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The PEOPLE of the State of New York, Plaintiff, v. Anthony J. CHANEY, Defendant.
Defendant has been indicted for criminal possession of a controlled substance in the fourth degree, criminal possession of a controlled substance in the seventh degree, and failure to keep right. The People have filed a second felony information and a persistent felony information. The controlled substances were located by law enforcement personnel after a traffic stop initiated after defendant, allegedly, failed to report to a United States customs agent after crossing the border from Canada.
By Decision and Order filed March 1, 2019, Hon. Derek P. Champagne scheduled a Huntley hearing, as to the voluntariness of any written or oral statements alleged to have been made by defendant to law enforcement, and a Mapp hearing to determine whether property seized from defendant was obtained unlawfully. Subsequently, Judge Champagne recused himself, and the matter was assigned to this Part. The suppression hearing was held on May 14, May 16, June 6, and June 25, 2019.
Written summations were submitted by both the People and defendant. A “Supplemental Summation Statement” and a “Rebuttal to Defendant's Closing Arguments” were filed by the defendant and the People, respectively. The litigants also submitted a stipulation regarding certain facts that was signed by Assistant District Attorney, Kelly Poupore, Esq. on July 12, 2019, and by defendant's counsel, William Montgomery, Esq., on July 15, 2019.
In order to properly address the lawfulness of the stop, it is first necessary to understand the unique territorial boundaries affecting northern Franklin County, as discussed by the witnesses and prior court decisions.
Canada is directly north of Franklin County. Although the entirety of Franklin County is south of the St. Lawrence River, there are portions of Canada that are also located south of the St. Lawrence River. A portion of northern Franklin County includes the territory of the St. Regis Mohawk reservation. The St. Regis Mohawk tribal council has established a St. Regis Mohawk Tribal Police Department pursuant to Indian Law § 114.
The Mohawk nation extends into the provinces of Quebec and Ontario, in Canada. The Canadian portion of the Mohawk nation has its own police department, known as the Akwesasne Mohawk Police Service. The Akwesasne Mohawk Police Service provides law enforcement services throughout the Canadian portion of the Mohawk nation, including the village of St. Regis, which is located on Mohawk territory in Quebec. The tribal land in Canada is known as Akwesasne. The village of St. Regis, in Akwesasne, is bounded on three sides by the St. Lawrence and St. Regis Rivers. The only vehicular access to this small Canadian village is through the St. Regis Mohawk territory in Franklin County (see United States v. Lazore, 90 F Supp 2d 202 (ND NY 2000).
As a result, officers of the Akwesasne Mohawk Police Service often travel through the portion of the Mohawk nation located in the United States, in order to serve its community in Canada. Residents of Akwesasne, in Canada, and of the St. Regis Mohawk territory 1 , in the United States, often pass freely across the American and Canadian border, as the boundary is often viewed as culturally irrelevant. Indeed, markers intended to alert travelers when they are leaving or entering another country have been removed, ostensibly by vandals, and never replaced. The only way that travelers through Mohawk territory might be aware that they have entered a different country is that the speed limit signs, in Canada, are designated in kilometers per hour while, in the United States, they are designated in miles per hour.
This unique border structure has been exploited for decades for purposes of smuggling contraband, including illegal drugs and aliens, into the United States. Typically, contraband is driven, within Canada, to Cornwall Island (a portion of the Mohawk nation located in Ontario, Canada) and then transported a short distance, by boat or snowmobile, to Akwesasne, in Quebec. There, contraband is transferred into vehicles and driven into the United States across the unguarded border between Akwesasne and the St. Regis Mohawk territory (see e.g. United States v. Wilson, 699 F3d 235 (2d Cir 2012); United States v. Maslin, 356 F3d 191 (2d Cir 2004); United States v. Razmara, 113 F3d 1230 (2d Cir 1997); United States v. Nevsky, 821 F Supp. 2d 524 (ND NY 2011); People v. McLean, 99 AD3d 1111 (3d Dept 2012).
