CRIMINAL TERM, PART 48

Justice A. Silverman

* PEOPLE v. RAYMOND MAULFAIR--The defendant has been charged under

Indictment 2742/97 with Criminal Possession of a Controlled Substance in the 5th degree. He moved to suppress physical evidence and statements. At a combined Mapp-Huntley hearing, Police Officer Hans Pierre LaFontant and Sergeant Neil Nappi testified for the People. The defendant and his wife, Barbara Maulfair, testified for the defense.

The witnesses' testimony is summarized as follows:

Police Officer LaFontant

Officer LaFontant stated that he was a police officer for about 2-1/2 years and was assigned to the 33rd precinct North Manhattan Initiative. His main responsibilities involved patrol work, in particular patrolling buildings that participated in the trespass program and working at vehicle safety checkpoints. On July 3, 1997 at about 8:50 P.M., LaFontant was assigned to a vehicle safety checkpoint set up near 178th Street and Amsterdam Avenue at the approach to the George Washington Bridge. He identified the defendant as the individual he arrested at the checkpoint there at about 9:00 P.M.

The witness testified that he had participated in numerous safety checkpoints and described the procedure of setting up a checkpoint in some detail. According to LaFontant, the officers assigned to participate in a checkpoint would be notified by the Sergeant at roll call that a checkpoint was scheduled that night. The decision whether or not to conduct a checkpoint and the general procedures for operating the checkpoint were set by the Sergeant who could, for example, cancel the plan in case of inclement weather. The officers' responsibilities at the checkpoint included checking vehicles for obvious safety infractions such as a cracked windshield, defective headlight, no side view mirror, and other "summonsable offenses," as well as checking the "designated vehicles," (generally established as every second or every third car) for valid driver's license, registration and insurance, even in the absence of an obvious defect.

At the checkpoint on the night of July 3, a series of cones were set up in the road, to direct the traffic into the checkpoint. The cars that were to be checked were directed by the Sergeant to go into the area designated by the cones while the rest of the cars continued on around them. The Sergeant in charge determined which cars were to be stopped and when to temporarily suspend the checkpoint -- if, for example, traffic became too congested. On this particular night, every third car was directed to stop at the checkpoint. In addition to obvious safety violations, with regard to these designated vehicles, the officers were checking for valid licenses and related paperwork.

LaFontant testified that the defendant's car was not stopped due to any apparent defect; it was routinely waved over because it was the third vehicle. As the defendant pulled up to where LaFontant was stationed, the officer saw him throw something down inside the vehicle in a furtive manner. Feeling concerned for his safety, he ordered the defendant out of his car. LaFontant stated that whenever he worked at a checkpoint, if he felt a driver presented a danger -- for example, if he saw the driver reaching under his seat -- he would ask the driver to get out of the car while he performed his check of the vehicle. Because of his concern due to defendant's furtive hand gesture, he motioned for assistance when the defendant got out. After the defendant exited, he shined his flashlight through the open door on the driver's side floor of the car. He saw what appeared to be a hand rolled marijuana cigarette, on the floor. The officer bent down to pick up the cigarette and saw under the driver's seat a clear plastic bag containing what appeared to be cocaine. LaFontant reported this to his Sergeant, who had moved from the front of the checkpoint and was standing on the other side of defendant's car. The defendant was placed under arrest and his car was pulled over to the side. A quick search of the vehicle after it was pulled to the side also revealed a clear bag of marijuana on the floor of the car behind the driver's seat.

Sergeant Nappi

The Sergeant, a twelve year veteran on the police force, testified that he had conducted numerous safety checkpoints and that he was in charge of the checkpoint on July 3. Earlier in his career, he had received training by supervisors in the practical and legal aspects of conducting checkpoints. He explained that the purpose of the checkpoints was to protect public safety by getting defective cars (e.g., cars with safety defects, or uninspected or unregistered vehicles) and illegal drivers (e.g., no valid license, registration or insurance) off the road. Nappi testified that he had the discretion to determine when and where a checkpoint would be set up and how many police officers and police vehicles would be present. As a general rule, however, between 10 and 16 officers and two or three police vehicles were assigned.

