The People, Respondent,v.Gregory Lee, Appellant.BriefN.Y.August 30, 2017 June 14, 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 Reply Brief for Defendant-Appellant Dear Mr. Asiello: I respectfully request that the Court accept this letter in reply to Respondent’s submission, dated June 5, 2017 (“Resp. Ltr.”), in the above case, pursuant to section 500.11(e) of the Court’s Rules of Practice. In its single-point argument, Respondent disregards one of the two critical issues in this case: whether the alleged presence of “half of a marijuana cigarette” in the console of Gregory Lee’s car on November 16, 2012, justified NYPD transit officers’ warrantless search of the car and everything in it. H1.60.1 Rather than trying to defend the officers’ brazen abuse of the “automobile exception” to the warrant requirement, Respondent points to People v. Valentin, 29 N.Y.3d 57 (2017), and argues that “this Court cannot properly address these issues without first remitting the case for a determination by the Appellate Division.” Resp. Ltr. at 11 n.6. Valentin, however, says no such thing. 1 As in my letter dated March 31, 2017, “H1.” refers 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. 2 In Valentin, the Appellate Division reversed the defendant’s conviction without addressing all of the issues raised on appeal. See 29 N.Y.3d at 61. This Court then reversed, reinstated the conviction and remanded for consideration of the remaining issues. Id. Here, by contrast, the question of whether the officers’ warrantless actions were justified under the automobile exception was expressly decided by the trial court, and the Appellate Division affirmed Mr. Lee’s conviction following full briefing by the parties. See H3.7–8 (trial court’s finding that “the search of the car at the precinct was lawful . . . under the automobile exception to the warrant requirement”); Appellant’s Brief at 26–30 (“Because the police exceeded the scope of probable cause afforded by the alleged ‘partial joint,’ and because the considerations behind the automobile exception were not implicated, the search of Mr. Lee’s car was unlawful.”); Respondent’s Brief at 24–27 (“The hearing court . . . properly determined that the search of [Mr. Lee’s] car was would have been [sic] justified under the ‘automobile exception’ to the warrant requirement.”). The issue of whether the automobile exception applied in this case is therefore perfectly preserved and properly before this Court. See N.Y. Crim. Proc. Law § 470.35(1) (“[T]he court of appeals may consider and determine . . . any question of law involving alleged error or defect in the criminal court proceedings . . . , regardless of whether such question was . . . considered or determined upon the appeal to the intermediate appellate court.”).2 2 Respondent similarly seeks to avoid this Court’s determination of whether Mr. Lee’s alleged possession of a MetroCard that had been bought with a stolen credit card constituted possession of stolen property. See Resp. Ltr. at 11 n.6. In the alternative, Respondent asserts, without any support, that the alleged “MetroCard incident” was “unquestionably” a proper basis for stopping Mr. Lee at the doorway of his car on November 16, 2012. Id.; H1.12. Respondent’s unfounded assurance notwithstanding, the question is an open one, and it merits the Court’s review. See People v. Gbohou, 186 Misc. 2d 324, 330–31 (Sup. Ct., Bronx County 2000) (finding “no authority for the proposition that the possessor of merchandise purchased . . . with stolen money is . . . in possession of stolen property” (emphasis added)); People v. Lee, 143 A.D.3d 626, 639 (1st Dep’t 2016) (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.”). 3 Respondent’s arguments on the second critical issue in this case, whether the warrantless search of Mr. Lee’s car was an inventory, are no more availing. The police officers’ actions here, beginning with their impoundment of Mr. Lee’s car, were not carried out “in accordance with ‘standard criteria’ set forth in the police department’s written policy,” as they must be in order to upheld as an inventory search. People v. Tardi, 28 N.Y.3d 1077, 1078 (2016) (quoting Colorado v. Bertine, 479 U.S. 367, 375 (1987)). As this Court recently recognized in Tardi—a decision that Respondent nowhere acknowledges—whether a defendant’s car was lawfully impounded prior to a purported inventory search is a threshold question. See Tardi, 28 N.Y.3d at 1078 (finding that “the police officers’ decision to tow defendant’s vehicle . . . was properly made in accordance with ‘standard criteria,’” which “limit[ed] an officer’s discretion to tow a vehicle upon a driver’s arrest”). Such a showing