The Motion to Suppress
February 14, 2008
Last month we looked at the motion to dismiss. This week we take a detailed look at its more prominent cousin, the motion to suppress.
One of the more peculiar aspects of alcohol influenced operating offenses is that they are perhaps the only crime where one can actually be convicted by a machine. Although the results of a DNA or ballistics test may go far toward circumstantially establishing the defendant's commission of a criminal act, when the defendant is charged with a violation of Vehicle and Traffic Law '1192(2), a result in excess of the statutorily permitted maximum is the criminal act. As these cases are tried to jurors who, in their daily lives, are dependant upon technologically sophisticated equipment to make decisions, it increasingly develops that the result of the defendant's motion to suppress is dispositive of the question of guilt or innocence as well.
That having been said, let's turn to the motion to suppress. The defendant's dispositive application to suppress is set out in CPL Article 710. Insofar as it is relevant to a chemical test of a motorist's blood, this article permits a criminal defendant who is "aggrieved by unlawful or improper acquisition of evidence" which he or she believes will be offered in a criminal action, to request that the court order such evidence suppressed or excluded. Primarily this requires the defendant to establish that his or her test falls within the purview of CPL '710.20(1) in that it is "tangible property obtained by means of an unlawful search and seizure under circumstances precluding admissibility thereof . . . . " Although subdivision (5) clearly provides that Article 710 is available when a sample of the defendant's blood is drawn pursuant to the warrant provision contained in '1194(3), what of the more routine situation? Is a chemical test had upon implied or actual consent "tangible evidence"? Yes. In People v. Johnson, (1987) 134 Misc2d 474, 511 NYS2d 773, this issue was squarely presented for the court's consideration. Recognizing that in Mapp v. Ohio, (1961) 367 US 643, 6 LEd2d 1081, 81 SCt 1684, the High Court applied the tenets of the Fourth Amendment to "all evidence," the New York City Criminal Court, citing Schmerber v. California, (1966) 384 US 757, 16 LEd2d 908, 86 SCt 1826 and Davis v. Mississippi, (1968) 394 US 721, 22 LEd2d 676, 89 SCt 1394, remarked that although the taking of a breath sample "is less intrusive than the drawing of blood, it is not less intrusive than the taking of fingerprints." Observing that each of the foregoing have been subjected to Fourth Amendment standards of reasonableness, the court was compelled to conclude that breath is similarly included. Nor may one ignore People v Moselle, (1982) 57 NY2d 97, 454 NYS2d 292. In Moselle, the Court of Appeals found suppression to be warranted upon the failure to strictly comply with the relevant provisions of the Vehicle and Traffic Law.
Tangible property alone, however, will not mandate suppression. Exclusion of evidence at a criminal trial also requires that the property be obtained by "unlawful search and seizure." While what is or is not an "unlawful search and seizure," is clearly outside the scope of this discussion, several areas of examination can be suggested. Was the vehicle stopped in the absence of a reasonable suspicion that "the vehicle's occupants had been, are then, or are about to be, engaged in conduct in violation of law" (See, People v. Sobotker, (1978) 43 NY2d 559, 563, 402 NYS2d 993). As recently noted by the Second Department, "[t]o achieve a level of reasonability, the police officer's suspicion must be 'based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion'" (People v. Riggio, (1994) - AD2d -, - NYS2d -, 1994 WL 94245, quoting, People v. Ingle, (1975) 36 NY2d 413, 420, 369 NYS2d 67). A stop conducted in the absence of such a showing will most assuredly result in suppression of a chemical test which is thereafter given inasmuch as it will constitute a fruit of the poisoned tree (see, People v. Royko, (1994, 4th Dept) - AD2d -, 607 NYS2d 515). Likewise, consent, implied or otherwise, is fertile turf for suppression (see, People v. Donnelly, (1984) 103 AD2d 941, 479 NYS2d 786; People v. Sesman, (1987) 137 Misc2d 676, 521 NYS2d 626).
Even if the motorist refused, such refusal, if it occurred after the statutory two-hour period, may be the object of a motion to suppress (People v. Walsh, (1988) 139 Misc2d 161, 527 NYS2d 349).
Is there a claim that the defendant was denied his or her right to counsel (see, People v. Gursey, (1968) 22 NY2d 224, 292 NYS2d 416). This area is particularly broad. Not only is there a basis for suppressing any statements the defendant may have made after the attachment of such a right, but a chemical test or the refusal to submit to such a test (People v. Anderson, (1991) 150 Misc2d 399, 568 NYS2d 306; People v. Martin, (1989) 143 Misc2d 341, 540 NYS2d 412) is subject to suppression if the defendant requested and was denied the opportunity to consult with counsel prior to administration of the test.
