The People, Respondent,v.Gregory Lee, Appellant.

Brief

N.Y.August 30, 2017

To Be Argued By: SAMUEL J. MENDEZ, ESQ. _______________________________________________________ SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT _______________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – GREGORY LEE, Defendant-Appellant. __________________________________________ REPLY BRIEF FOR DEFENDANT-APPELLANT __________________________________________ RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant THOMAS M. NOSEWICZ, ESQ. Senior Staff Attorney By: SAMUEL J. MENDEZ, ESQ. Staff Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100 smendez@appellatedefender.org i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii ARGUMENT ............................................................................................................. 1 POINT I THE WARRANTLESS SEARCH OF GREGORY LEE’S CAR, BASED ON INCREDIBLE CLAIMS ABOUT THE “OVERPOWERING” ODOR OF A SINGLE MARIJUANA CIGARETTE, VIOLATED HIS CONSTITUTIONAL RIGHTS (Replying to Respondent’s Brief at 19–27) ..................................................... 1 POINT II IN SEIZING AND SEARCHING MR. LEE’S CAR WITHOUT A WARRANT, THE POLICE WERE NOT CONDUCTING AN INVENTORY (Replying to Respondent’s Brief at 21–24) .......................... 10 CONCLUSION ........................................................................................................ 15 ADDENDA PRINTING SPECIFICATIONS STATEMENT ........................................ A-1 ii TABLE OF AUTHORITIES Cases California v. Acevedo, 500 U.S. 565 (1991) .............................................................. 5 Colorado v. Bertine, 479 U.S. 367 (1987) ............................................................... 14 Commonwealth v. Cruz, 459 Mass. 459 (2011) ......................................................... 7 Coolidge v. New Hampshire, 403 U.S. 443 (1971) ................................................... 7 People v. Baksh, 113 A.D.3d 626 (2d Dep’t 2014) ................................................... 8 People v. Belton, 55 N.Y.2d 49 (1982) ...................................................................... 7 People v. Brukner, 25 N.Y.S.3d 559 (Ithaca City Ct. 2015) ................................. 3, 6 People v. Carmona, 233 A.D.2d 142 (1st Dep’t 1996) ............................................. 4 People v. Concepcion, 17 N.Y.3d 192 (2011) ........................................................... 8 People v. De Bour, 40 N.Y.2d 210 (1976) ................................................................ 6 People v. Galak, 80 N.Y.2d 715 (1993) .................................................................. 11 People v. Hodge, 44 N.Y.2d 553 (1978) ................................................................... 2 People v. Jimenez, 22 N.Y.3d 717 (2014) ................................................................. 2 People v. Johnson, 1 N.Y.3d 252 (2003) ........................................................... 11–12 People v. Padilla, 21 N.Y.3d 268 (2013) .......................................................... 12–13 People v. Spinelli, 35 N.Y.2d 77 (1974) ................................................................ 3, 7 People v. Townsend, 152 A.D.2d 515 (1st Dep’t 1989) .................................... 13–14 People v. Ventura-Almonte, 78 A.D.3d 524 (1st Dep’t 2010) ................................... 4 iii People v. Yancy, 86 N.Y.2d 239 (1995) .................................................................... 6 United States v. Duguay, 93 F.3d 346 (7th Cir. 1996) ............................................ 10 United States v. Proctor, 489 F.3d 1348 (D.C. Cir. 2007) ...................................... 10 United States v. Ross, 456 U.S. 798 (1982) ............................................................... 5 Wong Sun v. United States, 371 U.S. 471 (1963) ................................................ 9, 14 Statutes N.Y. Crim. Proc. Law § 470.15 ................................................................................. 8 N.Y. Penal Law § 221.05 ........................................................................................... 6 N.Y. Penal Law § 221.10 ........................................................................................... 