Opinion
No. 2463N/02.
Decided May 6, 2004.
By: Karen Taggart, Esq., District Attorney Nassau County Mineola, New York.
Bruce Barket, Esq. Garden City, New York, Attorney for Defendant.
This is a case of first impression!
Defendant, who is charged with multiple counts of burglary; criminal possession of a weapon and criminal possession of stolen property, moves to suppress post-arrest oral and written admissions; a photopack identification; three showup identifications; and various items seized at the time of his arrest and as the result of a warrantless search of his residence which he claims was without his consent.
A suppression hearing was held and the Court makes the following Findings of Fact and reaches the following Conclusions of Law.
Neither Defense Counsel nor the People submitted proposed Findings of Fact or Memorandum of Law as request by the Court.
FINDINGS OF FACT
On July 8, 2002, Nassau County Police investigated two house burglaries. These became the first of some twenty to twenty-five burglaries occurring in July and August, 2002, all between Monday and Friday, never on Saturday or Sunday, and otherwise appearing to follow the same pattern by the same perpetrators. In many instances the homes were occupied during the burglary.
During a burglary at 1775 Aladdin Avenue, New Hyde Park, Nassau County, New York on July 8, the victim saw a black male climbing into her bathroom window. During a second burglary on that day at 33 Fairview Avenue, East Williston, Nassau County, the victim was returning home when she saw two black males at her back door. They ran and she chased them until they entered a black 1996 Mitsubishi Eclipse bearing Tennessee license plate BER523. An Airborne Express delivery person aided the victim and confirmed that plate number to the police. The victim of a July 23, 2002 burglary also observed a black Mitsubishi Eclipse.
On August 19, 2002, a burglary occurred at 16 Bridal Path, Westbury, Nassau County. Among the items stolen was a picture frame containing a wedding photograph of the bride and groom's left (ring) hands crossed over one another.
The Mitsubishi license plate number was checked and the vehicle came back as being registered to Misha Morton at a Chattanooga, Tennessee address. Further investigation into the registrant revealed that she now lived at 161 Beach 61 Street, Far Rockaway, Queens, New York. Detectives went to that address on August 20, 2002 and found the Mitsubishi parked on the street.
Det. Sgt. Brian Sweeney, who was overseeing the investigation, made a determination to surveil the Mitsubishi and attach a Global Positioning System ("GPS") device on it. Lieutenant McGlaughlin authorized the placement. At 3:00 a.m. on August 21, 2002 Nassau County Police installed a GPS and a cellular modem for real time tracking, attaching these to the undercarriage of the vehicle with magnets. This particular system locates the vehicle by giving the latitude and longitude of the GPS at any point in time, accomplishing through a computer/satellite link incorporating a cellular modem and software compatible with the tracking device. The computer not only tracks where the GPS is but also where it has been. The GPS used herein was self contained and powered by batteries and did not rely on the mechanical or electrical systems of the vehicle. All visual surveillance and real time computer tracking occurred only between Monday and Friday since that was the pattern of the burglaries.
The Mitsubishi remained parked on Beach 61 Street and no further burglaries occurred between August 21, 2002 and September 13, 2002.
Between September 9 and September 12, 2002, visual police surveillance saw a white Toyota 4-Runner pull into the 161 Beach 61 Street premises. The license plate number was checked and it came back to a Richard Lacey, 212 Mill Street, Lawrence, Nassau County, New York. A check into his background revealed that he had prior arrests for burglary. Arrest photographs were viewed by Det. Sgt. Sweeney and other officers investigating the pattern burglaries.
It was also determined that Lacey was currently on parole and Det. Sgt. Sweeney spoke with Lacey's parole officer. During their discussion Det. Sgt. Sweeney described the unique wedding photograph taken from the Bridal Path residence and the parole officer said that he had seen a similar photograph in Lacey's living room.
At that time Lacey became the primary suspect in the investigation. Between September 14 and 15, 2002 (Saturday-Sunday,) the Mitsubishi was moved from Far Rockaway to Lawrence. This was discovered on September 16, 2002 when the computer determined that the GPS was now located at Mill Street. A surveillance team was placed on the vehicle. At approximately 11:00 a.m. Detective Ceprini advised headquarters that the vehicle was moving and was being driven by Lacey. This surveillance team and several additional undercover police vehicles tailed the Mitsubishi to Arthur Avenue North and Gail Drive in Seaford, Nassau County by both visual means and monitoring the GPS. Det. Sgt. Sweeney went to Seaford and met the teams.
