MEMORANDUM & ORDER Defendant Tamaz Pasternak was indicted, on February 20, 2018, for conspiring to commit wire fraud in connection with a motor vehicle “title-washing” scheme, in violation of 18 U.S.C. §§1343 and 1349. Dkt. 31 (“Superseding Indictment”). On March 29, 2019, he moved, pursuant to Federal Rule of Criminal Procedure 12(b)(3)(C), to suppress physical evidence and statements he had made to state administrative officials. See Dkts. 72-1 (“Pasternak Decl.”); 72-2 (“Pasternak Mem.”); 75 (“Gov’t Opp’n”); 76 (“Pasternak Reply”); 80 (“Gov’t Sur-Reply”); 81 (“Pasternak Sur-Sur-Reply”). Now, the Court, having heard oral argument on June 7, 2019, and, for the reasons discussed below, denies Pasternak’s motion to suppress in its entirety.BackgroundOn June 13, 2017, while driving on the Goethals Bridge between New Jersey and Staten Island, Pasternak was pulled over by Officer Edward Benenati of the Port Authority Police Department (“PAPD”), who had checked Pasternak’s license plate number and discovered that the vehicle was listed as stolen. Gov’t Opp’n at 7. During the vehicle stop, Officer Benenati determined that Pasternak had no registration or other proof of vehicle ownership, was the subject of an outstanding arrest warrant, and that his driver’s license was suspended. Id at 8. On the strength of that information, he arrested Pasternak, impounded the car, and spoke to an investigator at the New York State Department of Motor Vehicles (“DMV”), who informed him that the car dealer associated with the license plate “had a revoked business license and was being investigated by multiple agencies.” Id.Three days later, on June 16, 2017, Officer Benenati had another run-in with Pasternak, the consequences of which Pasternak challenges on this motion. Officer Benenati received a call that Pasternak had come to the PAPD precinct on Staten Island near the Goethals Bridge to retrieve his car. When Officer Benenati arrived, “he saw a black 2013 Lexus…illegally parked in an active lane of traffic in front of the [precinct].” Id. He approached the Lexus as Pasternak exited the car on the driver’s side, leaving the keys in the ignition. Id. Officer Benenati asked Pasternak for proof of ownership and insurance for the Lexus but Pasternak, again, had neither. Officer Benenati ran the license plate number for the Lexus, which was listed as “suspended/stolen/lost.” Id. at 8-9. Armed with computer guidance that the Lexus was not lawfully on the public roadway, if not stolen, he impounded it and, following PAPD procedures, commenced an inventory search of its contents.In the back seat of the car, Officer Benenati found “numerous car titles loose and in a manila folder, including ‘open-backed’ titles — titles on which the seller or purchaser information has been left blank” and which Officer Benenati knew from experience “were often used by car dealers to avoid paying sales taxes on car sales.” Id. at 9. Upon discovery of the open-backed titles, he called the DMV once more. A DMV investigator informed him that Pasternak was the subject of “a wider investigation” and Officer Benenati’s call was then transferred to Senior Investigator Antoine Rainville, who ran a record search which revealed that the Lexus was a “salvage car with an Indiana title.” Id. This information was significant in Investigator Rainville’s ongoing investigation of title-washing schemes relating to the misrepresentation and sale of “salvage” vehicles at inflated prices under falsified titles. Of special note to Officer Benenati’s second stop of Pasternak, one scheme centered on the creation of fraudulent Indiana “rebuilt” titles, purportedly certified by fictitious Indiana state troopers and doctored with stickers to hide the “rebuilt” label, thus obscuring the true vehicle history.1 Id. at 2-6. Guided by the information gathered by Investigator Rainville, Officer Benenati was returning to the Lexus to continue his inventory search, alerted to the significance of any discovery of Indiana titles, when he encountered Pasternak attempting to remove a backpack from the trunk of the car. He took the backpack from Pasternak and searched it, finding more titles and a laptop. Id. at 9. Officer Benenati updated Investigator Rainville, and, at his instruction, seized the backpack and its contents. Id. at 10.Officer Benenati vouchered the seized items and turned them over to NYPD, who subsequently passed them along to the New York State DMV. Id. Pasternak states that he spent the next three months “attempting to recover [his] titles and keys,” which were seized as contents of the backpack, though he does not specify what those recovery efforts entailed. Pasternak Decl. 8. He was advised, though he does not indicate by whom, that he “could only obtain [the] property back if [he] went to Albany and met with [DMV] Officials there.” Id. 9. On September 25, 2017, he met with DMV officials in Albany in an effort to retrieve his property; however, he does not provide the names or exact roles of those officials. Id. 9. During the course of the