19 United States Code § 1459 (c) requires individuals who enter the United States, by vehicle, through an unmanned crossing point, to “immediately notify a customs officer and report their arrival”. Failure to do so subjects the individual to civil and criminal penalties. A non-reporting individual may be incarcerated for no more than one year (19 United States Code § 1459 [f] and [g] ).
Regarding border crossings within Mohawk territory, the parties stipulated that
“[t]he accepted protocol/procedure utilized by the Massena Port of Entry has been for those individuals to immediately report their arrival to the Massena Port of Entry and present themselves for inspection․Data is not collected, nor is a database maintained with respect to individuals reporting their arrival in this manner” (Stipulation, filed July 18, 2019).
Federal law subjects any person who crosses an international border to a search of their property (see United States v. Ramsey, 431 US 606 ).
“Consistently, therefore, with Congress' power to protect the Nation by stopping and examining persons entering this country, the Fourth Amendment's balance of reasonableness is qualitatively different at the international border than in the interior. Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant” (United States v. Montoya de Hernandez, 473 US 531, 538 ).
Failure to report, after crossing the unmanned border between the Akwesasne and St. Regis Mohawk portions of the Mohawk nation, is itself a basis upon which to conduct a search.
“We begin our analysis by determining whether the vehicle stop was justified by probable cause to believe that Wilson had committed or was committing a crime. Based on the district court's findings of fact, we conclude that it was. First, the officers had probable cause to believe that Wilson had intentionally failed to enter the United States at an officially-designated border crossing in violation of 19 U.S.C. §§ 1433(b)(1) and 1436(a)(1),(c). At the time the officers stopped the vehicle, they were aware that the vehicle had left and reentered the United States in a brief period of time at an unguarded, undesignated border crossing” (United States v. Wilson, 699 F3d 235, 243—44 [2d Cir 2012]).
In Wilson, supra, the defendant was seen entering and then leaving Akwesasne without checking in with a United States Customs agent. This, among other things, was a basis for the stop and search. If a vehicle checking in at the border may be searched without probable cause, then, certainly, it may also be searched if the driver is stopped after avoiding his legal duty to check in at the border.
Notably, and perhaps in deference to cultural mores, the Second Circuit pointed out that the defendant, in that case, was not a member of the Mohawk nation.
“Wilson is a citizen of the United States. At the time of the vehicle stop, his driver's license indicated that he lived in St. Regis Falls, New York. St. Regis Falls lies approximately 45 minutes southwest of the location of the vehicle stop. Wilson is not a member of a federally recognized tribe in the United States, nor does he have any equivalent status in Canada” (United States v. Wilson, 699 F.3d 235, 239 [2d Cir 2012]).2
Residents of Akwesasne and of the St. Regis Mohawk territory, being Mohawks, traditionally move freely between the various international, state and provincial, and tribal borders. But a person who is not a member of the tribe or nation, and who does not live on either territory, has no basis upon which to claim that privilege, if such a privilege exists.
In this context, defendant testified that he is a resident of the commonwealth of Virginia. He rented a car on September 13, 2018, and then drove the rental vehicle approximately nine hours from Virginia to the casino located on the St. Regis Mohawk territory in Franklin County. He claimed that he drove on Interstate 81 to New York State Route 37 and, then, turned into the casino. The driveway to the casino parking lots is located on New York State Route 37. He testified that he left the casino sometime between noon and 12:30 p.m. on September 14, 2018. He spent only, approximately, thirty (30) minutes at the casino. This means that he would have left Virginia at approximately 2:30 a.m. He testified that he did not sleep, or stop anywhere to sleep, during the trip. However, he denied being fatigued. He claims to suffer from a traumatic brain injury.
When asked whether he ever entered Canada during this trip, he stated:
“A. No, I did not.
Q. So you never went to St. Regis Village, Quebec?
A. I just testified that I did not, no.
Q. So your rental vehicle cannot possibly have been seen by Akwesasne Mohawk police officers entering the United States, sir?
