People v. Mercado

• Decision Date: 28 August 2014
• Citation: 992 N.Y.S.2d 12,120 A.D.3d 441,2014 N.Y. Slip Op. 06010
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeffrey MERCADO, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 441

992 N.Y.S.2d 12

2014 N.Y. Slip Op. 06010

The PEOPLE of the State of New York, Respondent,

v.Jeffrey MERCADO, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Aug. 28, 2014.

Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), for respondent.

FRIEDMAN, J.P., ACOSTA, SAXE, FEINMAN, GISCHE, JJ.

Judgment, Supreme Court, New York County (Bruce Allen, J. at suppression hearing; Thomas Farber, J. at plea and sentencing), rendered April 9, 2013, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of 3 1/2 years, affirmed.

The court properly denied defendant's suppression motion. The totality of the information available to the police justified their request to search the trunk of defendant's car, and defendant validly consented to that search.

While patrolling a crime-prone neighborhood, in an unmarked car, nearing midnight on October 4, 2012, the arresting officer and his partner observed defendant in the driver's seat of a vehicle illegally parked near a fire hydrant. Defendant's companion exited the car and went briefly inside a nearby deli. While defendant was alone, an unidentified man approached the car. Defendant immediately exited the car and the officer observed the men having a very brief and seemingly wordless interaction in which they shook hands and either hugged or chest bumped each other. Although the arresting officer did not see anything exchanged between them, his suspicion was aroused about the possibility of a drug transaction.

Defendant's original companion returned and the two men drove off. The police followed the car and they observed defendant's companion lean forward in a manner suggestive of secreting something under his seat. They then observed defendant committing a second traffic violation and lawfully stopped the car, asking defendant for his license and registration. Defendant who was “sweating profusely” and crying, told police he did not have a license and that he did not want to go back to jail. Defendant could not produce any form of identification, and the car registration belonged to someone other than defendant or his companion.

At the police officer's request, defendant exited the vehicle; he was still visibly agitated and repeated that he did not want to go back to jail. The arresting officer patted defendant down and found nothing. Defendant was then asked by the officer whether he and the car were “straight.” After defendant confirmed that they were, the arresting officer asked for defendant's consent to search the car, which was given. The interior of the car was searched and nothing was found. The arresting officer then asked defendant whether he could search the trunk of the car, and defendant consented to that search as well. Over 120 glassine envelopes of heroin were ultimately discovered in the trunk, and defendant admitted they belonged to him.

Once defendant revealed that his license was suspended, the officer had probable cause to arrest him for a misdemeanor (Vehicle and Traffic Law [VTL] § 511) and was entitled to conduct a search of his person incident to the arrest ( see People v. Troiano, 35 N.Y.2d 476, 363 N.Y.S.2d 943, 323 N.E.2d 183 [1974] ). In order to ask defendant for his consent to search the car, however, the police needed a founded suspicion that criminality was afoot (People v. Garcia, 20 N.Y.3d 317, 324, 959 N.Y.S.2d 464, 983 N.E.2d 259 [2012]; People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). We conclude that based on the totality of known circumstances, the police had a founded suspicion that criminality was afoot. That suspicion justified a common-law inquiry in the form of a request for defendant to consent to a search of the car, which also included the subsequent request to search the trunk ( see People v. Battaglia, 86 N.Y.2d 755, 756, 631 N.Y.S.2d 128, 655 N.E.2d 169 [1995]; People v. Loretta, 107 A.D.3d 541, 969 N.Y.S.2d 1 [1st Dept.2013], lv. denied22 N.Y.3d 1157, 984 N.Y.S.2d 641, 7 N.E.3d 1129 [2014] ). While nervousness, by itself, does not establish a founded suspicion of criminality (Garcia, 20 N.Y.3d at 324, 959 N.Y.S.2d 464, 983 N.E.2d 259), here it was coupled with other relevant factors, including the observed interaction between defendant and an unidentified man, defendant's admission that he was driving with a suspended license, his complete inability to provide any form of identification, that the car's registration was in the name of someone other than defendant or his passenger, and defendant's expressed concern that he would face reincarceration for a VTL infraction ( see People v. Devone, 15 N.Y.3d 106, 114, 905 N.Y.S.2d 101, 931 N.E.2d 70 [2010]; People v. Major, 115 A.D.3d 1, 4–5, 978 N.Y.S.2d 165 [1st Dept.2014] ).

