The People, Respondent,v.Andrew R. Bushey, Appellant.BriefN.Y.March 29, 2017COURT OF APPEALS STATE OF NEW YORK To Be Argued By: RAYMOND C. HERMAN Requested Time: 15 Minutes THE PEOPLE OF THE STATE OF NEW YORK, Respondent v ANDREW BUSHEY , Defendant-Appellant MICHAEL J. HILLERY RAYMOND C . HERMAN D.A. No. 14-062 2014-APP-228 APL-2016-00032 BRIEF FOR RESPONDENT MICHAEL J. FLAHERTY, JR. Acting District Attorney Erie County Attorney for Respondent 25 Delaware Avenue Buffalo, New York 14202 Telephone: (716) 858-2424 Fax: (716) 858-7922 Assistant District Attorneys of Counsel June 22 1 2016 TABLE OF CONTENTS Table of Authorities .. . . . . .. .. .. . . .. ... . . . . ... . ... . .. . . Question Presented . . . . . . . ... . .. ... .... . . . . . . . . . . ..... . Preliminary Statement ....... . . .. . . .. . ... ... . .. .. ... . .. . Statement of Facts Point . Conclusion. The check of defendant's license plate did not const itute an unlawful search . The order of the County Court of Erie County should be affirmed, and the case remitted to the trial court for i 1 2 4 5 further proceedings. . . . . . . . . . . . . . . . . . . . . 11 TABLE OF AUTHORITIES CASES People v Baker, 87 AD3d 1313 (4th Dept 2011), lv denied 18 NY3d 857 . .. . . . . . . . . . . . . . . . . 9 People v Davila, 27 Misc3d 921 (Supreme Court Bronx County 2010) People v Debour, 40 NY2d 210 (1976) People v Diggs, 38 AD3d 565 (2nd Dept 2007), lv denied 9 NY3d 922 . People v Dunn, 77 NY2d 19 (1990) People v Ingle, 36 NY2d 413 (1975) People v Martinez, 80 NY2d 444 (1992) People v Ramirez-Portoreal, 88 NY2d 99 (1996) ... People v Robinson, 97 NY2d 341 (2001) People v Safoschnik, 238 AD2d 448 (2nd Dept 1997), lv denied 90 NY2d 863 People v Weaver, 12 NY3d 433 (2009) Rasmusson v Chicago County, 991 F.Supp2d (D. Minnesota 2014) . . . . .... i 10 . 6 10 6 5 . 6 . . 6 10 7 71 8 1065 • . . . . . • • 9 STATUTES Vehicle and Traffic Law § 375(2) (a) {4) 7 Vehicle and Traffic Law § 401{1) (b) (c) 7 Vehicle and Traffic Law § 402 (1} (a) (b) 7 Vehicle and Traffic Law § 511(1) 2 Vehicle and Traffic Law § 512 . . 2 Vehicle and Traffic Law § 1192(3) 2 FEDERAL STATUTES 18 u.s.c. § 2721 . . 9 18 u.s.c. § 2721(b) {1) . 9 ii COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent v ANDREW BUSHEY, Defendant - Appellant D.A. No. 14-062 2014-APP-228 APL-2016-00032 BRIEF FOR RESPONDENT QUESTION PRESENTED Did the police officer's check of the defendant's license plate constitute an unlawful search? - 1 PRELIMINARY STATEMENT The defendant was arraigned in the City Court of Buffalo on simplified traffic informations charging him with violations of Vehicle and Traffic Law §§ 1192 (3) (driving while intoxicated), 511(1) (aggravated unlicensed operation of a motor vehicle in the third degree), and 512 (operating while vehicle registration suspended or revoked) . The defendant subsequently filed a motion to suppress evidence obtained as a result of the stop of his vehicle (42-43, 52-65; numbers in parentheses refer to pages of the Record on Appeal). The prosecutor opposed defendant's motion and an evidentiary hearing was held (47-49, 66-70). The court granted the defendant's motion to suppress, holding that the officer had no cause to run a check of the defendant's license plate. The People appealed the hearing court's ruling and in an order granted October 15, 2015, the Erie County Court (D'Amico, J.) found that the plate check of the defendant's vehicle was lawful, and accordingly, the lower court's order suppressing evidence and dismissing the charges was reversed. This court has granted the defendant leave to appeal. - 2 The defendant is represented on this appeal by Barry Ne l son Covert and Erin E. McCampbell. The People of the State of New York have been represented throughout these proceedings by the District Attorney of Erie County. - 3 STATEMENT OF FACTS An officer of the Buffalo State College police testified that on August 10, 2014 at about 3:48 a.m. he was parked on Rockwell Road, which crosses Elmwood Avenue, which is a street adjacent to the Buffalo State College campus in the City of Buffalo. At the location where the officer was, Rockwell Road becomes a circle which leads to the parking lot and service road for the Albright-Knox art gallery (74-76). The officer observed a vehicle traveling northbound on Elmwood Avenue turn into the Rockwell Road circle, proceeding past his patrol vehicle and going back onto Elmwood Avenue northbound. As the vehicle passed him, the officer ran a DMV check of the vehicle's license plate by typing in the letters and numbers on the plate. The computer check revealed that the vehicle registration was suspended