meeting, Pasternak reportedly made statements to the officials that stickers had been purposefully placed over the “rebuilt” label on certain titles found in his possession in order to mislead customers. Pasternak Mem. at 2 (citing Criminal Complaint 16); see also Gov’t Opp’n at 5-6.On February 20, 2018, Pasternak was charged with conspiracy to commit wire fraud for his role in a scheme to “solicit[ ] customers to purchase rebuilt vehicles by advertising used vehicles for sale on Craigslist.org and fail[ing] to disclose that the vehicles for sale were actually rebuilt vehicles,” using “fraudulent State of Indiana titles that did not disclose that the vehicles associated with those titles were rebuilt vehicles.” Superseding Indictment 4. Pasternak now seeks to suppress the physical evidence seized on June 16, 2017, as well as his statements at the DMV on September 25, 2017.Standard of ReviewThe Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const. amend. IV. “To safeguard Fourth Amendment rights, the Supreme Court created an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial…. [including] both physical evidence and indirect products of unlawful searches.” United States v. Bershchansky, 788 F.3d 102, 112 (2d Cir. 2015) (internal citation and quotation marks omitted). “[I]t is a cardinal principle” that warrantless searches “are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions,” such as the inventory search exception. Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); see also Colorado v. Bertine, 479 U.S. 367, 371,107 S. Ct. 738, 93 L. Ed. 2d 739 (1987) (“[I]nventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment.”). On a motion to suppress, once the defendant “establishes a basis for his motion, the burden rests upon the Government to prove, by a preponderance of the evidence, the legality of the actions of its officers.” United States v. Wyche, 307 F. Supp. 2d 453,457 (E.D.N.Y. 2004). Even in the event of a Fourth Amendment violation, however, suppression is not automatic; it is “our last resort, not our first impulse.” Bershchansky, 788 F.3d at 112.Furthermore, notwithstanding that the right to be free from unlawful searches and seizures is a fundamental right drafted into the Bill of Rights by the Founders, “[n]ot every motion to suppress warrants an evidentiary hearing.” United States v. Townsend, No. 15-CR-653 (DLI), 2016 WL 3562055, at *2 (E.D.N.Y. June 23, 2016) (citing United States v. Watson, 404 F.3d 163, 166 (2d Cir. 2005)). An evidentiary hearing is ordinarily required “where a defendant ‘supports his motion with moving papers that are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.’” United States v. Miller, No. 18-CR-395 (NGG), 2019 WL 2088248, at *2 (E.D.N.Y. May 13, 2019) (quoting United States v. Barrios, 210 F.3d 355 (2d Cir. 2000) (unpublished table decision)). In contrast, a hearing is not required “if the defendant’s ‘moving papers did not state sufficient facts which, if proven, would have required the granting of the relief requested.’” United States v. Robinson, No. 16-CR-545 (ADS), 2018 WL 5928120, at *3 (E.D.N.Y. Nov. 13, 2018) (quoting United States v. Culotta, 413 F.2d 1343, 1345 (2d Cir. 1969)).DiscussionI. Evidentiary HearingAt threshold, Pasternak claims entitlement to an evidentiary hearing on his motion to suppress, contending that a factual dispute exists as to “the impoundment and inventory procedures of the [PAPD].” Pasternak Reply at 1. In response, the government submits a copy of the PAPD inventory procedure. See Dkt. 80-1 (“PAPD Procedure”). Pasternak does not challenge the Court’s consideration of the document, but, nonetheless, insists that various purported factual disputes remain regarding its interpretation and application.Turning to the substance of the defense challenge, Pasternak argues that the PAPD Procedure applied in the search of his vehicle is constitutionally deficient because it did not include a consent requirement for inventory searches performed in New York, which PAPD Procedure requires in such searches when performed in New Jersey.2 Closing his eyes to the split bi-state nature of the Port Authority and the separate nature of the laws of the respective states, he contends that the PAPD inventory search procedure “is neither uniform nor designed to meet the constitutionally required purposes” for inventory searches. Pasternak Sur-Sur Reply at 1. Pressing the nonuniformity point, he argues that the PAPD Procedure “is silent as to the degree of specificity required” in the itemization of property found within a vehicle, raising “the question as to whether an officer’s unbridled discretion in this regard…makes the entire procedure insufficiently standardized” to protect against selective enforcement. Id. at 2.Regardless whether these substantive arguments ultimately have merit, they do nothing to advance Pasternak’s threshold demand for an evidentiary hearing. There appears from the papers and oral argument no factual dispute as to what the PAPD Procedure is and what Officer Benenati did, to the extent