The request for defendant's consent to search the trunk of the car was reasonably related in scope to the circumstances that justified the interference in the first place (see People v. William II, 98 N.Y.2d 93, 98, 745 N.Y.S.2d 792, 772 N.E.2d 1150 [2002] ). Thus, the same founded suspicion that permitted the police to ask for consent to search the car extended to the request to search the trunk ( see Battaglia, 86 N.Y.2d at 756, 631 N.Y.S.2d 128, 655 N.E.2d 169). The Court of Appeals' decision in People v. Battaglia is directly on point. In Battaglia, the Court of Appeals held that a vehicle stopped at 3:00 a.m. for proceeding the wrong way down a one-way street, coupled with the driver producing a false identification, supported a finding that criminality was afoot sufficient to justify a common-law inquiry in the form of a request for consent to search the defendant's vehicle, including the trunk ( id.). While defendant is correct that any concern the police may have had about some illegal object hidden under the passenger seat dissipated after the interior of the car was searched by the police, the other factors still present, which included driving without a license, identification and apparent connection to the registered owner of the car, supported a basis to request consent for a more thorough search of the vehicle. Contrary to the conclusion reached by the dissent, there was more than continued nervousness to support the request to search the trunk.

We also find that the People satisfied their heavy burden of proving the voluntariness of defendant's consent ( see generally People v. Gonzalez, 39 N.Y.2d 122, 128, 383 N.Y.S.2d 215, 347 N.E.2d 575 [1976] ). In determining whether the consent was voluntary or coerced, the court considers the circumstances present, including whether the consent was given while the individual was in police custody, how many officers were present, the personal background of the consenter, including his age and prior experience with the law, whether the consenter offered resistance and whether the police advised the consenter of his right to refuse to consent (id. at 128–31, 383 N.Y.S.2d 215, 347 N.E.2d 575; Matter of Daijah D., 86 A.D.3d 521, 927 N.Y.S.2d 342 [1st Dept.2011] ). No one circumstance is determinative of the voluntariness of consent (39 N.Y.2d at 128, 383 N.Y.S.2d 215, 347 N.E.2d 575). The suppression court found that the two officers testified credibly. At no time before the searches did either of the only two officers present draw their guns. The officers did not handcuff the defendant or his traveling companion, nor did they threaten defendant with arrest or actually arrest him before obtaining his consents. Defendant admitted to having prior contact with the criminal justice system. Although defendant appeared to be very nervous, he was cooperative, alert and offered no resistance to any of the actions being taken by the police before he gave his consents. The police officer's response that defendant “wasn't necessarily going back to jail” to defendant's repeated expressed concern about going to jail again was not an implicit threat that he would go to jail unless he gave consent to a search of the car ( see People v. Sora, 176 A.D.2d 1172, 1174, 575 N.Y.S.2d 970 [3d Dept.1991]lv. denied79 N.Y.2d 86, 580 N.Y.S.2d 736, 588 N.E.2d 771 [1992]; People v. Fillion, 160 A.D.2d 538, 554 N.Y.S.2d 188 [1st Dept.1990], cert. denied498 U.S. 1068, 111 S.Ct. 786, 112 L.Ed.2d 848 [1991] ).

We perceive no basis for reducing the sentence.

All concur except ACOSTA, J. who dissents in a memorandum as follows:

ACOSTA, J. (dissenting).

I would reverse, vacate the plea and sentence, grant defendant's motion to suppress to the extent of suppressing the physical evidence found in the trunk and statements defendant made to the police after the officer asked if he could search the trunk, and remand for further proceedings. While the facts that defendant committed a traffic infraction and hugged another man with no indicia of a drug transaction being committed, that a passenger in the car made somewhat furtive movements, and that defendant was nervous upon being stopped and said he did not want to go back to jail may have...