The People, Respondent,v.Gregory Lee, Appellant.BriefN.Y.August 30, 2017 March 31, 2017 Honorable John P. Asiello Clerk of the Court Court of Appeals of the State of New York 20 Eagle Street Albany, New York 12207-1095 Re: People v. Gregory Lee APL-2017-00016 Letter Brief for Defendant-Appellant Dear Mr. Asiello: I submit this letter in response to the Court’s request of February 15, 2017, for arguments in support of Defendant-Appellant Gregory Lee’s position on the merits of the above case, pursuant to section 500.11 of the Court’s Rules of Practice. This letter also includes Mr. Lee’s objection to summary review. * * * At 11 p.m. on November 16, 2012, there were two ways into Gregory Lee’s car. Police officers had already been following Mr. Lee, a suspected pickpocket, for five hours that day, and for several months before that. The police—or rather Sergeant Jimmy Freyre, an officer in the NYPD transit division—had staked out Mr. Lee’s parole office, trailed Mr. Lee on the subway, “observed” Mr. Lee as he shopped at Starbucks and filled his car with gas, and now, at 11 p.m., Sergeant Freyre stood outside an upscale Midtown restaurant as Mr. Lee enjoyed dinner with a female companion, Deion Grinds. Despite all his surveillance, Sergeant Freyre had witnessed no illegal activity. All the sergeant had was what he had started with: the dubious allegation that 2 Mr. Lee, weeks earlier, had possessed a subway MetroCard that was bought with a stolen credit card. With his prolonged, “on the side investigation” of Mr. Lee having come to naught, Sergeant Freyre now gathered a team of plain-clothes transit officers outside Mr. Lee’s SUV, parked a few blocks from the restaurant, and “d[id] a plan.” Without a warrant to search Mr. Lee’s car, Sergeant Freyre’s team needed one of two things two happen. Either they could serendipitously obtain probable cause to search the car—for instance, by discovering contraband in plain view—or they could arrest Mr. Lee for the “MetroCard incident,” impound his car and conduct an inventory back at the station. Here, the officers claimed that both things happened. When Mr. Lee and Ms. Grinds returned from dinner, Sergeant Freyre’s team swooped in and blocked Mr. Lee at the open doorway of the car. The officers claimed that, looking into the car’s cluttered interior, they spotted “half of a marijuana cigarette,” which allegedly emitted a smell so “overpowering” that it later burned one officer’s throat. The team arrested Mr. Lee and Ms. Grinds, drove Mr. Lee’s car to the station and emptied it. Among the property they removed was the evidence in this case: stolen credit cards and shopping bags containing merchandise bought with stolen cards. At the suppression hearing, the officers admitted that their warrantless search of the car “was a search for evidence” before adding: “and also it was an inventory, inventory.” As Justice Ellen Gesmer of the Appellate Division wrote in her thorough dissent in this case, the officers’ warrantless actions were unjustified and unreasonable, and the items they seized should have been suppressed. First, as a matter of law, the officers’ testimony regarding marijuana did not support a search of the car. The exigencies underlying the so-called “automobile exception” to the warrant requirement were nowhere to be found here. What is more, the alleged presence of a “partial joint” in the car’s ashtray did not give the officers probable cause to believe there was marijuana anywhere else in the car—let alone in the name-brand shopping bags through which they later rummaged at the station. Finally, the search of Mr. Lee’s car was not an inventory. As Justice Gesmer correctly found, the notion “that the police conducted a valid inventory search is inconsistent with both the police testimony that their motivation for the search was 3 investigatory, and the documentary and testimonial evidence that the search did not comply with established procedure.” People v. Lee, 143 A.D.3d 626, 629–30 (1st Dep’t 2016) (Gesmer, J., dissenting). What occurred in this case was a brazen attempt by police officers to circumvent the constitutional requirement of a search warrant. Sergeant Freyre’s officers sought to avail themselves of two narrow exceptions to that requirement—the automobile exception and the exception for inventory procedures. However, neither exception applied. The officers’ warrantless actions violated Mr. Lee’s right to be free from unreasonable searches and seizures, and the items taken from his car on November 16, 2012, should have been suppressed.1 FACTUAL AND PROCEDURAL BACKGROUND I. Sergeant Freyre’s Investigation “It all started,” according to Sergeant Jimmy Freyre, “on June 10th of 2012.” H1.5.2 After allegedly identifying Gregory Lee as a suspect in a subway pickpocketing on that date, Sergeant Freyre, an officer in the NYPD transit division, began what he described as an “on the side” investigation of Mr. Lee. H1.14; see also H1.4–8. Sergeant Freyre was not assigned to investigate Mr. Lee, and he kept no “actual formal reports, police reports, [or] anything like that” in reference to his 1 Pursuant to Court Rule 500.11(f), Mr. Lee wishes to reserve the argument, set forth in his Appellate Division briefs, that his alleged possession of a MetroCard bought with a stolen credit card did not constitute possession of stolen property, and that the police therefore had no basis for stopping him on November 16, 2012. See Appellant’s Brief at 15–18; Lee, 143 A.D.3d at 639 (Gesmer, J., dissenting) (“[D]efendant’s possession of a subway MetroCard purchased using a stolen credit card[] did not constitute criminal possession of stolen property, and thus could not support an arrest for that offense.”). 