People v. Velez

  This criminal matter was commenced by the filing with Hudson City Court of a felony complaint alleging that on December 11, 2017 the defendant violated NYS Penal Law §220.16(1), Criminal Possession of a Controlled Substance in the Third Degree, a B felony. At the time of arraignment, the defendant entered a plea of not guilty. Thereafter the matter was divested to County Court. One year later, by order dated December 10, 2018, County Court returned the matter to Hudson City Court pursuant to CPL 180.40 for “reconsideration of the action to be taken¹.” No further details were provided. Thereafter the People filed a prosecutor’s information superseding the felony charge with a charge of the alleged violation of NYS Penal Law §220.03, the A misdemeanor of Criminal Possession of a Controlled Substance in the Seventh Degree.The defendant was arraigned on the superseding prosecutor’s information and entered a plea of not guilty. Thereafter an omnibus motion was made by the defendant, which included a request for the suppression of the evidence claiming there was no probable cause to stop and search the car where allegedly the controlled substance was found, or in the alternative, for a probable cause hearing to further develop the issue.By decision of this court dated January 12, 2019, a hearing was ordered to determine if the defendant’s Fourth Amendment Rights have been violated and therefore, the evidence seized must be suppressed pursuant to Mapp v. Ohio, 367 US 463. On February 28, 2019 a Mapp Hearing was conducted.Findings of FactAt the hearing, the following facts and allegations were presented. On December 5, 2017, the Honorable Richard M. Koweek signed a search warrant authorizing the search of two residences and two individuals. This included the person of Antonio Velez, the defendant herein, for the purpose of searching and seizing various property including heroin. The application for the search warrant alleged probable cause for the issuance of the warrant. The search warrant required that the search be conducted within ten days of December 5, 2017. Since the search was conducted on December 11, 2017 it was conducted within the search warrant’s effective timeframe.Columbia County Sheriff’s Department Deputy Merante testified that on December 11, 2017, while he was conducting surveillance as part of the planned execution of the subject search warrant, he observed an Acura two-door sedan parked in front of the surveilled residence. He further testified that as the Columbia County Sheriff’s Department vehicles were pulling up to execute the search warrant, a male exited the building, entered the Acura and drove away. The deputy testified that he then notified the perimeter patrol that a vehicle was leaving.Columbia County Sheriff’s Department Criminal Investigator Anderson testified that on December 11, 2017 he was conducting surveillance with an unmarked car and he was accompanied by a deputy in the car. He further testified that he received a radio message that a black two-door Acura had left the surveilled residence. Upon observing the vehicle, the investigator testified that he followed the car while continuously observing the vehicle. The deputy accompanying the investigator identified the operator of the car as the defendant. At no time did the investigator see anyone other than the defendant enter or exit the vehicle.The investigator further testified that he could not tell whether the driver was wearing a coat or jacket. He went to state that at one point the subject vehicle parked, the operator left the vehicle, went into a house, and after two minutes, the subject got back into the vehicle and continued to drive until he got to the parking lot of 325 Columbia Street. The investigator testified that the operator of the vehicle then exited the vehicle in the parking lot and stood at the back of the car (the trunk area). The investigator testified that he had kept his eyes on the defendant until another police vehicle arrived. The investigator further testified that he did not see anyone else enter or place anything in the vehicle.Investigator Anderson testified that he found on the front passenger seat of the vehicle a black puffy coat. He further testified that he found three bindles (30 glassine envelopes) of what appeared to be heroin inside the right front pocket of the coat. The investigator stated that the defendant was not under arrest at that time although he was in custody when the search of the coat was conducted. Investigator Anderson further stated that when the defendant left the vehicle, he was not wearing a coat, that the vehicle was not owned by the defendant and that the search was not conducted as an inventory search or a search pursuant to an arrest, but at the request of a senior investigator.Thereafter Columbia County Sheriff’s Department Criminal Investigator Logue took the witness stand. He testified that on the evening of December 11, 2017 he was assigned to assist with the execution of the subject search warrant.He further testified that on December 11, 2017 he interacted with the defendant while the defendant was standing to the rear of a two door Acura in the parking lot at the 325 Columbia Street. He further testified that he approached the defendant, placed defendant in handcuffs and in detention, and advised the defendant that he was being detained as a result of the execution of a search warrant of his person based upon a drug investigation. The investigator observed that the defendant while standing outside the car was not wearing a coat, however the witness could not recall what the weather was at that time. He stated that only one coat was found in car. Investigator Logue also testified that the car the defendant was driving was registered to another party but was lent to the defendant. Prior to that evening, the investigator became aware that the defendant’s license was suspended.ArgumentIn support of the defendant’s contention that the evidence seized should be suppressed, defense states that the defendant was standing in the parking lot of 325 Columbia Street, Hudson, New York, talking on his cell phone, when he was approached by Hudson Police who placed him in handcuffs and searched the vehicle that he had been driving earlier that evening. Defense further states that the defendant was neither the owner of the searched vehicle nor the owner of the jacket in which the heroin was found.Defendant further contends that the search of the parked vehicle was unlawful because the police did not have probable cause to search the vehicle. Defense argues that the search warrant’s authorization to search the defendant’s “person” does not extend to a search of the vehicle (and the coat found in the vehicle). Therefore, since the seized heroin was obtained unlawfully by the prosecution, it must be suppressed as the fruit of an illegal search.Defendant has brought to the court’s attention that the arrest report states that the defendant was arrested following a traffic stop, however there is no indication in the arrest report upon