As was the usual case, the July 3 checkpoint had approximately ten police officers and two parked police vans present. One van was stationed on the shoulder of the road adjacent to the checkpoint and another was across the street in a gas station. The checkpoint lasted about two hours, which was average. Nappi testified that the decision whether to stop every second or every third vehicle was usually based on such conditions as the time of day, the day of the week, and the heaviness of the traffic. Based on those factors, he decided to stop every third car on the night of July 3.

Nappi was stationed at the head of the cones. He counted the vehicles and signaled the driver of every third vehicle to pull into the checkpoint. Since the checkpoint could only accommodate three or four vehicles at a time, when it was full, Nappi permitted approaching vehicles to go by until spaces in the checkpoint opened up again. He testified that it took on average two minutes to check a driver's license, registration and insurance card, including running a check on each license to see if it was suspended or if the driver had any open warrants.

The checkpoint was placed at the end of the turn on the approach to the on-ramp. It was clearly marked with a series of cones placed in the road. As motorists approached, Nappi would flash a light at the designated cars and motion them into the checkpoint. The area was also lit by street lights. Nappi testified that he walked over to defendant's stopped vehicle to assist in the inspection because no other officer was apparently available to help. Although he did not assist in all inspections, he would go over if he saw an officer by himself. In such cases, traffic was permitted to drive by. After assisting, Nappi would go back to his position at the front of the cones and restart counting every third vehicle. Nappi also testified that in many cases, drivers at the checkpoint were asked to step out of their vehicles for the officers' safety.

Barbara Maulfair

Ms. Maulfair testified for the limited purpose of stating that she was the defendant's wife and had taken photographs of the car that defendant was driving when arrested. She could not state the position of the seats when he was arrested. The photographs were received into evidence.

Raymond Maulfair

The defendant testified that he was employed in the computer department of a national product administration company. On the night in question, he was headed for the George Washington Bridge after purchasing some cocaine. As he rounded the turn on the approach ramp, he saw a police officer setting out cones in the middle of the road. He did not see any other vehicles stopped at the checkpoint. An officer motioned him to approach. He pulled over to the side of the officer and asked "What's wrong?" At that time, he was about five to six feet from the officer. The officer told him to pull over to the side of the road and get out of the car. The defendant said, "Why, what did I do?" The officer put his hand on his gun and again told the defendant to pull over and get out. After the defendant stopped his car, four or five officers ran over. An officer, identified by the defendant as LaFontant, opened the door of defendant's car. Another officer grabbed him by the arm, pulling him out of the car. No one asked for identification or license or proof of insurance. He asked, "What's going on?" but the officers only responded "Shut up."

After he was yanked out of the car, he was grabbed by the arm and taken to the back of the car. Another officer standing there searched him. The defendant testified that while he was being searched, he saw LaFontant kneeling on the ground and bending over into the car, searching the interior. LaFontant came out holding a hand rolled cigarette and asked the defendant what it was. The defendant responded that he didn't know.

Maulfair testified that he did not throw anything down in the vehicle from the time he was first directed to pull over. Earlier that evening, he had unrolled a Newport cigarette, added some cocaine to it and re-rolled it by hand in rolling paper. He had been carrying it in his pants pocket but because he was sweating a lot, he took it out of his pocket and placed it under the seat to dry prior to heading for the bridge. He asserted that the cigarette had not rolled out from under the seat and that when he was being pulled from the car, he looked down and didn't see anything on the floor.

