The People, Respondent,v.Jeffrey Mercado, Appellant.

Brief

N.Y.March 24, 2015

CENTER FOR APPELLATE LITIGATION 120 WALL STREET - 28 FLOOR, NEW YORK, NY 10005 TEL. (212) 577-2523 FAX 577-2535TH ATTORNEY-IN-CHARGE ROBERT S. DEAN APPELLATE COUNSEL MANAGING ATTORNEY CLAUDIA FLORES ELAINE E. FRIEDMAN (212) 577-2523 EXT. 535 SENIOR SUPERVISING ATTORNEY cflores@cfal.org MARK W. ZENO SUPERVISING ATTORNEYS ABIGAIL EVERETT BARBARA ZOLOT November 25, 2014 VIA EXPRESS MAIL Judges of the Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207 Re: People v. Jeffrey Mercado (SSM) APL-2014-00262 Your Honors: Pursuant to the Court’s letter dated October 24, 2014, designating this appeal for sua sponte examination of the merits pursuant to Rule 500.11, appellant submits the following written comments and arguments. Appellant further requests that this Court remove this case from alternative review under Rule 500.11. This case presents novel and jurisdictionally proper issues which warrant full briefing. PRELIMINARY STATEMENT By permission of the Honorable Rolando T. Acosta, a Justice of the Appellate Division, First Department, granted September 29, 2014, appellant Jeffrey Mercado appeals from an order of the Appellate Division, First Department (120 A.D.3d 441), dated August 28, 2014, that affirmed a judgment of the Supreme Court, New York County, rendered on April 9, 2013, convicting Mr. Mercado, after a guilty plea, of criminal possession of a controlled substance in the third degree (P.L. § 220.16(1)), and sentencing him to a determinate term of three and one half years’ incarceration and three years of post-release supervision (Bruce Allen, J., at Mapp/Dunaway/Huntley hearing; Thomas Farber, J., at plea and sentence). Mr. Mercado’s motion for the assignment of Robert S. Dean, of the Center for Appellate Litigation, as counsel was granted on November 18, 2014. People v. Jeffrey Mercado (SSM) Page 2 November 25, 2014 The issue raised in this appeal presents a question of law for this Court’s review because the Appellate Division’s analysis of the legal question was flawed and because there was no support in the record for the founded suspicion or voluntary consent the police claimed to rely on to justify the search of Mr. Mercado’s trunk. People v. Garcia, 20 N.Y.3d 317, 324 (2012); People v. Gonzalez, 39 N.Y.2d 122 (1976). Mr. Mercado had no indicted co-defendants. No application for a stay has been made. He is currently incarcerated pursuant to the judgment. QUESTION PRESENTED Whether nervousness during a traffic stop can provide the necessary DeBour level-two predicate to ask for consent to search the trunk of a car and whether, in any event, such consent is involuntary where the officer told Mr. Mercado he “wasn’t necessarily going back to jail.” US Const., Amend. IV., NY Const. Art. I, §12. SUMMARY OF ARGUMENT This Court has repeatedly held that nervousness alone cannot constitute the basis for the founded suspicion of criminality required to make a level-two inquiry under People v. Debour, 40 N.Y.2d 210 (1976). See, e.g., People v. Garcia, 20 N.Y.3d 317, 324 (2012). The Appellate Division’s analysis was flawed in determining that the officers were justified in their request to search the trunk where the only factor that remained after the fruitless search of the car’s passenger compartment was Mr. Mercado’s continued nervousness. There was no support in the record for any other indicia of criminality that would have justified the officers’ request to search the trunk of the car after no contraband was found in the passenger compartment or on the persons of the car’s occupants. Alternatively, even if the officers were justified in requesting Mr. Mercado’s consent to search the trunk, there was no support in the record for the conclusion that such consent was voluntary. Officer Millenbach told Mr. Mercado that he “wasn’t necessarily going back to jail”and requested his consent to search before resolving the suspended license infraction. Given Mr. Mercado’s nervousness and obvious inclination to acquiesce to the officer’s demands, his consent was “a mere submission to a claim of lawful authority.” Florida v. Royer, 460 U.S. 491, 497 (1983). STATEMENT OF FACTS By indictment number 4391-2012, Mr. Mercado was charged with criminal possession of a controlled substance in the third degree (P.L. § 220.16(1)) and fourth degree (P.L. § 220.09(1)). A Mapp/Dunaway/Huntley hearing was held before Hon. Bruce Allen on February 20, 2013. People v. Jeffrey Mercado (SSM) Page 3 November 25, 2014 Numbers in parentheses preceded by “A” refer to pages of the appendix submitted to this Court,1 which includes the Appellate Division record and briefs. Mr. Mercado’s Initial Traffic Stop Two plainclothes officers in an unmarked vehicle, Officers Jeffrey Millenbach and Steven Stiller, were patrolling the Lower East Side of Manhattan on the Friday night of October 4 into October 5, 2012 (Millenbach, A77-78, 87) . While stopped at a traffic1 light just past midnight, the officers saw a green sedan parked approximately 60 to 75 feet away, in front of a deli at the corner of Rutgers and Madison Streets (A79-81). While the officers could not see inside the sedan at the time (A81), they later observed that Mr. Mercado was the driver and had one passenger, David Lunas (A78, 80). When Mr. Lunas went into the deli, Mr. Mercado got out of the car and shook hands with another man who approached the car, also hugging him briefly (A79). The other man then walked away (A79). Officer Millenbach testified that he thought Mr. Mercado’s handshake could have been a narcotics exchange, but said that despite good lighting and the absence of any foot traffic to obscure his view, he did not see any money, narcotics, or tell-tale signs of narcotics (A81, 83, 104). He did not see anything exchanged between Mr. Mercado and the man whose hand he shook, and admitted that he had not seen a hand-to-hand transaction (A83, 103). Officer Stiller also testified that he did not see anything exchanged, did not see any money, and did not see any tell-tale signs of narcotics (A117- 18). The officers described the third man only as a “black male” of “normal height, average height, average weight” (A82). They gave no indication that he exhibited characteristics of a drug buyer or seller nor did they testify that they asked any other unit to follow him to investigate