People v. Dickson

• Decision Date: 13 July 1998
• Citation: 180 Misc.2d 113,690 N.Y.S.2d 390
• Parties: , 1999 N.Y. Slip Op. 99,222 The PEOPLE of the State of New York, Plaintiff, v. Edward DICKSON, Defendant.
• Court: New York Supreme Court

Page 390

690 N.Y.S.2d 390

180 Misc.2d 113, 1999 N.Y. Slip Op. 99,222

The PEOPLE of the State of New York, Plaintiff, v. Edward DICKSON, Defendant.

Supreme Court, New York County, New York.

July 13, 1998.

Arthur Miller, Brooklyn (John B. Stella of counsel), for defendant.

Bridget G. Brennan, Special Prosecutor, New York City (Lawrence Garment of counsel), for plaintiff.

LAURA VISITACIN-LEWIS, J.

Indicted for criminal possession of a controlled substance in the second and third degrees (P.L. §§ 220.18, 220.16 ), defendant Edward Dickson moves to suppress cocaine and currency seized from his person following the stop of an automobile in which he was the front seat passenger. At a Dunaway/Mapp hearing held before me, Police Officer Edward Maier testified for the prosecution, and the driver of the automobile, Anthony McNair, testified for the defense.

The legal issue framed by the hearing evidence is that subsumed within the category of cases designated in decisional law as pretextual automobile stops. This area of law, in which matters of policy and constitutional concerns often compete with the practicalities of law enforcement, has been the subject of particularly close analysis and renewed interest since the United States Supreme Court's ruling in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

The Court of Appeals has not had occasion to address the issue of pretextual automobile stops in light of the Whren ruling, and it is therefore as yet unresolved whether New York will adopt the Federal Constitutional standard enunciated therein. However, the ample and rapidly developing body of both lower court and Appellate Division case law in this area provides guidance and--despite a division in approach and interpretation among trial courts--presages adherence to New York's longstanding constitutional prohibition against the use of a traffic stop to legitimize an otherwise impermissible investigation. As applied to the case at bar, the venerable objectives reflected by our State's precedent and underlying policy considerations compel suppression.

On the basis of the credible evidence adduced at the hearing, I make findings of fact and reach conclusions of law as follows.

Findings of Fact

At approximately 11:15 a.m. on October 11, 1997, Police Officer Edward Maier was in a police vehicle on the east side of Amsterdam Avenue between 133rd and 134th Streets with two other officers. Part of a "buy and bust" operation consisting of plainclothes officers in several unmarked vehicles parked in the vicinity, the officer was awaiting radio contact informing him that the undercover officer was ready to make a narcotics purchase. As he waited, Officer Maier noticed a car with Rhode Island license plates double parked at a bus stop, approximately one block north and on the same side of Amsterdam Avenue as Officer Maier's vehicle. The out-of-state car had its motor running and was occupied by three men: the driver, Anthony McNair, a front passenger and a rear passenger.

Officer Maier observed the front passenger emerge from the vehicle and join the passenger in the rear seat, and continued to watch as the driver then made a U-turn and stopped on the west side of Amsterdam Avenue at 134th Street. Within one minute, defendant ran to the car from a westerly direction and occupied the front passenger's seat. The car then drove off.

Based upon these observations, Officer Maier concluded that the vehicle's occupants may have been involved in "a robbery, a burglary, or any other serious crime," and required immediate investigation. Such was his sense of urgency about the need to pursue the vehicle that the officer did not simply radio in its description and location so that other officers in the vicinity could investigate. Rather, Officer Maier notified his team members for assistance, knowing that this would abort the entire drug operation. In his hearing testimony, the officer forthrightly stated that he would not have taken such a drastic measure to stop the vehicle for a mere traffic infraction. This was, in his estimation, more than an ordinary traffic stop and, indeed, it was his intent to ask defendant why he had run to the car. The illegal U-turn was recognized as a factor in the vehicle stop only in the "totality of the circumstances."