2 Citations to “H1.” refer to the hearing before Justice Melissa Jackson on April 25 and 26, 2013; “H2.” refers to the hearing before Justice Jackson on May 30, 2013; “H3.” refers to the hearing before Justice Jackson on May 31, 2013; “P.” refers to the guilty plea before Justice Jill Konviser on July 11, 2013; and “S.” refers to the sentencing before Justice Konviser on August 7, 2013. 4 efforts. H1.14, 16. Instead, Sergeant Freyre simply followed Mr. Lee around New York City, on and off, over the course of the next five months—among other things, “observing” Mr. Lee as he met with his parole officer. H1.6–9. In late October, Sergeant Freyre’s investigation turned up its one and only lead, when the sergeant purportedly discovered—how he did so is not entirely clear—that Mr. Lee had at one point been in possession of a MetroCard that was bought with a stolen credit card. H1.7–8, 27. Weeks later, Sergeant Freyre had one of the chance encounters with Mr. Lee that characterized his entire investigation. On November 13, Sergeant Freyre ran into Mr. Lee in a Midtown subway station, where Mr. Lee boarded a train with “an unknown female black.” H1.6. However, instead of arresting Mr. Lee for the alleged “MetroCard incident,” Sergeant Freyre kept him “under surveillance,” following Mr. Lee and his companion, Deion Grinds, onto the train and riding with them up to Harlem. H1.9, 12. The sergeant then trailed Mr. Lee and Ms. Grinds out of the train toward a nearby Starbucks. He stood by the window “looking at them from the outside” as Mr. Lee and Ms. Grinds “attempt[ed] to purchase something.” The two then exited the Starbucks, got into a white SUV with Louisiana plates, and drove away. H1.9. Sergeant Freyre acknowledged, in the proceedings below, that he had not seen Mr. Lee engage in “any possession or illegal activity” at the station or on the train that day. H1.32. Nevertheless, when he got back to his office at the Columbus Circle subway station, he created a wanted poster stating that he had observed Mr. Lee “casing for possible victims” on the train. H1.24–25; Defense Exhibit A. He also said that he returned to the Starbucks the next day and reviewed a video of Mr. Lee and Ms. Grinds at the register. The sergeant claimed that he asked “the actual female that was at the register” if she remembered Mr. Lee. “She said, absolutely,” and told him she had declined the transaction because Mr. Lee had used a credit card with what she judged to be someone else’s photo on it. H1.10. 5 II. Police Surveillance of Mr. Lee on November 16, 2012 On November 16, three days after following him on the train, and three weeks after he had supposedly established probable cause to arrest Mr. Lee for the MetroCard, Sergeant Freyre encountered Mr. Lee for the final time. “I said, let me take a ride up to [Harlem] to see if I see the vehicle again. Because to spot a pickpocket in the subway system, it’s hard.” H1.10. “Sure enough,” Sergeant Freyre said, he found the white SUV with Louisiana plates. H1.10, 35. Around 7 p.m., Sergeant Freyre called up another officer “to assist me in sitting in the car to see if Mr. Lee and the other female show up.” The officer arrived an hour later. H1.10. After more waiting, “sure enough, Mr. Lee shows up with the female,” who was identified as Ms. Grinds. H1.11, 58. Over the course of the next hour, Sergeant Freyre and the other officer followed Mr. Lee in his car—first to a deli, then to a gas station, and finally down to a restaurant in Midtown Manhattan, where Mr. Lee and his companion, Deion Grinds, ate dinner. H1.11, 43, 133–35, 143, 147–48. Once at the restaurant, Sergeant Freyre called for “more backup” and was joined by two other officers. H1.44. Despite later claiming, at the suppression hearing, that the “MetroCard incident” had given him probable cause to arrest Mr. Lee, Sergeant Freyre had never attempted to do so up to that point. H1.12, 81. Nor did Sergeant Freyre’s officers observe any illegal or unusual conduct during their surveillance on November 16—as one of them later testified, Mr. Lee “seemed like a gentleman.” H1.145. Nevertheless, while Mr. Lee was inside the restaurant with Ms. Grinds, Sergeant Freyre decided to “do a plan.” H1.12; see also H1.56. III. The Warrantless Seizure and Search of Mr. Lee’s Car “At that point,” with Sergeant Freyre’s team assembled, “a decision was made.” H1.56. Two of the officers waited near Mr. Lee’s car. H1.12, 39, 56–57, 74. When Mr. Lee and Ms. Grinds walked back from the restaurant—five hours after Sergeant Freyre had started trailing him—the officers stepped forward and confronted Mr. Lee in the open doorway of his car. H1.59, 