Findings of Fact

After closely observing the demeanor of the witnesses and assessing the reasonableness and believability of their stories, I find that the officers presented a credible version of events leading to the defendant's arrest. Accordingly, I credit their testimony. Specifically, I find that the defendant was waved over during the course of a routine safety checkpoint stop in which every third vehicle was being stopped. Upon realizing he was being pulled over by the police, the defendant threw something to the floor of the car in a manner that aroused Officer LaFontant's suspicions. As a result, the defendant was directed to get out of his car. The officer shined his flashlight inside through the open door and spotted what appeared to be a marijuana cigarette. After bending down to recover it, LaFontant saw a bag of what appeared to be cocaine under the driver's seat. The defendant was placed under arrest. Subsequently, a brief inspection of the interior revealed a bag of marijuana behind the driver's seat.

Conclusions of Law

The threshold question to be resolved concerns the defense assertion that the hearing was improperly reopened to permit the additional testimony of Sergeant Nappi. At the conclusion of LaFontant's testimony in the early afternoon of December 1, 1997, just before the luncheon break, the People stated they were resting (Hearing Transcript, p 48). After the lunch break, the People requested an adjournment to call a second witness, a Sergeant Nappi. This request was granted. Contrary to defendant's argument, this did not constitute a "reopening" of the hearing, since the hearing was still in progress and it was the expectation of all the parties that further proceedings would take place. The defense had not yet called their witnesses or rested, no legal arguments had occurred, and no rulings had been made. Significantly, there was no risk that the Sergeant's testimony would be tailored to fit arguments previously advanced or rulings previously made.

The defense cited three cases in support of its objection to permitting Nappi to testify -- People v. Havelka, 45 NY2d 636 (1978), People v. Crandall, 69 NY2d 459 (1987), and People v. Broughton, 163 AD2d 405 (1990). However, these cases are distinguishable from the case at bar. In Havelka, not only was the suppression hearing concluded, the case was appealed and remitted by the Appellate Division for a second hearing to allow the People to offer additional evidence. The remittitur was deemed improper where the People had a full opportunity to present legally sufficient evidence at the original hearing, but failed to do so. In Crandall, the Court reaffirmed the principle that it is proper for the Appellate Division to order a suppression hearing to be reopened when there is a defect in the initial determination of the suppression court. In Broughton, the defendant moved to suppress physical evidence. At the hearing, the prosecutor failed to elicit any evidence that the street encounter between the defendant and the police officer was justified in its inception. After both sides rested, the prosecutor sought to reopen the hearing to cure this defect. Reopening the hearing over a month later to permit the People to introduce evidence on the issue of probable cause was held to be error.

By contrast, in the present case, the hearing was not concluded and the People merely requested an adjournment to call another witness. Accordingly, the motion to strike is denied.

With respect to the substantive issues raised at the hearing, the issue to be determined is whether there was probable cause to justify the officer's actions in searching the defendant's vehicle and seizing the contraband. Preliminarily, this Court must determine whether the checkpoint stop of the defendant was proper. The defendant has argued that the checkpoint impermissibly violated his constitutional rights on three grounds: first, he claims that the People failed to demonstrate a "legitimate state interest in the either (sic) the manner, the location or the time of the checkpoint," secondly, he asserts that Sergeant Nappi "acted with impermissibly broad discretion in conducting the checkpoint," and finally, he alleges that the "checkpoint was initiated and administered without adequate administerial supervision." The People deny these allegations and assert that the checkpoint stop was lawful and proper in all respects.

As examination of New York case law reveals that the subject of checkpoint stops was first addressed by the Court of Appeals in People v. Ingle, 36 NY2d 413 (1975). In Ingle the Court considered the propriety of police action in stopping an automobile arbitrarily chosen out of the flow of traffic only because of its unusual but irrelevant appearance, solely to examine the driver's license and registration or to inspect the car for possible equipment violations. In finding such action unlawful, the Court distinguished between two types of police stops: first, singling out a particular automobile for a stop and inspection, which necessitates "some valid reason, however slight" and secondly, conducting a routine check of automobiles by some "nonarbitrary, systematic procedure to verify compliance with the law" (id., at 415). In the latter case, the Court explained that random routine checks will be deemed lawful only if performed pursuant to a specific system or uniform procedure.