6 Constitutional Provisions N.Y. Const. art. 1, § 12 ........................................................................................ 9, 14 U.S. Const. amend. IV ......................................................................................... 9, 14 U.S. Const. amend. XIV ...................................................................................... 9, 14 Other Authorities New York State Medical Marijuana Program, www.health.ny.gov/ regulations/medical_marijuana/ ....................................................................... 6 Peter Hermann, D.C. police chief signs ‘special order’ for officers on legalized marijuana, Wash. Post, Feb. 25, 2015 ............................................. 7 Richard L. Doty et al., Marijuana Odor Perception: Studies Modeled From Probable Cause Cases, 28 Law & Hum. Behav. 223 (2004) ......................... 3 1 ARGUMENT POINT I THE WARRANTLESS SEARCH OF GREGORY LEE’S CAR, BASED ON INCREDIBLE CLAIMS ABOUT THE “OVERPOWERING” ODOR OF A SINGLE MARIJUANA CIGARETTE, VIOLATED HIS CONSTITUTIONAL RIGHTS (Replying to Respondent’s Brief at 19–27). On a number of key points here, Respondent has failed to respond. In its single legal point, Respondent offers little more than conclusory statements that “the testimony of the People’s police witnesses was entirely credible,” and that “there was ample probable cause” to arrest Gregory Lee and search his car without a warrant. Respondent’s Brief at 17, 19. In so doing, Respondent has avoided grappling with a troubling record. The warrantless search of Mr. Lee’s car on November 16, 2012, was the frustrated endpoint of a long investigation that had yielded evidence of nothing more than the alleged possession of a “stolen MetroCard” some three weeks earlier. H1. 157.1 The officers’ testimony that they happened to be “overpower[ed]” by the smell of a partially smoked joint inside Mr. Lee’s car, ostensibly giving them license to seize the car and end the investigation, should not have been credited. H1. 94. Even if credited, however, such testimony could not support their actions. 1 As in the main brief, citations to “H1.” refer to the pre-trial hearing before Justice Melissa Jackson on April 25 and 26, 2013; citations to “H2.” refer to the pre-trial hearing before Justice Jackson on May 30, 2013; citations to “H3.” refer to the pre-trial hearing before Justice Jackson on May 31, 2013; citations to “P.” refer to the plea hearing before Justice Jill Konviser on July 11, 2013; and citations to “S.” refer to the sentencing before Justice Konviser on August 7, 2013. 2 “‘All warrantless searches presumptively are unreasonable per se,’ and, thus, ‘[w]here a warrant has not been obtained, it is the People who have the burden of overcoming’ this presumption of unreasonableness[.]” People v. Jimenez, 22 N.Y.3d 717, 721 (2014) (quoting People v. Hodge, 44 N.Y.2d 553, 557 (1978)). Like the prosecution below, Respondent has done nothing to overcome the presumption of unconstitutionality in this case, where the unreasonableness of the police action is plain from the record. At the suppression hearing, the officers themselves described an off-the-books, “on the side” investigation in which they tracked Mr. Lee across Manhattan for several weeks, “observing” him. H1. 9, 14, 16–17. On November 16, 2012, having failed to uncover anything more than the alleged “MetroCard incident” three weeks earlier, a team of officers under the direction of Sergeant Jimmy Freyre simply barged in on Mr. Lee as he was entering his car after dinner. H1. 12, 70, 73, 91, 149–50, 157–58. With their feet in the doorway of Mr. Lee’s car, the officers’ were “hit,” they claimed, by the “very overpowering” odor of marijuana emanating from “half of a marijuana cigarette” that they simultaneously observed in “plain view” in the car’s console. H1. 59–60, 75–76, 94, 100–01. On the basis of that “partial joint”—which was never put into evidence, even in a photograph—the officers seized Mr. Lee’s car, drove it to the precinct and emptied it of the numerous shopping bags they had spotted in the car while Mr. Lee was eating dinner. H1. 60–62, 88, 103. As the 3 officers had guessed, those shopping bags contained merchandise that was later determined to have been purchased with stolen credit cards. H1. 