Defendant's vehicle was followed for nine or ten blocks before Officer Maier determined that it was "tactically correct" to stop it at the corner of 125th Street and Amsterdam Avenue since the other police cars had by then arrived, providing "safety in numbers ." The vehicle was stopped at a red light when three or four of the unmarked police cars converged on the scene and approximately seven officers emerged. Some of the officers, including Maier, had guns drawn. ¹

As Officer Maier approached defendant and directed that he put his hands in the air, a second officer went to the driver's window and told McNair to turn off the ignition. Asked for his license and registration, McNair responded that he had a valid driver's license, but did not have it with him, and stated that the car had been rented by defendant and his girlfriend. McNair was then ordered out of the car, told to put his hands on the roof of the car, and patted down. Nothing was recovered from his person.

Meanwhile, Officer Maier was noting that there was "something funny" about defendant's abdomen, which was "odd-shaped." For safety, he ordered defendant out of the car at gunpoint, directing him to keep his hands in the air. Defendant complied, and Officer Maier patted him down, but found nothing.

Officer Maier next asked defendant why he had run to the car, and defendant explained that he had been getting some food. Because he had not seen defendant in possession of food containers during his observations, Officer Maier responded that he did not believe him. Defendant then said, "I just got a little something for my head," and gestured towards his watch pocket, from which Officer Maier proceeded to remove a small clear plastic bag containing what appeared to be cocaine. Defendant was then placed under arrest and taken to the sidewalk, where a more thorough search revealed a larger plastic bag of cocaine and $1,223 on his person.

The entire backup team participated in taking the four occupants of the vehicle into custody. While denying that the racial composition of the men in the car had served to enhance his suspicions, Officer Maier admitted on cross examination that he might have told defendant after his arrest that he should have left the group's one white male at home.

McNair was never told that he had made an illegal U-turn and was released from the precinct without a traffic summons. Ultimately, defendant was the only person charged with possessing the cocaine that forms the basis of this indictment.

Conclusions of Law

In its own words, the Court of Appeals has "stated, time and again, that the [police] stop of an automobile is a seizure implicating constitutional limitations" and will be upheld only when undertaken "pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime" (citations omitted). (People v. Spencer, 84 N.Y.2d 749, 752-753, 622 N.Y.S.2d 483, 646 N.E.2d 785 [1995] ). The proscription against pretextual stops, i.e., the use of a traffic violation as a means of effecting an otherwise impermissible stop, has long served as a corollary to our State's policies and constitutional standards. (See People v. Singleton, 41 N.Y.2d 402, 404, 393 N.Y.S.2d 353, 361 N.E.2d 1003 [1977] [absent probable cause or reasonable suspicion, stops are valid solely pursuant to "nonarbitrary, nondiscriminatory, uniform procedures, such as at roadblocks, checkpoints and weighing stations"]; People v. Sobotker, 43 N.Y.2d 559, 564, 402 N.Y.S.2d 993, 373 N.E.2d 1218 [1978] [reasonable suspicion must be based on more than a mere "hunch" or "gut reaction"]; People v. Ingle, 36 N.Y.2d 413, 420, 369 N.Y.S.2d 67, 330 N.E.2d 39 [1975] [stops which are "the product of mere whim, caprice, or idle curiosity" are prohibited]; see also People v. Troiano, 35 N.Y.2d 476, 478, 363 N.Y.S.2d 943, 323 N.E.2d 183 [1974] ).

The ruling of the Supreme Court in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), decided on June 10, 1996, has occasioned re-examination of pretextual stops in this State, leading to reconsideration of the New York rule by some courts. In contrast to that well-established prohibition against permitting the police to rely upon traffic violation stops as a means of investigating unrelated matters, the Whren Court ruled that a credible, objective traffic infraction foreclosed examination of the actual motivations of the individual officers who made the stop because "[s]ubjective [police] intentions play no role in ordinary, probable-cause Fourth Amendment analysis." (Id. at 1774).

Significantly, the Whren Court described its holding as consistent with its own decades-old decisions, citing, inter alia, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) and quoting Scott v. United States, 436 U.S. 128, 136, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978), where the Court stated, "Subjective intent alone ... does not make otherwise lawful conduct illegal or unconstitutional.... [T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action."

Thus, an analysis of whether and, if so, how, Whren may affect the New York law must recognize that the Whren Court did not view its pronouncement as constituting a new Federal standard. This is important because,...