People v. Perez

• Decision Date: 13 April 1989
• Citation: 149 A.D.2d 344,539 N.Y.S.2d 750
• Parties: The PEOPLE of the State of New York, Appellant, v. Emilio PEREZ, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 750

539 N.Y.S.2d 750

149 A.D.2d 344

The PEOPLE of the State of New York, Appellant, v. Emilio PEREZ, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

April 13, 1989.

T.S. Sweeney, appellant.

Before KUPFERMAN, J.P., and ROSS, ROSENBERGER, SMITH and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (David Levy, J.), entered March 3, 1987 which granted defendant's motion to suppress physical evidence and statements made at the time of his arrest (CPL article 710), affirmed.

Defendant was arrested after the car in which he was the passenger, a late model BMW, was stopped by the police. The car was observed to lack a front license plate. When the police followed the vehicle for a period of approximately 30 seconds from a distance estimated to be only ten feet, with no intervening traffic, the car was further observed to be lacking a rear license plate.

After the BMW stopped, with the police vehicle (a medallion taxi cab) close behind, defendant exited from the passenger side holding a black and gold plastic bag, looked at the officers in the taxi, and walked quickly away. A police officer, in civilian attire but wearing his badge around his neck and holding a police radio, asked defendant repeatedly to stop, in both Spanish and English, but defendant continued to walk a distance of 30 feet from the car before the pursuing officer caught up with him.

Defendant appeared nervous and was "fidgeting." When the police officer saw defendant place the plastic bag he was holding under his left arm, the officer became apprehensive and felt the bag, allegedly detecting something hard inside. He took the bag from defendant and, upon inspection, found that it held a clear plastic bag containing a white substance, later determined to be two pounds of cocaine. The defendant and the driver were then placed under arrest.

On the way to the precinct house, defendant told the police that the driver knew nothing about the package. The People allege that not until the vehicle was inspected at the precinct house did the arresting officer notice that a temporary New Jersey license was affixed to the rear window of the BMW.

The hearing court found that the driver of the BMW stopped of his own accord, that the vehicle had a valid temporary license and that the license was clearly seen by the arresting officer. The court further determined that defendant's actions in exiting the vehicle and walking away did not give rise to a reasonable suspicion that defendant was engaged in criminal activity. The court therefore suppressed the evidence seized and the statements made by defendant before and after his arrest.

The People do not dispute that the BMW was validly registered and that the temporary license was properly affixed to the vehicle. Nor do the People contend that any infraction of the Vehicle and Traffic Law was committed. Therefore, had the driver of the vehicle not stopped of his own accord, it is clear that there would have been no basis for the police to stop the car. The finding of the court below that the arresting officer saw the temporary license is entirely consistent with the testimony adduced at the hearing and will not be set aside (People v. Mendez, 75 A.D.2d 400, 404, 430 N.Y.S.2d 57; People v. Armstead, 98 A.D.2d 726, 469 N.Y.S.2d 137). While a routine traffic stop may...