While the foregoing was relatively straight-forward in that each situation clearly involved a question of a constitutional nature, there exists a grey area in chemical test suppression, scientific integrity. What of the situation where the defendant maintains that the test was not properly given or is otherwise unreliable notwithstanding the fact that it was lawfully administered; may such a test be the subject of a motion to suppress? While the cases seem to go both ways (compare, People v. Pantaleo, (1988) 141 Misc2d 251, 536 NYS2d 369; People v. Singh, 144 Misc2d 402, 542 NYS2d 1018), in reality they don't. The holding of a pre-trial motion to suppress where the allegations stem from unreliable or inaccurate administration, as opposed to acquisition, are clearly discretionary with the Court. As pointed out by Judge Renee White in People v. Pantaleo, supra, such hearings arise from a pragmatic concern for the prejudice to the defendant that would enure from the admission of proof ultimately found inadmissible at trial as well as a concern for judicial economy. Although referred to with near uniformity as suppression hearings, they are not. As noted by Judge Joseph Kevin McKay in People v. Serrano, (1989) 142 Misc2d 1087, 539 NYS2d 845, such a hearing is "not strictly a statutory or constitutional suppression hearing. It [is] one designed to make an in limine evidentiary ruling as a matter of law on [the issue of] admissibility" (Serrano, at 1088; see also, People v. Mora, NYLJ 8/30/91 p. 18, col. 6). The distinction is crucial. The denial of a hearing based upon the discretionary power of the court will seldom be seen as error (see, People v. Nania, (1991, 4th Dept ) 177 AD2d 1015, 578 NYS2d 34, app den 79 NY2d 951, 583 NYS2d 205).
Assuming there exists an adequate basis, how does one successfully obtain a hearing on a motion to suppress?
Procedurally, suppression, like any other application for pre-trial relief, is governed by CPL Article 255. In brief, CPL '255.20 requires that all applications be made in a single set of papers within forty-five days of arraignment. Equally important is CPL '710.60 and subdivision 3(b) in particular. When the basis for the motion is the acquisition of tangible evidence, as opposed to a statement or identification testimony, "the motion papers . . . must contain sworn allegations of fact, whether of the defendant or of another person or persons, supporting such grounds." To add teeth to this requirement, CPL '710.60(3)(b) provides: "The court may summarily deny the motion if: * * * The sworn allegations of fact do not as a matter of law support the ground alleged; except that this paragraph does not apply where the motion is based upon the ground specified in subdivision three or six of section 710.20." While the cases decided under this subdivision are replete with declarations that the required factual allegations were either deficient or altogether lacking, until last November when the Court of Appeals decided People v. Mendoza, (1993) 82 NY2d 415, 604 NYS2d 922, 624 NE2d 1017, very little had been written as to what would and would not warrant the holding of a hearing on a motion to suppress.
Initially declaring that "[h]earings are not automatic or generally available for the asking by boilerplate allegations," Mendoza presented four factual situations. In the first, a "buy-bust," defense counsel's affirmation generally alleged that the accused was "acting in a lawful manner," that currency was removed from his person, that there was no reasonable suspicion, and the stop was in violation of his Federal and State Constitutional rights. Counsel's affidavit in a companion matter likewise denied being involved in any unlawful activity at the time he was seized. A third action, wherein the defendant sought suppression of a gun, contained more factual detail than the previous two, but only contingently denied possession of the firearm, alleging "if the weapon was discarded by the defendant, this action only occurred as a result of illegal police conduct." In the fourth and final matter presented, the affirmation provided that the defendant was searched by a licensed peace officer or one acting under such an officer, a fact the People denied.
In affirming the denial of hearings in all but the final situation, Chief Judge Kaye, eschewed a bright line rule for an analytical approach which calls for (1) an examination of the moving papers, (2) the context of the defendant's motion, (3) information available to the defendant and (4) the court's discretionary power to conduct a hearing.
The initial examination, the papers submitted, mandates that the motion court determine whether the papers submitted raise a factual dispute on a material point or consist of "merely legal conclusions." While the distinction between factual and conclusory allegations may be incapable of a precise formulation, Judge Kaye, in a decision which was concurred in by all but Judge Levine (who took no part), most appropriately opted for an "I know it when I see it" approach (see, Jacobellis v. Ohio, (1964) 378 US 184, 197, 12 LEd2d 793, 84 SCt 1676, [Stewart, J. concurring]) by providing a concrete example of the most arduous facet, the mixed question of law and fact. Commencing with People v Reynolds, (1988) 71 NY2d 552, 528 NYS2d 15, a case in which the Court split 4 to 3 over whether the term "curtilage" was factual or conclusory, the Court seemed to say that allegations which leave the "what's and where's" open to supposition will be conclusory. Thus, in Reynolds, "curtilage" failed to adequately support the motion since the term begged the outcome by placing the contraband within a constitutionally protected area. It did nothing to demonstrate that the marijuana was within an area to which a Constitutional protection would attach such as, in the words of the court, "the marijuana was growing 25 feet from my front door and was surrounded by a white picket fence." Phrased somewhat differently, if the allegations in support of the motion merely allege the conclusion which one desires to be drawn instead of setting forth facts which compel the desired outcome, ie: "there was no reasonable suspicion to stop my vehicle," as opposed to "I operated my vehicle at the posted speed of 35 miles per hour between Kaltman Avenue and Spectrum Street whereupon I signaled for a right hand turn which I made while keeping my vehicle entirely within the lane designated for such turns," it will be deemed conclusory.