A. I wasn't -— I didn't have my eyes on the vehicle a hundred percent of the time when I was in the casino, so I don't —- I never brought it there” (testimony of Anthony J. Cheney, June 25, 2019, page 16).
This portion of defendant's testimony is significant in a number of ways. First, there was never any testimony that anyone other than the defendant occupied the vehicle at any time. Second, the vehicle was under continuous surveillance from the time it left Akwesasne, Quebec, until it was ultimately stopped in Franklin County. Third, regarding the issue of compliance with the reporting requirements of 19 United States Code § 1459(c), if defendant denies ever being in Canada, then he would have no obligation to report to customs. His denial of ever being in Canada is a tacit admission that he did not report to customs. Why would he, if he were never in Canada?
The first witness called by the People was Detective Constable Leroy Swamp of the Akwesasne Mohawk Police Service. He testified that he is a member of an international task force, the Border Enforcement Security Task Force, with the United States Department of Homeland Security. He testified that Title 19 of the United States Code permits a “Canadian agency to come to America, the states to conduct a criminal investigation” (testimony of Leroy Swamp, May 14, 2019, page 3). The Border Enforcement Security Task Force is actually authorized by 6 United States Code § 240, not Title 19. Its stated purpose
“is to establish units to enhance border security by addressing and reducing border security threats and violence by—
(1) facilitating collaboration among Federal, State, local, tribal, and foreign law enforcement agencies to execute coordinated activities in furtherance of border security, and homeland security; and
(2) enhancing information-sharing, including the dissemination of homeland security information among such agencies” (6 United States Code § 240 [b] ).
Detective Constable Swamp testified that at 11:00 a.m. he was physically located in the City of Cornwall, in Ontario, Canada. At that time, he received a radio call from Detective Constable Raweras Mitchell, also of the Akwesasne Mohawk Police Service, in which he [Mitchell] stated that he was following a car out of St. Regis, Quebec, into the United States. The car caught the attention of Detective Constable Mitchell because it was driven by a white male, it had New Jersey license plates, and the license plates belonged to a rental vehicle. There were no passengers in the vehicle.
Detective Constable Swamp explained that rental vehicles are often used for drug smuggling in the area because “if anything happens and they're stopped, usually that vehicle goes back to the rental company. Whoever is driving or participating in this activity, they don't lose a vehicle” (testimony of Leroy Swamp, May 14, 2019, pages 9 - 10) (see e.g. People v. McLean, 99 AD3d 1111 (3d Dept 2012). He, too, considered it odd that a rental car, with New Jersey license plates, would be on this small Canadian peninsula, on tribal lands.
Detective Constable Swamp then testified that he remained in radio contact with Detective Constable Mitchell who informed him that he followed the car directly to the casino and that it had not reported to a customs officer as required by 19 United States Code § 1459 (c). Detective Constable Swamp arrived at the casino and kept the subject vehicle under surveillance. When Detective Constable Swamp arrived, Detective Constable Mitchell left. At no time did Detective Constable Swamp see anyone else drive the car. He identified defendant as the person who ultimately left the casino building and opened the trunk of the car while it was still parked in the casino parking lot. He saw defendant “moving stuff around” in the trunk. Defendant then went back into the casino. A short time later defendant returned to the car and drove it away, out of the casino parking lot, proceeding, in an easterly direction, on New York State Route 37.
Detective Constable Swamp shared his own observations, as well as what he was told by Detective Constable Mitchell, with Agent Richard Vogelzang, who is employed by the United States Department of Homeland Security. Agent Vogelzang was driving an unmarked Jeep Cherokee. He arrived at the casino and also commenced surveillance of defendant's vehicle. When defendant drove out of the casino parking lot, he was followed first, by Detective Constable Swamp and, secondarily, by Agent Vogelzang. At some point, outside of the St. Regis Mohawk territory, Agent Vogelzang took the lead in following defendant, while Detective Constable Swamp turned off on a different road.
Agent Vogelzang testified that Detective Constable Swamp told him what Detective Constable Mitchell had stated - specifically, that the defendant did not report to a customs agent after leaving the village of St. Regis, Quebec. Agent Vogelzang then testified that he went “in our immigration system database and looked to see if the vehicle had reported properly at a port of entry and it had not” (testimony of Richard Vogelzang, May 14, 2019, page 5). This testimony is somewhat at odds with the parties' stipulation which states that, at the Massena Port of Entry, “[d]ata is not collected, nor is a database maintained with respect to individuals reporting their arrival in this manner.” Defendant argues that this testimony renders Agent Vogelzang incredible. It is not clear, at this point, whether Agent Vogelzang was testifying about a database that does not exist or whether there is some other database that he checked. However, even if the Court concludes that there is no database to check, it would still find that defendant's failure to report to a customs agent was established by the fellow officer rule.
Pursuant to the fellow officer rule, a police officer is entitled to act on the strength of a radio bulletin from a fellow officer and to assume its reliability in the course of making an arrest (People v. Washington, 87 NY2d 945 ). Here, Detective Constable Mitchell remained in constant radio communication with Detective Constable Swamp as the former was following the defendant from the Village of St. Regis, in Canada, to the casino, located on tribal land, in the United States. Detective Constable Mitchell personally saw that defendant did not report to customs. Detective Constable Swamp shared that information with Agent Vogelzang.
The purpose of the task force created by 6 United States Code § 240 (b) is to facilitate “collaboration among Federal, State, local, tribal, and foreign law enforcement agencies to execute coordinated activities in furtherance of border security, and homeland security” and to enhance “information-sharing, including the dissemination of homeland security information among such agencies.” Under these circumstances, the Court finds that both Detective Constable Mitchell and Detective Constable Swamp are fellow officers upon whom Agent Vogelzang could rely, despite their employment by a police agency in Canada. Detective Constable Swamp testified that he is member of that task force. Agent Vogelzang testified that he, too, is a member of the task force. In fact, the Akwesasne Mohawk Police Service, as a whole, is involved with the task force (see testimony of Richard Vogelzang, May 14, 2019, page 6). Where a fundamental purpose of the task force is to facilitate communications between international police agencies, the fellow officer rule must, necessarily, apply to communications among members of that task force.
The mere fact that Agent Vogelzang had information, from a fellow officer, that defendant did not report to customs as required, is enough of a basis for a stop and search (United States v. Wilson, 699 F3d 235, 243—44 [2d Cir 2012]).
Nevertheless, Agent Vogelzang did not stop the vehicle. Instead, he contacted New York State Troopers Ryan Suave and Andrew Beane. Eventually, they began to follow defendant, in marked vehicles, while Agent Vogelzang stayed behind them.
According to Trooper Suave, who was in the lead vehicle, a portion of defendant's driver's side tire crossed a double yellow line into the opposing lane of traffic, on a curve. This was Trooper Sauve's basis for the stop. Defendant denied crossing the line. However, the Court doubts the credibility of defendant's testimony in this regard. Beyond the credibility issues flowing from his criminal history, there are several factors to consider. Defendant admitted that he had been driving nine hours through the previous night; that he suffered from a traumatic brain injury; that he saw that he was being followed by two state police vehicles; that he was not fatigued; that he was not nervous, until he was stopped, even though, for purposes of this hearing, he admitted that he knew that there were drugs in his trunk; and that he had never been to Canada despite being seen there. And then there is his implication that some unknown person might have somehow taken his car to Canada and returned it to the same parking space while defendant remained in the casino.
According to both, Trooper Suave and the defendant, the defendant was nervous and shaking after the stop. Trooper Suave was standing on the driver's side of defendant's vehicle and Trooper Beane was on the passenger side. Defendant refused to consent to a search of his vehicle. Trooper Suave returned to his vehicle, while Trooper Beane lingered behind and instructed defendant to remain in the vehicle. Trooper Beane then joined Trooper Suave at Trooper Suave's vehicle and engaged in conversation with Agent Vogelzang. At this time, defendant, despite the recently delivered admonition, spontaneously exited his vehicle and approached the three officers. Defendant admits to doing so.
Seeing defendant approaching the officers, Trooper Beane inquired if defendant had any weapon on his person. According to Trooper Beane, defendant admitted that he had Adderall in his back pocket and attempted to reach for it. Trooper Beane told him to stop, and Trooper Suave retrieved the Adderall prior to Trooper Beane conducting a pat frisk.
Defendant has a somewhat different version of the pat frisk. Defendant admits that he exited his vehicle of his own volition and approached the officers. He then testified that Trooper Beane “told me to put my hands on the hood of the trooper vehicle and to spread my legs so they could to [sic] a search, a pat down of me.” (testimony of Anthony J. Chaney, June 6, 2019, page 20).
Defendant claims that, during the pat frisk, Trooper Beane found the Adderall and inquired what it was. Defendant admits that he told Trooper Beane that “it was an Adderall”, that he did not have a prescription for it, and that he had it in case he got tired on “this long journey, and I use it to help keep awake” (testimony of Anthony J. Chaney, supra). Adderall is a controlled substance.
Defendant was arrested for possession of a controlled substance based upon his possession of Adderall. Miranda warnings were read to defendant, and he invoked his rights. Both Trooper Beane and Trooper Suave concede that defendant invoked his Miranda rights at that time, including a refusal to speak without the assistance of an attorney.
Defendant claims that the Adderall was located during a pat frisk. Trooper Beane claims that defendant admitted that he had Adderall on his person and that the pat frisk occurred after that admission. The differing versions of the facts are irrelevant under the circumstance of this case. During the conversation at defendant's vehicle, Trooper Beane personally heard the defendant state, while visibly shaking, that he never entered Canada, despite information from fellow officers that he had been followed, into the United States, from Akwesasne. Trooper Beane was also aware that defendant had not reported to a customs agent upon entering the United States. Moreover, defendant did not consent to a search of the vehicle, which, although a valid exercise of defendant's constitutional rights, necessarily creates an uncertainty about the contents of the vehicle. In this context, defendant spontaneously exited the vehicle, despite being instructed to remain inside, and approached the officers, who were unaware of what he may have had on his person or what he may have removed from the vehicle. Even if defendant's version of the facts is accurate, Trooper Beane had a valid basis upon which to conduct a pat frisk for safety purposes.
“If we recognize the authority of the police to stop a person and inquire concerning unusual street events we are required to recognize the hazards involved in this kind of public duty. The answer to the question propounded by the policeman may be a bullet; in any case the exposure to danger could be very great. We think the frisk is a reasonable and constitutionally permissible precaution to minimize that danger. We ought not, in deciding what is reasonable, close our eyes to the actualities of street dangers in performing this kind of public duty” (People v. Rivera, 14 NY2d 441, 446 ).
Three decades later, the Court of Appeals favorably cited Rivera, supra, holding that, after a valid traffic stop, a police officer may order a person to exit a vehicle and that a subsequent pat frisk “may be justified on less than what would be required for an arrest” (People v. Batista, 88 NY2d 650, 653 ). Moreover, citing Batista, supra, the Third Department held that “the detective's protective pat down for weapons (none were found) was justified given defendant's extreme nervousness and erratic movements” (People v. Martin, 156 AD3d 956, 958 [3d Dept 2017]). Even under defendant's version of the facts, Trooper Beane would be justified in conducting a protective pat down where the defendant spontaneously exited the vehicle and approached police, especially after officers witnessed his nervous demeanor and having credible information that defendant crossed the border without reporting.
Therefore, the Court will not suppress the Adderall which was found in defendant's pocket. Nor will the Court suppress the defendant's pre-Miranda statement:
“Yes, I have an aderall [sic] in my pocket. I was planning on driving through the night and using it to stay awake” (People's Criminal Procedure Law § 710.30 statement dated September 14, 2018).
Parenthetically, a temporary roadside detention pursuant to a routine traffic stop is not custodial within the meaning of Miranda (see People v. Brown, 107 AD3d 1305, 1306 [3d Dept 2013]).
Despite dedicating the Court's legal analysis to defendant's version of the pat down, the Court credits the testimony of Trooper Beane regarding the defendant's admission to possession of Adderall prior to the pat frisk even taking place. The Court has already ruled that the defendant was not a credible witness.
Trooper Sauve, Trooper Beane, and Agent Vogelzang all testified that when the defendant exited his vehicle, he also opened the trunk. Defendant denies this, and claims that the trunk was opened by one of the law enforcement personnel at the scene after he was arrested for possessing the Adderall.
“I saw three law enforcement officials, the two troopers and one Homeland Security agent go to the driver side of my vehicle and the trunk opened. Which one of them opened it and how they opened it, I couldn't tell you because I was not there. I was in the back seat of the trooper vehicle” (testimony of Anthony J. Chaney, June 25, 2019, page 24).
Even if defendant's version is accurate, there was probable cause to search the trunk of the vehicle without defendant's consent.
“In People v. Belton (55 NY2d 49, 55), the Court of Appeals held that when the ‘police have validly arrested an occupant of an automobile, and they have reason to believe that the car may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered or a means of escape thwarted, they may contemporaneously search the passenger compartment, including any containers found therein.’ This rule, which would not control in other circumstances where probable cause exists, applies to property kept in an automobile, including the trunk (see, People v. Vasquez, 195 AD2d 297; see also, People v. Fulton, 189 AD2d 778, lv denied, 81 NY2d 1014, and dispenses with the warrant requirement with respect to a search of the car. The rule, known as the automobile exception, requires ‘both probable cause to search the automobile generally and a nexus between the probable cause to search and the crime for which the arrest is being made.’ (People v. Langen, 60 NY2d 170, 181, cert denied 465 US 1028; see, Pennsylvania v. Labron, 518 US 938). Thus, the crucial issue is whether probable cause existed to arrest the driver and occupants for the earlier incident․” (People v. Simpson, 244 AD2d 87, 90 [1st Dept 1998]).
The Third Department has also recognized the applicability of the automobile exception to the Fourth Amendment requirement for a search warrant and has reduced the importance of a nexus between the crime for which the defendant is arrested and the search of the vehicle.
“ ‘The search, however, need not be limited to items related to the crime for which the occupant is being arrested; it may be instituted when the circumstances provide probable cause to believe that any crime has been or is being committed’ ” (People v. Thompson, 106 AD3d at 1135 [citation omitted]; see People v. Galak, 81 NY2d at 467-468; People v. Martin, 50 AD3d 1169, 1170 )” (People v. Raghnal, 135 AD3d 1168, 1169 [3d Dept 2016]).
As has already been pointed out, defendant's failure to report to a customs officer, information imparted by the fellow officer rule, is, by itself, a sufficient basis upon which to initiate a search of the vehicle. Defendant himself alleges that a “Homeland Security Agent” was present when the trunk was allegedly opened. The agent, and the state troopers, had reason to believe that defendant failed to report to customs after crossing into the United States. Anyone crossing into the United States is subject to search of their vehicle, including the trunk, without any probable cause at all. Therefore, if the trunk was opened without defendant's consent, as alleged by defendant, such lack of consent is irrelevant, because it was not required.
Additionally, probable cause existed to search the trunk. There was probable cause to believe that defendant committed a federal crime by failing to report to customs. This would authorize a federal “Homeland Security Agent” to search the trunk of the car.