whether he had narcotics. The officers did not stop Mr. Mercado immediately after the handshake, even though his car was parked in front of a fire hydrant (A84). When Lunas came back out of the deli, both he and Mr. Mercado got back into the car, sat for a brief period, and then merged into traffic (A79-80, 84). As they drove, the top of Lunas’s head momentarily moved downward, though not far enough for the police following the car to lose sight of the top of Lunas’s head in front of the seat headrest (A86). Millenbach testified that Lunas’s movement was significant because he had seen people act similarly in the past in order to hide something under a car seat (A86). People v. Jeffrey Mercado (SSM) Page 4 November 25, 2014 As the officers followed, the sedan made a left turn without signaling, and the officers turned on their flashing lights and pulled over the sedan for that traffic infraction, stopping at the corner of Orchard and Canal Streets (A86). Officers’ Request to Search the Car Officer Millenbach walked up to the driver’s side window of the sedan while Officer Stiller went to the passenger side window (A86-87). Mr. Mercado was in the driver’s seat, sweating and “crying a little bit” (A87-88). When Officer Millenbach asked Mr. Mercado for his license and registration, he immediately admitted that his license was suspended and said “he didn’t want to go back to jail” (A87). He was “very cooperative” with the officers and he provided them with the car’s registration, explaining that the car belonged to a friend who was allowing him to drive it (A89-90; Defendant’s Statement, Voluntary Disclosure Form, at A8). Officer Millenbach ordered Mr. Mercado out of the car and patted him down, while Officer Stiller ordered Mr. Lunas out of the passenger seat; nothing was found on either man (A101, 119-20). As Mr. Mercado exited the car, repeating that he did not want to go back to jail, Officer Millenbach “told him he wasn’t necessarily going back to jail. Then I asked him . . . did he have anything on him that I as a police officer needed to know about. He said no . . . I specifically said are you straight, is the car straight. He said everything is straight, I’m good. I said can I check the car. He said I got nothing to hide, you can search the car” (A89-90). At no time did the officer inform Mr. Mercado of his right to refuse consent (A92). Officers Millenbach and Stiller then searched the passenger compartment, taking turns searching each side so that one of them was watching Mr. Mercado and Mr. Lunas at all times (Stiller, A120-21). Neither officer found anything under the car’s passenger seat or anywhere else in the passenger compartment (A121). Officers’ Request to Search the Trunk After Finding Nothing Illegal in the Car After the search of the passenger compartment and the pat-downs of the car’s occupants revealed nothing illegal, Officer Millenbach requested consent to search the trunk (A92). Neither Millenbach nor Stiller testified to seeing either Mr. Mercado or Mr. Lunas open or access the trunk during their observations. Mr. Mercado told Officer Millenbach that he had nothing to hide and that he could search the trunk (A92). Officer Millenbach opened the trunk and saw two glassine envelopes sticking out of the corner of a Direct TV box (A92). He went on to open the box and found 115 glassine envelopes that later proved to contain heroin, packaged in groups of twenty People v. Jeffrey Mercado (SSM) Page 5 November 25, 2014 The glassines found on Mr. Mercado’s person were not analyzed for substance (Lab Report, at2 A13). (A93; Lab Report, at A13). Millenbach shrugged at Mr. Mercado and said “come on man you told like you didn’t have anything illegal in the car” (A93). In response, Mr. Mercado admitted that the drugs in the box were heroin, that they belonged to him, and that he had “about thirteen decks” (A94). At that point, Officer Millenbach handcuffed Mr. Mercado and placed him under arrest (A94). Later, during a search at the precinct, the officers recovered eight glassines from Mr. Mercado’s underwear (A95-96). 2 Suppression Arguments and Decision At the hearing, defense counsel moved to suppress the heroin found in the trunk, the alleged heroin found on Mr. Mercado’s person pursuant to arrest, and his inculpatory statements (A123-29). He argued that the handshake and head movements the officers observed were “completely innocent conduct” and that any suspicion the officers had evaporated once the officers found nothing illegal in their search of the passenger compartment of the car and fruitless pat-downs (A124, 127). Defense counsel followed his oral motion with a written memorandum of law in which he argued that Mr. Mercado’s consent to search the trunk was not voluntary, citing, inter alia, People v. Gonzalez, 39 N.Y.2d 122 (1976), and that in any event, Officer Millenbach never should have requested those consents pursuant to People v. Garcia, 20 N.Y.3d 317, 322 (2012) (Defendant’s Memorandum of Law in Support of Suppression, at A62-63). The People argued that the officers had reasonable suspicion that Mr. Mercado was involved in “some sort of criminal activity” and that his consent to the searches was knowing and voluntary (A132, 135). While acknowledging that Mr. Mercado “wasn't going anywhere at [the] point” where Officer Millenbach told him he wasn’t necessarily going back to jail, the prosecutor argued that at least “defendant was not in handcuffs” (A136). At that point, the judge questioned aloud whether Mr. Mercado was capable of providing valid consent at the critical moment. The court interjected that “he had to know that” he was not going anywhere and then asked “you say nevertheless he could still give consent?” (A136). The People tried to assure the judge that Mr. Mercado could and did give “voluntary consent” and cited case law to support their position (A139). The People did not submit a response to defense counsel’s written motion. People v. Jeffrey Mercado (SSM) Page 6 November 25, 2014 On February 28, 2013, the court denied defense counsel’s motion to suppress the drugs in a written decision. The court found Officers Millenbach and Stiller credible and reasoned that: [T]he totality of Officer Millenbach’s observations was sufficient to establish a founded suspicion that criminality involving drugs was afoot. . . . In particular [Mr. Mercado’s] crying and saying ‘I don’t want to go back to jail’ not only indicated that [he] had a criminal past, but also seemed to be an overreaction if all that was involved was driving with a suspended license. While the search of the interior of the car eliminated any suspicion stemming from Luna[s] leaning down, the observation of the interaction with the man on the sidewalk coupled with the defendant’s statement provided a sufficient basis to ask for further consent to search the trunk. . . . Upon seeing the glassines, Millenbach was justified in recovering the narcotics and placing the defendant under arrest. (Suppression Decision, at A16-17). The court did not specifically comment on the voluntariness of Mr. Mercado’s consent. After the court handed down its decision, defense counsel immediately registered his dissatisfaction with the court’s reasoning: Judge, I am disappointed with the court’s decision. I just like to point out what I find particularly troubling about the decision is the fact that the court partly rested its decision on the interaction with the man on the sidewalk. The fact that the court gave any significance to shaking hands and briefly hugging a black man some how [sic] gives officers reasonable suspicion or anything else. I find it troubling. (A147). The court subsequently amended its written order to include the denial of defense counsel’s motion to suppress statements (A153). People v. Jeffrey Mercado (SSM) Page 7 November 25, 2014 Plea and Sentence Mr. Mercado pleaded guilty to third-degree criminal possession of a controlled substance (A153-57). He was adjudicated a predicate felon based on two prior convictions for third-degree criminal possession of a controlled substance, one on December 1, 2010 and one on August 9, 2008 (A158-59). On April 9, 2013, he was sentenced to a term of three and one half years’ imprisonment and three years of post- release supervision (A163). Appeal On appeal to the Appellate Division, First Department, Mr. Mercado argued that the police lacked the founded suspicion required to ask for his consent to search the trunk of the car and that, alternatively, Mr. Mercado’s subsequent consent was involuntary in light of the officer’s statement that he “wasn’t necessarily going back to jail.” The First Department rejected Mr. Mercado’s arguments, finding that his nervousness, along with the handshake he shared with the third man, his suspended license, his “complete inability to provide any form of identification,” and his “apparent [lack of a] connection to the registered owner of the car” provided a basis for the officers to request a search of the trunk. People v. Mercado, 120 A.D.3d 441, 992 N.Y.S.2d 12, 14-15 (1st Dep’t 2014). The court also found that Mr. Mercado’s consent was voluntary under the totality of the circumstances, noting that he was not handcuffed or under arrest at the time. Id. Justice Rolando T. Acosta dissented, finding that any suspicions the officers may have had to search the passenger compartment of the car did not justify a request to search the trunk once the first search resulted in nothing illegal. Id. at 15-16. The dissent found that “[d]efendant’s continued nervousness was simply insufficient indicium that criminal activity was afoot.” Id. at 16. Justice Acosta found that, in any event, Mr. Mercado’s consent was involuntary in light of the officer’s comment that he “wasn’t necessarily going back to jail.” Id. at 17. Justice Acosta granted Mr. Mercado leave to appeal to this Court on September 29, 2014. People v. Jeffrey Mercado (SSM) Page 8 November 25, 2014 ARGUMENT NERVOUSNESS DURING A TRAFFIC STOP CANNOT PROVIDE THE NECESSARY DEBOUR LEVEL-TWO PREDICATE TO ASK FOR CONSENT TO SEARCH THE TRUNK OF A CAR AND, IN ANY EVENT, SUCH CONSENT IS INVOLUNTARY WHERE THE OFFICER TOLD MR. MERCADO THAT HE “WASN’T NECESSARILY GOING BACK TO JAIL.” US CONST., AMEND. IV., NY CONST. ART. I, §12. Mr. Mercado’s consent to search the trunk was invalid because it was neither properly sought nor voluntarily given. The officers engaged in an improper level-two De Bour/Hollman encounter when they requested his consent to search the trunk without having a founded suspicion that criminality was afoot. Any suspicions they may have had when they stopped Mr. Mercado dissipated after the officers found nothing illegal in the passenger compartment of the car. The improper request to search the trunk required suppression by itself, but Mr. Mercado’s coerced consent in response to the officer’s statement that he “wasn’t necessarily going back to jail” also requires suppression in this case. A. Jurisdiction Although many search and seizure issues present mixed questions of law and fact that preclude review in this Court, where “there is no evidence in the record to support the determination of the lower courts,” the issue of whether circumstances amount to a founded suspicion presents a pure question of law. People v. Sierra, 83 N.Y.2d 928, 929 (1994). In the context of probable cause determinations this Court had found: If the facts and circumstances adduced as proof of probable cause are controverted so that conflicting evidence is to be weighed, if different persons might reasonably draw opposing inferences therefrom, or if the credibility of witnesses is to be passed upon, issues as to the existence or truth of those facts and circumstances are to be passed upon as a question of fact; however, when the facts and circumstances are undisputed, when only one inference can reasonably be drawn therefrom and when there is no problem as to credibility, or when certain facts and circumstances have been found to exist, the issue as to whether they amount to probable cause is a question of law. People v. Jeffrey Mercado (SSM) Page 9 November 25, 2014 People v. Oden, 36 N.Y.2d 382, 384 (1975); see also People v. Morales, 42 N.Y.2d 129, 134 (1977)(“[I]t is a question of law whether the facts found to exist are sufficient to constitute probable cause.”). Here, there is no dispute over the facts or even over the interpretation of those facts. Mr. Mercado never challenged the police officers’ credibility or their version of what transpired during the traffic stop. He does not dispute that the circumstances cited by the People and credited by the Appellate Division existed – his argument is that they do not constitute a founded suspicion of criminality under the law. Unlike most