Shortly thereafter, a black male, whom the police recognized as Richard Lacey, was observed walking from 3860 Arthur Avenue North, entering the Mitsubishi and driving away. The police monitored Lacey through the GPS until it stopped at Bernice Road, Seaford, several blocks from the Arthur Avenue North location. When Det. Sgt. Sweeney and Det. Ceprini arrived at Bernice Road the vehicle was empty.
At this time, Det. Sgt. Sweeney received a radio report that a burglary had occurred at 3860 Arthur Avenue North and that there was a person in the house who could identify the burglar.
Det. Ceprini went back to Arthur Avenue North and obtained a description of the burglar. This description matched Lacey. Some 20 minutes later, Det. Sgt. Sweeney saw Lacey walking down the driveway of 3994 Bernice Road carrying a black satchel and a canvas bag with the name "Flynn" written in large red letters. Lacey walked up to the trunk of the Mitsubishi and tossed the canvas bag inside. Believing that a burglary had now occurred at the Bernice Road residence as well as at Arthur Avenue North, Det. Sgt. Sweeney pulled up to the Mitsubishi and said "Excuse me. Can I ask you a question?" Lacey said, "No."
At that time Dets. Fitzgerald and Miller arrived in a second surveillance vehicle. Upon seeing them, Lacey began to run while still carrying the black satchel. Det. Sgt. Sweeney yelled for him to stop and that he was under arrest. A foot pursuit followed and he was apprehended by Dets. Fitzgerald and Miller several blocks away. At this time, a gravity knife was recovered from Lacey's person in the course of a search attendant to his arrest. During the course of the foot chase, Lacey had thrown the black satchel away. It was recovered, opened and was found to contain an all-in-one plier tool, gloves and the suspected proceeds of several burglaries.
Lacey was brought back to the intersection of Paul Street and Bernice Road, Seaford, where the witness from the Arthur Avenue North residence identified him in a show-up. A neighbor and her son who had seen a male black walking across the burglarized house's front lawn also identified Lacey at the showup. He was one of three individuals standing on the street, all in street clothing. No handcuffs were visible.
Defendant's person was again searched before he was transported to the Seventh Precinct. Various items, including cash and two "mercury" dimes were recovered.
Victims from both Seaford burglaries were then brought to Defendant's vehicle where they identified bags (including the "Flynn" bag) and their contents as having been stolen from the respective homes. The "mercury" dimes were also identified as having been stolen.
While Det. Fitzgerald was transporting Lacey to the precinct and without any questioning by the police, Lacey spontaneously stated that someone made him do it and that they would kill him.
At the precinct Lacey was Mirandized by Det. Fitzgerald and he knowingly, intelligently and voluntarily agreed to and waived his rights, signing the rights card to indicate such waiver. He then made both an oral and a written admission regarding the Seaford burglaries.
Det. Sgt. Sweeney also showed Lacey a re-print of a wedding photograph of a male's and female's crossed hands. Defendant stated that the photo was in his living room. He then agreed to and voluntarily signed a written consent to search his residence at 212 Mill Street, Apt. 2, Lawrence.
On September 17, 2002, Defendant gave three additional written statements admitting his complicity in the various burglaries. Each of these written statements was proceeded by written Miranda rights and Defendant's waiving of such. In one of these written confessions, Defendant admitted to the Bridal Path burglary, including taking the wedding picture. He also admitted using his girlfriend's Mitsubishi to commit the burglary.
On September 19, 2002, the victim of the July 8, 2002 burglary at Aladdin Avenue identified Defendant from a photo-pack as the individual she saw climbing into her bathroom window. No suggestions, direct or indirect, were made to obtain the identification.
CONCLUSIONS OF LAW
Probable cause does not require proof beyond a reasonable doubt sufficient to warrant a conviction but merely information which would lead a reasonable person who possesses the same expertise as a police officer to conclude, under the circumstances, that a crime is being or was committed (People v. McRay, 51 NY2d 594; People v. Graham, 211 AD2d 55, lv. den. 86 NY2d 795.) The determination of probable cause deals not with the technicalities, but with the practical and factual consideration in everyday life under the totality of circumstances presented (People v. Davis, 192 AD2d 360; People v. Pacer 203 AD2d 652.)