As for the New York State Police, there was probable cause to believe that defendant was in a location, in Akwesasne, that is notorious for drug trafficking. There is probable cause to believe that he did not report to customs for an inspection after leaving Akwesasne and returning to the United States. There is probable cause to believe that the defendant was driving a rental vehicle in Akwesasne, an act innocuous on its own, but one that takes on more relevance after the failure to report and the seizure of the Adderall. There is probable cause to believe that defendant had an illegal controlled substance in his pocket, to wit: Adderall. In fact, he had been arrested for that crime immediately prior to the police, allegedly, opening the trunk. There is a clear nexus, if one is necessary, between the crime for which the defendant was already arrested, criminal possession of a controlled substance (Adderall), and the search of the vehicle.
Therefore, the contents of the trunk, leading to the first count of the indictment, are admissible at trial regardless of whether or not defendant consented to the search. That being said, the Court credits the testimony of Trooper Beane and Trooper Sauve and finds that defendant did, in fact, consent to the search of the trunk of the vehicle.
When certain contents of the trunk were tested, as a result of the officers' visual observations and an alert by a canine, the field test may have produced a false positive for narcotics. The substance seized, Ketamine, is not a narcotic. The substance located in the trunk was later tested at the New York State Police Laboratory and determined to be Ketamine, a controlled substance, but not a narcotic.
Defendant makes much ado about this false positive result, using it to question the credibility of the arresting officers. Defendant fails to recognize that defendant had already been arrested for possession the Adderall. A false positive for the contents of the trunk does not render the initial arrest, for Adderall, invalid or, necessarily, render the officers involved incredible.
Nor is an arrest based on a false positive invalid. In another case involving the border between the United States and Canada, the Court of Appeals held that
“[e]vidence later proven unreliable can legally support an indictment. The standard for sufficiency is whether the evidence before the Grand Jury—if uncontradicted—would support a determination of guilt (People v. Jennings, 69 NY2d, at 114-115; People v. Brewster, 63 NY2d 419, 422). In People v. Oakley (28 NY2d 309), we upheld an indictment based on identification testimony later proven to be unreliable. Such evidence—apparently competent at the Grand Jury stage—is to be distinguished from inherently incompetent evidence, inadmissible under any circumstances because subject to a per se exclusionary rule. Evidence deemed inadmissible at trial after extrinsic proof reveals some infirmity may nevertheless have supported a prima facie case at the Grand Jury stage (id.).
Although uncontradicted results of a field test may provide legally sufficient evidence of presence of a controlled substance, meeting the threshold standard of sufficiency is not the same as proving guilt beyond a reasonable doubt at trial (People v. Mayo, 36 NY2d, at 1004). Under the statutory scheme, in a felony drug prosecution, CPL 715.50 requires a formal laboratory analysis within 45 days of receipt of the drugs. By the time trial commences, more definitive results will be made available to the defendant. Possible infirmities in the NIK test will by then be moot—either because presence of a controlled substance confirmed that the field test was correct, or because a negative result in the laboratory required dismissal of the case. Where possession of felony-weight drugs is alleged, therefore, the law requires that, prior to trial—where the People will attempt to prove guilt beyond a reasonable doubt—more than a field test be conducted” (People v. Swamp, 84 NY2d 725, 731—32 ).
Hence, a NIK test that results in a false positive may, nevertheless, support a valid indictment. If such a false positive may support an indictment, it may certainly be the basis for a valid arrest. Here, the subsequent laboratory test established that the NIK test resulted in a false positive for narcotics. Unfortunately for defendant, the result demonstrated that the substance located in the trunk of the vehicle was a different controlled substance than the one that was initially suspected. That does not render the arrest invalid. In fact, defendant was indicted on the strength of the laboratory test results, not the field test. The laboratory tests indicate that the substance in the trunk was Ketamine, as specifically charged in the first count of the indictment.
At various points during the interaction between the police and the defendant, the People allege that defendant made certain incriminatory statements. The Court has already ruled that his admission to the possession of Adderall is admissible at trial. The other statements attributed to defendant are:
[Q.] “Those bookbags aren't yours?”
[A.] “What bookbag? I don't know.”
[Q.] “You haven't been in the trunk”
[A.] “No.” (People's Criminal Procedure Law § 710.30 Notice dated September 14, 2018 [to Trooper Beane] ) and
“Hypothetically speaking ․ if I say all of that stuff is mine will you leave my mother out of this?” (People's Criminal Procedure Law § 710.30 Notice dated September 14, 2018 [to Trooper Sauve] )
It is undisputed that the statements made to Trooper Beane were made after the invocation of defendant's right to counsel. The questions presented by Trooper Beane go directly to the issue of defendant's knowledge that a controlled substance was in the trunk of the vehicle. Accordingly, the statements made to Trooper Beane, after the arrest for possession of Adderall, will be suppressed.
After defendant was arrested and taken to the trooper barracks for processing, he made a statement which could reasonably be interpreted as a potential willingness to admit guilt if the police were to “leave [his] mother out of this”. Defendant testified that he was asked questions seeking more than pedigree information, both at the scene of the stop and at the trooper barracks, despite invoking his right to counsel. Both Trooper Sauve and Agent Vogelzang characterized this statement as a spontaneous utterance which was not made in response to any questioning. However, Trooper Sauve testified that “at least one trooper” is with the defendant “in the patrol room at all times, it doesn't necessarily have to be me” (testimony of Ryan A. Sauve, May 16, 2019, page 27). The testimony was unclear regarding the location of Trooper Sauve, inside or outside of the room where defendant was held, when he heard the statement.
The People bear the initial burden of proving, beyond a reasonable doubt, that defendant's statement is voluntary (see People v. Baggett, 57 AD3d 1093, 1094 [3d Dept 2008]). Here, the People did not identify the trooper or troopers who were with the defendant “at all times” in the patrol room, other than Trooper Sauve's admission that it was not “necessarily” Trooper Sauve. In view of the lack of detail regarding the circumstances under which Trooper Sauve and Agent Vogelzang heard the statement, and in view of the lack of clarity about the presence and identity of any other trooper who may have been in the room with defendant, the Court finds that the People did not meet their burden of proving that the statements overheard by Trooper Sauve and Agent Vogelzang were voluntary. Although this Court has some doubts regarding defendant's credibility, it was incumbent upon the People to prove voluntariness beyond a reasonable doubt. The People did not meet this burden with testimony that lacked precision and detail.
Pursuant to the provisions of Criminal Procedure Law § 710.60 (6), the foregoing constitutes the Court's findings of fact and conclusions of law.
NOW, THEREFORE, for the reasons set forth herein, it is
ORDERED that defendant's motion to suppress physical evidence be, and the same hereby is, denied; and it is further
ORDERED that defendant's motion to suppress his admissions regarding the possession of Adderall be, and the same hereby is, denied; and it is further
ORDERED that, in accordance with the foregoing decision, defendant's motion to suppress his statements to Trooper Beane, regarding book bags, following the administration of Miranda warnings, be, and the same hereby is granted and that the statements be, and the same hereby are, suppressed; and it is further
ORDERED that, in accordance with the foregoing decision, defendant's motion to suppress his statement overheard by Trooper Sauve and Agent Vogelzang, at the trooper barracks, regarding his mother, following the administration of Miranda warnings, be, and the same hereby is granted and that the statement be, and the same hereby is, suppressed; and it is further
ORDERED that further proceedings with respect to this indictment be, and they hereby are, adjourned to the calendar of the Court on the 21st day of October, 2019, at 9:15 a.m., or as soon thereafter as counsel may be heard, for Sandoval, Ventimiglia, and Molineux hearings to be immediately followed by the trial of the indictment.
1. St. Regis Mohawk Reservation is in New York. The village of St. Regis is in Quebec, Canada. St. Regis Falls is a hamlet in the Town of Waverly in Franklin County and is not associated with tribal territory.
2. St. Regis Falls, despite its similar name, is, as noted, a hamlet in Franklin County which has no relevant connection to the tribal lands mentioned herein.
Robert G. Main, J.
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Docket No: 188-2018
Decided: August 27, 2019
Court: County Court, New York,
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