other cases, where a founded suspicion determination presents a mixed question of law and fact, here there was no evidence in the record to support the finding that the officers had “founded suspicion of criminality justifying a common-law inquiry.” People v. Jones, 11 N.Y.3d 822, 823 (2008)(finding record support for suspicion determination and declining to review mixed question of law and fact). The only factors the court cited to justify the request to search the trunk beyond nervousness were driving without a license, a traffic infraction wholly unrelated to drug activity; Mr. Mercado’s handshake with “an unidentified man,” which cannot legally serve as a basis for suspicion; and lack of an “apparent connection to the registered owner of the car,” a finding belied by the record. The only question, therefore, is whether nervousness can by itself justify the search of a trunk when no contraband is found after searching the car’s passenger compartment. The majority opinion in the Appellate Division concluded that, along with other innocuous factors, it could, while the dissent concluded that “continued nervousness was simply insufficient indicium that criminal activity was afoot.” 992 N.Y.S.2d at 16. The disagreement presents an issue of law, not a mixed question. Similarly, there was no support in the record for the Appellate Division’s conclusion that the People met their heavy burden of establishing that Mr. Mercado’s consent was voluntary. In light of the officer’s comment to Mr. Mercado that he “wasn’t necessarily going back to jail” immediately before he requested his consent to search, and his failure to advise Mr. Mercado of his right to refuse such consent, there was simply nothing to establish that Mr. Mercado’s consent was knowing and voluntary. Beyond presenting a pure issue of law, the issue was fully preserved in the hearing court. Defense counsel orally argued that any suspicion the officers had evaporated once they found nothing illegal in their search of the passenger compartment of the car and fruitless pat-downs (A124, 127). After the hearing, counsel below argued in depth that Mr. Mercado’s consent to search the trunk was not voluntary, citing People v. Gonzalez, 39 N.Y.2d 122 (1976), and that in any event, Officer Millenbach never should have requested those consents pursuant to People v. Garcia, 20 N.Y.3d 317, 322 (2012) People v. Jeffrey Mercado (SSM) Page 10 November 25, 2014 (Defendant’s Memorandum of Law in Support of Suppression, at A62-63). In response, the People argued that the officers had a founded suspicion to request consent for both searches and that Mr. Mercado’s consent was voluntary, citing case law to support their position (A129-42). The suppression court agreed with the People in finding that Mr. Mercado’s nervousness, along with his handshake with the man on the street, gave them a founded suspicion of criminality sufficient to request consent to search the trunk of the car (Suppression Decision, at A16-17). On appeal, the People contended that Mr. Mercado’s argument that his consent was involuntary was unpreserved (Respondent’s Brief, at A234). The Appellate Division did not address the People’s preservation argument in its decision, deciding the voluntariness issue on the merits and with no indication that it was doing so in the interest of justice. 992 N.Y.S.2d at 15. Although the suppression court did not specifically rule on the voluntariness of Mr. Mercado’s consent, it did question the People about whether his consent was truly voluntary at the hearing (A136). The People responded thoroughly to the court’s questions, citing case law in support of their argument that the consent was voluntary (A139-40). Defense counsel responded in his written memoranda by arguing that the consent was not voluntary, citing People v. Gonzalez, 39 N.Y.2d 122 (1976) and People v. Packer, 49 A.D.3d 184 (1st Dep't 2008) (consent to search backpack was the product of coercion)(A63-64) .Those arguments fully preserved the issue. See C.P.L. § 470.05(2). B. There Was No Support in the Record for the Appellate Division’s Finding That the Police Had a Founded Suspicion of Criminality Justifying Their Request to Search Mr. Mercado’s Trunk. Having found nothing in the passenger compartment of the car, or on Mr. Mercado or Mr. Lunas, the officers here lacked the founded suspicion required to request consent to search the trunk. A police officer may not ask a motorist for the motorist’s consent to a search without objectively founded suspicion that criminality is afoot, even if the original stop was valid. People v. Garcia, 20 N.Y.3d 317, 323-24 (2012) (holding that the De Bour/Hollman framework applies with full force to interactions with motorists already validly stopped for a traffic violation); see also People v. De Bour, 40 N.Y.2d 210 (1976) (finding that police engage in four distinct privacy intrusions when they interact with citizens, and that each intrusion requires a progressively higher quantum of objective suspicion of criminal activity), and People v. Hollman, 79 N.Y.2d 181, 191 (1992) (holding that a request for consent to search converted an encounter into at least a “level-two” interaction, which requires objectively founded suspicion that criminality is afoot). The police may not ask for consent to search without a founded People v. Jeffrey Mercado (SSM) Page 11 November 25, 2014 suspicion of imminent criminality. “Consent” obtained through an illegal request to perform a search is no consent at all. Hollman, 79 N.Y.2d at 194 (ordering suppression “[b]ecause the defendant’s consent was a product of the improper police inquiry, the Appellate Division was in error when it found that the defendant had in fact consented to the search of his bag”). Evidence obtained through such sham consent must be suppressed. Id. Assuming that the officers’ request for consent to search the passenger compartment was permissible based on Mr. Luna’s observed furtive movement in the passenger seat, Officer Millenbach’s subsequent request to search the trunk of the car, which actually led to the contraband, was not. “In determining whether a seizure and search is unreasonable, we must be satisfied that the governmental intrusion ‘was justified at its inception’ and ‘was reasonably related in scope to the circumstances which justified the interference in the first place.’” People