what basis the defendant was stopped. The defendant alleges in his affidavit in support of his omnibus motion that he was charged with aggravated unlicensed operation of a motor vehicle at the time of his arrest, however this court has no record of the charge being filed with this court. The defendant goes to further argue that search of the vehicle was not predicated sufficiently and therefore any evidenced obtained from the stop must be suppressed.Defendant has further argued that any presumption of possession by the defendant of the contraband is rebutted by defendant’s affidavit in which he attests that he was not the owner of the searched vehicle or the jacket that was found in the vehicle (containing the heroin).The People assert that the defendant was under police surveillance from the time he allegedly left the surveilled residence. The People further state that since the defendant had a suspended license, the police had reason to stop and detain the defendant. The People add that it was within the police’s discretion not to charge him with a traffic offense.Conclusions of Law and Reason for DeterminationUpon review of the application for the search warrant, the court finds that the search warrant was properly issued by Judge Koweek having reasonable cause to issue same.The court finds the testimony of the witnesses at the Mapp Hearing credible.Therefore, the only issue of law before the court regarding the search warrant is whether its authorization to search of “the person” of the defendant included the search of a coat found on the passenger seat of the vehicle the target of the search warrant was observed operating.The People have argued that logic would dictate that the coat that was found on the passenger seat was being worn by the defendant and he only removed coat when he stopped the vehicle in the parking lot and got out. The court takes judicial notice that in Hudson on December 11, 2017, the high temperature was 34øF and the low was 24øF.Taking into consideration that only one coat was found in the vehicle, it would not be a giant leap of logic to believe that the coat that was found was likely worn by the defendant prior to exiting the vehicle. However, the question at bar regarding the search warrant is whether that is enough to extend to scope of the search warrant of the defendant’s person to the coat that he was not wearing at time of execution of the search warrant.While searches of buildings can include “curtilage”² no such extension exists regarding the search of a person. It should be noted that the application for the search warrant did not request and the search warrant did not include the search of a vehicle as provided for in CPL §690.15[1][b].Considering the foregoing, it is held that the search warrant did not extend to the vehicle that the defendant was driving. Thus, the search of the coat was a warrantless search. As such, the court now must decide whether a warrantless search is permissible under the facts and circumstances in this matter.Being a warrantless search, the court focus is on the defendant’s Fourth Amendment Rights³ and if the search and seizure of the alleged heroin from the defendant’s coat violated his Fourth Amendment rights. The court also is aware of the broad and sweeping automobile exception to the warrant requirement of the Fourth Amendment. Therefore, the court must answer the question, was the search and seizure of the alleged heroin a permissible warrantless search under the automobile exception?The New York Court of Appeals has stated that the automobile exception arises where circumstances giving rise to probable cause to arrest the driver or passenger of a vehicle also give rise to probable cause to support the belief that the automobile contains contraband.⁴Under the automobile exception an officer who possesses probable cause to believe that evidence of a crime will be found in a vehicle may conduct a warrantless search of the vehicle and of all containers located within the vehicle that may hold the item sought.⁵ The critical issue under the automobile exception is the existence of probable cause to believe that contraband or other evidence of a crime will be found in the vehicle.⁶In the U.S. Supreme Court case of California v. Acevedo, 500 U.S. 565 (1991), the court held that, “[p]olice, in a search extending only to a container within an automobile, may search the container without a warrant where they have probable cause to believe that it holds contraband or evidence” citing Carroll v. United States, 267 U. S. 132.⁷ Here, Inspector Logue had reason to believe that the defendant was operating the vehicle without a license and was a target of a heroin distribution investigation. There was adequate reasonable cause to believe that the defendant was involved in heroin dealing, based upon the allegations contained in the application for the search warrant as well as the results of police surveillance. The seized contraband was not hidden in the vehicle but was found in a pocket of a coat in plain view, i.e. on the passenger seat of the carAs to the specific question of whether the automobile exception can apply to the search of the coat found in a car, the answer in the affirmative can be found in People v. Belton.⁸ In Belton, a car was stopped by police for speeding. Smelling marijuana, the officer ordered the defendant and the other passengers to step out for pat-down searches. The officer also searched the defendant’s jacket located in the back seat and found cocaine. The constitutionality of the search of the defendant’s jacket was affirmed under the automobile exception, finding that independent probable cause existed that evidence of a crime (i.e. illegal drugs) would be found in the car.Here, taking into consideration that the defendant was the target of an imminent execution of a search warrant of his person based upon allegations of drug dealing, along the fact while being surveilled he was seen operating a motor vehicle with a suspended driver’s license, and taking into consideration that it is undisputed that he was standing out in cold weather without a coat in a parking lot when approached by police, all gives rise to an adequate basis for probable cause that car (and possibly the coat) held contraband or evidence.Therefore, based upon the sworn statement of Investigator Logue contained in the application for the search warrant, the testimony of the witnesses, and the evidence entered into evidence at the Mapp Hearing, the court finds that the Columbia County Sheriff’s Department had reasonable cause to believe that contraband may have been in the searched vehicle.Considering the foregoing, the court finds that the search and seizure of the alleged heroin found coat on the passenger seat of the subject vehicle was a legal search and therefore there is no basis to suppress its admission at trial.As to the issue of whether the coat belonged to the defendant, that is an issue left to the jury at trial.The foregoing constitutes the opinion, order and decision of this Court.Dated: April 2, 2019Hudson, New York