that any of his acts or omissions are material to the constitutional issue, in performing his inventory search of Pasternak’s vehicle. All that is left on that score is a legal, not factual, question. Legal questions may at times be resolved with the aid of oral argument but very rarely do disputed questions of law require a full-blown evidentiary hearing.Next, apparently hoping to gin up a tangible dispute of fact, Pasternak tries to reclassify the Lexus search. He argues that Officer Benenati’s search “does not appear to have been undertaken pursuant to PAPD procedure” because Officer Benenati “stopped to make investigative phone calls in the middle of the search before even securing the car.” Id. Struggling to find some other claimed deviation from the norm, Pasternak tosses out the observation that “[t]he PAPD inventory form was never filled out [by Officer Benenati].” Id. But, notwithstanding Pasternak’s attempt to divert attention to other things Officer Benenati did or failed to do, the essential issues remain fixed; that is, whether the PAPD inventory search procedure required Officer Benenati to do an inventory search at all and whether his search of Pasternak’s vehicle itself was consistent with it.Clearly, by its terms, the PAPD Procedure applies “whenever a motor vehicle is to be impounded.” PAPD Procedure at 1. More importantly, when undiverted attention is fixed on Officer Benenati’s actual search and what Pasternak has to say about it, it is factually undisputed that there was a basis for the impoundment, given the listing of the vehicle as “stolen/lost” and Pasternak’s inability to present proof of ownership. Furthermore, the fact that no inventory form was filled out does not alter the fact that Officer Benenati performed the inventory search incidental to his impoundment of the Lexus. Pasternak’s argument that Officer Benenati’s phone calls to Investigator Rainville transformed the search from an inventory search into an investigative search may, if anything, raise legal questions, but certainly not questions of fact. See United States v. Nordlicht, No. 16-CR-640 (BMC), 2018 WL 705548, at *9 (E.D.N.Y. Feb. 2, 2018) (denying motion to suppress without evidentiary hearing where “[a]lthough the parties vigorously disagree about the propriety of the Government’s conduct, their dispute does not turn on contested facts”). Accordingly, Pasternak having failed to point to a disputed issue of material fact as to Officer Benenati’s search of the Lexus, the Court concludes that there is no need for an evidentiary hearing, and Pasternak’s request for one is denied.II. AnalysisA. Inventory Search3Returning to the substance of his legal arguments, Pasternak contends that the search of the Lexus was improper because Officer Benenati’s actions do not qualify as a permissible inventory search.4 He maintains that the PAPD Procedure is not sufficiently standardized to meet constitutional constraints on inventory searches, as it did not cabin Officer Benenati’s discretion to determine whether the papers found in the backseat should be itemized individually or collectively. See Pasternak Reply at 1-2 (citing Florida v. Wells, 495 U.S. 1,110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990)); Pasternak Sur-Sur-Reply at 2 (citing United States v. Lopez, 547 F.3d 364 (2008)).This argument misperceives the nature of the limits constitutional law impresses on inventory searches, grasping, instead, for a level of mechanistic granularity that the Supreme Court and Second Circuit have rejected. Inventory searches serve “three distinct needs: the protection of the owner’s property while it remains in police custody, the protection of the police against claims or disputes over lost or stolen property, and the protection of the police from potential danger.” Opperman, 428 U.S. at 369 (internal citations omitted). As the Supreme Court explained in Florida v. Wells, inventory procedures “should be designed to produce an inventory” without affording officers “so much latitude that inventory searches are turned into ‘a purposeful and general means of discovering evidence of crime.’” 495 U.S. at 4 (quoting Bertine, 479 U.S. at 376)). Officers may not exercise “uncanalized discretion,” yet, at the same time, because “there is no reason to insist that [such searches] be conducted in a totally mechanical ‘all or nothing’ fashion,” they “may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself.” Id. In light of these principles, the Wells Court concluded that not only are “policies of opening all containers or of opening no containers…unquestionably permissible,” but so are policies allowing “the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers’ exteriors.” Id.Applying Wells, the Second Circuit has held that “law enforcement officials may open closed containers as part of an inventory search so long as they act in good faith pursuant to ‘standardized criteria…or established routine,’” which may be shown by “written rules or regulations,” including those that “allow the searching officers