Based upon the evidence they had developed the police had probable cause to conclude that Defendant had committed a burglary at Arthur Avenue North, Seaford and to arrest him for such. This evidence was comprised of the identification of the Mitsubishi and its being found in Far Rockaway; the police identifying Lacey as going to the 161 Beach 61 Street, Far Rockaway premises and then determining his address at 212 Mill Street, Lawrence; the Mitsubishi being moved to that address; the police tailing Defendant in the Mitsubishi on September 16, 2002 to Seaford; their seeing him walking from 3860 Arthur Avenue North; their subsequently learning of a burglary at that address at or about the time Lacey was seen thereat and the description of the burglar given by an eyewitness which matched Lacey.
Defendant contends that all of the evidence upon which probable cause was based was illegally obtained by the police use of a GPS device without a search warrant and must be suppressed. He further contends that all of the post-arrest evidence, admissions and identifications must be suppressed as the fruit of the poisoned tree.
The Fourth Amendment of the U.S. Constitution and Article 1 § 12 of the New York State Constitution guarantee the "right of the people to be secure in their persons . . . and effects, against unreasonable searches and seizures," shall not be violated unless a warrant has been issued based on probable cause particularly describing the place to be searched. Article 1 § 12 also specifically extends this protection to telephone and telegraph communications.
The Court is now asked for the first time to extend this constitutional protection to the installation of a GPS device. There are no reported cases in New York. However, other Courts have examined this issue.
In State v. Jackson, 150 Wash. 2d 251, 76 P.3d 217, Defendant reported to the police that his daughter was missing. Believing that Defendant may have himself taken his daughter from their residence, the police obtained a warrant to search the residence and to impound and search Defendant's two vehicles. While at the impound yard the police obtained a second warrant to attach a GPS device to both of Defendant's vehicles and directly connected such to the vehicles electrical systems. The vehicles were then returned to Defendant.
As a result of tracking Defendant's vehicles with the GPS, the police discovered Defendant's daughter's body. Defendant was subsequently convicted of her murder.
On appeal, Defendant argued that the initial search warrant for his house and the warrant authorizing the GPS device was not based on probable cause and that the evidence thus obtained was the fruit of the poisoned tree. The Court rejected Defendant's contentions and affirmed his conviction. In so doing, the Court held that insofar as advances in technology do not diminish an individual's expectations of privacy a GPS device cannot be installed without a warrant first being issued.
"As with infrared thermal imaging surveillance, use of GPS tracking devices is a particularly intrusive method of surveillance, making it possible to acquire an enormous amount of personal information about citizens under circumstances where the individual is unaware that every single vehicle trip taken and the duration of every stop may be recorded by the government.
We conclude that citizens of this State have a right to be free from the type of governmental intrusion that occurs when a GPS device is attached to a citizen's vehicle, regardless of reduced privacy expectations due to advances in technology. We hold that . . . a warrant is required for installation of these devices."
Similarly, in State v. Campbell, 306 Or. 157, 759 P.2d 1040, the Court held that Oregon's constitutional protection against warrantless searches and seizures focuses on the right to privacy, is not defined by technology and that a warrant was required prior to the installation of a GPS device on a vehicle holding that the right to privacy was "an interest in freedom from particular forms of scrutiny" (Id at 170) and that the installation of a GPS device was "a significant limitation on freedom from scrutiny" and "a staggering limitation on personal freedom." (Id at 172.)
In Johnson v. State, 492 So.2d 693, a warrant was issued permitting a single tracking device to be installed on an airplane. The police not only installed this device, but a second backup device in case the first failed. The inevitable occurred when the first device failed and the second was used. The Court suppressed the evidence obtained though the second device, holding that its installation was "tantamount to an illegal entry and beyond the scope of the warrant (Id at 694.)
In State v. Clifton, 158 N.C.App. 88, 580 S.E.2d 40, the Court affirmed the conviction of a defendant for obtaining property by false pretenses. Defendant had used counterfeit certified checks to purchased a 2000 Chevrolet Suburban equipped with a GPS system. Using the "manufacturer's installed GPS," the police located the vehicle, searched it and found evidence of the crime and arrested defendant.
In Whitehead v. State, 258 Ga.App. 271, 574 S.E.2d 351, defendant was convicted of trafficking in marijuana. Here, a confidential informant entered into an agreement with a friend to buy 100 pounds of marijuana from a dealer. With his consent, the police equipped the informant's car with a GPS device. He and the friend then drove to defendant's house where the drug transaction was completed. Police then continued to track the informant's vehicle through the GPS and ultimately stopped it and recovered the marijuana.
