HON. DEREK P. CHAMPAGNE Franklin County District Attorney Franklin County Courthouse LORELEI B. SMITH MILLER, ESQ. Franklin County Conflict Defender Attorney for Defendant Franklin County Courthouse
HON. DEREK P. CHAMPAGNE
Franklin County District Attorney
Franklin County Courthouse
LORELEI B. SMITH MILLER, ESQ.
Franklin County Conflict Defender
Attorney for Defendant
Franklin County Courthouse
Defendant has been indicted on one count of criminal possession of marijuana in the first degree (Penal Law § 221.30).
On August 13, 2013 a consolidated Mapp and Huntley hearing was held before this Court. At the close of the hearing, counsel was directed to file written closing arguments and memorandums of law by no later than the close of business on August 23, 2013. The Court is in receipt of submissions from both the People and defense counsel. Having duly considered said submissions, along with the testimonial and documentary evidence proffered at the consolidated hearing, the Court makes the following findings of fact and conclusions of law.
The sole witness called at the hearing was Border Patrol Agent Cory White. The record reflects that White has served as a United States Border Patrol Agent for a period of sixteen (16) years. According to his testimony, Agent White currently serves as a supervisor and a canine handler.
Agent White testified that on February 17, 2011, he was stationed at a checkpoint on New York State Route 30 in the town of Brighton, New York. He noted that the checkpoint was located one-half mile south of the State Route 458 intersection at an area which is less than forty (40) miles south of the Canadian border. He described the checkpoint as being physically located in a rural setting. He further indicated that the roadway itself served as a so-called "choke point" for traffic as it is one of the few interior routes into the United States due to the lack of roads in the area. Agent White also indicated that the specific location of the checkpoint was predetermined by United States Department of Homeland Security.
According to Agent White's testimony, the Border Patrol has established specific protocols for the manner in which a checkpoint is setup and operated. For safety purposes, each checkpoint is operated by at least two or three agents. The checkpoint itself is split into primary and secondary stations which are located in very close proximity to one another. According to his testimony, the purpose of the bifurcated setup is to maximize safety and alleviate the backup of traffic. Agent White indicated that signs are posted in each direction alerting motorists of the upcoming checkpoint. He further described the checkpoint as consisting of a series of hazard cones, road signs posted by the state Department of Transportation, and several stop signs which are placed both in the middle and on the side of the road.
With regard to the operation of the checkpoint, Agent White testified that protocol requires that all vehicles be stopped at the checkpoint and initially filtered through a primary agent. This primary agent stands roadside and makes an initial inquiry as to the citizenship of the motorist and of the vehicle's passengers, if any. If this primary agent determines that an additional inquiry is necessary, the motorist is directed to the secondary station for further questioning.
On the date of the underlying incident, Agent White testified that he was operating the secondary station, when defendant's vehicle came upon the checkpoint. He observed that defendant was driving a 2008 Mercury Mariner, a compact S.U.V., with a single passenger in the vehicle. Agent White further indicated that, when defendant came upon the primary station, he did not come to a stop and failed to roll down his driver's-side window. According to the agent's testimony, defendant's vehicle instead rolled through the primary station and only came to a stop after White gestured for the vehicle to stop at the secondary station, some ten (10) to twelve (12) feet down the road.
The agent testified that, once defendant's vehicle came to a stop, he approached and identified himself. He indicated that he made an initial inquiry into defendant's citizenship, and that of his passenger, but did not specifically require them, at that time, to provide documentation confirming their citizenship.
Agent White testified that, although he was reasonably certain that both individuals were American citizens, defendant appeared excessively nervous. He described defendant as gripping the steering wheel very tightly and making a kind of throttling motion with his hand as if he were revving a motorcycle. Agent White testified that he observed defendant swallow very hard and indicated that defendant stared straight ahead instead of making eye contact with the agent.
Agent White also testified that, as he was making this initial inquiry of defendant and his passenger, he looked into the back of the vehicle and observed a large square object lying in the back. He indicated that, given his extensive experience as a Border Patrol Agent, he does not hazard an immediate guess as to the nature of the object when making such an observation. Instead, he testified that he followed his normal procedure which was to walk to the back of the vehicle, staying on the driver's-side, and then back to the front. The agent testified that, if the windows on defendant's vehicle were tinted, they were just lightly tinted, as he could easily see inside the rear portion of the vehicle.
The agent testified that, when he returned to the front of the vehicle, he asked defendant and his passenger where they were coming from. Defendant responded that they were coming from the casino and that they had only been there for approximately one hour or less. Agent White further noted that, when he asked defendant for his place of residence, defendant responded "New York". When asked to clarify, defendant indicated that he was from New York City.
According to his testimony, this initial exchange took a matter of mintues. However, given defendant's nervous appearance and his failure to properly stop at the primary checkpoint station, Agent White asked defendant to shut off his vehicle to ensure that he would not abscond from the checkpoint. At this point, Agent White testified that he asked defendant to produce his driver license. Defendant provided the agent with a driver license issued by the state of Indiana, despite previously indicating that he was a resident of New York City.
Given the totality of the circumstances, and in light of the fact that a majority of the Border Patrol's alien and product investigations, in this area, come from the Akwasasne/St. Regis Mohawk Reservation, the agent testified that he was under the impression that defendant was involved in smuggling either illegal aliens or narcotics. As such, he went and retrieved his canine partner, Boris, to conduct an exterior vehicle sniff. Agent White testified that Boris is trained to detect the odor of concealed weapons, marijuana, and other substances. He further indicated that Boris has received an annual certification since 2006 and takes part in an eight (8) hour training program every two (2) weeks.
Agent White indicated that, in conducting the vehicle sniff, the canine Boris alerted at the rear portion of the vehicle by sitting and staring at the odor's source of emanation. Agent White further indicated that Boris' alert also consists of a change in the dog's body posture and a change in his respiration after he has detected an odor.
The witness testified that, at this point in time, he put his canine away and that a fellow officer directed defendant to pull his vehicle over to a secondary area. The witness indicated that he directed defendant once again to turn off his vehicle and that he place the vehicle keys on the hood, as the agent was going to conduct a search of the vehicle. According to his testimony, the resulting search confirmed agent White's suspicion, as the square object in the rear of defendant's vehicle turned out to be a duffel bag containing a substance which appeared to be large amount of marijuana.
The record reflects that Defendant and his passenger were thereafter handcuffed, placed under arrest, and read their Miranda warnings. Agent White further testified that, as Warwick was being placed in the back of a patrol car, he observed defendant look up at the roadway and at another Border Patrol agent and state "you know I asked him if I should run this". Agent White indicated that defendant's statement had not been made in response to a question from agent White or from any other agent at the scene.
The agent's uncontroverted testimony was that the entire incident, from when defendant initially drove through the primary station of the checkpoint to when defendant and his passenger were placed under arrest, took less than ten (10) minutes.
Agent White's testimony appeared candid and forthright and without evasion or deception. He was not shaken by cross-examination. He was a credible witness.
Findings of Fact
Generally speaking, automobile stops constitute a seizure for Fourth Amendment purposes such that the stop in question must be supported by a founded suspicion of illegal activity (see People v Sobotker, 43 NY2d 559 ). Therefore, a stop of a vehicle made in the absence of a founded suspicion of criminality is inherently questionable. However, the Court of Appeals has previously held that "[s]uspicionless stops ... may be upheld where reasonable, determined by balancing the public interest and the individual's right to personal security free from arbitrary interference by law officers'" (People v Abad, 98 NY2d 12, 16 , quoting Brown v Texas, 443 US 47, 50 ).
In following the Supreme Court's holding of Brown v Texas, supra, the Court of Appeals has adopted a three-part balancing test to determine the validity of a given stop: " the gravity of the public concerns served by seizure of the vehicle,  the degree to which the seizure advances the public interest and  the severity of interference with individual liberty" (People v Abad, supra, 98 NY2d at 16-17). Accordingly, all vehicle stops, be it the result of a roving stop or a checkpoint, must satisfy this three-part test.
