels of De Bour as provided by this Court. His incremental escalation through his line of inquiry clearly falls within the confines of De Bour and did not violate the rights of the defendant in this case. As such, the drastic remedy of suppression is unwarranted in this matter. As the dissent in Gates accurately pointed out, Trooper Smithers had an objective, credible reason to request the information that he sought from Mr. Gates, based on his observations as well as his training and experience. To hold otherwise would have a chilling effect on law enforcement’s ability to perform their duties in situations similar to this one. 25 Conclusion In sum, the hearing court’s tentative ruling was not a final appealable order given the facts present here. In this case, the Appellate Division should have held that the defendant forfeited his right to appellate review or remanded the case to the hearing court so that findings of fact and conclusions of law could be put on the record. The majority decision at the Appellate Division in this case is not supported by the record and improperly expands the scope of a level two De Bour inquiry beyond the prior guidance of this Court. The majority decision improperly classifies Trooper Smither’s initial inquiry as that of a level two inquiry. The Trooper’s actions in this case were appropriate based on the facts of this case. The majority decision failed to consider the factors present based on the Trooper’s training and experience, unusual observations at the time, the nature of the questions asked of the defendant, and the demeanor of the occupants in the vehicle. In so doing, the majority blurred the distinction between a Debour level one and a Debour level two inquiry. While this is a fact based inquiry, the majority holding is not supported by the record and should be reviewed by this Court to further illustrate the distinction between the Debour levels of inquiry that are created by this Court in case law. To that end, this Court should adopt the position of the Appellate Division’s dissenting Justices, reverse the Appellate 26 Division’s holding, and find that Trooper Smither’s initial inquiries were level one inquiries and that the Trooper here navigated appropriately through the levels of De Bour in a manner that is consistent with this Court’s prior holdings. Dated: Watertown, New York January 8, 2018 Respectfully submitted, KRISTYNA S. MILLS District Attorney, Jefferson County Attorney for Appellant 175 Arsenal Street Watertown, New York 13601 315-785-3053 ______________________________ By: George R. Shaffer, III Assistant District Attorney To: CLERK OF THE COURT JOHN A. CIRANDO, ESQ. Attorney for Defendant – Respondent 101 South Salina Street Suite 1010 Syracuse, New York 13202