Using this seizure, the police then arrested defendant after he drove away from his house.
In affirming the conviction the Court found there was probable cause to stop defendant's vehicle and arrest him.
In U.S. v. Levit, 39 Fed. Appx. 97, 2002 WL 6459104 (6TH Cir. (Ohio),) defendant was convicted of importing methamphetamine from Europe with intent to distribute. The drugs were transported inside of the gas tank of a 1992 BMW. Upon the BMW's arrival in the United States, a U.S. Customs Inspector discovered the drugs and a decision was made to make a controlled delivery of the vehicle and ascertain who was involved in the drug transaction. In aid of this delivery, a GPS device was affixed on the vehicle. Using this device, the law enforcement officials ultimately tracked the BMW to the location where defendant was arrested.
In U.S. v. Eberle, 993 F.Supp. 974 (U.S.D.C. (Montana),) the Court held that a GPS device placed on Defendant's truck as part of a drug surveillance operation did not violate a defendant's Fourth Amendment rights holding that a "reasonable expectation of privacy exists if a person has an actual, subjective expectation of privacy and if the expectation is one society is prepared to recognize as objectively reasonable."
Here, defendant was raising marijuana in a remote area of the Flathead National Forest.
In U.S. v. McIver, 186 F.3d 1119 (9th Cir) the U.S. Forest Service discovered marijuana plants being grown in the Kootenay National Forest. As a result of placing surveillance cameras in the area they photographed defendant and his truck. After tracing the truck's registration to defendant's residence, the officers went there and placed a magnetized GPS device and a magnetized beeper transmitter to the undercarriage of defendant's truck while it was parked in defendant's driveway.
Thereafter, defendant harvested the marijuana and was tracked by the GPS/Beeper back to his residence where he was arrested.
In sustaining defendant's conviction, the Court held that defendant did not have an expectation of privacy in the undercarriage of his truck and the defendant did not demonstrate that he intended to shield the undercarriage from inspection by others. They further held that the placement of the GPS/Beeper was not a seizure within the meaning of the Fourth Amendment as there was no evidence that the device deprived defendant of dominion and control over his vehicle or that the presence of the device caused damage to the vehicle's electronic components.
Regarding the entry into the driveway, the Court held that defendant did not have legitimate expectation of privacy therein since the driveway was open to observation of persons passing by and was not enclosed by a fence and gate. The court, citing U.S. v. Karos, 486 U.S. 705 further held that the "existence of a physical trespass is only marginally relevant to the question of whether the Fourth Amendment has been violated, however, for an actual trespass is neither necessary nor sufficient to establish a constitutional violation" ( 186 F.3d at 1127.)
In a separate opinion, concurring only in the result, and disagreeing with the majority's analysis of the use of a GPS device, Circuit Judge Kleinfeld stated that the installation of tracking devices on automobiles and airplanes is subject to Fourth Amendment analysis as a seizure. He stated that such "analysis was extended from protection of property to protection of privacy, to protect privacy from government intrusion even where the individuals intruded upon lack any proprietary interest in the area where the intrusion was made." (Id. at 1133.)
"Law enforcement needs regarding beepers can be adequately served by search warrant procedures, and the broad exceptions to search warrant procedures for easily moveable vehicles. Those are not the only interests deserving of protection. People care about their cars, planes and boats, and often object vehemently to any unconsented to mechanical work or even touching of these valuable effects. That concern is protected by the law of property and by the Fourth Amendment right to be free from unreasonable seizures. In the absence of a warrant issued by a neutral magistrate, or applicability of an exception to the Fourth Amendment warrant requirement, people are entitled to keep police officers' hands and tools off their vehicles. (Id. At 1135.)
In U.S. v. Berry, 300 F. Supp. 2d 366, (U.S.D.C. (Maryland),) the Court discussed the use of a GPS device placed on defendant's car after the issuance of a warrant by a Judge of the Baltimore County Circuit Court in connection with an investigation into a conspiracy to distribute heroin.
In light of the warrant the Court held that it did not need to decide whether a GPS, unlike a beeper, requires a court order. The Court noted, "[T]his improved technology may be viewed as a more sophisticated beeper. A GPS merely records electronically what the police could learn if they were willing to devote the personnel necessary to tail a car around the clock. The Supreme Court might conclude, however, that the new technology is so intrusive that the police must obtain a court order before using it."