for parking violations. In addition to the registration status, the check gave information about the owner of the vehicle. He followed the vehicle and pulled it over (75-80). - 4 POINT THE CHECK OF DEFENDANT'S LICENSE PLATE DID NOT CONSTITUTE AN UNLAWFUL SEARCH The hearing court ruled that the police officer had no basis to run the defendant's license plate, stating that the officer was "looking for possible reasonable suspicion by running the plate, and I find that to be violative of the principles under Ingle" (85). Based on this finding, the court granted defendant's suppression motion and dismissed the charges. The hearing court cited People v Ingle, 36 NY2d 413 (1975) as a basis for its decision (84-85). Ingle, dealt with an arbitrary stop of a motor vehicle for a routine traffic check. This court held that such an intrusion was inappropriate absent some justification for the stop. The facts in the instant case, which involved a mere plate check, are distinguishable. The defendant stated, in a conclusory fashion, that there must be at least reasonable suspicion to run a plate check under the United States and New York constitutions ( 83) . Respondent submits that the defendant's claim is unfounded. In evaluating whether a defendant's constitutional rights have been violated, initially it must be established whether there - 5 has been a search or seizure. The focus is on whether there has been an intrusion into an area where an individual has a reasonable expectation of privacy (People v Dunn, 77 NY2d 19, 25 [ 1990] ) . With respect to automobiles, there is no constitutional prohibition on a police officer following a vehicle on a public highway, since an individual operating the vehicle would have no expectation that his movements would not be observed. In contrast, certain activities of the police have been held to require some level of justification, such as an approach and inquiry, or a chase (People v Debour, 40 NY2d 210 [1976]; People v Martinez, 80 NY2d 444 [1992]) . Even if a search takes place, a defendant seeking suppression of evidence has the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises or object searched. He must show that 1) he exhibited an expectation of privacy in the place or item searched, and 2) that his expectation of privacy was objectively reasonable (People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]) . An officer's observation of a defendant's license plate cannot be considered a search since a license plate is open to the public view. Similarly, there can be no claim of a seizure based on the observation of the plate and running a plate check . The - 6 defendant has no expectation of privacy with respect to the license plate of the vehicle he was driving (People v Safoschnik, 238 AD2d 448 [2nd Dept 1997], lv denied 90 NY2d 863). Indeed, the vehicle and traffic law prohibits the operation of a motor vehicle upon a public highway without clearly readable license plates (Vehicle and Traffic Law § § 4 0 2 [ 1 ] [a] [ b] ; 3 7 5 [ 2 ) [a) [ 4 ] ) . The defendant claims that the police should not be permitted to "manufactureu reasonable suspicion to stop his vehicle based on a search of a "restricted electronic database" which contained defendant's personal information, such as his address, birth date, social security number and medical restrictions. Initially , it should be noted th3t there was no proof at the suppression hearing concerning the restricted nature of the database. The officer testified that it was a computer based system where a license plate is entered and the status of the registration and information about the owner is disclosed. Moreover, there was no testimony about the content of information about the owner. Presumably, the information would be limited to what the owner is obligated to supply to the Department of Motor Vehicles to register a vehicle -- a name and address (Vehicle and Traffic Law § 401 [1) [b) [c]). The case of People v Weaver, 12 NY3d 433 (2009), cited by - 7 the defendant, is readily distinguishable. In Weaver, the police secretly placed a tracking devise on the defendant's vehicle, which recorded every move the vehicle took for 65 days. This court held that such an intrusion was not consistent with the values at the core of the state constitution's prohibition against unreasonable searches. analogous. The license plate check in the instant case is not In checking defendant's license plate, the officer accessed information which the vehicle owner had voluntarily given to the Department of Motor Vehicles in order to get a vehicle registered. This information did not reveal his daily movement, but merely