PEOPLE v. McCARLEY (2008)

On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[12] ), defendant contends that County Court erred in refusing to suppress evidence seized as the result of a traffic stop.  Defendant concedes that the police lawfully stopped his vehicle for alleged traffic violations.  He contends, however, that he produced his driver's license, registration and insurance card at the officer's request and answered the officer's initial questions, and that the officer thus lacked a founded suspicion of criminal activity to justify further questioning of defendant in an accusatory manner concerning issues that were unrelated to the alleged traffic violations.  We reject that contention.  The officer's initial request for documentation and the officer's initial questions were permissible and reasonable, in furtherance of the valid traffic stop (see People v. Alexander, 189 A.D.2d 189, 194, 595 N.Y.S.2d 279).  The officer's further questions concerning defendant's destination and point of origin were also “basic nonthreatening questions” consistent with a request for information supported by an articulable basis, i.e., the valid traffic stop (People v. Ocasio, 85 N.Y.2d 982, 985, 629 N.Y.S.2d 161, 652 N.E.2d 907;  see People v. Hollman, 79 N.Y.2d 181, 185, 581 N.Y.S.2d 619, 590 N.E.2d 204).  Upon receiving what the officer determined to be suspicious answers from defendant, the officer developed “a ‘founded suspicion’ of criminal activity” and properly proceeded to the next level of confrontation, involving “ ‘invasive questioning’ focusing on the ‘possible criminality’ of the subject” (People v. Tejeda, 217 A.D.2d 932, 933, 630 N.Y.S.2d 160, lv. denied 87 N.Y.2d 908, 641 N.Y.S.2d 238, 663 N.E.2d 1268, quoting Hollman, 79 N.Y.2d at 191, 581 N.Y.S.2d 619, 590 N.E.2d 204).

Contrary to the further contention of defendant, his “illogical and suspicious responses” to the officer's inquiries further justified the officer's request to search defendant and the vehicle (id.).

Based on the totality of the circumstances, we reject the contention of defendant that his consent to the search was involuntary (see generally Schneckloth v. Bustamonte, 412 U.S. 218, 224–226, 93 S.Ct. 2041, 36 L.Ed.2d 854;  People v. Gonzalez, 39 N.Y.2d 122, 128, 383 N.Y.S.2d 215, 347 N.E.2d 575).

We have considered defendant's remaining contention and conclude that it is without merit.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: