State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 24, 2014 105674 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

HENRY LEONARD,

Appellant.

________________________________

Calendar Date: May 27, 2014

Before: Lahtinen, J.P., McCarthy, Garry, Lynch and Clark, JJ.

__________

Martin J. McGuinness, Queensbury, for appellant.

James A. Murphy III, District Attorney, Ballston Spa (Ann

C. Sullivan of counsel), for respondent.

__________

Clark, J.

Appeal from a judgment of the County Court of Washington

County (McKeighan, J.), rendered January 4, 2013, convicting

defendant upon his plea of guilty of the crime of criminal

possession of a controlled substance in the third degree (two 

counts) and the traffic infraction of speeding.

On August 2, 2012 at 12:40 a.m., defendant was stopped for

speeding on State Route 4 in the Town of Fort Ann, Washington

County. Upon checking the validity of defendant's driver's

license, the state trooper effectuating the traffic stop

discovered that there was an active warrant for defendant's

arrest. Defendant, the sole occupant and registered owner of the

vehicle, was placed into custody and arrangements were made for

his vehicle to be towed. Prior to towing the vehicle, an
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inventory search was conducted and, among other things, a baggie

containing a substance later identified as 41 grams of heroin was

discovered inside a shoe found in an open, clear plastic bag

behind the driver's seat. 

Defendant was subsequently charged in an indictment with

two counts of criminal possession of a controlled substance in

the third degree and speeding. Following the denial of

defendant's motion to suppress the heroin, defendant pleaded

guilty to the indictment without waiving his right to appeal. He

was sentenced to an aggregate prison term of 10 years to be

followed by three years of postrelease supervision. Defendant

now appeals, challenging County Court's refusal to suppress the

heroin. Among other things, defendant argues that the decision

to impound his vehicle was not made pursuant to standardized

police procedure1 and that the resulting inventory search was not

reasonable. 

We reverse. Following a lawful arrest of the driver of a

vehicle, "the police may impound the car, and conduct an

inventory search, where they act pursuant to 'reasonable police

regulations relating to inventory procedures administered in good

faith'" (People v Walker, 20 NY3d 122, 125 [2012], quoting

Colorado v Bertine, 479 US 367, 374 [1987]). To this end,

"courts have insisted that an inventory search be conducted

according to a familiar routine procedure and that the procedure

meet two standards of reasonableness" (People v Galak, 80 NY2d

715, 719 [1993] [internal citation omitted]; see Colorado v

Bertine, 479 US at 371). Specifically, the procedures must be

"designed to meet the legitimate objectives of the search while

1 Although not preserved for our review (see People v

Jacquin, 71 NY2d 825, 826-827 [1988]; People v Durrin, 32 AD3d

665, 666 [2006]), were we to address the initial decision to

impound defendant's vehicle, we would agree with defendant that

the People failed to meet their burden of demonstrating that such

decision was based upon the existence of some standardized

criteria or routine procedure (see Colorado v Bertine, 479 US

367, 374-375 [1987]; People v O'Connell, 188 AD2d 902, 903

[1992]). 
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limiting the discretion of the officer in the field" (People v

Briggs, 21 AD3d 1218, 1219 [2005], lv denied 5 NY3d 851 [2005];

see Florida v Wells, 495 US 1, 4 [1990]; People v Johnson, 1 NY3d

252, 256 [2003]; People v Galak, 80 NY2d at 719).

Here, the transcript of the November 2012 suppression

hearing fails to support a determination that the conduct of the

police was reasonable. Although not fatal to their argument

against suppression (see People v Gomez, 13 NY3d 6, 11 [2009]),

the People failed to offer a copy of the State Police procedure

manual into evidence. Additionally, the People also failed to

ask any substantive questions of their witnesses so as to

otherwise establish (1) that the State Police had a standardized

procedure, (2) that such procedure was reasonable, and (3) that

it was followed here. In this regard, the testimony of the

troopers demonstrates little discussion of their professional

experience so as to help illustrate an established departmental

procedure, only a vague explanation of their decisions made at

the time of the search, and meager proof that such decisions

resulted from an established procedure designed to limit their

discretion. In fact, Trooper Jason Gutowski's testimony, coupled

with the incomplete vehicle impound inventory form he prepared

following defendant's arrest, exposed an exercise of his

unfettered personal discretion. Specifically, while

acknowledging that one of the main purposes for an inventory

search is to protect the property of the defendant, Gutowski

repeatedly indicated that, if certain items were not included on

his inventory list – i.e., money, CDs, a CD changer, a GPS – it

was because he did not consider the items to be of any value. 

Gutowski also explained that he prepared the inventory search

form only from his memory after returning to the barracks and

that a copy of the form was not provided to defendant. Thus,

based upon the record before us, we are unable to determine that

the police conduct was sufficiently standardized and designed to

produce a meaningful inventory of the contents of defendant's

vehicle so as to be reasonable (cf. People v Walker, 22 NY3d at

127). 