73, 157–58. At that moment, the 6 officers claimed that they were “hit” by the “overpowering” smell of marijuana emanating from the car. H1.59, 94. According to their testimony, one of the officers reached in and picked up half of a marijuana cigarette sitting in the car’s console. H1.76–78, 100–02. The officers then placed Mr. Lee and Ms. Grinds under arrest, searching them and finding a small amount of heroin in Mr. Lee’s wallet, as well as a number of credit cards and gift cards in Ms. Grinds’s purse. H1.61, 87–89, 102–03, 155. It was inside the car, however, that the officers found the evidence at issue in this case. Inside the car, the officers observed a “large quantity of . . . shopping bags” with “designer name brands.” H1.61, 103–04. The officers, “putting two and two together,” later testified that they “had a pretty good suspicion that the stuff in the car was stolen.” H1.88. However, “there was too much stuff” in the car to take it out then and there, so they drove Mr. Lee’s car to a nearby police station. H1.87. Once at the station, the officers removed “everything” from Mr. Lee’s car, even old “[n]ail clippers and lotions,” writing down items that were removed in a handwritten list on “a large note pad.” H1.62, 65, 106–12; People’s Exhibit 2. Five hours later, the police printed property clerk invoices listing many, but not all, of the same items in the handwritten list. The invoices labeled the items as “investigatory” in nature. People’s Exhibit 3. IV. The Suppression Hearing, Guilty Plea and Sentencing At the suppression hearing, the prosecution sought to justify the warrantless search of Mr. Lee’s car as an inventory search. See Memorandum of Law in Opposition to Defendant’s Motion to Suppress, at 11–13. However, of the two officers who testified about the search, the first officer stated forthrightly that “it was a search for evidence.” H1.62. Only then did he add: “and also it was an inventory, inventory.” H1.63. The second officer claimed that the search was “[a]n inventory— sorry—an inventory search,” but he acknowledged that he had “vouchered everything as investigatory evidence.” H1.106, 109. As for the handwritten list, the officer through whom the list was introduced 7 admitted that he could not “read [the] handwriting,” but that he could tell it contained “at least some inaccuracies.” H1.108–09, 113, 118. The prosecution also put into evidence a two-page section of the NYPD Patrol Guide, dealing with “Inventory Searches Of Automobiles And Other Property.” H1.63–64; People’s Exhibit 1. The prosecution did not, however, put into evidence the section of the Patrol Guide dealing with “Invoicing Property,” which was clearly referenced by the section in evidence. Moreover, the section in evidence mandated a procedure that was different from the one used in this case. The Patrol Guide section required that only “valuables” be removed from a car and listed on invoices, while “[p]roperty of little value” was to be left in the car and listed on a separate “activity log,” which was cross-referenced to the invoices. People’s Exhibit 1. In a written motion, counsel for Mr. Lee noted these discrepancies and argued that the warrantless search of Mr. Lee’s car was not a valid inventory search. See Motion to Suppress at 14–17. The hearing court, however, denied the motion to suppress. The court found that the officers’ warrantless search of Mr. Lee’s car was “lawful under two theories.” H3.8. First, it held that the alleged “smell of marijuana . . . coupled with the officer’s viewing of the marijuana cigarette in plain view” justified the search under “the automobile exception to the warrant requirement.” H3.7–8. Citing People v. Yancy, 86 N.Y.2d 239 (1995), the court further stated that “[a] valid arrest for a crime authorizes the warrantless search of a vehicle and any closed containers in the passenger compartment of the car.” Second, the court found that the search was justified as a “protocol inventory search to safeguard items found in the vehicle.” H3.7–8. On July 11, 2013, Mr. Lee pleaded guilty to a range of charges of possession of stolen property, identity theft and forgery. P.9–21. On August 7, 2013, Mr. Lee was sentenced to an aggregate term of three to six years in prison. S.3–7. 8 V. The Appellate Division Decision On appeal, a majority of the Appellate Division affirmed Mr. Lee’s conviction. Lee, 143 A.D.3d at 627. The majority declined to reach the issue of whether the police had probable cause to search Mr. Lee’s car, finding that “[t]he critical issue in this case is whether the officers’ search of the car . . . was a legitimate inventory search.” Id. at 627–28 & n.3. The majority held that it was, finding that the differences “between the handwritten list and the property clerk invoices [did] not call into question the credibility of the officers.” Id. at 628. The majority distinguished this case from People v. Galak, where this Court, in invalidating a purported inventory search, had noted the passage of time between the search and the preparation of the inventory list. Id. at 629; Galak, 80 N.Y.2d 715, 720 (1993). The majority noted that the list in Galak had been “created five