v. Quackenbush, 88 N.Y.2d 534, 541 (1996), quoting Terry v. Ohio, 392 U.S. 1, 20 (1968); see also Illinois v. Caballes, 543 U.S. 405, 407 (2005)(“[A] seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution.”). Officer Millenbach requested permission to search the trunk even though his suspicions had nothing to do with the trunk. There was no testimony that Mr. Mercado went into the trunk before or after shaking the hand of another man earlier in the evening. The officers’ fear that one of the occupants had hidden contraband in the car was specifically related to the area below the front passenger seat, not the trunk (A86, 111). The officers had just dispelled that fear by finding nothing illegal in the passenger compartment (A121).There was no objective evidence that would lead a reasonable person to suspect that there was any evidence of criminality to be found in the trunk. Accordingly, once their search of the passenger compartment and frisks of the vehicle’s occupants proved fruitless, the officers had no basis to impose a further intrusion on Mr. Mercado’s privacy and request to search the trunk. See Florida v. Royer, 460 U.S. 491, 500 (1983)(“[A[n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.”); Quackenbush, 88 N.Y.2d at 541. Even where an initial search is justified, the suspicion that justified that search dissipates when no evidence of criminality is found, rendering further privacy intrusions unreasonable. See People v. Hogencamp, 295 A.D.2d 808, 810 (3d Dep’t 2002) (ordering suppression and dismissing indictment where police continued investigation after initial suspicions were exhausted, notwithstanding the continued nervousness in the defendant’s voice); Sampson v. City of Schenectady, 160 F. Supp. 2d 336, 344 (N.D.N.Y. People v. Jeffrey Mercado (SSM) Page 12 November 25, 2014 2001) (“Assuming for purposes of this motion that they did have reasonable suspicion to believe that Plaintiff was engaged in a narcotics transaction at the time they stopped him and that their search of Plaintiff was legally justified, that suspicion evaporated when they discovered that Plaintiff was not carrying any narcotics.”). Other jurisdictions have reached the same conclusion on similar facts. See, e.g., United States v. Garnier, 28 F.3d 1214 (6th Cir. 1994)(finding that while initial frisk of occupants and search of passenger compartment was justified based on erratic driving and furtive handling of bag on floorboard “the failure of that limited search and patdown to uncover a weapon did not justify requesting consent for yet a further intrusion” in searching trunk); State v. Flowers, 734 N.W.2d 239, 255 (Minn. 2007)(reasonable suspicion based on driver’s furtive movements dissipated after initial search of passenger compartment and second search was unjustified). Here, in response to their professed concerns about a nervous man who shook hands with another man and whose passenger had bent forward in a car, officers not only searched the entire passenger compartment but also frisked the vehicle’s occupants. They found neither drugs nor money nor weapons, and Mr. Mercado was cooperative (A90). At that point, even if the initial request had been justified, there was no longer any objective foundation on which to suspect that criminality was afoot. Any suspicions the officers had to justify searching Mr. Mercado and Mr. Lunas were allayed when nothing was found on them or inside the passenger compartment. The only factor remaining to raise the officers’ suspicions after the frisks and the search of the car was Mr. Mercado’s continued nervousness. Mr. Mercado’s nervousness during the encounter could not provide founded suspicion to search the trunk, because nervousness alone cannot raise a suspicion of criminal activity. People v. Milaski, 62 N.Y.2d 147, 156 (1984); People v. Banks, 85 N.Y.2d 558, 562 (1995); People v. Garcia, 20 N.Y.3d 317, 324 (2012) (no founded suspicion where only basis for police inquiry was nervousness of vehicle occupants). The physical manifestation of Mr. Mercado’s nerves – he apparently began to cry – does not convert his nervousness into founded suspicion of criminality – especially criminal activity in the trunk. See People v. Irizarry, 79 N.Y.2d 890 (1992) (finding request to search improper because there was no founded suspicion, where the record revealed that defendant’s hands were shaking during the police encounter). “[Nervousness] should be given only limited weight in the context of a traffic stop.” United States v. Newland, 246 F. App’x 180, 197 (4th Cir. 2007)(“Although nervousness has been considered in finding reasonable suspicion in conjunction with other factors, it is an unreliable indicator, especially in the context of a traffic stop. Many citizens become nervous during a traffic stop, even when they have nothing to fear.”)(internal citations omitted); see also United People v. Jeffrey Mercado (SSM) Page 13 November 25, 2014 States v. Davis, 636 F.3d 1281, 1291 (10th Cir. 2011)(“[N]ervousness is a common, natural reaction during a traffic stop, and thus only extraordinary and prolonged nervousness can weigh significantly in the assessment of reasonable suspicion.”)(internal quotation marks omitted). Accordingly, contrary to the lower courts’ analysis, “overreacting” to the traffic stop or “express[ing] concern that he would face recincarceration for a VTL infraction,” 992 N.Y.S.2d at 14, does not provide founded suspicion that evidence of criminality will be found in the trunk of a car. Even if Mr. Mercado’s nervousness could otherwise be the basis for founded suspicion – and it cannot – the officers had an obvious explanation for that nervousness here. After the officers’ fruitless search of the car, they still had not resolved whether they would issue Mr. Mercado a desk appearance ticket or arrest him and take him to jail for the suspended license offense (A98-99). Mr. Mercado therefore had the threat of jail hanging over his head even as he acquiesced to the frisk and the search of the car’s passenger compartment. The Appellate Division’s reliance on People v. Battaglia, 86 N.Y.2d 755 (1995) is misplaced. Battaglia does not stand for the proposition that “the same founded suspicion that permitted the police to ask for consent to search the car extend[s] to the request to search the trunk.” Mercado, 992 N.Y.S.2d at 14. In Battaglia, the defendant