concerned the status of the vehicle registration and the identity of the owner. A reasonable person would not reasonably expect that such information would not be available to law enforcement personnel. Indeed, the principal reason to collect such information is to be able to check a vehicle's registration status. A license plate must be displayed if a vehicle is operated on a public highway, and the plate, which is the property of the department of motor vehicles, is merely a physical representation of the underlying registration record. The defendant's attempt to analogize a plate check to a vehicle checkpoint or an approach and inquiry is misplaced. In both cases there is a physical intrusion, either by stopping a vehicle, or making an inquiry of an individual. A plate check - 8 involves no such intrusion. It is essential that police officers have free access to vehicle registration information. The results of such checks can reveal that a vehicle is uninsured, or otherwise should not be operated on the public highway. In addition, such checks are invaluable in police investigations, including the identification of stolen vehicles. In essence, the defendant is claiming that a government agent cannot search a government database while engaged in law enforcement activities. The theoretical possibility that access to such information could be abused is not a basis to impose some artificial level of justification for a registration check. There is no legitimate expectation of privacy in such information (see Rasmusson v Chicago County, 991 F.Supp2d 1065 [D. Minnesota 2014]. It should be noted that federal law does prohibit the release and use of certain personal information from state motor vehicl e records (1 8 U.S.C. § 2721), and such information can be accessed by a law enforcement agency "in carrying out its functionsn (18 U.S.C. § 2721[b] [1]). Presumably, if the officer was not engaged in law enforcement duties, a plate check would be impermissible. Case law has consistently upheld the stop of a motor vehicle based on the results of a plate check (People v Baker, 87 - 9 AD3d 1313 [4th Dept 2011], lv denied 18 NY3d 857; People v Diggs, 38 AD3d 565 [2nd Dept 2007), lv denied 9 NY3d 922). Defense counsel's argument implies that if the police had employed an automatic plate reader, the police actions would have been lawful (see People v Davila, 27 Misc3d 921 [Supreme Court Bronx County 2010) upholding stop based on automatic plate reader). If, indeed, the use of a plate reader could be considered a "search" and the defendant had a reasonable expectation of privacy in his license plate number, the intrusion would be identical whether a plate reader was used or the officer manually entered the plate number into a computer. In conclusion, a law enforcement officer's entry of a license plate number into a computer is neither a search nor a seizure . Moreover, the officer's subjective intent is irrelevant (People v Robinson, 97 NY2d 341 [ 2001] ) There is no basis to invoke the state constitution to create a privacy right in such records. The defendant ' s vehicle was lawfully stopped for a suspended registration. Since there has been no showing of a constitutional violation, the order of the county court should be affirmed. - 10 CONCLUSION THE ORDER OF THE COUNTY COURT OF ERIE COUNTY SHOULD BE AFFIRMED AND THE CASE REMITTED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS. HERMAN Assistant District Attorney Of Counsel June 22 , 2016 - 11 Respectfully submitted, MICHAEL J . FLAHERTY, JR . Acting District Attorney Erie County Attorney for Respondent 25 Delaware Avenue Buffalo, New York 14202 STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent v ANDREW BUSHEY , STATE OF NEW YORK COUNTY OF ERIE CITY OF BUFFALO Defendant-Appellant SS : AFFIDAVIT OF SERVICE DA No. 14-062 2014-APP-228 APL-2016-00032 KRISTY A. SWANSON , being duly sworn , deposes and says: That she is over 21 years of age and is employed by the County of Erie , at the Erie County District Attorney's Office; that on June 22, 2016 she served three { 3) copies of the Brief for Respondent upon Erin E . McCampbell , Esq ., attorney for defendant- appellant, addressed to Erin E . McCampbell , Esq . , at her office located at 42 Delaware Avenue , Suite 120, Buffalo , New York 14202, by depositing true copies of same , securely enclosed in a postpaid wrapper, in a Post Office box regularly maintained by the United States Postal Service at the Erie County Hall in the City of Buffalo, New York. Subscribed and sworn me June 22 , 2016 . h Notary Public, State of New Qualif~ed in Erie County My Commission Expires March 29 , 2018 .