As is the case with all vehicle stops, "[a] checkpoint stop of a moving vehicle is a seizure for Fourth Amendment purposes" (People v Jock, 40 Misc 3d 457, 461 [St. Lawrence County Ct 2013]). However, unlike a roving traffic stop, which must be supported by reasonable suspicion of criminal activity, law enforcement officers operating a legitimate checkpoint do not require an individualized suspicion of a given vehicle or its occupants in order to effectuate a stop (id).
To be sure, "[i]t is well settled that the Border Patrol may stop a vehicle at a fixed checkpoint for brief questioning of its occupants even though there is no reason to believe the particular vehicle contains illegal aliens'" (People v Sinzheimer, 15 AD3d 732, 733 [3d Dept 2005], quoting United States v Martinez-Fuerte, 428 US 543, 545). Moreover, in conducting such a checkpoint, "agents may refer motorists selectively to a secondary inspection area on the basis of criteria that would not sustain a roving patrol stop" (People v White, 8 Misc 3d 935, 942 [St. Lawrence County Ct 2005]).
The Court notes that the decision in People v White, supra, is mistakenly reported as being rendered by the Appellate Term, First Department. The Court acknowledges that said decision was issued by the Hon. Kathleen M. Rogers, Acting Supreme Court Justice, St. Lawrence County.
However, in order to ensure that the procedural safeguards set forth in People v Abad, supra, are being satisfied, a Border Patrol checkpoint must be conducted in a reasonable and uniform fashion subject to the agency's guidelines or protocols. In her closing summation, defense counsel asserts that the People failed to proffer sufficient evidence to establish that the checkpoint at issue was conducted under uniform procedure. However, the record belies defense counsel's assertion, as Border Patrol Agent White provided the Court with ample testimony establishing that the checkpoint at issue was operated under the proper parameters.
Accordingly, the Court hereby finds that Agent White's testimony sufficiently established that the checkpoint was setup and operated in a uniform fashion. The Court arrives at this conclusion, despite the fact that the People failed to submit into evidence any type of manual or regulation outlining Border Patrol checkpoint procedure (see People v. Sinzheimer, supra, 15 AD3d at 734 [holding that the trial court properly rejected defendant's contention that the checkpoint was illegal due to the People's failure to provide written guidelines relating to the operation of the checkpoint]).
As for the exterior canine sniff of defendant's vehicle, the Court of Appeals has previously held "that such action constitutes a search requiring founded suspicion that criminal activity is afoot" (People v Devone, 15 NY3d 106, 110 ). Initially, the Court ruled that a canine sniff of a legally stopped vehicle constitutes a search under New York law, as "[t]here is a legitimate, albeit reduced, expectation of privacy in an automobile" (People v Devone, supra, 15 NY3d at 113). Given this diminished expectation of privacy, the Court held that the lesser standard of founded suspicion' of criminality, rather than the otherwise requisite standard of reasonable suspicion, is all that is needed in order to conduct "a canine sniff of the exterior of a lawfully stopped vehicle" (id).
With regard to the use of canine sniffs at Border Patrol Checkpoints, at least one Federal appellate court has come to a conclusion similar to that of the Court of Appeals in People v Devone, supra. In United States v Taylor, (934 F2d 218 [9th Cir 1991]), the Court of Appeals for the Ninth Circuit upheld the constitutionality of a seizure emanating from a Border Patrol checkpoint stop. In Taylor, supra, the duration of the checkpoint stop was briefly extended such that a canine sniff of the vehicle could be conducted, as the agent conducting the stop had "an articulable suspicion" of criminality afoot (934 F2d at 221). Although the holding in Taylor is not binding, this Court finds its holding highly persuasive given the numerous factual similarities it shares with the case at bar.
In Taylor, supra, the defendant was the driver of a vehicle stopped at a Border Patrol Checkpoint, some sixty-six (66) miles north of the Mexican border. Taylor was referred to the secondary station of the checkpoint, due to the primary agent's belief that the "nervous behavior of the vehicle's occupants could mean that they were concealing undocumented aliens or perhaps narcotics" (934 F.2d at 219).
Once at the secondary inspection station, it was quickly determined that Taylor was indeed a U.S. citizen. Taylor also consented to an agent's search of the trunk area of his vehicle which did not result in the discovery of any contraband, human or otherwise. However, as the Border Patrol Agent observed Taylor become "increasingly nervous and uneasy", "a detector' dog trained to alert to hidden persons or narcotics" was walked "around the outside of the vehicle, and the dog alerted positively" (id). An ensuing search of Taylor's vehicle resulted in the discovery of a quantity of narcotics, two handguns, a sum of money, and various drug paraphernalia. The Circuit Court noted, in its decision, that the entire incident transpired over a period of approximately four (4) to five (5) minutes.
In upholding the constitutionality of the stop and of the subsequent seizure, the Court noted that "[t]he sole issue on appeal is whether the brief continuation of this otherwise proper checkpoint detention for purposes of the canine sniff violated the fourth amendment" (Taylor, supra, 934 F2d at 220). The Court concluded that there was no Fourth Amendment violation, as the additional delay necessary to effectuate the canine sniff was extremely brief, such that any personal intrusion was minimal. (id). In addition, the Court specifically noted that "[a]lthough Agent Gary's suspicion would not have sufficed to make a roving' stop, his observation that Taylor become increasingly nervous and uneasy justified the brief further delay. The dog sniff itself did not exceed the boundaries of reasonableness" (internal citation omitted) (Taylor, supra, 934 F2d at 221).
In the instant proceeding, the Court determines and finds that Agent White's observations of defendant's behavior gave him more than enough basis to form a founded suspicion that criminality was afoot. First and foremost, the witness personally observed the defendant fail to stop at the primary inspection station of a Border Patrol fixed checkpoint. Agent White testified that it was not until he personally made a halting gesture with his hands that defendant's vehicle came to a stop at a point some ten (10) to twelve (12) feet down the road from the primary station.
Agent White also provided the Court with credible testimony that he observed the defendant to be extremely nervous. He further testified that defendant informed the agent that defendant was a resident of New York City although he provided the officer with an Indiana driver license. Finally, the evidence shows that defendant informed Agent White that he was coming from the Akwesansne Mohawk Casino after having spent a period of less an hour therein, something of an incongruity for someone traveling from either New York City or Indiana.
All of these factors, taken in concert, provided Agent White with a founded suspicion that defendant and his passenger were transporting contraband. Armed with this founded suspicion of criminality, Agent White conducted a reasonable and brief canine sniff of defendant's vehicle with his duly trained and certified detector dog, Boris.
Despite defense counsel's argument to the contrary, Agent White's testimony regarding Boris' training and certification provided sufficient indicia of the reliability of the detector dog's alert (see Florida v Harris, 133 S Ct 1050, 1057 ) which held that, in the absence of conflicting evidence, proof "of a dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust [a detector dog's] alert"; see also People v Kennedy, 78 AD3d 1233, 1234-1235 [3d Dept 2010]).
Boris' alert at the back portion of defendant's vehicle, in turn, provided Agent White and his colleagues with sufficient reasonable suspicion to believe defendant was transporting narcotics, marijuana, or other dangerous contraband, making it appropriate to further restrain defendant's liberty for the purposes of conducting a search of his vehicle.
The stop of defendant's vehicle at the Border Patrol checkpoint was a legitimate balance of the public's interest in monitoring illegal immigration and defendant's freedom of movement along the roadways of New York (see People v Abad, supra, 98 NY2d at 16-17). Accordingly, the Court finds that the search of defendant's vehicle and the resulting seizure of a duffel bag containing over sixty (60) pounds of marijuana were done in a lawful fashion and in compliance with the constitutions of the United States and the State of New York.
