People v. Dickens

• Decision Date: 24 August 1995
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael DICKENS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 737

630 N.Y.S.2d 737

218 A.D.2d 584

The PEOPLE of the State of New York, Respondent, v. Michael DICKENS, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Aug. 24, 1995.

G.H. Mansfield, for respondent.

J. Gemmill, for defendant-appellant.

Before MURPHY, P.J. and SULLIVAN, WALLACH, NARDELLI and TOM, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County, (Richard Carruthers, J.), rendered December 9, 1992, which convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentenced him, as a second felony offender, to a term of 4 1/2 to 9 years, affirmed.

Defendant was stopped by two police officers who had observed him changing lanes without signalling and driving his truck without license plates. The officers arrested defendant after he was unable to produce a license, registration, insurance card, or any type of identification. Following the arrest, one of the officers observed a large shopping bag on the passenger seat and looked inside, finding a bag of potato chips, a plastic bag containing crack vials, and a bag of cocaine. The truck was driven to the precinct, where it was searched further and vouchered. Defendant moved, inter alia, to suppress the cocaine and that branch of the motion was denied.

Defendant argues that the search was not a proper inventory search on the grounds that there was no evidence that an inventory was compiled, that there was no evidence of any standardized procedures for inventory searches, and that the officer who conducted the search exercised unfettered discretion in so doing. Defendant failed to preserve the latter two arguments before the hearing court and only peripherally raised the first argument in connection with another theory. However, were we to review the claims, we would nevertheless find that the search of the bag was conducted pursuant to a standard procedure which was designed to meet the legitimate objectives of the search, and which limited the discretion of the officer in question (People v. Galak, 80 N.Y.2d 715, 719, 594 N.Y.S.2d 689, 610 N.E.2d 362; People v. Henriquez, 162 A.D.2d 206, 207, 556 N.Y.S.2d 581). The officer who performed the search of the bag testified that he did so to ensure his safety and the safety of his partner inasmuch as they would be driving the truck back to the precinct. Significantly, he testified that the Patrol Guide directed him to voucher anything of value in a vehicle for safekeeping and to search a vehicle for any type of contraband, such as a bomb or a weapon. Inasmuch as defendant, an unlicensed driver, was not authorized to drive the truck back to the precinct, it was reasonable for the police to impound the truck at the scene and search it to protect them from any potential danger until the truck was brought back to the precinct, where a more complete search could be accomplished (id.; People v. Castillo, 150 A.D.2d 957, 541 N.Y.S.2d 640, lv. denied 74 N.Y.2d 806, 546 N.Y.S.2d 564, 545 N.E.2d 878). Moreover, contrary to defendant's contention that an inventory was not made, the truck was eventually removed to the precinct, where it was subject to a comprehensive search and vouchered.

All concur except MURPHY, P.J., who dissents in a memorandum as follows.

MURPHY, P.J., dissenting:

Following the denial of his motion to suppress contraband found in the vehicle he had been driving, the defendant entered a plea of guilty to criminal possession of a controlled substance in the third degree. The only issue now raised by the defendant on his appeal from the judgment of conviction is whether the motion court, in denying suppression, correctly determined that the warrantless road-side search of a bag found in the vehicle driven by him was justifiable as an inventory search.

The relevant facts are as follows. On July 17, 1991 police officers Felz and Evans of the 30th police precinct, while on motor patrol on upper Broadway in Manhattan, stopped a Nissan Pathfinder truck driven by defendant. Officer Felz testified that the truck was stopped because it had changed lanes without signalling and because its subsequently discovered temporary transit license plate could not be discerned through the vehicle's darkly tinted rear window. When defendant could not produce a driver's license, or registration and insurance cards, he was informed that the vehicle would be taken to the 30th police precinct where it would be held pending determination of the owner's identity. It was at this point that Felz, while walking around the vehicle, noticed a large shopping bag on the front passenger seat. As he could not see what was in the bag from where he stood, he leaned inside the passenger compartment and peered inside the bag. At first he saw only a package of potato chips but upon removing it discovered beneath two additional bags, one containing drug paraphernalia and the other cocaine. While he acknowledged that he had been searching for contraband, Felz did not at the hearing attempt to justify the search as one for evidence of crime; he and, indeed, the trial assistant, maintained rather that the search of the bag was sustainable as an inventory search. In this latter connection he asserted that he had looked inside the bag in order to ascertain that it contained nothing which might endanger the officer assigned to drive the seized vehicle to the precinct.

The motion court agreed with the People that the warrantless search of the shopping bag was sustainable as an inventory search and, accordingly, rejected the express, and, therefore, preserved claim of the defendant to the contrary ¹.

While inventory searches may be performed without a warrant, they may not be employed to circumvent the requirement of a sufficient predicate for an investigative search. Thus, a police officer acting within the law's permission to create an inventory of legitimately impounded property may not rummage about arbitrarily in search of incriminating evidence, but must act in accordance with established regulations effectively limiting his or her discretion about what is to be searched and how the search is to be accomplished (Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1; People v. Galak, 80 N.Y.2d 715, 719, 594 N.Y.S.2d 689, 610 N.E.2d 362). The purpose of such a...