The Court elaborated on this theme in People v. Scott, 63 NY2d 578 (1984). In Scott, the Court considered the propriety of a roadblock established pursuant to the county sheriff's written directive for the purpose of detecting and deterring drunk driving. In finding the roadblock lawful, the Court explained that the reasonableness of a particular practice must be determined by balancing its intrusion on an individual's Fourth amendment rights against its promotion of legitimate governmental interests. Factors to be considered in making that analysis include a consideration of the governmental interest involved, the effect of the procedure in relation to it, and the degree of intrusion of the procedure on the individual subjected to it. In particular, the Court looked at the specific procedures devised and promulgated by the sheriff and the way the roadblock was being operated when the defendant was stopped. It found that the roadblock did not intrude to an impermissible degree upon the privacy of approaching motorists, that it was maintained in accordance with a uniform procedure affording little discretion to operating personnel, and that adequate safety precautions, including fair warning of the existence of the checkpoint, were in place. The Court went on to state that the fact that not every car would be stopped did not affect its validity as long as a specific nondiscriminatory pattern was followed. Furthermore, it was reasonable to allow some cars to pass when traffic became congested.

Subsequent to the Scott decision, numerous courts have upheld routine safety checkpoints which were operated according to a nonarbitrary systematic procedure in cases involving drunk driving as well as other legitimate state interests. For example, a DWI roadblock established on the Manhattan side of the 145th Street Bridge in which every motorist was stopped and briefly questioned for apparent signs of intoxication was determined to be lawful (People v. Christopher S., 126 Misc2d 594 (1984)). Similarly, a DWI checkpoint at 20th Street and Avenue C in Manhattan was found to meet the standards set forth in Scott when the location and layout were determined by the supervisor not by individual officers, and the stops were conducted in a systematic, nondiscriminatory manner, even though the checkpoint was established and operated without a written plan or guideline and no proof was adduced as to why that particular location was selected (People v. Collura, 160 Misc2d 831 (1994)).

Auto larceny checkpoints have also been upheld, even in the absence of written guidelines and even if the checkpoint was not necessarily the most effective means to reduce car theft, assuming that the Scott requirements were met (see, for example, People v. Cascarano, 155 Misc2d 235 (1992)). Furthermore, a temporary gap in the procedure of stopping every car or every third car -- as, for example, when all the officers are occupied, so approaching vehicles are permitted to pass by -- does not invalidate an otherwise proper, nondiscriminatory checkpoint (People v. Serrano, 233 AD2d 170 (1st Dept., 1996); People v. Herbert, 172 Misc2d 377 (App. Term, 1st Dept., 1997)).

On the other hand, in cases where the stops were premised upon unelaborated precinct directives, such as "stop two or three livery vehicles each night to ascertain that everything was all right" (People v. Vails, 170 AD2d 550 (1991)) or "stop every third livery cab carrying passengers and ask the driver if he's okay" (People v. Rosario, 160 Misc2d 1081 (1994)) or "stop as many trucks as possible" (People v. Smith, 170 Misc2d 486 (1996)), the stops were deemed unlawful, and evidence seized as a result of the unlawful stops was suppressed. Similarly, where no evidence was presented that the procedures used gave limited discretion to the individual officers operating the checkpoint or that the police alerted motorists that they were approaching a checkpoint by the use of cones or flares or any police vehicles stationed in open view of oncoming traffic, the checkpoint did not comply with constitutional requirements (People v. Holley, 157 Misc2d 402 (1993)). Additionally, where there was no evidence that the roadblock would effectively advance its stated purpose or deter the particular unlawful activity sought to be deterred, the roadblock may be deficient (People v. Evans, 152 Misc2d 960 (1992)) aff'd 162 Misc2d 517 (1994) -- roadblock established to deter people from picking up prostitutes unduly intrusive where there was no evidence that the area in question was frequented by prostitutes, nothing to indicate that prostitution would somehow be deterred by establishment of a roadblock, and no relationship shown between vehicular traffic in the area and the presence of people soliciting prostitutes.