sufficient discretion in deciding whether or not to open a specific container.” United States v. Thompson, 29 F.3d 62, 65 (2d Cir. 1994). Such policies are adequate to prevent the use of inventory searches as a ruse for the discovery of evidence.Here, the PAPD Procedure sets forth “standard predetermined and nondiscretionary” steps to be followed “whenever a motor vehicle is to be impounded.” PAPD Procedure at 1. These steps specifically include the inflexible direction that officers “shall search the interior of the vehicle thoroughly” when conducting such searches.5 Id. The PAPD Procedure goes on to direct that such searches “should include any area that may contain valuables,” including but not limited to areas around the seats and the trunk. Id. at 1-2.Cutting to the core of Pasternak’s argument, this text makes plain that Officer Benenati was required to conduct an inventory search of the impounded Lexus, extending to its backseat and trunk. The PAPD Procedure also provides that “[a]ny closed container may be opened and its contents inventoried.” Id. at 2. Although this language does not provide an inflexible direction to open all containers, it comports with Fourth Amendment protections insofar as Wells permits the opening of closed containers in order to discern their contents for inventory purposes.6 As the government observes, Officer Benenati’s cursory review of the folder’s contents complied with both PAPD Procedure and the constitutional purposes for which inventory searches are authorized, as the folder could have contained valuables “such as cash.” Gov’t Sur-Reply at 2. It did, in fact, contain valuables, given that vehicle title documents, as Pasternak himself emphasizes, have significant value. See Pasternak Mem. at 6 (complaining of seizure of “property essential to his livelihood”). Moreover, Pasternak’s focus on the opening of the manila folder is, for all practical purposes, a red herring, since he does not dispute Officer Benenati’s assertion that there were multiple open-backed titles loose on the backseat of the Lexus, i.e., outside the folder and in plain view, which would have necessarily been observed as part of the mandated inventory search.Pasternak’s attack, apparently designed to whittle away at least a portion of the cache of inculpatory documents seized in the course of Officer Benenati’s search, rests on his objection to what he labels Officer Benenati’s excessive specificity in the inventorying of the allegedly fraudulent documents hidden in the manila envelope. As with his more general lament, this objection also misconstrues Wells, as explained by the Second Circuit in United States v. Lopez. Attempting to make his argument more specific by asserting that Officer Benenati could have “simply recorded the papers as ‘personal papers in a manila envelope’…without examining them,” Pasternak helps undermine his own argument. Pasternak Reply at 2. That is because it is, essentially, the same argument raised by Lopez regarding whether an inventory must produce “an itemization of every object found in the car, or whether items of small value may be omitted or grouped under a general category.” Lopez, 547 F.3d at 370-71. As the Second Circuit observed, Wells’s standardized policy requirement does not govern “every detail of search procedure,” nor does it require “uniformity as to whether insignificant items of little or no value must be explicitly itemized.” Id. at 371. In other words, the constitutional requirement of a standardized inventory search policy does not hog-tie the searching officer’s judgment as to how specific or general the inventory list should be when multiple small items are seized.7 But, in the teeth of that recognition of discretion, Pasternak advances an even narrower reading of Wells than the one rejected in Lopez, i.e., one that would have compelled Officer Benenati to discern that the items were papers while making no mind of the large print stamped on those papers indicating that they had economic value because they were open-backed vehicle titles. See Gov’t Sur-Reply Ex. B (images of title documents). A law enforcement officer need not close his eyes to objects plainly visible in a place where he has a right to be, i.e., inside the manila folder in the Lexus Pasternak illegally parked and which was being inventoried for the purpose of impoundment. See Washington v. Chrisman, 455 U.S. 1, 5-6,102 S. Ct. 812, 70 L. Ed. 2d 778 (1982) (“The ‘plain view’ exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be.”).Most crucially, moreover, as the Lopez court held, even when a standardized inventory is performed under circumstances “that suggest a probability of discovering criminal evidence,” such that “the officers will inevitably be motivated in part by criminal investigative objectives,” this “motivation…cannot reasonably disqualify an inventory search that is performed under standardized procedures for legitimate custodial purposes.” 