The second Mendoza factor is somewhat more straight forward. Once a determination has been made that the papers contain factual as opposed to conclusory allegations, it is necessary to ask whether all of these allegations are sufficient in light of what is previously known in the case. Here, in what may come as a surprise to some, the Court indicated that the "defendant must additionally deny participating in the transaction or suggest some other grounds for suppression." While the Court chose to illustrate this point by discussing a so-called "buy-bust," let's consider the allegations set out in the preceding paragraph. In the context of an initial stop for "erratic operation" (see, People v McAleavey, (1986) 133 Misc2d 987, 509 NYS2d 278, affd, 159 AD2d 646, 553 NYS2d 38), the foregoing would probably be sufficient. If, however, the defendant was arrested at the scene of an accident, a hearing could appropriately be denied unless the defendant were to offer a lawful excuse for the accident and arrest such as, "I completed my turn and was forced off the road by the arresting officer."
The third Mendoza consideration, information available to the defendant, is one of fairness. Here Judge Kaye drew an analogy to motions to suppress identification testimony. Since the defendant was not present during the identification procedure falling under scrutiny, it would be unfair to force him or her to make factual averments concerning that which he or she knows nothing about. In the area of alcohol influenced operating offenses, sobriety checkpoints immediately come to mind. As we all know, to pass Federal Constitutional muster, the process must be carried out in a neutral and non-arbitrary fashion. A defendant who is arrested as the result of such a stop has no ability through which to judge the means in which the operation is executed. It would therefore be unfair to require that a motion seeking suppression as a result of such a stop factually aver the means in which the checkpoint failed.
The final element, the court's discretionary power to conduct a hearing, "[w]hile technically not part of the test for determining the sufficiency of factual allegations" (Mendoza, at 429) is worthy of thoughtful consideration. CPL '710.60(3), the opinion notes, does not mandate summary denial when the allegations are deficient. The statute merely provides that "the court may summarily deny the motion" (emphasis provided in Mendoza). With an eye toward the pragmatic side of criminal litigation, Judge Kaye wisely observes that "[i]f the court orders a Huntley or Wade hearing, and defendant's Mapp motion is grounded in the same facts involving the same police witnesses, the court may deem it appropriate in the exercise of discretion to consider the Mapp motion despite a perceived pleading deficiency" (id). Reality teaches us that reasonable minds may differ. Accordingly, such considerations "militate in favor of this procedure" (id, at 429 - 430), so as to avoid the expense and difficulty which would arise in the event that an appellate court ultimately determines that a Mapp or suppression hearing should have been held.
Does Mendoza apply when the basis for the hearing is scientific validity? As a motion made in limine seeking an opinion as to the admissibility of a particular piece of evidence, it probably should not. Even so, in People v. Garneau, (1986, 4th Dept) 120 AD2d 112, 507 NYS2d 931, the Court held, with citation to CPL '710.60(3), that the failure "to assert particularized, factual allegations," warranted summary denial of a pretrial motion to suppress the results of a Breathalyzer7 test upon the ground that it was affected by radio frequency interference (Garneau, at 114).
Before leaving suppression hearings, let's briefly clear up some misconceptions regarding the burden of proof.
When the defendant challenges the legality of a search and seizure, he or she has the ultimate burden of the proving illegality of the search (People v. Berrios, (1971) 28 NY2d 361, 367, 321 NYS2d 884; People v. Kelty, (1978) 95 Misc2d 246, 406 NYS2d 972) by a fair preponderance of the credible evidence (People v. Dougall, (1984) 126 Misc2d 125, 481 NYS2d 278). Irrespective of this responsibility, however, the People nevertheless have "the burden of going forward to show the legality of the police conduct in the first instance" (Berrios, at 367, emphasis supplied herein).
Where consent is alleged, the People still shoulder the initial burden of establishing the legality of the police conduct and must also prove willfulness of the defendant's consent by "clear and positive" (People v. Zimmerman, (1984) 101 AD2d 294, 475 NYS2d 127) or "clear and convincing" (People v. McNeely, (1980) 77 AD2d 205, 433 NYS2d 293; People v. Tinneny, (1979) 99 Misc2d 962, 417 NYS2d 840) evidence (see also, People v Gonzalez, (1976) 39 NY2d 122, 125, 383 NYS2d 215 "heavy burden of proving defendant's consent"). When the question to be resolved is the voluntariness of the defendant's statement, the burden starts and remains with the People who must prove that the admission was voluntarily made (see, generally, People v. Anderson, (1977) 42 NY2d 35, 396 NYS2d 625) beyond a reasonable doubt (People v. Witherspoon, (1987) 66 NY2d 973, 498 NYS2d 789; People v. Anderson, at 38; People v. Huntley, (1965) 15 NY2d 72, 78, 255 NYS2d 838).
When the defendant challenges the reliability or accuracy of a particular test, assuming the court grants a hearing, the best rule seems to be that it is the People who have the burden of proving the reliability of the test or technique by clear and convincing evidence (see, People v. Hughes, (1983) 59 NY2d 523, 547, 466 NYS2d 255).
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