PEOPLE v. MOYA (2004)

Appeal by the People from an order of the Criminal Court, Kings County (W. Saitta, J.), dated September 13, 2002, which granted defendant's motion to suppress evidence (see 192 Misc.2d 670, 748 N.Y.S.2d 648).

Order unanimously reversed on the law, defendant's motion to suppress denied and matter remanded to the court below for all further proceedings.

After placing a garage under surveillance pursuant to a warrant that authorized a search of the garage for a stolen automobile and of anyone found therein, and having observed an individual leave the garage, lock the garage door, and depart the scene in an automobile driven by defendant, the police lawfully stopped defendant's car to search the passenger.   The officer requested defendant's driver's documentation.   After a review of defendant's Department of Motor Vehicles (DMV) records revealed that defendant's driver's license had been suspended, the officer arrested defendant.   The court below granted defendant's subsequent motion to suppress the officer's observations of defendant, defendant's identity, and the DMV records, holding that in the absence of any traffic offense or any reason to connect defendant to the stolen automobile, the officer's demand for defendant's driver's documentation was unlawful, requiring suppression of all resulting evidence pursuant to the exclusionary rule.   The People appeal and we reverse.

At the outset, we note that at oral argument, defendant conceded that the stop of his vehicle was lawful.   Under the circumstances presented, and given defendant's voluntary production of the documentation upon request of the police officer, defendant failed to establish a privacy expectation in his DMV abstract, a public record compiled independently of the police conduct challenged herein (People v. Principe, 65 N.Y.2d 33, 489 N.Y.S.2d 463, 478 N.E.2d 979 [1985];  People v. Sikorski, 280 A.D.2d 414, 721 N.Y.S.2d 48 [2001];  People v. Smith, 258 A.D.2d 245, 248, 697 N.Y.S.2d 783 [1999];  see generally People v. Ramirez-Portoreal, 88 N.Y.2d 99, 108, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996];  People v. Myers, 303 A.D.2d 139, 142, 758 N.Y.S.2d 68 [2003];  People v. Bryant, 187 Misc.2d 259, 262, 721 N.Y.S.2d 754 [Crim. Ct., N.Y. County 2001] ).   Accordingly, we reaffirm our determination in People v. Sajous, 180 Misc.2d 693, 695 N.Y.S.2d 471 [App. Term, 2d & 11th Jud. Dists. 1999] that absent a cognizable privacy interest in DMV records, a defendant lacks standing to demand their suppression.   We therefore do not reach the issue of whether the records would be admissible in the event of a Fourth Amendment violation since the lawfulness of the stop was conceded (cf. United States v. Crews, 445 U.S. 463, 475, 100 S.Ct. 1244, 63 L.Ed.2d 537 [1980];  People v. Bargas, 101 A.D.2d 751, 752, 475 N.Y.S.2d 837 [1984];  People v. Deleon, N.Y.L.J., Sept. 10, 1999 [Crim. Ct., Bronx County];  People v. Cobb, 182 Misc.2d 808, 812, 703 N.Y.S.2d 341 [Crim. Ct., Kings County 1997] ).   We remain unpersuaded by the rationale of cases taking a contrary position (e.g. People v. Giacalone, N.Y.L.J., Feb. 23, 1998 [Dist. Ct., Nassau County];  People v. Armour, N.Y.L.J., Oct. 27, 1998 [Crim. Ct., New York County] ).   It is to be noted that the Driver's Privacy Protection Act of 1994 (18 USC § 2721 et seq.) conferred no privacy interest in DMV records relevant to exclusionary rule jurisprudence (see Reno v. Condon, 528 U.S. 141, 144-145 & n., 120 S.Ct. 666, 145 L.Ed.2d 587 [2000] ).

The officer's observations of defendant after the legal stop, as well as defendant's identity, are not the suppressible fruits of an exclusionary rule violation (see Immigration & Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1039, 104 S.Ct. 3479, 82 L.Ed.2d 778 [1984];  People v. Pleasant, 54 N.Y.2d 972, 977, 446 N.Y.S.2d 29, 430 N.E.2d 905 [1981, Jones, J. concurring] ).

Because I disagree with the majority's conclusion that DMV records are admissible even if obtained in violation of the Fourth Amendment, I respectfully dissent.

The facts of this case are not in dispute.   Defendant was arrested near a garage on Bedford Avenue that was under surveillance pursuant to a search warrant.   The warrant authorized the search of the garage for a stolen car and “of any person who may be found to have [such car] in his possession or under his control, or to whom such property may have been delivered.”   Defendant was not named in the warrant.

On February 23, 2002, pursuant to the warrant, a police officer observed an individual leave the garage, lock its door and enter a vehicle driven by defendant.   It is undisputed that neither defendant nor his vehicle were in the garage.   It is also undisputed that defendant's vehicle did not match the vehicle described in the warrant.   The officer stopped defendant's car and asked defendant for his driver's license.   When defendant was unable to produce it, the officer searched defendant's DMV records, and determined that his license was suspended.

While I agree that the officer had reasonable suspicion to stop the vehicle for the purpose of seizing the passenger, I would further conclude that he had no basis to demand defendant's license or to search defendant's DMV records.   In my view, a demand for a driver's license invokes a De Bour level II common-law right of inquiry, which requires “a founded suspicion that criminal activity is afoot” (People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ).   Here, no such suspicion existed as to defendant and nothing in the officer's observations gave him the authority to question defendant.   Neither defendant nor his vehicle were in the garage, nor was the defendant in possession of the stolen vehicle described in the warrant.   Because the officer had no basis to demand defendant's driver's license, any evidence obtained from a search of his Department of Motor Vehicle (DMV) records was suppressible as the fruit of an unlawful inquiry.

The majority, however, contends that regardless of the lawfulness of the officer's inquiry, defendant has no privacy interest in the DMV records and, thus, lacks standing to challenge their admissibility.   I disagree.   Defendant was not required to establish an expectation of privacy in the items that arose from the unlawful seizure, as long as he had an expectation of privacy in the seizure itself (see People v. May, 81 N.Y.2d 725, 593 N.Y.S.2d 760, 609 N.E.2d 113 [1992];  People v. Gittens, 110 A.D.2d 908, 488 N.Y.S.2d 457 [2d Dept. 1985] ).   Had it not been for the officer's unlawful inquiry, defendant's DMV records would not have been discovered.

Accordingly, I agree with the court below that the DMV records are subject to suppression and would vote to affirm.

ARONIN, J.P., and RIOS, J., concur. PATTERSON, J., dissents in a separate memorandum.