Opinion
00270-2019-S01
03-04-2020
The PEOPLE of the State of New York, Plaintiff, v. Clifford TULLOCH, Defendant.
John J. Flynn, Esq., Erie County District Attorney, By: Ryan D. Haggerty, Esq., Assistant District Attorney, Attorney for the People Jeremy D. Schwartz, Esq., Attorney for Defendant
John J. Flynn, Esq., Erie County District Attorney, By: Ryan D. Haggerty, Esq., Assistant District Attorney, Attorney for the People
Jeremy D. Schwartz, Esq., Attorney for Defendant
Paul B. Wojtaszek, J.
The defendant is charged by this Indictment with Attempted Murder in the Second Degree, in violation of Penal Law §§ 110.00, 125.25(1), Assault in the First Degree, in violation of Penal Law § 120.10(1), and two (2) counts of Criminal Possession of a Weapon in the Second Degree, in violation of Penal Law § 265.03(3).
The defendant moves pursuant to CPL § 710.20 to suppress physical evidence, namely the gun recovered from the 2006 Cadillac seized by Buffalo Police Detectives and later searched at the Seneca Street Impound Lot.
A Mapp hearing ( Mapp v. Ohio , 367 U.S. 643 (1961) ) was conducted. Buffalo Police Department Detectives Scott Malec and Terry Supples testified. The prior testimony from the co-defendant's suppression hearing was used by the parties for the purposes of the instant hearing.
The credible evidence at the hearing revealed the Buffalo Police Department was investigating the shooting of Jason Parish on Breckenridge Street in the City of Buffalo on January 25, 2019 when they developed information on a suspect and a suspected vehicle through surveillance footage and a photographic identification of the defendant by the victim. The car and the defendant were tied to 78 Germain Street in the City of Buffalo. The co-defendant Luz Vilella was also tied to that vehicle and address. It is undisputed that pursuant to their investigation Detective Malec and Detective Mark White reported to 78 Germain Street in the City of Buffalo to attempt to locate the vehicle (2006 Cadillac) and the defendant on February 5, 2019. They found the car parked entirely on private property without license plates affixed to it. They knocked on the door but nobody answered. Because they believed evidence related to the crime would be found in the car and it could be moved or secreted they sought to preserve the status quo. They then called a tow-truck and seized the locked car and transported it to the Buffalo Police Department impound lot on Seneca Street in furtherance of their investigation. Spent shell casings and bullet fragments were recovered from the crime scene several days prior. Detective Malec did not seek a search warrant for the car either prior or subsequent to its seizure.
In order to seek suppression a defendant must establish standing by alleging a reasonable expectation of privacy in the place or item searched. People v. Ramirez-Portoreal , 88 NY2d 99 (1996). The People consented to the hearing but reserved their right to litigate the issue of the defendant's standing. Standing can be established at the Suppression Hearing. Simmons v. United States , 377 US 390 (1968).
It should be noted that the defendant has not alleged any facts giving rise to his expectation of privacy in the 2006 Cadillac. He was not in or near it when it was impounded. The vehicle is not titled or registered in his name and he was not asked for consent to search it. Since no statutory presumption ( Penal Law § 265.15(3) ) was charged the defendant does not have automatic standing. People v. Millan , 69 NY2d 514 (1989). He does however argue that he has standing to contest the police entry onto his residence property at 78 Germain Street where they seized the co-defendant's vehicle and by extension the search of it. The People's witnesses established it for him through their testimony at the hearing. He further contends that the gun must be suppressed as fruit of the poisonous tree because this Court has already suppressed his statement wherein he divulged its location in the subject car. He also argues it is of no moment that the car had already been impounded and the co-defendant Luz Vilella was separately simultaneously questioned by Buffalo Police Detectives relative to her knowledge of the shooting and her willingness to provide a DNA sample and give consent to search her cellphone and her car. He further contends that the testimony of Detectives Malec and Supples relative to their respective involvement and joint decision to search the vehicle can only be based on his suppressed statement and therefore it is incredible. Wong Sun v. U.S. , 371 US 471 (1963), People v. Oramus , 25 NY2d 825 (1969).
