People v. Deer

• Decision Date: 19 March 2013
• Citation: 960 N.Y.S.2d 891
• Parties: The PEOPLE of the State of New York v. Corene M. DEER and Rachel C. Morgan, Defendants.
• Court: New York County Court

960 N.Y.S.2d 891

The PEOPLE of the State of New York
v.
Corene M. DEER and Rachel C. Morgan, Defendants.

County Court, St. Lawrence County, New York.

March 19, 2013.

960 N.Y.S.2d 892

Nicole M. Duvé, Esq., District Attorney, for the People.

Stanley Cohen, Esq., for Defendant, Corene M. Deer.

KATHLEEN MARTIN ROGERS, J.

Defendants are charged with acting in concert in the criminal possession of marijuana in the first degree [ Penal Law § 20.00 and 221.30 ] on January 18, 2012 in the Town of Gouverneur. Pursuant to a stipulation of counsel, approved by the Court [Richards, J.] on August 27, 2012, the court conducted a suppression hearing to inquire into the probable cause for the stop of the defendants by Border Patrol Agents, and the resulting seizure of approximately 23 pounds of marihuana. I conducted that hearing on March 5, 2013, and now make the following findings of fact and conclusions of law.

Findings of Fact

Brandon Carrier was the only witness to testify. He stated that he was employed as a Border Patrol Agent on January 18, 2012 and was on duty around 8 p.m. that evening in a marked patrol car. He had a

960 N.Y.S.2d 893

partner with him in the car. They were parked in Dekalb Junction in St. Lawrence County on U.S. Route 11. They were parked in such a way that their lights were shining across the road to observe drivers and cars as they went past.

Agent Carrier testified that a white SUV drove by slowly. He believed this was slower than some of the other vehicles in that area. The driver had both hands on the steering wheel and was pushed back in the seat, obstructing his view. He stated his opinion that most drivers had either one hand on the wheel or appeared more relaxed if they had two hands on the wheel.

At this point he pulled out to follow the vehicle and caught up behind her in his marked car close enough to read the license plate. This was in a rural area which was dark. He indicated that he had accelerated to come up behind the vehicle. As he was approaching the SUV, he noted that it swerved once distinctly to the left and then corrected. On cross examination, he admitted he could not recall whether it had been left, then right or right, then left. It did not cross any lines in the road.

He then ran a radio check to determine whether or not the car was stolen. Agent Carrier testified that he was informed that the vehicle was registered to Corene Deer and that the address given for the person registering the vehicle was Rooseveltown. He acknowledged after several questions on cross examination that he was aware that some of Rooseveltown was on the Akwesasne Mohawk Reservation and that Deer was a common Mohawk name. He was also advised in the radio run that Corene Deer was a known smuggler. There was no proof regarding the source of the statement in the radio run.

Agent Carrier said that he continued to follow the SUV and noticed that it went between 50 and 60 miles per hour. When the two vehicles came up behind another vehicle, which was moving slowly, the SUV slowed down, drove behind it and did not pass. The SUV followed at 35 mph and when the road split into two lanes, the SUV and the third vehicle went to the right to the slow lane to permit the Border Patrol Vehicle to pass. Agent Carrier stated he passed the two vehicles and proceeded into the Village of Gouverneur, where he parked in a well-lit parking lot facing on coming traffic. This permitted him to direct his headlights directly into oncoming vehicles.

He observed an elderly person in the slow moving vehicle enter the village and the SUV enter behind it, having not passed. He observed a driver and passenger in the SUV. He testified that they stared straight ahead as they passed him and did not look at him. At this point in the narration in his direct testimony, he stated that he saw no registration sticker on the front windshield of the vehicle. He continued with his testimony by stating that he drew up beside the SUV as it drove through Gouverneur and the two persons in the SUV looked away from him. This would have been toward the stores and restaurants in that village. The two women in a car did not look at the two males who had driven up next to them at night and stared at them. He observed they were speaking at the time.

After the two cars left Gouverneur, Agent Carrier activated his lights and stopped the SUV. He approached the driver's side of the vehicle and observed the driver was holding the registration, the sticker and her license. The driver stated, "I just want to go home and see my baby." Counsel stipulated that if Agent Carrier's partner had been called he would testify that he could not recall seeing whether or not the registration sticker was on the window before the stop.

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On direct examination, Agent Carrier indicated that he had concerns regarding Akwesasne because it was on the border and parts were in Canada and parts were in the United States. He stated that Route 11 was a corridor for smuggling contraband and people.¹ He indicated there were roads that lead from Canada to the United States on Akwesasne that do not require border stops. On cross examination, Officer Carrier testified that Akwesasne was an area with a "heightened amount of smuggling action" but denied that gave him a "heightened concern" in dealing with people from Akwesasne. After some questions he said it was a consideration he weighed in deciding to stop the vehicle. When he saw Corene Deer sitting in the car, he testified he knew from looking at her that she had physical attributes consistent with someone who was Mohawk.

On cross examination, the officer testified that he filed a report, known as an I44 at the time of the incident on January 18, 2012 which was required to be accurate and complete as to important matters. There was a process to amend or change this report, but he did not amend or change the I44 he filed in this matter. He acknowledged that there was no mention whatsoever of the registration sticker in his report. He said he did not stop the vehicle because there was no sticker on the windshield, that this had nothing to do with the stop.

Officer Carrier on cross examination said the reasons he stopped the vehicle were that the driver had both hands on the wheel with her arms extended, that she sat pushed back in the seat, that she swerved once in the lane during 6 miles of following her (at times close enough to read her license in an unlighted area) and she did not pass a slow moving vehicle when, in his opinion, she might have. He acknowledged the driver broke no other vehicle and traffic laws other than apparently speeding up to 60 mph at times. He observed and followed her for between 15 and 20 minutes. She did not try to evade or flee.

The only objective criteria upon which Agent Carrier asked for a radio run was the driver going by sitting back in the seat with her arms straight out. He agreed there was no observable problem with the vehicle such as a light out. He acknowledged that there was nothing unique about the area of Dekalb Junction itself with regard to smuggling other than the fact that the main route passing through was Route 11.

The court believes that Officer Carrier decided to follow the white SUV and do a radio run because the driver appeared nervous. Her actions were completely consistent with a person who was not engaged in any criminal activity. There was no basis to believe that a vehicle with a NYS license plate and registration had crossed the border or was engaged in any way with smuggling persons or contraband across the border. He drove up behind the SUV, coming close enough on a dark night in a rural area to see her license. As he overtook her or followed her, she swerved, a not unexpected result of having someone come up quickly, not pass and

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start to follow you. The radio run advised him that the person who owned and registered the vehicle lived at an address on or near the Mohawk reservation and had a name that might be consistent with a person of Mohawk heritage. It could, of course, also be a...