Of particular interest is footnote 2 wherein the Court stated, "The police may be guilty of a trespass when they install a beeper, but the [U.S.] Supreme Court has held that the commission of a trespass, without more, does not violate the Fourth Amendment.
In U.S. v. Butler, ___ F. Supp. ___, 2000 WL 134697 (D. Kane,) the Court denied suppression in a case involving defendant's methamphetamine trafficking. While this case does not discuss the use of a GPS device, the Court noted that the investigating sheriff "sought a court order for a GPS tracking device to be attached to defendant's vehicle. Such device uses satellites to track the location and travel of a vehicle. [The Deputy Sheriff] was unable to attach the tracking device to the defendant's vehicle due to safety concerns."
After reviewing existing case law, the Court finds that both the Fourth Amendment and Article 1 § 12 which protect a person from a warrantless search of his effects extends to the attaching of a GPS on a vehicle. Simply, this amounts to a search and seizure.
More than two thousand years ago the Roman statesman Cicero (106-43 B.C.) proclaimed "The good of the people is the highest law" (DeLegibus III. iii.8.) In drafting the U.S. Constitution, our founding fathers insured this through the Bill of Rights. The Fourth Amendment and Article 1 § 12 continue to insure this today.
The citizens of New York have the right to be free in their property, especially in light of technological advances which have and continue to diminish this privacy. Moreover, the GPS used herein incorporated cellular technology. This touches upon Article 1 § 12 which specifically requires a warrant for telephonic and telegraphic communications. While the telegraph has become a relic of the past, cellular technology has become the future. At this time, more than ever, individuals must be given the constitutional protections necessary to their continued unfettered freedom from a "big brother" society. Other than in the most exigent circumstances, a person must feel secure that his or her every movement will not be tracked except upon a warrant based on probable cause establishing that such person has been or is about to commit a crime. Technology cannot abrogate our constitutional protections.
Although it is acknowledged that persons have diminished expectations of privacy in automobiles on public roads and can be visually tracked by the police, it is clear that the mere act of parking a vehicle on a public street does not give law enforcement the unfettered right to tamper with the vehicle by surreptitiously attaching a tracking device without either the owner's consent or without a warrant issued by a Court. It should be noted that the GPS is not akin to a pen register which may be obtained by a court order based on reasonable suspicion. Attachment of the GPS requires a physical intrusion into an individual's personal effects whereas a pen register does not.
Accordingly, the Court finds that in the absence of exigent circumstances, not here present, the police should have obtained a warrant prior to attaching the GPS to the Mitsubishi.
This opinion does not address manufacturer installed GPS devices on automobiles. However, in the absence of exigent circumstances the prudent course for law enforcement would be to obtain a warrant prior to tracking such device.
However, based upon the evidence adduced at the hearing the police failure to obtain a warrant is not fatal.
Fourth Amendment rights are personal and may not be asserted vicariously. Only those individuals whose rights have been violated can benefit from the Amendment's protection. The "capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place" (Rakas v. Illinois, 439 US 128, 143.) This expectation of privacy must also be reasonable (People v. Cacioppo, 104 AD2d 559, app. den. 67 NY2d 881.)
Simply, Defendant bears the burden of establishing that he has standing to contest the affixing of the GPS to the Mitsubishi, to wit, the search and seizure (People v. Demoss, 106 AD2d 395.)
The ultimate determination of whether a defendant has standing involves two questions, "[F]irst, whether the proponent of a particular legal right has alleged `injury in fact' and, second whether the proponent is asserting his own legal rights and interests rather than basing his claim for relief upon the rights of third parties (Rakas v. Illinois, supra at 139.) Standing is not "automatic" (U.S. v. Salvucci, 448 U.S. 83; People v. Ponder, 54 NY2d 160.)
In People v. Cacioppo, supra, cocaine was seized from a jeep which was owned by defendant's neighbor and parked on the neighbor's property. Defendant paid the neighbor $100 per month for occasional use of the jeep. The Court held that the defendant lacked a legitimate expectation of privacy in the jeep since he did not own it and did not allege that he had the right to, nor attempted to, exclude other individuals from using the jeep. "[One] who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude" (Id. at 560, citing Rakas v. Illinois, supra at 144, n. 12.)