88. The officers’ actions here were exactly the kind of abuse of the “plain view” doctrine that the Court of Appeals has warned against, in which police seek to “circumvent[] constitutional requirements by waiting to effect a legitimate arrest when the defendant is near the incriminating evidence.” People v. Spinelli, 35 N.Y.2d 77, 80 (1974). Their actions were equally an abuse of the “plain smell” doctrine, an exception to the warrant requirement that courts are increasingly wary of applying, due to its proneness to such abuse. See, e.g., People v. Brukner, 25 N.Y.S.3d 559, 572 (Ithaca City Ct. 2015) (declining to extend the doctrine to allow searching a pedestrian based on the smell of marijuana); see also Richard L. Doty et al., Marijuana Odor Perception: Studies Modeled From Probable Cause Cases, 28 Law & Hum. Behav. 223, 232 (2004) (presenting findings that “throw into question . . . the validity of observations made by law enforcement officers using the sense of smell to discern the presence of marijuana,” and “suggest that a blanket acceptance of [such] testimony . . . is questionable”). On both of these points, Respondent here does little more than posit that the officers’ testimony was “credible and mutually corroborative[.]” Respondent’s Brief at 19. That the testimony was “mutually corroborative” is not, however, inconsistent with its being tailored to preempt constitutional objection. See People 4 v. Carmona, 233 A.D.2d 142, 144 (1st Dep’t 1996) (finding police officer’s “well- rehearsed” testimony to be patently tailored). Respondent simply fails to make the officers’ testimony here appear as anything other than what it is—distinctly suspicious. See, e.g., H1. 128 (testimony by Officer Dones that “I remember the marijuana cigarette, and that’s all I remember”); H1. 75 (testimony by Sergeant Ricci that “I just remember—I remember it was in plain view”). Even if such testimony were properly credited, however, it should not be deemed to have justified the seizure and search of Mr. Lee’s car. Respondent seeks to defend the police action here by citing cases in which “the smell of marijuana emanating from a vehicle” was found to provide probable cause for a car search. Respondent’s Brief at 25–26. In all of the cases Respondent cites, however, the police were searching for the marijuana itself—the source of the smell. See, e.g., People v. Ventura-Almonte, 78 A.D.3d 524, 524–25 (1st Dep’t 2010) (police recovered marijuana in car search after smelling marijuana coming from the car). Here, by contrast, both of the officers who claimed to smell the odor of marijuana coming from Mr. Lee’s car also said that they spotted the marijuana in question right away. H1. 76–78, 100–01. They claimed that one of them simply “reached into the vehicle” and “grabbed” the joint—the only marijuana alleged to have been found in Mr. Lee’s car—from what “looked like an ashtray.” H1. 76, 101–02. 5 At that point, the officers’ intrusion into Mr. Lee’s car should have ended. The officers had no reason to think that there were other drugs in the car, and, indeed, there were not. There was certainly no reason to believe that such drugs would be in the “large number of shopping bags . . . with designer names” that the officers then drove to the station and rummaged through. H3. 6. Accordingly, this case is unlike those cited by Respondent. Instead, it is controlled by cases in which the location of the suspected marijuana within a defendant’s car was known to police. In California v. Acevedo, for example, the United States Supreme Court held that although the police “had probable cause to believe that [a] paper bag in the [defendant’s] automobile’s trunk contained marijuana,” that did not give them “probable cause to believe that contraband was hidden in any other part of the automobile[.]” 