The analysis required can be concluded simply by determining whether the defendant has met his burden of establishing standing. The Buffalo Police Department never sought his permission to search the Cadillac because he had no ownership, control or possession of the vehicle when it was impounded. He did not testify or offer any proof of his possessory interest in the Cadillac. Since he has no reasonable expectation of privacy in it, he cannot challenge the lawfulness of its seizure and subsequent search. See: People v. Blasich , 73 NY2d 673 (1989), People v. Guzman , 147 AD3d 1450 (4th Dept 2017), People v. DiLucchio , 115 AD2nd 555 (2nd Dept 1985), People v. Cacioppo , 104 AD2d 559 (2nd Dept 1984).
He has established standing in the premises located at 78 Germain Street through the People's witnesses' testimony. People v. Crapo , 103 AD2d 943 (1984), affd 65 NY2d 663 (1985), People v. Kozlowski , 69 NY2d 761 (1987). cf People v. Malatesta , 186 Misc 2d 312 (Sup. Ct. Rensselaer Cty 1999) What constitutes probable cause for a search under the Fourth Amendment is a determination that must be made on the facts of each case. The test of reasonableness differs for cars and buildings. The constitutional protection from search and seizure afforded a man's home is greater than that afforded his car not only because cars are mobile, but because they are less private People v. Martin , 48 AD2d 213, (4th Dept 1975) It has been consistently held that where there is a reasonable belief before the search begins that an automobile contains contraband or evidence of a crime, this constitutes probable cause and a search of the vehicle may lawfully proceed without a warrant People v. Chestnut , 43 AD2d 260, 261 (3rd Dept 1974), affd 36 NY2d 971 (1975) (see People v. Blasich Supra).
Whether a particular seizure is reasonable "requires weighing the government's interest in the detection and apprehension of criminals against the encroachment involved with respect to an individual's right to privacy and personal security. In conducting this inquiry we must consider whether the action of the police was justified at its inception and reasonably related in scope to the circumstances which rendered its initiation permissible." People v. Cantor , 36 NY2d 106, 111 (1975), People v. Caldwell , 107 Misc 2d 62 (Sup.Ct. Appellate Term, 1st Dept 1980). The Fourth Amendment protects against unreasonable searches and seizures. Based on the information available to Detectives Malec and White at the time, the seizure of the 2006 Cadillac was reasonable. People v. Brosnan , 32 NY2d 254 (1973), People v. Mule , 46 AD2d 414 (4th Dept 1975). That they did not seek a search warrant is of no moment as they obtained a valid written consent from its owner before conducting the search that yielded the gun. See People v. Gonzalez , 39 NY2d 122 (1976).
The co-defendant requested and was granted a suppression hearing on the seizure and search of her vehicle that she had allegedly given written consent to Detective Malec to search. Although she ultimately withdrew her suppression motion before this Court made a determination, the minutes from the hearing were turned over to the defendant and utilized during the instant hearing.
The People argued in the alternative that Inevitable discovery applies to the facts of this case and supports the lawfulness of the police action. Inevitable discovery does not apply because the seizure of the car itself is too remote from the crime and is the primary evidence. The gun found inside was the target of the search. Because the police were investigating a shooting where shell casings and bullet fragments were recovered at the crime scene it was reasonably likely that evidence related thereto would be found inside, so the car itself and the incriminating evidence inside is the primary evidence. The People contend that the holding in People v. Turriago , 90 NY2d 77 (1997) supports the application of the inevitable discovery exception to this case. However, contrary to this position, the instant facts would not have required the police to impound the subject vehicle and perform an inventory search pursuant to a standardized departmental policy as there was no stop of a moving vehicle. (See People v. Stith , 69 NY2d 313 (1987) where unlawful seizure of gun preceded discovery that truck was stolen so suppression of primary evidence was upheld).
The only issue that remains is whether the impoundment of the subject vehicle without a warrant and without any exception to the warrant clause of the Fourth Amendment vitiates the co-defendant's consent. Even assuming that it may offend the Constitutions of the United States and New York, the defendant's lack of standing does not require suppression under the Fourth Amendment and/or its New York Counterpart, Article 1 § 12 for the reasons stated above.
Accordingly, the defendant's motion is denied in all respects.
This decision constitutes the Order of the Court and no further order is required.