was not only driving the wrong way down a one-way street, but he provided a false identification to the police. Id. at 756. As a result, the police initiated a search of the trunk of the car, whereupon they found a box containing a handgun. Id. At that point, the officers moved to frisk the defendant and recovered additional contraband. Id. at 757. It was only after their suspicions of criminality were confirmed and after the arrest of the defendant that the police proceeded to search the passenger compartment. Id. Far from holding that the officers’ suspicions justified a search of the entire vehicle, this Court never reached the question of whether it would have been proper for the police to request a search of the car’s passenger compartment had they found nothing incriminating in the trunk or on the defendant’s person. Moreover, the officers in Battaglia had a generalized suspicion that the defendant was hiding something because he provided a false name. Id. at 756. In contrast, Mr. Mercado was “very cooperative” (A90), never gave a false name, and readily admitted that he was driving with a suspended license (A87). Accordingly, the officers’ suspicion here was narrowly limited to the inside of the passenger compartment based on Mr. Lunas’s furtive movement in the passenger seat. People v. Devone, 15 N.Y.3d 106 (2010), also relied on by the Appellate Division, is similarly distinguishable. In that case, in addition to the fact that the driver could not produce a license or registration, he provided false and incomplete information about the identities of the passenger and owner of the vehicle. Id. at 114. In short, in contrast to other cases where People v. Jeffrey Mercado (SSM) Page 14 November 25, 2014 “[I]nstead of enthusiastic handshakes, a bump of the fists or the elbows is a more common3 greeting among the young men. Elsewhere that might have seemed the influence of professional athletes; in Brownsville, it took hold as an adaptation to a consuming police presence. . . . ‘That’s an automatic search because they say we were doing hand-to-hand transactions,’ said . . . Ernest Payne, a construction worker and milk deliveryman.” Id. this Court has found a founded suspicion of criminality, there was nothing inconsistent, evasive, or otherwise suspicious about Mr. Mercado to suggest that there was any criminality present beyond driving without a license. The Appellate Division’s desperate attempt to justify the request to search the trunk with bogus factors in addition to nervousness results in a bankrupt legal analysis that threatens the constitutional rights of the driving public and is contrary to public policy. To allow police to request a vehicle search based on nervousness alone would subject scores of motorists – many or all of whom are likely to be nervous during a traffic stop – to serious privacy intrusions any time the police want to conduct a fishing expedition. To the extent that the Appellate Division relied on other factors to support the officers’ founded suspicion, their supposed indicia of criminality finds no support in the record. First, Mr. Mercado’s handshake with the man on the street cannot serve even as partial justification for searching either the car or the trunk. There is simply nothing about a handshake on the street to suggest criminality – drug-related or otherwise. The officers’ claim that the handshake“looked like what might have been a hand to hand transaction” (A83), is unsubstantiated by any record evidence and disturbingly suggests the insidious influence of improper motivations. To criminalize normal, everyday behavior because it takes place between a black man and a Hispanic man on a Friday night in the Lower East Side is discriminatory and contrary to public policy. In certain neighborhoods, police claims that simple handshakes qualify as drug transactions justifying a search are so widespread that young men have stopped shaking hands altogether. See Joseph Goldstein, ‘Stop and Frisk’ Ebbs, But Still Hangs Over Brooklyn Lives, N.Y. TIMES, September 20, 2014, at A1 . The officers here admitted that they3 observed neither an exchange, nor an item, nor the passing of an item, nor money, nor the passing of money, let alone any exchange of an item for money (A83, 104, 117-18). This Court is not called upon to decide whether or not the handshake amounted to a drug transaction. “When the facts and circumstances are undisputed, when only one inference can reasonably be drawn therefrom and when there is no problem as to credibility . . . the issue as to whether they amount to [a founded suspicion of criminality] is a question of law.” People v. Oden, 36 N.Y.2d 382, 384 (1975). Based on the officers’ People v. Jeffrey Mercado (SSM) Page 15 November 25, 2014 observations, the only inference to be drawn from the handshake was that it was a friendly greeting, and it is well settled that “innocuous behavior alone will not generate a founded . . . suspicion that a crime is at hand.” DeBour, 40 N.Y.2d at 216. The Appellate Division’s and the suppression court’s reliance on the handshake as justification for the officers’ search is dangerously misguided, as it opens the door for the police to rely on any number of innocent human interactions to justify an invasion of privacy. Next, the mere fact that Mr. Mercado committed the misdemeanor of driving without a license did not provide the officers with a founded suspicion of criminality justifying the search of the trunk because it was not “reasonably related in scope to the circumstances which justified the interference in the first place.” Quackenbush, 88 N.Y.2d at 541. Finally, the Appellate Division majority relied on factors to support the officers’ suspicion that were belied by the evidence in the record. Neither officer testified that Mr. Mercado had no “apparent connection to the registered owner of the car.” 992 N.Y.S.2d at 15. Officer Millenbach stated that Mr. Mercado provided the car’s registration paperwork and that it was registered to someone named Nugent (A89). Mr. Mercado told Millenbach that the car belonged to a friend and that he had permission to drive it (Voluntary Disclosure Form, at A8). The People presented no evidence to the contrary. Neither officer testified that they believed the car might have been stolen, or that the fact that Mr. Mercado’s name was not on the registration contributed to