People v. Lloyd

• Decision Date: 16 November 1990
• Citation: 167 A.D.2d 856,562 N.Y.S.2d 257
• Parties: PEOPLE of the State of New York, Appellant, v. Richard LLOYD, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 257

562 N.Y.S.2d 257

167 A.D.2d 856

PEOPLE of the State of New York, Appellant, v. Richard LLOYD, Respondent.

Supreme Court, Appellate Division Fourth Department.

Nov. 16, 1990.

Howard R. Relin by Elizabeth Clifford, Rochester, for appellant.

Thomas Corletta, Rochester, for respondent.

Before DILLON, P.J., and CALLAHAN, GREEN, PINE and BALIO, JJ.

MEMORANDUM:

Defendant was charged with two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1], [12].

The suppression court granted defendant's motion to suppress evidence obtained as a result of a police officer's search of defendant's automobile. It is not disputed that the stop and subsequent arrest of defendant for aggravated unlicensed operation were proper. Following the arrest, the police officer began a vehicle inventory search. Upon opening the trunk, the officer discovered paraphernalia commonly associated with drug dealing. He then proceeded to search the interior of the car where, upon pulling out the rear seat, he found a clear plastic bag containing a white rock substance which was later shown to be cocaine. After the discovery of the cocaine, defendant made several incriminating statements.

At the suppression hearing, the sole justification offered by the police officer for pulling out the rear seat was that he did so as part of an inventory search. The officer acknowledged, however, that the Rochester Police General Order (G.O. 511) governing inventory searches does not set forth the areas which may properly be searched. He further testified that determining the extent of the search is left to the officer's discretion.

The hearing court suppressed both the cocaine and defendant's incriminating statements. The court found that the officer's conduct in removing the rear seat of defendant's vehicle exceeded the bounds of an inventory search and constituted a "search for evidence". We agree.

Initially, we note that the only argument offered by the People at the hearing to justify the search is that the cocaine was discovered as part of a valid inventory search. It is well settled that an appellate court may not uphold a police action on a theory not argued before the suppression court (see, People v. Johnson, 64 N.Y.2d 617, 619, n. 2, 485 N.Y.S.2d 33, 474 N.E.2d 241; People v. Dodt, 61 N.Y.2d 408, 416, 474 N.Y.S.2d 441, 462 N.E.2d 1159; People v. Knapp, 52 N.Y.2d 689, 699, 439 N.Y.S.2d 871, 422 N.E.2d 531 [Jasen, J., concurring]; People v. Dickerson, 149 A.D.2d 985, 986, 547 N.Y.S.2d 258).

While the police are entitled to search an impounded vehicle to inventory its contents (see, South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000; People v. Gonzalez, 62 N.Y.2d 386, 388, 477 N.Y.S.2d 103, 465 N.E.2d 823), the search must be reasonable and must be conducted pursuant to standardized procedures (see, Florida v. Wells, 495 U.S. ----, 110 S.Ct. 1632, 109 L.Ed.2d 1; Colorado v. Bertine, 479 U.S. 367, 374, n. 6, 107 S.Ct. 738, 742 n. 6, 93 L.Ed.2d 739; Illinois v. Lafayette, 462 U.S. 640, 643-644, 648, 103 S.Ct. 2605, 2608-2609, 2611, 77 L.Ed.2d 65; South Dakota v. Opperman, supra, 428 U.S. at 374-375, 96 S.Ct. at 3099-3100; People v. Townsend, 152 A.D.2d 515, 517, 544 N.Y.S.2d 349, appeal dismissed 76 N.Y.2d 746, 558 N.Y.S.2d 484, 557 N.E.2d 777). "The underlying...