hours after the search,” while, in this case, the property clerk invoices were printed more than five hours after the search, but there was “no information” about when they were “created.” Lee, 143 A.D.3d at 629. Justice Ellen Gesmer dissented. First, Justice Gesmer found that the police officers lacked probable cause to search Mr. Lee’s car. Citing California v. Acevedo, 500 U.S. 565, 579–80 (1991), She wrote that “the police search of [Mr. Lee’s] entire car was unreasonable, because they immediately found the marijuana cigarette and had no reason to believe that marijuana would be present in the rest of the car.” Id. at 638–39 (Gesmer, J., dissenting). Second, Justice Gesmer found that the search of Mr. Lee’s car was not a valid inventory. Critically, the prosecution had “failed to meet their initial burden of showing that the police acted according to established procedure” in conducting the search. Id. at 635. Moreover, the officers’ own “abundant admissions” that the search was investigatory “demonstrate[d] that the purported inventory search was ‘a ruse for a general rummaging in order to discover incriminating evidence.’” Id. at 637 (quoting People v. Padilla, 21 N.Y.3d 268, 272 (2013)). Because no exception to the warrant requirement applied, “the motion court should have granted [Mr. Lee’s] motion to suppress the physical evidence recovered during [the] search of his car.” Lee, 143 A.D.3d at 639 (Gesmer, J., dissenting). 9 ARGUMENT I. The search of Mr. Lee’s car was not justified under the automobile exception to the warrant requirement. “The protections embodied in article I, § 12 of the New York State Constitution serve to shield citizens from warrantless intrusions on their privacy interests.” People v. Jimenez, 22 N.Y.3d 717, 719 (2014). In People v. Yancy, which the trial court cited in upholding the warrantless search of Mr. Lee’s car, this Court made clear that “the general rule” is “that a warrantless search is per se unreasonable.” 86 N.Y.2d at 245. Here, however, the trial court found that “the automobile exception to the warrant requirement” applied, based on the alleged “smell of marijuana . . . emanating from [Mr. Lee’s] car,” and the presence of a “marijuana cigarette in plain view.” H3.7–8. Citing Yancy, the court further stated that a “valid arrest . . . authorizes the warrantless search of a vehicle and any closed containers in the passenger compartment of the car.” Id. The trial court’s ruling was error, and the items seized from Mr. Lee’s car should have been suppressed. First, despite its expansive-sounding label, the automobile exception to the warrant requirement does not allow the police simply to seize and search the vehicle of anyone they arrest. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 461 (1971) (“The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.”). In fact, the United States Supreme Court has expressly rejected that notion, emphasizing that any rule that allowed the police automatically to search a car based on the arrest of its occupants would be “anathema to the Fourth Amendment.” Arizona v. Gant, 556 U.S. 332, 347 (2009). Accordingly, the mere fact that the police arrested Mr. Lee next to his car did not support their warrantless search of the car. As this Court has made clear, the automobile exception is instead “a ‘narrow’ . . . exception to the . . . warrant requirement,” and one that is “subject to the limitations inherent in the factors which are its predicate.” People v. Langen, 60 N.Y.2d 170, 180–81 (1983). Those predicate factors include “the mobility of the vehicle and the corresponding probability that any contraband contained therein will 10 quickly disappear.” Yancy, 86 N.Y.2d at 245–46. In cases where those factors are absent, a warrant is required because “the ‘automobile exception,’ despite its label, is simply irrelevant.” Coolidge, 403 U.S. at 462; see also People v. Belton, 55 N.Y.2d 49, 54 (1982) (automobile exception does not apply “[w]here the special mobility of automobiles is no longer a factor because the vehicle itself has been seized and impounded by the police”). Moreover, the scope of a search under the automobile exception is “defined by the object of the search and the places in which there is probable cause to believe that it may be found.” Acevedo, 500 U.S. at 579–80; see also, e.g., People v. Blasich, 73 N.Y.2d 673, 678 (1989) (“The automobile exception . . . is an exception only to the warrant requirement; it does not . . . dispense with the requirement that there be probable cause to search the vehicle.”). Importantly, probable cause to believe that there is contraband in only one part of a car does not justify a warrantless search of the car as a whole. Acevedo, 500 U.S. at 580; 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.”). Here, the warrantless search was unreasonable as a matter of law, because the exigencies underlying the automobile exception were nowhere to be found, and because the alleged presence of “half of a marijuana cigarette” in the car’s ashtray did not give the police probable cause to search the rest of the car for contraband. H1.60.3 3 Although this Court’s power to consider search and seizure