The People, Respondent,v.David Bookman, Appellant.BriefN.Y.Sep 7, 2016APPELLATE ADVOCATES 111 JOHN STREET - 9TH FLOOR, NEW YORK, NEW YORK 10038 PHONE: (212) 693-0085 FAX: (212) 693-0878 April 5, 2016 Hon. John P. Asiello Clerk of the Court Court of Appeals Court of Appeals Hall Eagle Street Albany, New York 12207 Re: People v. Bookman (David) (APL-2016-00027) Submission Pursuant to Rule 500.11 Your Honor: This letter constitutes appellant's opposition to expedited consideration and his written argument on the merits in support of reversal. Enclosed are copies of the suppression hearing and plea transcripts; appellant’s post-hearing memorandum; the suppression court’s written decision; the Waiver of the Right To Appeal form; the Appellate Division briefs; the order of the Appellate Division, Second Department, affirming appellant's conviction; and the order granting leave to appeal to this Court. Appellant objects to expedited consideration of this appeal pursuant to Rule 500.11. This case presents two significant questions about the limits of police discretion that implicate the very foundations of the Fourth Amendment and Article I, Section 12 of the New York Constitution. The Court’s decision as to either question could become seminal search and seizure caselaw. The first question, which was the subject of the Appellate Division’s decision, is whether a police officer may stop a car upon seeing small ornamental objects commonly hung from a car’s rear-view mirror (air fresheners, graduation tassels, rosary beads, crucifixes, etc.), on the theory that ATTORNEY-IN-CHARGE LYNN W. L. FAHEY ASSISTANT ATTORNEY-IN-CHARGE BARRY S. STENDIG SUPERVISING ATTORNEYS DAVID P. GREENBERG ERICA HORWITZ PAUL SKIP LAISURE LISA NAPOLI WILLIAM G. KASTIN KENDRA L. HUTCHINSON LEILA HULL DIRECTOR OF INNOCENCE INVESTIGATIONS DE NICE POWELL ALEXIS A. ASCHER STEVEN R. BERNHARD SAMUEL E. BROWN ELIZABETH E. BUDNITZ DENISE A. CORSÍ A. ALEXANDER DONN LAUREN E. JONES ANNA KOU BRYAN KREYKES JOHN B. LATELLA JOSHUA M. LEVINE TAMMY E. LINN BENJAMIN S. LITMAN LAUREN NAKAMURA PATRICIA PAZNER ANNA PERVUKHIN YVONNE SHIVERS SHANDA SIBLEY ANGAD SINGH LAURA B. TATELMAN NAO TERAI ERIN TOMLINSON MARK W. VORKINK KATHLEEN E. WHOOLEY JENIN YOUNES RONALD ZAPATA DINA ZLOCZOWER OF COUNSEL MELISSA S. HORLICK Hon. John P. Asiello -2- April 5, 2016 such objects might possibly violate Vehicle and Traffic Law (V.T.L.) §375(30), even in the absence of evidence that the objects were hung or placed in such a manner as to obstruct, interfere with, or prevent the driver from seeing through the windshield or rear window as proscribed by the statute. In addition to this case, the Third and Fourth Departments of the Appellate Division have ruled that objects hanging from the rear-view mirror, alone, even without evidence that the object in question was capable of obstructing the driver’s view, give the police probable cause to stop a vehicle for a violation of V.T.L. §375(30). People v. Singleton, 135 A.D.3d 1165 (3rd Dept. 2016); People v. Carver, 124 A.D.3d 1276 (4th Dept. 2015). The second issue, which was not briefed in the Appellate Division but is also fully preserved, is whether a police officer trained in narcotics may make an arrest and conduct a search based solely on his belief that an ordinary sandwich bag contains drug residue even in the absence of any indicia of drug packaging, or an exchange, or even presence in a drug-prone area.1 Here, an officer stopped the car in which appellant was a back-seat passenger because a miniature novelty sandal and a heart-shaped necklace were hanging from the rear-view mirror and the center rear brake light was not working. The officer then noticed a plastic sandwich bag folded into a cup holder in the front console that he believed contained cocaine residue even though the bag, which was in the same condition at the hearing as it had been during the stop, appeared at the hearing to be completely empty. On the basis of his observation of the sandwich bag, the officer arrested appellant and co-defendants Michael Reedy, the driver, and Abdoul Robinson, a front-seat passenger. Later, the officer recovered a loaded, operable gun from the trunk of the car. Although there was no testimony at the suppression hearing that the objects hanging from the rear-view mirror obstructed or interfered with the driver’s view through the windshield or the rear window, a majority in the Appellate Division, Second Department, affirmed the hearing court’s ruling that the officer had probable cause to stop the car based solely on the presence of ornaments hanging from the rear view mirror. The court did not address the propriety of the search based on the presence of the sandwich bag. STATEMENT OF FACTS The Suppression Hearing Testimony At about 4:40 p.m. on November 2, 2010, Police Officer Colin Sparks and Sergeant Montague were driving on Hillside Avenue in Queens when Sparks noticed a car ahead of them with a non-operational center brake light and an “obstruction” — a miniature “novelty sandal and a big 1 The Court has the power to review both the Appellate Division’s decision that V.T.L. §375 (30) was violated simply by the presence of generic decorative items hanging from a rear view mirror, and the propriety of the arrest and search based on the presence of an empty sandwich bag, because each presents a question concerning the minimum showing necessary to establish probable cause, which is a question of law. See People v. McRay, 51 N.Y.2d 594, 601 (1981). Hon. John P. Asiello -3- April 5, 2016 heart shaped necklace” — hanging from the rear-view mirror (5-7, 20-23).2 The novelty sandal, hanging four to five inches below the mirror by a string, was “between 4 and 5 inches in length . . . . [and] possibly about 2 inches in width,” and the heart was “approximately two to three inches