547 F.3d at 372. As the circuit explained, “if a search of an impounded car for inventory purposes is conducted under standardized procedures, that search falls under the inventory exception to the warrant requirement of the Fourth Amendment, notwithstanding a police expectation that the search will reveal criminal evidence.” Id. As discussed above, Officer Benenati’s search was conducted for inventory purposes and under standardized procedures. The Court, therefore, also rejects Pasternak’s argument, advanced at oral argument, that Officer Benenati’s phone call to the DMV after discovering the open-backed titles is prima facie hindsight evidence that the inventory search was a mere ruse for a warrantless investigative search — an argument further undermined by the undisputed fact that Officer Benenati called the DMV only after discovering the suspicious titles.The actual facts of the search failing him, Pasternak tries a hypothetical turn. He contends that, because the manila folder was a “highly portable” item that he could have removed from the Lexus, Officer Benenati should not have included it and its contents in the inventory search. Pasternak Reply at 2-3. Tellingly, he does not claim that he ever asked to remove any items from the car prior to the inventory search — only that he offered to have the car towed rather than have it impounded, a request that Officer Benenati was authorized to reject. See Pasternak Decl. 5 (“I offered to have the Lexus towed and the officer said, ‘no.’”). Apparently, Pasternak strains to argue that had he made such a request and had Officer Benenati denied it, the denial would unmask the government’s disguise of an investigative search in the cloak of an inventory search, which, moreover, would unmask the inventory search actually conducted. But, suppression motions are directed on actual facts, not make-believe facts. Accordingly, with no facts showing any impropriety in the inventory search that led to the seizure of the title documents, the motion to suppress them is denied.8B. Pasternak’s BackpackDefendant also challenges the search and seizure of his backpack from the trunk of the Lexus, arguing that probable cause was reliant on the discovery of the open-backed titles, and, as a result, the validity of the backpack search “depends entirely on the validity of the earlier [inventory] search.” Pasternak Reply at 4. The Court has found the inventory search to be valid, as discussed above, and Pasternak concedes that the collective knowledge doctrine applies here. See Pasternak Reply at 4. Given Investigator Rainville’s relevant knowledge of the ongoing criminal investigation into an Indiana title-washing scheme, imputed to Officer Benenati under the collective knowledge doctrine, Officer Benenati was permitted to search the backpack pursuant to Investigator Rainville’s directive. See United States v. Colon, 250 F.3d 130,135 (2d Cir. 2001) (“[A]n arrest or search is permissible where the actual arresting or searching officer lacks the specific information to form the basis for probable cause or reasonable suspicion but sufficient information to justify the arrest or search was known by other law enforcement officials initiating or involved with the investigation.”). Accordingly, the motion to suppress is denied as to Pasternak’s backpack and its contents.C. Statements to DMVLastly, Pasternak seeks to suppress his September 2017 statements made to DMV officials, setting his argument on the ground that “a statement can…be the product of an illegal seizure of property just as it can be the fruit of an illegal seizure of the person,” and the seizure of his backpack containing “property essential to his livelihood…in effect represented a seizure of his person.” Pasternak Mem. at 5-6 (citing United States v. Place, 462 U.S. 696,103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983); United States v. Shetler, 665 F.3d 1150 (9th Cir. 2011)). Since the Court has found no impropriety regarding the seizure of Pasternak’s backpack, this argument, hinged to a finding adverse to the government on the seizure of the backpack, fails.In any event, this case does not remotely resemble United States v. Place, in which the Supreme Court addressed the seizure of personal luggage from a traveler for the purpose of a drug dog inspection, which “intrude[d] on both the suspect’s possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary….effectively restrain[ing] the person since he [was] subjected to the possible disruption of his travel plans in order to remain with his luggage or to arrange for its return.” Place, 462 U.S. at 708. Even the basic timeline of events — in which Pasternak spoke to DMV investigators over three months after the seizure of his backpack — shows that the analogy to Place is untenable. Since Pasternak presents no other argument for suppression of his statements, that branch of the motion is denied as well.ConclusionIn line with the foregoing, Pasternak’s motion to suppress physical evidence seized in June 2017 and his statements to DMV officials in September 2017 is denied in its entirety.So Ordered.Dated: June 13, 2019Brooklyn, New York