issues is sometimes limited where a mixed question of law and fact presents itself, where the issue is “the minimum showing” needed to justify particular police activity, “a question of law is presented for [this Court’s] review.” People v. Bigelow, 66 N.Y.2d 417, 420–21 (1985); see also, e.g., Jimenez, 22 N.Y.3d at 719 (“[T]he People failed . . . as a matter of law” to “demonstrate[e] the presence of exigent circumstances in order to invoke [an] exception to the warrant requirement.”). Here, the question is whether, as a matter of law, the prosecution met its burden to establish a valid search under the automobile exception. Similarly, under Point II below, the question is whether the prosecution made the baseline showing necessary to support an inventory search. See, e.g., People v. Johnson, 1 N.Y.3d 252, 254 (2003) (reversing where “the evidence adduced at the hearing was insufficient to establish that the alleged inventory search was valid”). 11 First, the basic rationale for the automobile exception did not apply here. Critically, there was “no fear of the evidence being suddenly spirited away.” People v. Spinelli, 35 N.Y.2d 77, 80 (1974). By the time the police officers searched Mr. Lee’s car, they had already arrested Mr. Lee and his companion, Deion Grinds, and they had taken the car to a police station. Thus, “the special mobility of automobiles [was] no longer a factor because the vehicle itself [had] been seized and impounded by the police.” Belton, 55 N.Y.2d at 54. Moreover, in a case without any allegation of violence, there was no reason at all “to believe that a weapon may be discovered or access to means of escape thwarted.” Id. at 55. In short, “the ‘automobile exception,’ despite its label, [was] simply irrelevant.” Coolidge, 403 U.S. at 462. What is more, the officers’ testimony that they found a “partial joint” in the ashtray of Mr. Lee’s car did not establish probable cause to search the entire car, including the “large quantity” of “designer named brand[]” shopping bags that the officers were eyeing during Mr. Lee’s arrest. H1.61, 75; see also H1.88 (officer’s testimony that he was looking at the bags and forming a “pretty good suspicion that the stuff in the car was stolen”). The scope of a warrantless car search is always circumscribed “by the object of the search and the places in which there is probable cause to believe that it may be found.” Acevedo, 500 U.S. at 579–80; see also, e.g., People v. Torres, 74 N.Y.2d 224, 229–30 (1989) (warrantless car searches must be “reasonably related in scope and intensity to the circumstances which rendered [their] initiation permissible”). Here, the trial court found that the presence of the marijuana cigarette in “plain view” justified the search of Mr. Lee’s car under the automobile exception, citing People v. Yancy. H3.7–8. However, as this Court made clear in Yancy, “an officer’s . . . observation of an openly visible article that is known to have illicit uses is in and of itself insufficient to establish probable cause to justify a warrantless automobile search.” 86 N.Y.2d at 246 (emphasis added). There must be “additional relevant behavior or circumstances” that justify such a search. Id. In Yancy itself, for example, a police officer approached the defendant’s car and saw “hundreds of separately packaged empty vials and caps in open view.” Id. The officer, who had “participated in 12 hundreds of narcotics investigations [in the area] within the last year alone,” asked the defendant about the vials. Id. at 244. The defendant replied using slang which the officer understood to mean that the vials were “used to package cocaine,” and therefore were for “something other than personal use.” Id. at 244, 246. Accordingly, the Court held that the requirement of “additional relevant behavior or circumstances,” beyond the mere spotting of contraband in plain view, had been met. Id. at 246. Mr. Lee’s case is readily distinguishable from Yancy. Here, the officers’ testimony contained nothing to suggest that the “half smoked” joint in the center console of Mr. Lee’s car was for “something other than personal use.” H1.60; 86 N.Y.2d at 246. There was no reason, therefore, to suspect that the car contained other drugs—the only conceivable “object of the search.” Ross, 456 U.S. at 824. Much less was there reason to believe there would be drugs in the “large number of shopping bags . . . with designer names” that the officers emptied out at the police station. H3.6. As Justice Gesmer found, by searching Mr. Lee’s entire car and everything in it, the officers exceeded the scope of the probable cause afforded by the alleged half-cigarette.4 Lee, 143 A.D.3d at 638 (Gesmer, J., dissenting) (“[T]he police search of [Mr. Lee’s] entire car was unreasonable, because they immediately found the marijuana cigarette and had no reason to believe that marijuana would be present in the rest of the car.”); see also Acevedo, 500 U.S. at 580 (“the police did not have probable cause to believe that contraband was hidden in any other part of the automobile,” despite having “probable cause to believe that the paper bag in the automobile’s trunk contained marijuana”). It is worth noting that at least one state judiciary has determined that the presence of marijuana in plain view never gives police officers probable cause to search a vehicle. The Massachusetts Supreme Judicial Court held in 2011 that officers who saw an individual smoking marijuana in his car were not justified in ordering him out of the car in order to search it under the automobile exception. Commonwealth v. Cruz, 459 Mass. 459, 476–77 (2011); see also Commonwealth v. 4 It should be noted that the marijuana cigarette which supposedly justified the warrantless search here was never introduced into evidence at the suppression hearing, even in a photograph. 