in length [a]nd one or two inches in height” [sic] (23, 44-45). The sandal was hanging in the area between the bottom of the mirror and the top of the dashboard, but Sparks could not remember the distance between the bottom of the mirror and the dashboard (44-45). The standard rear brake lights were both working (22). Sparks stopped the car and approached its driver, 6'3" tall codefendant Michael Reedy, while Sergeant Montague approached the passenger side, where Robinson sat in the front seat and appellant sat in the back seat (8-9,10, 46). Reedy had pulled over right away and none of the occupants in the car were moving around or made any motion toward the center console (25). After obtaining Reedy’s license and registration, Sparks, who had received police training in the identification of controlled substances, noticed what he first described as a “clear plastic bag” that looked “almost cloudy and had contained like a white powdery substance” in the center console cup holder (10, 51). Later, Sparks said that the “sandwich size bag” “would have been clear if there had been nothing inside it, but at this point it was almost like cloudy looking. It almost looked like there was a white substance on the inside of it” (28). When the bag, which defense counsel had not previously seen, was produced in court and displayed to the officer, Sparks admitted that it was in “substantially the same condition” as when it was recovered (31, 32). The officer said that there was a “coating” of residue on the side of the bag; it “was clear and cloudy then and it’s still clear and cloudy now” (33). He agreed that the bag was in “exactly the same condition as it was on the day [he] first observed it” (63). And when he was specifically asked whether he observed a “powdery” substance in the bag, the officer repeated that “[t]here was a residue coating inside of the bag” (63). The officer claimed “you can tell the whole bag has a white substance coated on the inside of the bag” (34; see 53). He admitted that nothing had collected in the corners or bottom seam of the bag (53). Sparks claimed he was able to see that the inside of the sandwich bag was cloudy even though it had been folded and placed into the 1½-to-2-inch-deep cupholder and he made his observation while it was still light out but getting dark; he did not use his flashlight and the car’s interior dome light was not on (35, 48, 52, 59). Having received police training in identifying controlled substances, and having “encountered control[led] substances in plastic bags like the one [he] observed in this car,” Sparks “believed” the bag contained cocaine residue (10-11, 29, 32, 53, 63). On that basis, he arrested all three occupants of the vehicle (36; see 8-9). Lab tests conducted later determined that the plastic bag contained no drug residue (29, 31-32, 70). Another officer drove Reedy’s car to the precinct where Sparks searched it for additional contraband and recovered a loaded 9 mm pistol wrapped in newspaper from the trunk (12-14, 36-39, 2 Parenthetical references without prefix are to the Mapp-Huntley hearing. Those preceded by “A”, “P”, and “S” are to the hearing argument, plea, and sentence, respectively. Hon. John P. Asiello -4- April 5, 2016 51, 55-57, 70-71). Sparks did not voucher the ornaments; he allowed Reedy’s girlfriend to drive the car from the precinct with the ornaments still hanging from the rear view mirror (23, 44). After waiving his Miranda rights, appellant told Sparks that Robinson had wrapped the gun in appellant’s newspaper and put it in the trunk (15-20, 42-43). Post-Hearing Arguments In his post-hearing memorandum, defense counsel argued that neither the dangling ornaments nor the non-working center brake light gave the police reason to stop the car (Memorandum, ¶¶ 13-17). Counsel pointed out that V.T.L. §375(40)(b) requires only two functioning rear brake lights, one on each side of the vehicle, and does not require a rear center brake light (Id., at ¶ 14). He also observed that the car was released to Reedy’s girlfriend with the purported V.T.L. infractions “still in place” - the center rear brake light still was not working and the ornaments on the rear view mirror had not been removed (Id., ¶¶ 15-16). Defense counsel also argued that the bag produced at the hearing, which Sparks conceded was in substantially the same condition as when it was recovered, was empty; there was no powdered residue in the bag and it did not appear to by “cloudy” (Memorandum, ¶¶ 18, 19). During a brief argument after the hearing, counsel alleged that the bag “wasn’t cloudy and there is nothing in it. It is, essentially, more or less a clean bag” (A. 3-4). He also argued that Sparks had agreed that there was nothing in the corners of the bag, proving that the bag was empty, and repeated that the bag, which was in evidence, simply was “not cloudy” (A. 4). Counsel maintained that nothing about the sandwich bag supported a conclusion that the officer’s belief that there was a controlled substance present was reasonable. Accordingly, the officer did not have probable cause to arrest the defendants or to search the car (Memorandum, ¶ 21). Finally, counsel argued that the gun recovered from the trunk had to be suppressed because the search was justified neither by probable cause to arrest the occupants of the vehicle nor as the result of an inventory search since the officer had not conducted such a search (Memorandum, ¶¶ 22, 23; A. 5). Nor were there exigent circumstances permitting the warrantless search of the car (Memorandum, ¶¶ 25-29). Counsel for co-defendant Reedy argued that neither of the reasons Sparks claimed for pulling over the car amounted to traffic violations. There being no requirement of a center brake light in the Vehicle and Traffic Law, that the car’s center light was not working was