Turning to the Huntley portion of the consolidated hearing, defendant's omnibus motion initially requested that this Court issue an order "[s]uppressing any and all statements taken from Mr. Warwick or, in the alternative, granting a hearing for findings of fact and conclusions of law". Pursuant to the provisions of a decision and order issued by this Court on April 23, 2013, outright suppression of defendant's statements was denied. However, the Court scheduled a Huntley hearing to determine the voluntariness of defendant's statements at issue.
As indicated above, at the conclusion of the consolidated Mapp/Huntley hearing, counsel was asked to submit written summations and memoranda of law. The record reflects that the relief requested in defendant's summations is slightly different than what he had initially requested in his omnibus motion. In particular, defendant moved for suppression of his statements noticed in the People's Criminal Procedure Law § 710.30 notice. However, defense counsel moved for preclusion of several statements that were disclosed for the first time at the hearing and had not been contained in the notice.
A review of the Criminal Procedure Law § 710.30 notice in the instant proceeding reveals that the document is a narrative of the incident in question prepared by Agent White. In said narrative, there is a reference to three (3) statements made by defendant that have been placed in quotation marks which, to this Court, is an indication that they are verbatim recitations of what defendant said to Agent White at the time of the stop. The notice indicates that, when Agent White asked defendant where he was coming from, he stated "the casino". The notice further notes that when the agent asked defendant about his residency, he stated he was from "New York" and, when asked to clarify, defendant stated "New York City".
Defense counsel asserts that all three (3) statements contained in the People's notice must be suppressed upon the grounds that defendant's Miranda rights have been violated. It is claimed that the statements were elicited after the defendant had already been placed in custody. Defense counsel argues that her client's freedom had been significantly deprived such that he was in constructive custody as a result of being directed to turn off his engine and due to the fact that a second Border Patrol Agent was standing in front of his vehicle.
The objective standard utilized to determine whether a given individual is in custody of law enforcement has been well established: "what a reasonable person, innocent of any crime, would have thought had he or she been in the defendant's position" (People v Tavares-Nunez, 87 AD3d 1171, 1174 [2d Dept 2011] quoting People v Hardy, 77 AD3d 133, 141; see also People v Yukl, 25 NY2d 585, 589, cert. denied 400 US 851). Having applied this standard to the facts at issue, the Court finds that defendant had not yet been placed in custody when he made the statements about coming from "the casino" and being from "New York" and "New York City". The record reflects that these statements were solicited from defendant just minutes after being stopped at the fixed checkpoint. At this stage of the encounter, it cannot be said that a reasonable person, innocent of any offense, would be under the impression that his freedom was restrained to such an extent that he had been placed in custody of law enforcement.
Moreover, the statements were given in response to the agent's pedigree questions regarding defendant's identity, place of residency and purpose of travel (see People v Rodney, 85 NY2d 289, 293 ) which holds that so-called "pedigree questions" are not suppressible even when obtained in violation of Miranda. As such, notice of the statements was not even required. Accordingly, the Court finds that defendant's motion for suppression of the statements contained in the Criminal Procedure Law § 710.30 is unpersuasive.
The Court turns, then, to the unnoticed statements identified for the first time at the consolidated hearing. Defendant had initially moved for blanket suppression of any and all statements sought to be used against him at trial. However, upon completion of the consolidated suppression hearing, defendant refined his application and requested that the unnoticed statements be precluded.
There are two (2) unnoticed statements at issue. According to Agent White's testimony, defendant stated that he had been at the casino for an hour or less. The second statement allegedly occurred after the defendant had been placed under arrest. Agent White testified that as the defendant was being placed in the back of a patrol car, the agent observed defendant look up at the road ahead and state to a fellow agent "you know I asked him if I should run this".