500 U.S. 565, 580 (1991). Thus, the Court held, “a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment.” Id.; see also United States v. Ross, 456 U.S. 798, 824 (1982) (“Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.”). What Respondent also ignores is that allowing a car search under these circumstances would be out of line with the current legal landscape, in which the presence of marijuana is not necessarily a sign of criminal activity. As of last year, 6 twenty states and the District of Columbia had either decriminalized or fully legalized the possession of small amounts of marijuana, and another ten had legalized marijuana for medical use. Brukner, 25 N.Y.S.3d at 570 n.3. New York is among those states where the law on marijuana is changing—today, possession of anything less than 25 grams (far more than was allegedly present in Mr. Lee’s car) is not a criminal offense at all, but a violation. Id. at 566, 570 (citing N.Y. Penal Law §§ 221.05, 221.10). Thousands of New Yorkers may also lawfully possess significantly larger amounts for medical purposes. See New York State Medical Marijuana Program, www.health.ny.gov/regulations/medical_marijuana/ (last visited April 29, 2016). When possession of marijuana is frequently lawful, such possession simply cannot justify an intrusion of the kind at issue here. See People v. Yancy, 86 N.Y.2d 239, 246 (1995) (presence of items in plain view that are “known to have illicit uses,” such as empty drug vials, “is in and of itself insufficient to establish probable cause to justify a warrantless automobile search”); People v. De Bour, 40 N.Y.2d 210, 216 (1976) (“We have frequently rejected the notion that behavior which is susceptible of innocent as well as culpable interpretation, will constitute probable cause[.]”). Other jurisdictions have recognized this new reality and changed the rules governing searches and seizures accordingly. In Massachusetts, officers who observe an individual smoking marijuana in his car may not order him 7 out of the car in order to search it. Commonwealth v. Cruz, 459 Mass. 459, 476–77 (2011). In the District of Columbia, officers who smell marijuana on an individual can no longer stop him or her on the street. Peter Hermann, D.C. police chief signs ‘special order’ for officers on legalized marijuana, Wash. Post, Feb. 25, 2015. Respondent’s brief addresses none of these considerations. Nor does Respondent dispute that the special considerations underlying the “automobile exception” to the warrant requirement—such as “fear of the evidence being suddenly spirited away,” Spinelli, 35 N.Y.2d at 80, or the possibility that “that a weapon may be discovered or access to means of escape thwarted,” People v. Belton, 55 N.Y.2d 49, 55 (1982)—were not present in this case. See Appellant’s Brief at 29–30. Respondent blandly asserts that “[t]he hearing court . . . properly determined that the search of defendant’s car . . . would have been justified under the ‘automobile exception’ to the warrant requirement,” Respondent’s Brief at 24– 25, but Respondent forgets that where the rationale for that doctrine is not triggered, “the ‘automobile exception,’ despite its label, is simply irrelevant.” Coolidge v. New Hampshire, 403 U.S. 443, 462 (1971). Respondent does, however, erroneously argue that “there was probable cause to search the car for stolen property.” Respondent’s Brief at 26. Whether the 8 hearing court made such a ruling, as Respondent appears to suggest, is unclear.2 If the court did not find that the police had probable cause “to believe that defendant’s car contained stolen property,” Respondent’s Brief at 27, such a finding may not serve as a basis for upholding the denial of Mr. Lee’s suppression motion. See N.Y. Crim. Proc. Law § 470.15; People v. Concepcion, 17 N.Y.3d 192, 195 (2011). If the court did so find, that finding was error. The “pretty good suspicion” professed by the officers that the shopping bags they observed in Mr. Lee’s car contained stolen merchandise, H1. 88, could not give rise to probable cause to search the car and everything in it. See People v. Baksh, 113 A.D.3d 626, 629–30 (2d Dep’t 2014) (officer’s suspicion that a bag visible in defendant’s car “might have been the proceeds of the robbery” did not permit a search of the car (internal quotation marks and citations omitted)). The shopping bags had nothing at all to do with the three-week-old “MetroCard incident” for which the officers were ostensibly trailing Mr. Lee. H1. 