not a V.T.L. violation (A. 6). He also argued that there had to be evidence that the operator’s view was obstructed in order for the dangling ornaments to be a Vehicle and Traffic Law violation (A. 8). Counsel for Mr. Reedy also joined in counsel for appellant’s arguments concerning a lack of evidence that the sandwich bag could be considered evidence of the presence of narcotics; absent some other narcotics-related activity, he said, the police lacked probable cause (A. 9). With respect to the initial stop of the vehicle, the prosecutor argued only that a novelty sandal hanging from the mirror gave the police reason to stop the car (A. 17). When the prosecutor argued that Sparks had testified to the presence of “some type of powdery substance encrusted on Hon. John P. Asiello -5- April 5, 2016 the bag,” the court reminded him that the evidence was that Sparks had said the bag was “cloudy” (A. 13). He went on to argue that, because the officer, relying on his training and experience, believed that the sandwich bag contained a controlled substance, he had probable cause to search the car (A. 14, 15). The Hearing Court’s Decision Denying Suppression In its findings of fact, the suppression court noted that Officer Sparks “described the bag as a clear plastic bag that looked almost cloudy and had contained ‘like a white powdery substance’ that he believed to be cocaine residue” (Decision and Order of July 25, 2011 at 3). The court made no finding of fact as to the actual condition or appearance of the sandwich bag, either when it was recovered or when it was introduced into evidence at the hearing. Denying the motion to suppress the gun, the hearing court held that Sparks had probable cause to stop the car based on its V.T.L. violations - “defective tail light and an obstruction hanging from the rear view mirror” (Decision and Order at 5). The court also ruled that Sparks had probable cause to search the car “based on the recovery of the ziploc bag which appeared to him to contain narcotics” (Id.).3 Appellant’s Guilty Plea, Appeal Waiver, and Sentence After appellant agreed to plead guilty to attempted second-degree weapon possession, the court purported to elicit a waiver of his right to appeal. THE COURT: Do you understand that even when you plead guilty you still have a right to appeal; however, here as part of the plea bargain arrangement, you are giving up that right? Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: Do you freely give up your right to appeal? THE DEFENDANT: Yes, sir (P. 5-6). The standard appeal waiver form that appellant signed did not specifically mention that the hearing court’s decision was encompassed by the waiver (see Waiver of Right to Appeal). The court never asked appellant whether he understood the written waiver or whether he had even read it before signing it, and neither the court nor defense counsel ever mentioned the written waiver during the plea. And while the court, at the start of the plea colloquy, asked appellant whether he had discussed “this matter” with counsel (P. 5), it never asked appellant whether he had discussed 3Ruling that appellant had waived his Miranda rights, the court also denied the motion to suppress his statements (Decision and Order at 6-7). Hon. John P. Asiello -6- April 5, 2016 waiving his right to appeal with defense counsel or elicited that counsel had explained the right to appeal, and the effect of waiving it, to appellant. On January 31, 2014, the court sentenced appellant to a determinate 3-year prison term and 5 years of post-release supervision (S. 2-3). The Appeal Appellant argued that his waiver of the right to appeal was not voluntary, knowing, and intelligent, and that the police did not have probable cause to stop Reedy’s car because neither the ornaments hanging from the rear-view mirror nor the inoperable center brake light violated the V.T.L. The People responded that appellant’s appeal waiver was valid and that the ornaments hanging from the rear view mirror and the inoperable center brake light violated the V.T.L., giving the police probable cause to stop Reedy’s car. Ruling that appellant’s waiver of the right to appeal was invalid because the record did not demonstrate that he understood the concept of the appeal waiver and the nature of the right he was forgoing, a majority of Appellate Division, Second Department, reached the merits of appellant’s claim but held that Sparks had probable cause to stop Reedy’s car based on the size and location of the ornaments alone. People v. Bookman, 131 A.D.2d 1258, 1259-1260 (2nd Dept. 2015). Probable cause, the majority noted, did not require certainty that the ornaments, in fact, violated V.T.L. §375(30). Id. Given that probable cause ruling, the majority found the contentions regarding the defective brake light academic. Hon. Leonard B. Austin dissented. He agreed that the appeal waiver was invalid but concluded that the hearing testimony failed to establish probable cause to believe a traffic violation had occurred. He reasoned that Sparks had said in a “conclusory manner” that he observed an obstruction but never explained how the ornaments could have obstructed or interfered with the driver’s view through the windshield or the road behind. Id. at 1263. Such conclusory testimony alone was not enough to demonstrate probable cause in the absence of evidence adduced by the People to show how the ornaments could actually have obstructed the driver’s view. Id. Hon. John P. Asiello -7- April 5, 2016 ARGUMENT POINT I APPELLANT’S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES WAS VIOLATED WHEN AN OFFICER STOPPED THE CAR IN WHICH APPELLANT WAS A PASSENGER BASED SOLELY ON ORNAMENTS HANGING FROM THE REAR-VIEW MIRROR, WHICH HE DID NOT TESTIFY OBSTRUCTED OR INTERFERED WITH THE DRIVER’S VIEW SO AS TO VIOLATE VEHICLE AND TRAFFIC LAW §375 (30) (U.S. CONST., AMENDS, IV; XIV; N.Y. CONST., ART. 1, §12). Police Officer Colin Sparks testified that he stopped codefendant Michael Reedy’s car because two ornaments were hanging from the rear-view mirror and the rear center brake light was not working. He did not, however, testify that those ornaments were hung in such a way that they could have obstructed or interfered with the driver’s view of the road so as to give him probable cause to believe that they violated Vehicle and Traffic Law §375(30). He never testified that the ornaments blocked Reedy’s view through any window or that Reedy was moving, or driving, in such a way as to indicate that his view was impaired by the ornaments. A fellow officer drove the car to the precinct, where Sparks released it to Reedy’s girlfriend with the ornaments still hanging from the rear-view mirror. Nevertheless, the Appellate Division held that Sparks had probable cause to stop Reedy’s car based solely on the size and location of the ornaments. Since the People presented no objective evidence that the ornaments could have interfered with Reedy’s vision through either the windshield or rear window, and an inoperative center brake light is not a V.T.L. violation, see Vehicle and Traffic Law § 375(40)(b) (requiring only two brake lamps, one on each side of the vehicle),4 Sparks did not have probable cause to stop the car. As a result, the gun recovered from the car must be suppressed. U.S. Const., Amends. IV, XIV; N.Y. Const., Art. 1, §12. The police need probable cause to stop a vehicle based on a Vehicle and Traffic Law (V.T.L.) infraction. People v. Guthrie, 25 N.Y.3d 130, 133 (2015); People v. Robinson, 97 N.Y.2d 341 (2001). Vehicle and Traffic Law §375(30) provides: It shall be unlawful for any person to operate a motor vehicle with any object placed or hung in or upon the vehicle . . . in such a manner as to obstruct or interfere with the view of the operator through the 4Since the People failed to argue at the suppression hearing that Sparks mistakenly, but reasonably, believed that Reedy’s inoperative center brake light violated the V.T.L. justified the car stop, see People v. Guthrie, 25 N.Y.3d 130, 138 (2015), they cannot now advance that theory on appeal. People v. Johnson, 64 N.Y.2d 617, 619, n.2 (1984). Hon. John P. Asiello -8- April 5, 2016 windshield or to prevent him from having a clear and full view of the road and condition of traffic behind such vehicle (emphasis supplied). The statute does not provide that an object hung in a vehicle is a violation in all cases; it requires that the object “obstruct or interfere” with the driver’s view through the windshield or “prevent” a full and clear view behind the vehicle. A plain reading of the statute demonstrates that there are instances in which objects hung in a vehicle do not sufficiently obstruct, interfere with, or limit the driver’s vision so as to violate the statute. Like V.T.L. §375(3), which regulates the use of high-beam headlamps, the statute proscribes the display of ornaments only when it is done in an unlawful manner. See People v. Meola, 7 N.Y.2d 391, 397 (1960) (“the Legislature saw fit . . . to make the use of high beams a traffic infraction only when it interfered with the driver of an approaching vehicle. . . .”). Thus, the V.T.L. contemplates an objective standard for determining whether a motorist is violating one of its provisions. People v. Robinson, 97 N.Y.2d at 351. To establish probable cause that V.T.L. §375(30) has been violated, therefore, the People must present objective relevant facts and circumstances supporting the conclusion that ornaments hanging from a rear-view mirror interfered with or obstructed the driver’s view through the windshield or prevented him from having a clear and full view behind the vehicle. See People v. Meola, supra, 7 N.Y.2d at 397 (“this element of interference [by the use of high beams] is certainly susceptible of factual proof”). Here, the People presented no evidence supporting even the possibility that the ornaments hanging from Reedy’s rear view mirror obstructed or interfered with his view through the windshield or prevented him from having a clear and full view of the road behind him, much less probable cause to believe that they did so. Sparks simply concluded that the ornaments hanging from Reedy’s rear-view mirror violated V.T.L. §375(30) from their existence alone. He never testified that the position of the ornaments dangling from the mirror could have interfered with Reedy’s view of the road. Indeed, since Sparks testified that the items were hung from a string, they would have dangled straight down from the mirror and away from the windshield which, in all cars, follows a severe angle forward and down away from the rear-view mirror. It is simply inconceivable that a 2-inch by 5-inch object hanging straight down from the rear view mirror could interfere with the view of the driver at all, much less with the view of a driver who was 6' 3'’ tall, as Reedy was. Section V.T.L. § 375(30) was plainly never meant to proscribe the kind of decorations that were dangling from Reedy’s mirror. Were that its intent, New York State would not have permitted EZ Pass to issue 3-inch-square readers to be mounted directly on the windshield itself. Nor did Sparks testify that Reedy was driving in a manner that would suggest to an objective observer that the ornaments obstructed his vision. Like other V.T.L. statutes, V.T.L. § 375(30) contemplates the presence of the regulated factor combined with circumstances indicating that its use had the proscribed effect. No such circumstances were present in this case. Sparks did not testify, for example, that Reedy was having difficulty keeping his car in its lane, or that he was bending forward, moving sideways, or tilting his head to obtain an unobstructed view of the road Hon. John P. Asiello -9- April 5, 2016 ahead or behind him — circumstances that would have given the officer probable cause to believe that the ornaments were obstructing or interfering with Reedy’s view of the road in front or behind him. In finding probable cause based on analogous V.T.L. violations, our courts have repeatedly looked to evidence establishing not just the presence of the regulated item or condition, but also of the impairment the regulation is designed to prevent. See People v. Osborne, 158 A.D.2d 740, 741, 742 (3rd Dept. 1990) (proper stop for violation of V.T.L. §375(12–a)(b), which prohibits tinted windows transmitting less than seventy percent light, because officer testified that the visibility of the driver from outside the car was obscured); People v. Hines, 155 A.D.2d 722, 724 (3rd Dept. 1989) (officer’s testimony that defendant's headlights were very bright and dazzling and affected his vision supported probable cause of a violation of V.T.L.§ 375(3), which prohibits the use of highbeams that interferes with the operation of an approaching vehicle ); People v. Carver, 41 Misc.3d 853, 859 (Sup. Ct. Bronx Co. 2013) (probable cause to stop for violation of V.T.L. §375(31), which requires “an adequate muffler and exhaust system . . . to prevent any excessive or unusual noise,” because officer could hear the engine over the loud music coming from the car); People v. Vonthaden, 13 Misc.3d 408, 411,412 (Dist. Ct. Nassau Co. 2006) (probable cause to stop for illegally tinted windows when officer testified that his police car windows were within the legal tint, and that the defendant's windows were darker than those on the officer’s vehicle); cf. People v. Allen, 89 A.D.3d 742, 743 (2nd Dept. 2011) (State Trooper did not have probable cause to stop appellant’s car because the high beams only caused the trooper to squint but did not hinder or hamper his vision and affect the operation of his vehicle). In each of these cases, the presence of window tint or the use of highbeams, combined with circumstances indicating that their use had the proscribed effect, gave the police probable cause to stop the vehicle. Here, however, Sparks never testified about circumstances indicating that the ornaments obstructed or interfered with Reedy’s vision through the windshield or prevented him from having a clear and full vision of the road behind him as prohibited by V.T.L. §375(30). See id. Instead, Sparks’s testimony was limited to a description of the ornaments and how they hung from Reedy’s rear view mirror. Sparks estimated that the ornamental sandal, “between 4 and 5 inches in length . . . . [and] possibly about 2 inches in width,” was hanging about four or five inches below the mirror between it and the dashboard, and the heart was “approximately two to three inches in length and one or two inches in height” (22-23, 44-45), but he could not remember the distance between the bottom of the rear-view mirror and the dashboard (44). The lack of any reason to believe that the ornaments could have obstructed Reedy’s view out the windows explains why Sparks did not seize and voucher the ornaments and allowed Reedy’s girlfriend to drive the car away with the ornaments still hanging from the rear-view mirror. Obviously, he, and the officer who drove the car to the precinct with the ornaments in place, had concluded that they did not interfere with the driver’s view thorough the windshield or the rear-view mirror. Thus, contrary to the Appellate Division’s decision, Sparks’s testimony about the size and location of the ornaments alone, which were in the same position when the car was driven away as when Sparks pulled it over, did not give him probable cause to believe that they violated V.T.L. §375 (30). See People v. Martinez, 31 Misc.3d 201, 206 (Dist. Ct. Nassau Co. 2011) (waiting for Hon. John P. Asiello -10- April 5, 2016 the traffic light to turn yellow before making a lawful left hand turn, without interfering with the reasonable progress of the other motorists present or creating a danger of any kind to any motorist, did not give officer probable cause to believe that the defendant had violated V.T.L. §1181(a), which prohibited driving “at such a slow speed to impede the normal and reasonable movement of traffic”). The rule the Appellate Division majority adopted, joining that of two other Departments, effectively allows the police unfettered authority to stop any vehicle in which ornaments as common as air fresheners, rosary beads, graduation tassels, or crucifixes are hanging from the rear-view mirror, regardless of whether the circumstances indicate that their presence obscures or interferes with the driver’s view of the road. Indeed, the same might apply to an EZ Pass reader affixed to the windshield. That rule not only violates the plain language of V.T.L. § 375(30), but transforms that statute into one having little to do with its intended purpose of prohibiting unsafe driving conditions. The rule also violates Fourth Amendment principles because it permits a seizure of a vehicle based on conduct equally consistent with guilt or innocence that does not amount even to reasonable suspicion, much less the probable cause required for a V.T.L. stop of a vehicle. See People v. Moore, 6 N.Y.3d 496, 501 (2006). The rule this Court should adopt, consistent with the plain language of the statute, is that the police do not possess probable cause to stop any car based on the presence of ornaments hanging from the rear view mirror unless those items have been “placed in such a manner as to obstruct or interfere with the view of the operator through the windshield” in violation of V.T.L. §375(30). In sum, Officer Sparks did not have probable cause to stop Reedy’s car. This issue was preserved by counsels’ arguments that the ornaments hanging from the rear view mirror did not constitute a V.T.L. violation justifying the car stop and the hearing court’s specific ruling that the police had probable cause to stop the car based on the purported V.T.L. violations of a “defective tail light and an obstruction hanging from the rear view mirror” (Decision and Order at 5). See C.P.L. §470.05 (2); People v. Edwards, 95 N.Y.2d 486, 491 n.2 (2000). Accordingly, the Appellate Division’s order affirming appellant’s conviction must be reversed, the gun suppressed and the indictment dismissed. * * * The Appellate Division correctly held that appellant’s waiver of the right to appeal was not knowing, intelligent, and voluntary because the trial court, in its perfunctory colloquy with appellant, failed to ensure that he understood the nature of the right he was surrendering when he agreed to waive his right to appeal. See People v. Bradshaw, 18 N.Y.3d 257, 267 (2011); People v. Ramos, 7 N.Y.3d 737, 738 (2006); People v. Lopez, 6 N.Y.3d 248, 256 (2006). This cursory waiver colloquy and appellant’s background both distinguish this invalid appeal waiver from the valid one in People v. Sanders, 25 N.Y.3d 337 (2015). In Sanders, a defendant who had 5 prior felony convictions based on guilty pleas, 25 N.Y.3d at 342, acknowledged understanding that, “as a condition of” and “in consideration of the[e] negotiated plea” he was entering, he was waiving his right to appeal his “conviction and sentence to the Appellate Division Second Department.” Id. at 339. He also acknowledged doing so “voluntarily” and having “discussed this waiver of the right to appeal with [his] attorney.” Id. at 340. The Court held that, “[t]he record here, including the plea Hon. John P. Asiello -11- April 5, 2016 colloquy and the other relevant facts, such as proof of the defendant’s experience and background, [wa]s sufficient to uphold” the defendant’s waiver of the right to appeal. Id. at 338-39. Here, in stark contrast, there was nothing in the record indicating that defense counsel had discussed the waiver with appellant at all, much less explained the right to appeal or what impact the waiver would have on appellant.5 Nor did counsel indicate that he was withdrawing the motion to suppress that had been fully litigated. Unlike in Sanders, the court here provided no information about the appeal, such as what could be appealed or even to what court an appeal could be taken. Finally, appellant, who had only one prior conviction with a 1-year sentence, had far less experience with the criminal justice system than the defendant in Sanders. That appellant signed a standard appeal waiver form did not cure the truncated appeal waiver colloquy because the court never asked appellant whether he understood the written waiver or whether he had even read the waiver before signing it. In fact, the court never mentioned the written waiver at all and, as the majority below held, the record “contains no information about the circumstances under which it was executed.” Moreover, the waiver did not mention that appellant was specifically waiving his right to appeal the hearing court’s decision. See Bradshaw, 18 N.Y.3d at 258, 267 (written appeal waiver, which the court never ensured was read and understood by the defendant, did not cure inadequate colloquy concerning the appeal waiver). Under all these circumstances, appellant’s waiver of the right to appeal was invalid. 5 The prosecutor, earlier during the plea proceeding, indicated that the attorneys had discussed that an appeal waiver would be a condition of the plea, and the court asked appellant during the plea colloquy whether he had discussed “this matter” with counsel (P. 4, 5). But neither the court nor defense counsel indicated during the appeal waiver colloquy that counsel had discussed the waiver itself with appellant. See People v. Callahan, 80 N.Y.2d 273, 283 (1992) (“a knowing and voluntary waiver cannot be inferred from a silent record”). Hon. John P. Asiello -12- April 5, 2016 POINT II BECAUSE THE ARRESTING OFFICER’S BELIEF THAT AN EMPTY BUT “CLOUDY” PLASTIC SANDWICH BAG CONTAINED COCAINE RESIDUE WAS NOT REASONABLE, THE POLICE VIOLATED APPELLANT’S RIGHT TO BE FREE OF UNREASONABLE SEARCHES AND SEIZURES WHEN THEY SEARCHED THE CAR IN WHICH HE WAS A PASSENGER BASED ON THAT BELIEF (U.S. CONST., AMENDS. IV, XIV; N.Y. CONST., ART. 1, §12). Officer Sparks testified that he saw a folded-up sandwich bag stuffed in a cupholder in the center console of Reedy’s car and that he believed it contained a residue of cocaine because — apparently even folded up — the inside of the bag appeared to him to be “cloudy.” The officer admitted that the bag, which was introduced into evidence at the suppression hearing, was in substantially the same condition it was in at the time of the stop and that there was no residue in the corners or seam of the bag. Sparks continued to maintain that the bag was “cloudy” when defense counsel argued that the bag, which was in evidence, was empty and not cloudy. Apparently recognizing the lack of evidence that the bag contained anything at all, the hearing court limited its ruling on this point to finding only that Officer Sparks “described the bag as a clear plastic bag that looked almost cloudy and had contained ‘like a white powdery substance’ that he believed to be cocaine residue,” and ruling that he “executed a search of the vehicle based on the recovery of a ziplock bag which appeared to him to contain narcotics” (Decision and Order at 5; emphasis supplied). Because the hearing court did not find that the sandwich bag actually contained any substance that a reasonable person with a police officer’s training and experience could conclude was cocaine residue, the record did not support the conclusion that Officer Sparks’s belief that the sandwich bag contained a controlled substance was reasonable. Thus, the police were without probable cause to arrest the defendants and search Reedy’s car. People v. McRay, 51 N.Y.2d 594 (1980).6 Any discussion concerning probable cause to search based on police observation of drug activity begins with this Court’s seminal decision in McRay. Recognizing the prevalence of drug activity in society, the Court found that many different kinds of observations can factor into the probable cause determination. Among these are an exchange of currency for an object, furtive behavior, the fact that the activity occurs in a drug-prone location or known marketplace, and, perhaps most tellingly, the kind of packaging that was used. 51 N.Y.2d at 604; see People v. Graham, 211 A.D.2d 55 (1995). If the totality of the observed drug activity “would lead a reasonable person who possesses the same expertise as the officer to conclude, under the 6 Because the People’s case against appellant depended upon the statutory presumption of possession under P.L. §265.15(3), appellant has automatic standing to challenge the search of Reedy’s car. People v. Milan, 69 N.Y.2d 514, 518 (1987). Hon. John P. Asiello -13- April 5, 2016 circumstances, that a crime is being or was committed,” probable cause exists. Id. at 602 (citing People v. Oden, 36 N.Y.2d 382, 384-85 (1975)). The presence of the “reasonable person” in the calculus is significant. While the training and experience of the observing officer is an important consideration, the conclusion he draws from his observations of alleged drug activity must be reasonable. Thus, when an experienced narcotics officer, responding to a tip that marijuana would be present at a particular location, observed a teenager bring four manila envelopes from one car to his companions in another, the officer did not have probable cause to arrest. People v. Corrado, 22 N.Y.2d 308, 311 (1968). The Court in Corrado reasoned that, although the officer was aware that marijuana was regularly packaged in manila envelopes, it was also true that “the envelopes could have contained any number of noncontraband items,” and so “this conduct [was] far more easily explained by the typical activities of three teenagers than by the fact that the three were handling contraband.” Id. at 311, 313. The facts in this case are even more compelling. Although the officer testified that he had “encountered” controlled substances in a plastic sandwich bag before, without saying how often, there was no evidence that such packaging was common or typical as was true in Corrado. Even a “cloudy” or “powdery,” but essentially empty sandwich bag “could have contained any number of noncontraband items,” such as the remnants of a powdered doughnut or any number of other food items. Officer Sparks’s belief that it contained the residue of a controlled substance was, therefore, not sufficiently reasonable to amount to probable cause to arrest the occupants of Reedy’s car and search it. Indeed, the trial court’s failure to make a finding of fact concerning the presence of any substance in the sandwich bag, particularly given defense counsel’s insistence that the bag was empty, and the officer’s admission that the bag was in the same condition it was in when he first saw it, means there is no record support for the officer’s conclusion that it contained any substance that could justify his belief that cocaine residue was present. The court relied solely on the officer’s stated belief that a such a residue was present rather than on any physical corroboration of that belief whatsoever. That there was no finding of fact by the court supporting the officer’s belief leads inexorably to the conclusion that his belief was not reasonable. The facts of this case, even giving every benefit of the doubt to the officer, are materially indistinguishable from those of People v. Davis, 36 N.Y.2d 280 (1975), in which this Court found probable cause lacking. There, a trained narcotics officer who was watching a man who was carrying a woman’s purse was able to look inside and see an object that could have been either glassine envelopes or candy wrappers. This Court held as follows: Where the observed acts of the defendant were susceptible of various innocent interpretations, even if involving a person with a narcotics background, where the behavior was at most equivocal and suspicious, and where there was no supplementation by any additional behavior raising the level of inference from suspicion to Hon. John P. Asiello -14- April 5, 2016 probable cause, more must be shown to form the basis for a warrantless arrest and an incidental search. Id. at 282. Here, having stopped a vehicle for a minor, or even non-existent, V.T.L. violation and being met with full cooperation and an absence of furtive behavior by its occupants, the officer observed a sandwich bag in a cupholder that he described as “cloudy.” Even disregarding the lack of record support for that conclusion, the bag could have been “cloudy” due to the remnants of any number of innocent substances including a sandwich, a powdered doughnut, any other food item, baby powder, play dough, art supplies, deoderant, etc. Without some additional circumstance pointing to the presence of a controlled substance, the officer’s belief that it contained the residue of a controlled substance simply was not reasonable. This Court’s rule requiring record support for a finding that a trained narcotics officer’s belief in the presence of a controlled substance is reasonable is consistent with the long-standing Fourth Amendment principle that a warrantless search must be based on objective facts rather than subjective opinion. As the United States Supreme Court explained in Terry v. Ohio, 392 U.S. 1, 19 (1968), The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate. To