It should be initially noted that, when the People fail to provide notice of a given statement by defendant, such statement cannot be used against defendant at trial unless, despite the lack of notice, he or she has moved to suppress such evidence and the application is denied after a Huntley hearing (see People v Lamanda, 205 AD2d 934, 935 [3d Dept 1994] lv denied 84 NY2d 828; see also Criminal Procedure Law § 710.30 ). However, the exclusion provision set forth in Criminal Procedure Law § 710.30 (3) does not apply when the defendant merely moves to preclude the statement on the ground of lack of notice (see People v Bernier, 73 NY2d 728 ) which holds that Criminal Procedure Law § 710.30 (3) does not apply to a motion for preclusion where defendant first learns of the People's intention to use an unnoticed statement during jury selection.
Nevertheless, the People's failure to provide notice of a given statement is "of no import where, as here, defendant was afforded a full opportunity to challenge the admissibility of his statement and did in fact do so on the substantive basis that it was not voluntarily made.... The circumstances here differ from those present in People v. Bernier ... in that here the suppression hearing was initiated before any request for preclusion was lodged, thus effectively waiving defendant's right to object to the improper notice" (internal citation omitted) (People v Lewis, 198 AD2d 666, 667-668 [3d Dept 1993]).
Accordingly, defendant's motion for preclusion will be denied, the basis for it having been waived due to his substantive participation in the consolidated Mapp/Huntley hearing.
Turning to the merits of the matter, the record reflects that both of the unnoticed statements were voluntarily given. As with the statements that actually were contained in the Criminal Procedure Law § 710.30 notice, defendant's comment about the duration of his stay at the casino was freely given by defendant in response to Agent White's brief line of pedigree questions (see People v Sinzheimer, supra 15 AD3d at 733). The record is wholly devoid of any indication that the statement was given as a result of any type of undue provocation or coercion on the part of Agent White or any other law enforcement officer.
With regard to defendant's statement as he was being placed in the back of the patrol vehicle, the uncontroverted record reflects that defendant was certainly under arrest and that the statement was made post Miranda. However, Agent White's credible testimony reflects that defendant's statement was spontaneously made. There is nothing in the record to indicate that defendant's statement was the result of "words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response" (People v Allnutt, 148 AD2d 993, 994 [4th Dept 1989], quoting Rhode Island v Innis, 446 US 291, 302). As such, this statement is also admissible at trial, despite the People's failure to provide notice thereof, given its spontaneous nature (see People v Murphy, 163 AD2d 425 [2d Dept 1990]).
Finally, defense counsel's assertion that the statements taken from defendant are the result of an illegal search and should be suppressed as fruit of the poisonous tree will be denied, as the Court has already found that the search of defendant's vehicle was a lawful exercise.
Conclusions of Law
Based upon its findings set forth at length in the foregoing decision, the Court concludes that the defendant's Mapp motion should be denied. The stop of the defendant was legal, as was the seizure of marijuana which followed. Likewise, the Court concludes that the Huntley motion to suppress defendant's statements, both those noticed and those not noticed, must be denied. The statements were not coerced in any way and, in any event, involved pedigree or spontaneous declarations.
For the reasons set forth herein, it is
ORDERED that the motion to suppress the physical evidence seized incident to the arrest of defendant, George F. Warwick, be, and the same hereby is, denied; and it is further
ORDERED that the motion to suppress the statements made by defendant, George F. Warwick, and contained in the People's Criminal Procedure Law § 710.30 notice be, and the same hereby is, denied; and it is further
ORDERED that the preclusion of the statements made by defendant, George F. Warwick, at the time of his arrest be, and the same hereby is, denied; and it is further
ORDERED that the motion to dismiss the indictment pending against the defendant, George F. Warwick, be, and the same hereby is, denied; and it is further
ORDERED that proceedings with respect to the indictment pending against the defendant, George F. Warwick, be, and the same hereby are, further adjourned, for Sandoval, Ventimiglia, and Molineux hearings, to be immediately followed by any trial of the indictment, to the trial term of this Court commencing on Monday, September 30, 2013 at 9:15 a.m., or as soon thereafter as counsel can be heard; and it is further
ORDERED that this matter will not be adjourned without subsequent court order. No adjournments will be granted on the day of the trial. Adjournment requests must be in writing and on notice.
Franklin County Judge
Dated at Malone, New York, the 9th day of September, 2013.