13 Rodriguez, 472 Mass. 767, 768 (2015) (car stops based on the smell of marijuana are unreasonable and unlawful). The court in Cruz noted that recent changes in the legal status of marijuana suggest that the public wants “to free up the police for more serious criminal pursuits” than “conducting warrantless searches for contraband when no specific facts suggest criminality.” 459 Mass. at 476–77; cf. State v. Lang, 359 P.3d 349, 351 (Or. 2015) (odor of marijuana emanating from home did not violate Oregon’s disorderly conduct statute and did not establish probable cause for a search warrant). The same can certainly be said of New York, where the possession of medical marijuana—in an amount far larger than was alleged here— is now lawful. See N.Y. Pub. Health Law § 3362(1) (allowing possession, use and transportation of up to a 30-day supply of medical marijuana). Given the new landscape of decriminalization, the presence of a small amount of marijuana cannot justify the “significant encroachment[] upon [a] citizen’s privacy interests” that an “officer’s entry into a citizen’s automobile and his inspection of personal effects” represents. Torres, 74 N.Y.2d at 229–30; see also Yancy, 86 N.Y.2d at 246 (officer’s “observation of an openly visible article that is known to have illicit uses 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.”). At bottom, what happened here was an abuse of “specifically established and well-delineated exceptions” to the requirement of a search warrant. Gant, 556 U.S. at 338. In fact, the officers’ actions in this case were the kind of manipulation of the “plain view” doctrine that this Court specifically warned against in People v. Spinelli. In Spinelli, the Court noted the possibility that the police might “circumvent[] constitutional requirements by waiting to effect a legitimate arrest when the defendant is near . . . incriminating evidence.” 35 N.Y.2d at 80. Here, the officers suspected that the shopping bags in Mr. Lee’s car were “stolen,” but they lacked probable cause to enter his car. See H1.88. They therefore waited until Mr. Lee was getting into the car before barging in and arresting him, and then carried out a warrantless 14 search on the basis of testimony about a “partial joint” that was never put into evidence. H1.62, 75, 94. The officers’ actions were equally an abuse of the “plain smell” doctrine, an exception to the warrant rule that courts are increasingly wary of applying, due to its proneness to such abuse. See, e.g., People v. Simon, 51 Misc. 3d 1212(A), *1 (Sup. Ct., Kings County 2016) (rejecting testimony that officer “smelled marihuana as he stood outside [defendant’s] vehicle”); 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 smell of marijuana). Here, the testimony that the police were “overpower[ed]” by the “very, very strong smell” of a joint in Mr. Lee’s car only illustrates the problems with relying on officers’ noses in justifying car searches. H1.59, 94. These problems have long been known. See, e.g., 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”); Blair v. United States, 665 F.2d 500, 513 (4th Cir. 1981) (Murnaghan, J., dissenting) (“Smell is by nature fleeting and evanescent. It also is too easy, after the fact, to assert and essentially impossible to refute.”). The officers’ actions here stretched the automobile exception past the breaking point. Because the officers’ warrantless search of Mr. Lee’s car was unjustified, the items they seized from his car 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. 15 II. The search of Mr. Lee’s car was not an inventory. Both the Appellate Division majority and Justice Gesmer in her dissent recognized that “[t]he critical issue in this case is whether the officers’ search of the car . . . was a legitimate inventory search.” Lee, 143 A.D.3d at 627. As this Court has explained, the issue is a relatively straightforward one: “An inventory search is exactly what its name suggests, a search designed to properly catalogue the contents of the item searched.” Johnson, 1 N.Y.3d at 256; see also People v. Gonzalez, 62 N.Y.2d 386 (1984) (an inventory is “an incidental administrative step following arrest and preceding incarceration”). Thus, the object of any true inventory procedure is “to protect the property of the defendant, to protect the police against any claim of lost property, and to protect police personnel and others from any dangerous instruments.” Johnson, 1 N.Y.3d at 256. In order to establish a valid inventory search, the prosecution must show that both