uphold the arrest and search in this case would be to improperly delegate to the officer on the street the obligation of the courts to ensure uniform application of Fourth Amendment protections. Cases in which searches or arrests have upheld based on an officer’s belief that an object contains a controlled substance invariably (until now) have included circumstances above and beyond the mere possibility that a controlled substance was present. In People v. Alvarez, 100 N.Y.2d 549, 550 (2003), for example, this Court held that police observation of folded white pieces of paper wrapped in black plastic, which the officer knew from experience was a method for packaging cocaine, constituted reasonable suspicion that was elevated to probable cause when the defendant attempted to hide those papers from the officer’s view. Similarly, in People v. Jones, 90 N.Y.2d 835, 837 (1997), the Court upheld an arrest based on a trained narcotics officer’s observations of money being exchanged for an unidentified object in a drug-prone location, followed by the defendant taking a plastic bag from his pocket and hiding it among cinder blocks at a construction site. See , e.g., People v. Loretta, 107 A.D.3d 541 (1st Dept. 2013) (experienced officer in drug-prone location observed tinfoil twist, a common way of packaging cocaine, in possession Hon. John P. Asiello -15- April 5, 2016 of nervous defendant); People v. Febus, 11 A.D.3d 554 (2d Dept. 2004) (experienced narcotics officer observed small ziplock bags commonly used for packaging heroin and cocaine, contained in a black plastic bag possessed by defendant who tried to hide the bags when police arrived and lied about having the bag when questioned); People v. Batista, 261 A.D.2d 218 (1st Dept. 1999) (experienced narcotics officer observed defendant with full brown lunch bag taped in a way consistent with drug packaging in an apartment that was the target of a drug-related search warrant); People v. Alexander, 218 A.D.2d 284 (1st Dept. 1996) (experienced narcotics officer observed defendant and another man enter a building that was the target of a drug investigation and exit comparing tin foil twists that were common form of drug packaging). In contrast, in this case, particularly absent record support for the presence of any substance in the bag, there was nothing unusual about it that constituted drug packaging, and no accompanying furtive behavior, drug-prone location, or other attendant circumstances otherwise indicating the presence of a controlled substance. This Court’s mistake-of-law and mistake-of-fact cases do not justify Officer Sparks’s precipitous decision to arrest appellant and search Reedy’s car. When an officer mistakenly but reasonably believes that he has observed criminal conduct, a search or seizure based on that observation does not violate the Fourth Amendment. In the recent case of People v. Guthrie, 25 N.Y.3d 130, 136 (2015), for example, the Court upheld an officer’s stop of a car that had run a stop sign even though, since the sign was not registered with the village, the driver could not be cited for a V.T.L. violation. The Court explained that it “look[s] to the reasonableness of the officer’s belief that the defendant violated [the law].” Id. “[T]he requirement that the mistake be objectively reasonable prevents officers from ‘gain[ing] [any] Fourth Amendment advantage through a sloppy study of the laws [they are] duty bound to enforce.’” Id. at 139 (quoting Helen v. North Carolina, 135 S.Ct. 530, 539-40 (2014)). See People v. Estrella, 10 N.Y.3d 945, 946 (2008) (upholding stop of car with window tint that would have been unlawful in New York had it not been lawful in Georgia where the car was registered; officer’s mistaken belief that the tint was unlawful was therefore reasonable). Because Officer Spark’s mistaken belief that the empty sandwich bag contained the residue of a controlled substance was unreasonable, and without support in the record, the ensuing arrest and search was unlawful. In sum, Officer Sparks’s belief, after a routine car stop, that an empty, or near-empty plastic sandwich bag stuffed into a cupholder on the car’s center console contained the residue of a controlled substance was objectively unreasonable because the bag was susceptible of lawful use. Moreover, the record was devoid of support for the officer’s conclusion that the bag was “cloudy” or contained the “coating” he described. Therefore, he was without probable cause to arrest the occupants of Reedy’s car and search the trunk. For the reasons stated at the end of Point I, above, appellant did not validly waive his right to appeal. Accordingly, even if the stop of Reedy’s car had been lawful, but see Point I, ante, the search of his trunk was not, and the Appellate Division’s order Hon. John P. Asiello -16- April 5, 2016 affirming appellant’s conviction must be reversed, the gun suppressed, and the indictment dismissed.7 CONCLUSION FOR THE REASONS STATED ABOVE, APPELLANT'S CONVICTION FOR ATTEMPTED SECOND-DEGREE POSSESSION OF A WEAPON SHOULD BE REVERSED AND THE INDICTMENT SHOULD BE DISMISSED. Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant-Appellant 111 John Street, 9th Floor New York, NY 10038 (212) 693-0085 By: PAUL SKIP LAISURE Of Counsel 212-693-0085, x211 cc: Hon. Richard A. Brown District Attorney, Queens County 125-01 Queens Boulevard Kew Gardens, New York 11415 Attn: ADA Jeanette Lifschitz Mr. David Bookman Enclosures 7 It is well settled that the police may not search a car following a stop based on a traffic violation absent probable cause or a reasonable risk to their safety. People v. Marsh, 20 N.Y.2d 98 (1967); see People v. Class, 67 N.Y.2d 431 (1986) (police cannot search car for VIN after car stopped because of traffic violation). The People did not argue otherwise below.