Applying the case law to the present facts, it is clear that the checkpoint established in this case was lawful in that it complied with the requirements enunciated in Ingle, Scott and progeny. In this regard the following points must be noted: First, there is a clear governmental interest in assuring public safety and an obvious benefit to be derived from removing unsafe vehicles and/or unlicensed or uninsured drivers from our roads. Secondly, the intrusion caused by the checkpoint was minimal. Each stop lasted only about two minutes and merely required the driver to produce his or her license, registration card and proof of insurance. Third, the officers working at the checkpoint had no discretion in arranging or carrying out their duties. Sergeant Nappi chose the day, time and place for the checkpoint and he personally waved over the designated vehicles. Fourth, adequate precautions as to safety, lighting and fair warning of the existence of the checkpoint were in operation. The checkpoint was clearly delineated by a series of cones. The area was adequately illuminated by street lights and whatever ambient light was still available. Sergeant Nappi, standing at the front of the checkpoint, waved over every third car by gesturing with his flashlight. In addition, police vans were stationed in two locations adjacent to the checkpoint. Based upon the foregoing, and balancing the intrusion against the promotion of legitimate governmental interests, I find that the checkpoint used here was "reasonable," as defined in Scott, and therefore lawful.

With respect to the stop of the defendant's car, I find that the car, although not bearing any apparent defect, was stopped pursuant to the systematic, uniform procedure in effect at the checkpoint. Upon observing defendant's furtive movement -- in which he appeared to throw something down in the car -- Officer LaFontant feared for his safety and ordered defendant out of the car. Because the car was lawfully stopped, the officer had authority to direct the driver to step out briefly while he completed his authorized official responsibilities (see, People v. Robinson, 74 NY2d 773, 773 (1989), citing Pennsylvania v. Mimms, 434 US 106).

LaFontant did not conduct a search of the car or enter it at that point. He merely shined his flashlight in the area where the object had been thrown. Upon doing so, LaFontant saw what appeared to be a marijuana cigarette on the floor of the car. A police officer may seize contraband from a car when that contraband is in plain view and the officer is lawfully in the location from which the observation was made (People v. Shapiro, 141 AD2d 577, 578 (1988)). Furthermore, it "is not improper for an officer to shine his flashlight into a car, and contraband discovered in that manner is considered to have been in plain view" (People v. Arias, 170 AD2d 235, 235-6 (1991), citing People v. Reyes, 167 AD2d 116). Based upon his observation, the officer was justified in reaching into the vehicle and recovering the contraband. When he did so, he saw the bag of cocaine under the seat. Since LaFontant's entry into the car at that point was lawful, his observation and seizure of the cocaine was also lawful.

The defendant was subsequently arrested, and his car was removed to the side of the checkpoint. A brief search of the car revealed an additional bag containing marijuana on the floor behind the driver's seat. Based upon the discovery of the marijuana cigarette and bag of cocaine, the police were justified in conducting a further, warrantless search of the car (California v. Carney, 471 US 386 (1985); People v. Yancy, 86 NY2d 239 (1995); People v. Blasich, 73 NY2d 673 (1989)).

In conclusion, I find that the search and seizure that occurred in this case was proper. Accordingly, defendant's motion to suppress physical evidence is, in all respects, denied.

With regard to alleged statements made by the defendant, it appears from the record that the People do not intend to use any statements in their case; indeed, Officer LaFontant testified that he did not recall that any statement was made by the defendant. The sole evidence of any statements was adduced on the defense case and consisted entirely of inquiries ("What's wrong?" "What's going on?" etc) made by the defendant just prior to, or at the time of, his arrest. Since these were spontaneous statements made by the defendant, not in response to interrogation, they would be otherwise admissible, assuming the People sought to use them (see, e.g., People v. Gonzales, 75 NY2d 938 (1990); People v. Lynes, 49 NY2d 286 (1980)).

This constitutes the order, opinion and decision of the Court.

Virginia Case Two