the decision to impound the defendant’s car and the subsequent search were carried out “in accordance with ‘standard criteria’” set forth in established department policy. People v. Tardi, 28 N.Y.3d 1077, 1078 (2016) (quoting Colorado v. Bertine, 479 U.S. 367, 375 (1987)). Furthermore, the “hallmark” of any valid inventory is “a meaningful inventory list,” Johnson, 1 N.Y.3d at 256, in which the search results are “fully recorded in a usable format.” People v. Gomez, 13 N.Y.3d 6, 11 (2009). Finally, the prosecution must also show that the purported inventory was not “a ruse for a general rummaging,” because, “[w]hile incriminating evidence may be a consequence of an inventory search, it should not be its purpose.” Padilla, 21 N.Y.3d at 272. These guidelines protect against the very real concern that inventory procedures, whose purpose is “only . . . to identify and protect [an] owner’s property,” might be used by the police “on mere whim [to] look for incriminating evidence.” People v. Robinson, 97 N.Y.2d 341, 354 (2001). In this case, the prosecution did not establish any of the above elements of a valid inventory search. First, as Justice Gesmer found, “the People failed to meet their initial burden to prove that the police acted in accordance with established procedures.” Lee, 143 A.D.3d at 16 635 (Gesmer, J., dissenting). Critically, the prosecution offered no evidence that the officers’ decision to tow Mr. Lee’s car was made according to established procedure. Just as the arrest of a car’s owner does not automatically allow police to search his or her car, see Gant, 556 U.S. at 347, it also does not allow police to seize the car. See Tardi, 28 N.Y.3d at 1078–79 (upholding officers’ “decision to tow” where it was “properly made in accordance with . . . written policy” and “there [was] no indication . . . they towed the vehicle for [the] purpose” of finding evidence); United States v. Proctor, 489 F.3d 1348, 1352 (D.C. Cir. 2007) (“Both the decision to take [a] car into custody and [a] concomitant inventory search must meet the [Fourth Amendment’s] strictures.” (internal quotation marks and citations omitted)). At the hearing, the only testimony about the decision to impound came from a single officer, who said simply that Mr. Lee’s car “ended up being vouchered.” H1.61. The reason they did not just empty the car at the scene of the arrest, the officer said, was that “there was too much stuff” inside. H1.87. Apart from that, there was no testimony at all as to why the officers decided to seize Mr. Lee’s car, drive it to the police station, park it “outside on the street” and search it. H1.120. Nor did the section of the NYPD Patrol Guide that was put into evidence satisfy the prosecution’s burden. The two pages in question referred only to property after it “comes into [police] custody.” People’s Exhibit 1. The decision to seize Mr. Lee’s car may have been appropriate under the circumstances, but the prosecution still bore the burden of establishing that it conformed with existing procedures. See, e.g., Padilla, 21 N.Y.3d at 271 (prosecution offered police testimony that “it was custom and procedure for the police to impound a vehicle if the person arrested for driving while under the influence of alcohol is the registered owner”). Because the prosecution offered no basis for the impoundment of Mr. Lee’s car, the warrantless intrusion that followed it was not a valid inventory search. What is more, the prosecution also failed to put into evidence a critical portion of the procedure that ostensibly governed the officers’ actions once they were back at the station—namely, the NYPD Patrol Guide section on “Invoicing Property.” See People’s Exhibit 1. As Justice Gesmer noted, “the People not only failed to submit a copy of the 17 invoicing procedure into evidence at the suppression hearing, but also failed to elicit police testimony about the established procedure for invoicing items.” Lee, 143 A.D.3d at 635 (Gesmer, J., dissenting). Thus, the prosecution simply failed as a matter of law to make the required showing of an “established procedure clearly limiting the conduct of individual officers.” Padilla, 21 N.Y.3d at 272; see also Gomez, 13 N.Y.3d at 11 (inventory search was invalid where the prosecution failed to establish the content of the NYPD’s inventory search protocols). Even more remarkably, the officers’ actions here did not comport with that part of the Patrol Guide that was offered into evidence. The Patrol Guide section in evidence plainly requires that the police “[r]emove all valuables” from an impounded vehicle and “voucher” those items on a “property clerk invoice.” People’s Exhibit 1. As for “[p]roperty of little value,” such items are to be “left inside the car,” and listed on a separate “activity log” that is cross-referenced to the invoices listing the valuables. Id. Here, the police ignored this procedure. According to their own testimony, the officers removed not only “valuables” from Mr. Lee’s car, but “everything”—even “used” personal items like “[n]ail clippers and lotions.” H1.65, 109, 112. The officers did not create activity logs for those non-valuable items, as required by the Patrol Guide. Nor did they list those items on the property clerk invoices. Moreover, although the officers “testified that they did not return anything to [Mr. Lee], as required by the Patrol Guide, . . . . neither the handwritten list nor the property clerk invoices state whether any property was left in the car and, if so, whether the items were returned to [him].” Lee, 143 A.D.3d at 635–36 (Gesmer, J., dissenting). Thus, as in People v. Galak, the purported inventory search was invalid because “no record was kept of what property, if any, was left in the car or returned to defendant and his companion.” 80 N.Y.2d at 720. Then there was the handwritten list, scrawled on “a large note pad,” in which the officers wrote down what was being “grabbed” from Mr. Lee’s car during the search. H1.107–08. As Justice Gesmer noted, the handwritten list, which was untitled, undated and in places “barely legible,” “was not completed on an official form and did not comport with any of the established procedures.” Lee, 143 A.D.3d at 633 (Gesmer, J., dissenting). The list was certainly not a substitute for the 18 missing activity logs, as it did not record the presence of non-valuables, like the nail clippers and lotions. Meanwhile, the list did “include[] apparently valuable items, such as a ‘Salvatore Feragamo [sic]’ garment bag, that do not appear on the property clerk invoices.” Id. at 635. That was not the only disparity between the list and the invoices. The handwritten list also indicated that five cell phones were removed from the car, while the invoices listed seven. See People’s Exhibits 2, 3. The result of these “inaccuracies” is to leave doubt about which, if either, of the competing lists was a correct accounting of the search. H1.118. The answer is not clear because, as Justice Gesmer noted, the invoices were themselves generated “five hours after the search”—exactly as in Galak, where this Court found that “‘a list made so long after the search . . . is of little use.’” Lee, 143 A.D.3d at 636 (Gesmer, J., dissenting) (quoting Galak, 80 N.Y.2d at 720). Finally, as Justice Gesmer also found, “[e]ven if the People had satisfied their initial burden of showing that the police complied with established procedure,” they “failed to establish that the search was not a ruse for general rummaging in order to discover incriminating evidence.” Lee, 143 A.D.3d at 636 (Gesmer, J., dissenting). This Court need not reach far in order to divine the officers’ intent—as Justice Gesmer noted, any notion that the search in this case was an impartial administrative procedure was belied by the officers’ own “abundant admissions” to the contrary. Id. at 637. At the suppression hearing, “[e]ach police officer involved in the search testified that the search was ‘investigatory’ and only added that the search’s purpose was also for ‘inventory’ as an afterthought.” Id.; see also, e.g., H1.62–63 (officer’s testimony that “it was a search for evidence. . . . and also it was an inventory, inventory”). If that were not enough, the officers’ “testimony that the search was investigatory [was] corroborated by several notations on the property clerk invoices, . . . stating that the evidence was vouchered for ‘investigatory’ purposes.” Lee, 143 A.D.3d at 636 (Gesmer, J., dissenting). This Court has made clear that such an “investigatory” motive on the part of the police—here, stated outright at numerous points in the record—removes their actions from the ambit of the inventory search doctrine. See, e.g., Padilla, 21 N.Y.3d at 272 (“While incriminating 19 evidence may be a consequence of an inventory search, it should not be its purpose.”). In sum, the warrantless search of Mr. Lee’s car on November 16, 2012, was not an “incidental administrative step following [his] arrest.” Gonzalez, 62 N.Y.2d at 390. Instead, as with their abuse of the automobile exception, see supra Point I, the officers here took advantage of a narrow exception to the warrant rule by claiming “carte blanche to conduct any search they want and call it an ‘inventory search.’” People v. Walker, 20 N.Y.3d 122, 127 (2012). Because the search of Mr. Lee’s car was not an inventory, the fruits of the unlawful search should have been suppressed. See Wong Sun, 371 U.S. at 488; U.S. Const. amends. IV, XIV; N.Y. Const. art. 1, § 12. * * * Finally, Mr. Lee objects to summary review of this appeal under Court Rule 500.11. Mr. Lee’s case raises critical issues regarding the power of police officers to invade citizens’ privacy rights—in some instances without a search warrant, and in others without probable cause altogether. These are rules that require clear and consistent oversight by this Court. The need for such clarification is further indicated by the sharp disagreement between the majority and the dissent in this case. Should the Court not grant Mr. Lee full review, he respectfully requests the opportunity to file a reply letter pursuant to Court Rule 500.11(e). Respectfully Submitted, Rosemary Herbert Attorney for Defendant-Appellant Thomas M. Nosewicz Senior Staff Attorney by: Enclosures Samuel J. Mendez Staff Attorney cc (w/out enclosures): Grace Vee Assistant District Attorney New York County 20