their suspicion of criminality. Accordingly, after the police found nothing incriminating in the passenger compartment, the only factor that could even nominally give rise to a suspicion of criminality was Mr. Mercado’s continued nervousness. The Appellate Divisions’ attempts to otherwise justify the search by pointing to other supposed indicia of criminality were completely unsupported by the record and resulted in a legally flawed analysis. C. Alternatively, There Was No Support in the Record for the Appellate Division’s Finding That Mr. Mercado’s Consent Was Voluntary The officers’ unfounded request to search the trunk requires suppression, but alternatively, the fruits of the search should be suppressed because there was no support in the record for the finding that Mr. Mercado’s consent to search the trunk was voluntary. “Consent” came from a sweating, crying man who could not leave the scene or disregard the officers because of his suspended driver’s license and the possible incarceration that could result from it. People v. Jeffrey Mercado (SSM) Page 16 November 25, 2014 The prosecution did not meet its “heavy burden” to prove that any consent Mr. Mercado gave was voluntary. People v Gonzalez, 39 N.Y.2d 122, 128 (1976). “Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle.” Id. Where a motorist has been stopped and has a suspended license, any consent he provides will be invalid because he would not “feel free ‘to disregard the police and go about his business.’” See Florida v. Bostick, 501 U.S. 429, 434 (1991)(quoting California v. Hodari D., 499 U.S. 621, 628 (1991); see also Brendlin v. California, 551 U.S. 249, 255 (2007)( “The law is settled that in Fourth Amendment terms a traffic stop entails a seizure of the driver even though the purpose of the stop is limited and the resulting detention quite brief.”). Mr. Mercado’s obvious and extreme distress here confirms that he did not give his consent freely. When assessing voluntariness, “account must be taken of . . . the possibly vulnerable subjective state of the person who consents.” Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973)(State must demonstrate that consent was voluntary under totality of circumstances). As Officer Millenbach noted, when he initially approached Mr. Mercado, he “was sweating profusely. He seemed very upset” (A87; see also A112 (Officer Stiller testified that Mr. Mercado was “very nervous, he was visually upset and sweating . . . crying.”)). In the same breath that Mr. Mercado admitted that he did not have a license (and therefore could not “disregard the police and go about his business”), he “[said] he didn’t want to go back to jail” (A87). Mr. Mercado was so terrified of Officer Millenbach’s power to send him back to jail that “he was actually crying a little bit” (A88). At no time did the officer inform Mr. Mercado of his right to refuse consent (A92). Meanwhile, Mr. Mercado continued to be “very nervous, still very upset,” as he was “ordered out of the vehicle” and “he kept saying he didn’t want to go jail,” while continuing to cry (A122). The Appellate Division relied in part on the fact that the police did not actually arrest or handcuff Mr. Mercado before asking for his consent to search the trunk to conclude that his consent was voluntary. 992 N.Y.S.2d at 15. Whether or not a defendant is in custody is an important factor in determining whether his consent is voluntary. Gonzalez, 39 N.Y.2d at 128. Regardless of whether Mr. Mercado was in official police custody, however, “during the course of the inquiry [he] was detained and not free to leave”. People v. Milaski, 62 N.Y.2d 147, 155 (1984)(finding that troopers’ actions during traffic stop – which included questioning defendant, keeping an eye on him outside the vehicle, and frisking him – amounted to detention such that defendant was not free to People v. Jeffrey Mercado (SSM) Page 17 November 25, 2014 leave); see also People v. Irizarry, 79 N.Y.2d 890 (1992)(finding that police lacked a founded suspicion that criminal activity was afoot during stop, and that alternatively, “defendant’s consent to search the bag was involuntary and constituted a yielding to overbearing official pressure”). Mr. Mercado’s “consent’” was nothing more than “a mere submission to a claim of lawful authority.” Florida v. Royer, 460 U.S. 491, 497 (1983). “Most people believe that they are validly in a police officer's custody as long as the officer continues to interrogate them. The police officer retains the upper hand and the accouterments of authority. That the officer lacks legal license to continue to detain them is unknown to most citizens, and a reasonable person would not feel free to walk away as the officer continues to address him.” Ohio v. Robinette, 519 U.S. 33, 47 (1996)(Stevens, J., dissenting)(internal citations omitted). Mr. Mercado admitted that he committed a misdemeanor punishable by jail time – driving without a license – but the officers did not resolve the situation by either arresting Mr. Mercado or issuing him a ticket. Instead, they held him in limbo, telling him he “wasn’t necessarily going back to jail,” and requiring his cooperation until they resolved the outcome of the suspended license offense. The officer made it clear that he was not finished with Mr. Mercado, ordering him to leave the car he had just been driving, patting him down, and leading him towards the rear of the car while another officer did the same to Mr. Lunas (A90, 119). Even the prosecutor and the suppression court acknowledged that even though he had not been placed under arrest when the officer made the request, “he wasn’t going anywhere at that point” and that “he had to know that” (A136). The officer testified that while Mr. Mercado was upset and repeatedly panicking aloud that he did not want to go back to jail, “I told him he wasn’t necessarily going back to jail. Then I asked him if I could, I asked him did he have anything on him that I as a police officer needed to know about . . . I specifically said are you straight, is the car straight . . . I said can I check the car” (A90). Mr. Mercado’s position was arguably more pressured than if he had been under arrest, because then at least he would have known that he was going to jail either way. Here, the officer’s implied threat that he wasn’t necessarily going back to jail worked to coerce Mr. Mercado to