12, 91. Nor would Mr. Lee’s alleged “identity as a 2 The court held, in relevant part, as follows: “[T]he search of the car at the precinct was lawful under two theories. A warrantless search of an automobile under the automobile exception to the warrant requirement as well as the well known protocol inventory search to safeguard items found in the vehicle. Those items were vouchered as investigatory evidence and that given the circumstances of the arrest and the defendant’s known identity as a well known pickpocket, there was reasonable cause to believe that a search of the items constituted evidence of a crime. That is the crime of criminal possession of stolen property and identity theft for which the defendant was subsequently indicted.” H3. 8 (emphasis added). 9 well[-]known pickpocket” strip him of constitutional protection. Respondent’s Brief at 26 (quoting H3. 8). In sum, Respondent has failed to justify the police officers’ warrantless seizure and search of Mr. Lee’s car on the purported basis of the “overpowering” smell of a “partial joint” that was never put into evidence. The search of Mr. Lee’s car was unconstitutional, and its fruits should have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 488 (1963); U.S. Const. amends. IV, XIV; N.Y. Const. art. 1, § 12. 10 POINT II IN SEIZING AND SEARCHING MR. LEE’S CAR WITHOUT A WARRANT, THE POLICE WERE NOT CONDUCTING AN INVENTORY (Replying to Respondent’s Brief at 21–24). As in its response to Point I, in attempting to justify the search of Mr. Lee’s car as an inventory procedure, Respondent does little more than tepidly assert that “this Court should defer to the hearing court’s factual findings[.]” Respondent’s Brief at 24. In support of its position, Respondent refers abstractly to the “facts surrounding the inventory search,” much as it relied on the loosely-defined “circumstances of the arrest” in suggesting that the police had probable cause to conduct a search. Respondent’s Brief at 24, 26. And once again, what Respondent omits from its argument is as telling as what it includes. Respondent concedes that the inventory search exception to the warrant requirement applies only to cars that “must be impounded[.]” Respondent’s Brief at 21; see, e.g., United States v. Proctor, 489 F.3d 1348, 1352 (D.C. Cir. 2007) (“‘[T]he decision to impound (the ‘seizure’) is properly analyzed as distinct from the decision to inventory (the ‘search’).’” (quoting United States v. Duguay, 93 F.3d 346, 351 (7th Cir. 1996))). Respondent seeks to satisfy that threshold requirement here by citing two law treatises, including one entitled Handling a Criminal Case in New York. Respondent’s Brief at 22. 11 What Respondent does not cite, however, is the record on appeal. Nor can it, because there was no evidence at the hearing that the police followed any guidelines at all in deciding to impound Mr. Lee’s car. See Motion to Suppress at 16 (defense counsel noting that “there was no testimony elicited from the People’s witnesses that the police had any reason or followed any guidelines or standards in deciding to take the vehicle to the precinct”). The only evidence of any guidelines here consisted of two pages of the NYPD patrol guide, and those pages referred only to property after it “comes into [police] custody.” People’s Exhibit 1. In order for a warrantless search to be upheld as an inventory, evidence must be presented that the car’s impoundment, like the subsequent search itself, was carried out according to reasonable police guidelines. See People v. Galak, 80 N.Y.2d 715, 721 (1993) (“Arbitrary decision-making about what to seize, no less than arbitrary decision-making about what to search, creates unacceptable risks of unreasonableness in an inventory search policy.”). Because no such evidence was presented here, the warrantless seizure and search of Mr. Lee’s car cannot be justified as an inventory. Respondent also entirely fails to address the facts in this case that reveal the officers’ improper motivations in searching Mr. Lee’s car at the station. In assessing the validity of a purported inventory search, this Court must determine the officers’ actual intent in carrying out the procedure. See People v. Johnson, 1 12 N.Y.3d 252, 257 (2003) (Appellate Division “improperly applied the law governing pretext stops to inventory searches” in finding “that the officer’s motives . . . did not matter as long as the stop and the arrest were lawful”). In this case, it is all too clear that the supposed inventory search carried out at the precinct was “merely a pretext to cover for what was the officer[s’] desire in the first place, to see what the defendant was up to and to somehow get into the interior of his car.” Id. That is not just the natural conclusion based on the events leading up to the search—several weeks of fruitless investigation, followed by a last-ditch “plan” to sweep in and arrest Mr. Lee in the open doorway of his car, H1. 12—but it is also plain enough from the officers’ own testimony. One of the two officers who testified about the search stated outright that “it was a search for evidence” before adding: “and also it was an inventory, inventory.” H1. 62–63. The second officer claimed that the search was “[a]n inventory—sorry—an inventory search,” but testified that he vouchered “everything” removed from the car as “investigatory evidence.” H1. 106, 109. The officers acknowledged that the reason they did not remove all the “evidence” at the scene of the arrest was simply that “there was too much” of it to do so. H1. 87. Respondent also fails to demonstrate that the search of Mr. Lee’s car was itself “conducted pursuant to an established procedure clearly limiting the conduct of individual officers that assure[d] that the search[ was] carried out consistently 13 and reasonably[.]” People v. Padilla, 21 N.Y.3d 268, 273–74 (2013) (internal quotation marks and citations omitted). For example, Respondent refers to the barely legible list written on “a large note pad,” H1. 106–09, 113, as “the actual inventory list” produced in this case. Respondent’s Brief at 24. However, that list was not the inventory document required by the NYPD patrol guide. See People’s Exhibit 1. Respondent’s confusion about what constitutes “the actual inventory list” in this case only highlights the problems with the purported inventory here— particularly where there were disparities between the different lists that were produced. See Appellant’s Brief at 42; H1. 108–10, 118 (Officer Dones’s testimony that the handwritten list was incomplete and contained “at least some inaccuracies”). Additionally, Respondent argues that the officers’ “discretion was entirely limited, as [they] made no decisions as to what to remove and what not to remove,” for the simple reason that “[a]ll items in the car were removed[.]” Respondent’s Brief at 24 (emphasis added). Respondent’s argument is flawed, even assuming that the officers removed everything from the car, and not “pretty much everything,” as one of them testified. H1. 65. Absent a showing that the officers acted in conformity with existing guidelines, their decision about what to remove from the car was an act of discretion. That the officers chose to remove “everything” only made the search that much more intrusive. See People v. 14 Townsend, 152 A.D.2d 515, 517 (1st Dep’t 1989) (“[T]he inventory may only be pursuant to standardized procedures, since officers are not vested with discretion to determine the scope of such a search.” (citing Colorado v. Bertine, 479 U.S. 367, 376 (1987) (Blackmun, J., concurring))). Respondent cannot justify the warrantless search of Mr. Lee’s car as an inventory procedure because it was not one. The supposed inventory here was a pretext, and the items seized pursuant to it should have been suppressed. See Wong Sun, 371 U.S. at 488; U.S. Const. amends. IV, XIV; N.Y. Const. art. 1, § 12. 15 CONCLUSION For the reasons stated above, the fruits of the illegal search should be suppressed, Gregory Lee’s plea should be vacated, and the indictment should be dismissed. Dated: New York, New York April 29, 2016 Respectfully Submitted, RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant THOMAS M. NOSEWICZ, ESQ. Senior Staff Attorney By: _______________________ SAMUEL J. MENDEZ, ESQ. Staff Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100 smendez@appellatedefender.org A-1 ADDENDUM SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – GREGORY LEE, Defendant-Appellant. Ind. No. 5801/2012 PRINTING SPECIFICATIONS STATEMENT 1. The following statement is made in accordance with First Department Rule 600.10. 2. Gregory Lee’s reply brief was prepared in the processing system Microsoft Word 2010, with Times New Roman typeface, 14 point font (12 point font footnotes). 3. The text of the reply brief has a word count of 3,277, as calculated by the processing system, and is 15 pages in length.