is just as important as proof that the subsequent search complied with existing guidelines, since “[a]rbitrary 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.” People v. Galak, 80 N.Y.2d 715, 721 (1993). Here, no such showing was made at the suppression hearing. As it did below, Respondent cites a law treatise in arguing that “the officers made [a] reasonable decision” in seizing Mr. Lee’s car and driving it to the 59th Street-Columbus Circle subway station. Resp. Ltr. at 12 (citing Barry Kamins, New York Search and Seizure); see also Respondent’s Brief at 22 (citing Gary Muldoon, Handling a Criminal Case in New York). Respondent cannot, however, point to the record and argue that the officers did so pursuant to “‘standard criteria’ set forth in . . . written policy.” Tardi, 28 N.Y.3d at 1078. Such criteria, if they existed, were never put into evidence. The only reason the officers provided for seizing Mr. Lee’s car was that “there was too much stuff” inside to empty it where it was parked. H1.87; see also Motion to Suppress at 16 (trial counsel noting “there was no testimony . . . that the police had any reason or followed any guidelines or standards in deciding to take the vehicle to the precinct”). Respondent’s insistence that the car “certainly could not have . . . been left on the street” has even less grounding in the record, as Mr. Lee’s car was in fact left “outside on the street” at Columbus Circle after the officers seized it. Resp. Ltr. at 12; H1.120. 4 Because the prosecution here failed to establish that the NYPD transit officers acted according to established, reasonable guidelines in seizing Mr. Lee’s car, driving it to a subway station and parking it outside, their warrantless search of the car cannot be upheld as an inventory. See Tardi, 28 N.Y.3d at 1078; United States v. Vladeff, 630 F. App’x 998, 1000 (11th Cir. 2015) (“In order to utilize [the inventory search] exception to the warrant requirement, the government has the burden to show first that the police possessed the authority to impound the vehicle.”); United States v. Cervantes, 678 F.3d 798, 805 (9th Cir. 2012) (purported inventory search invalid where officers did not “provide[] any testimony that [defendant’s] vehicle was parked illegally, posed a safety hazard, or was vulnerable to vandalism or theft”); 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.”). As for what happened to Mr. Lee’s car once it was taken to Columbus Circle, Respondent misconstrues the record regarding both the procedure that the officers followed and the officers’ stated motives in carrying out the search. What is more, several of Respondent’s arguments are directly refuted by this Court’s decision in People v. Johnson, 1 N.Y.3d 252 (2003). First, as with the officers’ decision to seize Mr. Lee’s car, the prosecution here failed to put into evidence “the police department’s written policy” that ostensibly governed the officers’ search of the car. Tardi, 28 N.Y.3d at 1078. The single section of the NYPD Patrol Guide that the prosecution did offer at the hearing clearly referenced another section, titled “Invoicing Property,” that the prosecution failed to put into evidence. People’s Exhibit 1. Nor, as Justice Ellen Gesmer noted in her dissent below, did any of the police officers’ testimony at the hearing fill in that gap. See Lee, 143 A.D.3d at 635 (Gesmer, J., dissenting) (“[T]he People not only failed to submit a copy of the invoicing procedure into evidence at the suppression hearing, but also failed to elicit police testimony about the established procedure for invoicing items.”). Accordingly, as in Johnson, “the evidence adduced at the hearing was insufficient to establish that the alleged inventory search was valid.” 1 N.Y.3d at 254. 5 Respondent now attempts to patch over this fatal omission in the evidence by noting—“[s]ignificantly,” it claims—that the Patrol Guide section presented at the hearing “stated that the purpose of an inventory search was ‘[t]o protect property, ensure against unwarranted claims of theft, and protect the uniformed members of the service and others against dangerous instrumentalities.’” Resp. Ltr. at 12–13. Respondent further notes that the officers then recited these “legitimate objectives of a valid inventory search” in their testimony. Id. at 13. However, as this Court expressly held in Johnson, such evidence is “clearly insufficient to satisfy the prosecutor’s initial burden of establishing a valid inventory search.” 