either cooperate with the officer’s request to search or face incarceration for driving without a license. Other jurisdictions have recognized that when a request to search is made pursuant to a traffic stop and “combined with a police officer’s superior position of authority, any reasonable person would [feel] compelled to submit to the officer's People v. Jeffrey Mercado (SSM) Page 18 November 25, 2014 On remand pursuant to the Supreme Court’s decision in Ohio v. Robinette, 519 U.S. 33 (1996)4 (holding that Fourth Amendment does not require that lawfully seized defendant be advised that he is “free to go” before his consent to search will be recognized as voluntary). questioning.” State v. Robinette, 685 N.E.2d 762, 771 (Ohio 1997). In Robinette , the4 Ohio Supreme Court found it significant that the officer procuring the consent had told the defendant that he was only issuing a verbal warning for his traffic infraction, but that he had the discretion to issue a ticket, and nonetheless pressed forward to request permission to search the car. Id. The court found that those circumstances “surrounding the request to search made the questioning impliedly coercive” and that the defendant “merely submitted to a claim of lawful authority” in violation of Florida v. Royer, 460 U.S. 491, 497 (1983). Here, the implied threat was not a traffic ticket, but jail time, making the request to search that much more coercive. “The lack of closure of the original purpose of the stop makes the request for consent more threatening.” State v. Pals, 805 N.W.2d 767, 783 (Iowa 2011)(finding consent to search truck pursuant to a traffic stop involuntary where officer did not advise defendant “that he had concluded business related to the stop at the time he asked for consent”). “The academic commentary on [the] Schneckloth [totality of the circumstances analysis] has been generally unfavorable and has attacked the basic premises of the decision as applied in a traffic stop case. A number of commentators simply seem to side with Justice Marshall's dissent, noting the irony in finding a ‘voluntary consent’ even when the individual does not realize that he or she has a right to refuse.” Pals, 805 N.W.2d at 780-81. Accordingly, while not the law in New York, it is persuasive that several states have rejected the Schneckloth approach and required that, in order for a search or seizure to be valid based on consent, the subject must provide a knowing and voluntary waiver under Johnson v. Zerbst, 304 U.S. 458 (1938)(requiring State to demonstrate “an intentional relinquishment or abandonment of a known right or privilege” to establish valid waiver of constitutional right). See, e.g., State v. Brown, 156 S.W.3d 722, 732 (Ark. 2004) (concluding that officers performing knock-and-talk procedure must inform subject of his or her right to refuse consent to the search); Penick v. State, 440 So.2d 547, 551 (Miss.1983) (holding that voluntariness finding requires a showing that the defendant knew of his or her right to refuse); State v. Johnson, 346 A.2d 66, 68 (N.J. 1975) (holding subject must have knowledge of right to refuse consent in order for consent to be deemed voluntary); State v. Ferrier, 960 P.2d 927, 932-33 (Wash. 1998) (stating that, under state constitution, knock-and-talk procedure to acquire consent requires officers to inform the subject of his or her right to refuse consent). People v. Jeffrey Mercado (SSM) Page 19 November 25, 2014 “[G]uilty or innocent, most motorists stopped and asked by police for consent to search their vehicles will expressly give permission to search their vehicles, resulting in thousands upon thousands of motor vehicle searches of innocent travelers each year.” Wayne R. LaFave, 4 Search & Seizure § 9.3(e) (5th ed.)(internal quotation marks omitted). One study showed that consent is given in about 90% of cases. Id. (citing Illya D. Lichtenberg, Voluntary Consent or Obedience to Authority: An Inquiry Into the Consensual Police-Citizen Encounter, at 229 (1999). “Repeated decisions by ordinary citizens to surrender [their privacy] interest cannot satisfactorily be explained on any hypothesis other than an assumption that they believed they had a legal duty to do so. Brown v. State, 182 P.3d 624, 631 (Alaska Ct. App. 2008). In light of these observations, it is implausible to conclude that Mr. Mercado’s acquiescence to the officer’s request to search the car and trunk was voluntary under the totality of the circumstances, regardless of his cooperation with the police and his “prior contact with the criminal justice system.” Mercado, 992 N.Y.S.2d at 15. As this Court has emphasized, “[s]ubmission to authority is not consent.” Gonzalez, 39 N.Y.2d at 129. Here, Officer Millenbach officer told a panicked man that he was “not necessarily” going back to jail and then immediately presented him with what anyone in Mr. Mercado’s position would construe as a way to make jail “not necessary”: consent to a search. Even if the police requests to search had been permissible – which they were not – Mr. Mercado gave his answers while crying, sweating, and repeatedly panicking that he did not want to go back to jail in the face of an implicit threat that he could avoid going back to jail only if he consented to the searches. The consent at issue here was not the product of a “free and unconstrained will.” Gonzalez, 39 N.Y.2d at 128. At the very least, the prosecution failed to meet its “heavy burden” to prove that the consent was in fact “free and unconstrained.” Id. D. The Illegal Search of Mr. Mercado’s Trunk Requires Suppression of its Fruits. Because the police violated Mr. Mercado’s rights against unreasonable searches and seizures, the lower courts should have suppressed both the evidence that the illegal search revealed directly and also the derivative evidence that the police found through “exploitation of that illegality.” Wong Sun v. United States, 371 U.S. 471, 488 (1963). Here, the illegal search of Mr. Mercado’s trunk directly revealed the heroin inside and it should thus be suppressed. Id. The fruits of that unconstitutional search should also be suppressed. While conducting the illegal search of Mr. Mercado’s trunk, Officer Millenbach used the heroin he saw sticking out of the box to elicit the statement “that’s mine” (A92). The officer pressed the point, asking questions regarding what he had just