In People v. Miller, 298 AD2D 467, lv. den. 99 NY2d 561, the defendant was caught burglarizing a residence which he drove to in a rental car which had be rented by another individual. The Court held that the mere fact that "defendant possessed keys that fit the rental car did not establish his right to drive or possess the vehicle, [or] that he had a legitimate expectation of privacy in it . . ."
In People v. DiLucchio, 115 AD2d 555, app. den. 67 NY2d 942, Defendant was convicted of criminally negligent homicide and leaving the scene of an incident. The instrumentality of the crime was the defendant's father's car, which he had permission to drive to and from work. In holding that the defendant lacked standing to challenge the seizure of the vehicle, the Court found that there was no "testimony that the scope for the father's implicit permission extended beyond normal working hours, [nor] any information that defendant had his own set of keys or could exclude others . . . In view of the paucity of evidence and the fact that the car was seized a public street we conclude that defendant failed to carry his burden of establishing on the record on a basis for finding that he had a legitimate expectation of privacy . . ."
Nor can a defendant claim standing as a bailee. While he or she might have a possessory right superior to third parties in the property, the bailment, standing alone, is insufficient to confer standing to object to a warrantless search absent the establishing of a reasonable expectation of privacy (see, People v. Gatling, 133 AD2d 465, People v. Barronette, 123 AD2d 707, lv. den. 69 NY2d 743.)
Other than Lacey's assertion in his September 17, 2002 written statement that the Mitsubishi belonged to his girl-friend, the hearing testimony is otherwise devoid of any evidence establishing that he had a reasonable expectation of privacy in that vehicle. While there has been some mention that Misha Morton was Defendant's wife, there is no evidence at the hearing as to the existence of this or any other relationship between them or that the police were aware of any such relationship at any time prior to Lacey's arrest.
Defendant has failed to put forth any evidence that he had any ownership rights in the Mitsubishi, that he had permission to use such, or that he had the right to exclude others from use of the vehicle. This must be coupled with the fact that it was parked on a public street.
Rather, the evidence establishes that Lacey's personal vehicle was the white Toyota 4-Runner, not the Mitsubishi. He clearly avoided using this vehicle in his alleged commission of the burglaries. The role of the Mitsubishi in the pattern burglaries was simply as an instrumentality to facilitate their commission. Defendant could not expect to have a reasonable expectation of privacy in a vehicle that he did not own and which was used for the sole purpose of furthering a criminal enterprise.
It should be noted that were Defendant to contend that Misha Morton loaned him the Mitsubishi with her full knowledge that it would be used in burglaries, he would be implicating her as an accessory in that criminal conduct. There is no evidence at the hearing showing her to be involved. Indeed, the testimony is to the opposite. However, where she a defendant herein, she would possess standing and the Court would be constrained to suppress as to her alone as a result of the police failure to obtain a warrant prior to installing the GPS on the Mitsubishi.
Likewise, had the police attached a GPS to the white Toyota 4-Runner Lacey owned he would then, and only then, have standing to seek suppression of evidence resulting from the tailing of that Toyota 4-Runner.
Defendant has failed to meet his burden of proving that he had a legitimate expectation of privacy in the Mitsubishi. He did not suffer any "injury in fact" since the GPS was not installed on his property and he is, at best, basing his claim for relief upon the rights of a third party. Since he lacks standing he cannot contest the affixing of the GPS to that vehicle and its use in leading to his arrest.
Regarding Defendant's oral and written admissions, the People have met their burden of establishing beyond a reasonable doubt that these were all given after he had knowingly, intelligently and voluntarily waived his rights and were not the product of any trickery, deceit, coercion or other inducement, direct or indirect.
The showup identification was proximate in time and location to the scene of the burglary. (People v. Duuvon, 77 NY2d 541, People v. Love, 57 NY2d 1023.)
Likewise, the photopack identification was the result of the witness viewing similar looking individuals (People v. Prado, 276 AD2d 383, lv. den. 95 NY2d 967) without any inducement suggestiveness as to violate due process (People v. Chipp, 75 NY2d 327.)
The property seized from his person and the Mitsubishi were attendant to a lawful arrest based on probable cause (see, People v. Weintraub, 35 NY2d 351.) In any event, Defendant does not have standing to contest the search of the Mitsubishi.
Finally, the search of Defendant's residence was after he voluntarily gave his written consent to the police.
Defendant's motion to suppress is, in all respects, denied.
This case shall appear on the trial calendar of May 24, 2004.