1 N.Y.3d at 256. It is not enough for an officer to “testif[y] that he knew of the general objectives of an inventory search, and declare[] that his search . . . fulfilled those objectives.” Id. Rather, the prosecution must “produce evidence demonstrating . . . that th[e] particular officer conducted [the] search properly and in compliance with established procedures,” and “that the procedure itself was ‘rationally designed to meet the objectives that justify inventory searches in the first place.’” Id. (quoting Galak, 80 N.Y.2d at 719). Here, the prosecution failed to make that showing, and it thus failed as a matter of law to establish a valid inventory search. Nor did the prosecution establish that the transit officers acted in conformity even with the limited portion of the Patrol Guide that was put into evidence. Here, Respondent’s claim that the officers “strictly,” “precisely” and “meticulously” complied with NYPD guidelines borders on laughable. Resp. Ltr. at 13–14. It is, in any event, utterly belied by the record, as indicated by Respondent’s own acknowledgment of “discrepancies” in the two pages of handwritten scribbles that serve as an “inventory list” in this case. Resp. Ltr. at 14–15.3 Finally, Respondent cites People v. Wright, 98 N.Y.2d 657 (2002), for the odd assertion that the context of this case—the police officers’ prolonged, fruitless investigation of Mr. Lee in the months leading up to his arrest—is “irrelevant” in assessing the officers’ intentions in seizing 3 The numerous errors and inconsistencies in the officers’ purported inventory procedure are laid out in my letter to the Court dated March 31, 2017. They were also examined in detail in Justice Gesmer’s dissent in the Appellate Division. See Lee, 143 A.D.3d at 635–36 (Gesmer, J., dissenting). 6 and searching Mr. Lee’s car on November 16, 2012. Resp. Ltr. at 16. Once again, People v. Johnson directly refutes Respondent’s contention. To be sure, Wright and this Court’s earlier decision in People v. Robinson established that an officer’s subjective motivations are immaterial in assessing the validity of an otherwise lawful traffic stop. See Wright, 98 N.Y.2d at 658–59 (“‘[P]rovided a traffic stop is supported by probable cause, . . . the primary motivation of the officer . . . is [not] relevant.’” (quoting Robinson, 97 N.Y.2d 341, 349 (2001))). As the Court explained in Johnson, however, motive does matter in the context of inventory searches. See 1 N.Y.3d at 257 (Appellate Division “improperly applied the law governing pretext stops to inventory searches,” by “[r]elying on Robinson” in finding “that the officer’s motives for conducting the inventory search did not matter as long as the stop and the arrest were lawful”). Here, the officers’ motives are not a mystery. The NYPD transit officers who arrested Mr. Lee at the open doorway of his car, after unsuccessfully investigating him for months, admitted that they “had a pretty good suspicion that the stuff in the car was stolen,” and that the search at the station “was a search for evidence.” H1.62–63, 88; see also Lee, 143 A.D.3d at 637 (Gesmer, J., dissenting) (noting the officers’ “abundant admissions that the items were recovered for investigatory or evidentiary purposes”). On this critical point, if on little else, the officers’ testimony was borne out by their notes from the night of the search. See People’s Exhibit 3 (property invoice listing “ALL ITEMS” seized from the car as “INVESTIGATORY”). Of course, this Court need not agree with Justice Gesmer’s finding that “the purported inventory search” was merely “‘a ruse for a general rummaging in order to discover incriminating evidence.’” Lee, 143 A.D.3d at 637 (Gesmer, J., dissenting) (quoting People v. Padilla, 21 N.Y.3d 268, 272 (2013)). As set forth above, the prosecution’s failure to adduce evidence that the police acted “in accordance with ‘standard criteria,’” in both seizing and searching Mr. Lee’s car, is dispositive here. Tardi, 28 N.Y.3d at 1078. Nevertheless, Justice Gesmer was right. The purported inventory in this case was a pretext for searching Mr. Lee’s car without a warrant, and for that reason, too, it must not be upheld. * * * This case raises critical issues regarding the Fourth Amendment's requirements of probable cause and a warrant, and the ability of t he police to circumvent those requirements by way of exceptions that threaten to swallow the rule. As noted above , Respondent's letter submission does not even address one of the two questions presented here. These questions merit full briefing by the parties, and a full review by t his Court. Accordingly, Mr. Lee respectfully renews his objection to summary review of this appeal under Court Rule 500. 11. by: cc: Grace Vee Assistant District Attorney New York County Respectfully Submitted, Rosemary Herbert Attorney for Defendant-Appellant Samuel J. Mendez Staff Attorney 7