Furthermore, we respectfully disagree with our dissenting

colleague that the decision to impound defendant's vehicle was
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the only option available2 and, further, that a reasonable,

standardized procedure for the ensuing inventory search was

properly established. Rather, due to the insufficiency of the

proof at the suppression hearing, we lack the information

necessary to arrive at such conclusions absent conjecture. For

example, we know that the traffic stop occurred on State Route 4

a little after midnight. However, we do not know if, perhaps,

defendant was stopped in or near the parking lot of a gas

station, business or other property where he could have safely

left his vehicle without the need for towing. We also do not

know whether an acquaintance of defendant was available and able

to take possession of the vehicle, making impoundment

unnecessary. Nor do we know if State Police procedure required

that the troopers check into any of these alternatives before

making the decision to impound. Further, the testimony of

Gutowski merely establishes his recollection of the contents of

the State Police inventory search manual that he had received

years earlier, not what the manual actually directs or the

obligations imposed by the policies contained therein. As stated

above, absent admission of the manual into evidence or discussion

regarding Gutowski's experience and conduct in similar

situations, we feel his testimony was insufficient to ensure

compliance with constitutional mandates. While we agree that

officers in the field are to be afforded a certain minimal amount

of discretion, the lack of proof here makes it impossible to

characterize this trooper's discretion as consistent with a

reasonable standardized procedure.

Accordingly, we conclude that the People failed to meet

their burden and the heroin found in the car should be

suppressed.3 Defendant's remaining arguments have been rendered

2 We reiterate that this argument is not preserved for our

review. However, we address it here solely in the context of

responding to the dissent.

3 Inasmuch as the People have not conceded that those

counts are otherwise unsupported by the evidence, we are not

dismissing counts 1 and 2 of the indictment (cf. People v Small,

110 AD3d 1138, 1141 [2013]). However, we note that "[t]he Court
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academic by our decision.

Lahtinen, J.P., McCarthy and Garry, JJ., concur.

Lynch, J. (dissenting).

I respectfully dissent.1 The two state troopers who

testified at the suppression hearing, each with 10 years of

experience, explained that it is State Police policy to conduct

an inventory search when a vehicle is towed. Trooper Jason

Gutowski, who performed the search, testified that he was issued

an inventory search manual during basic training. He explained

that, pursuant to the manual, troopers "are required to perform

as thorough a search as possible of the vehicle . . . and its

contents," to "search every item thoroughly," "without obviously

breaking anything," and to identify items "of value" on an

inventory list. Here, the record shows that Gutowski searched

the front and rear seat interior areas, the glove box, console

and trunk. During the search, he located an open plastic bag

behind the driver's seat, containing items of clothing and shoes. 

Consistent with the policy manual, he examined each individual

item for valuables, which he described as "[j]ewelry, money,

items such as that." Gutowski found the baggie containing the

heroin inside a sneaker removed from this bag. On the inventory

of Appeals has made clear that the People are entitled to one

full-opportunity to present relevant evidence at a suppression

hearing" (People v Weddington, 192 AD2d 750, 751 [1993]; see

People v Malinsky, 15 NY2d 86, 95-96 [1965]), and the People have

already had that opportunity here. 

1 Since defendant did not preserve a challenge to the

initial decision to impound the vehicle, that issue should not be

addressed (see People v Luperon, 85 NY2d 71, 78 [1995]; People v

Jacquin, 71 NY2d 825, 826-827 [1988]). That being said, it is

also my view that the decision by the troopers to impound the

vehicle was the only option they had and was not unreasonable

under either the US or NY Constitution (see US Const 4th Amend;

NY Const, art I, §12). 
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form, he listed "bag of assorted clothes and sneakers, plastic

baggie containing approximately 41 grams of off white powder" and

a speaker box removed from the trunk. As the majority notes, the

People were not obligated to submit a copy of the procedures

manual into evidence, and testimony of the inventory search

policy "in general terms" may be sufficient (People v Walker, 20

NY3d 122, 124-125 [2012]). In my view, the record establishes

that the troopers were guided by a "'single familiar standard'"

when they conducted their inventory search (People v Walker, 194

AD2d 92, 94 [1993], quoting Colorado v Bertine, 479 US 367, 375

[1987]). 

Defendant maintains that the search was invalid because the

troopers were accorded too much discretion in deciding what items

were valuable enough to be inventoried. Gutowski acknowledged

that the State Police manual does not define what value an item

has to have before being listed, leaving that determination to

the trooper's discretion. As the majority correctly explains,

the inventory procedures "must limit the discretion of the

officer in the field" (People v Galak, 80 NY2d 715, 719 [1993]). 

At the same time, however, officers in the field must also be

accorded certain latitude in conducting a search (see id.). The

operative point here is that the People met their burden of

proving that a reasonable, standardized procedure was utilized in

conducting the inventory search. The circumstances called for

the towing of defendant's vehicle, and there is no indication

that the ensuing search was prompted by a concern of other

criminal activity (see People v Briggs, 21 AD3d 1218, 1219

[2005], lv denied 5 NY3d 851 [2005]). The itemized inspection of

the open bag was required under the policy and guided by the

direction to inventory items of value. Unlike the situation in

People v Galak (80 NY2d at 719-722), this policy imposed an

obligation on the trooper to prepare a proper inventory. That

the task involved a discretionary call in assessing the value of

an item does not render the process arbitrary (see United States

v Lopez, 547 F3d 364, 370-372 [2d Cir 2008], cert denied 556 US

1114 [2009]). Granted, this was not a model inventory, for

Gutkowski conceded that there were "numerous items strewn about"

that he did not include in the inventory list because he did not

consider the items to have any value. Whether he should have

included certain items that may have been in the vehicle on the
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inventory list, however, does not undermine what was otherwise a

reasonable procedure (see id.). Given the miscellaneous items of

limited value typically found in a vehicle, a separate

itemization of each item regardless of value was not necessary

(see id.). As in People v Walker (20 NY3d at 126-127) and

Colorado v Bertine (479 US at 369), the inventory here was

adequate.

ORDERED that the judgment is reversed, plea vacated, motion

to suppress the heroin granted, and matter remitted to the County

Court of Washington County for further proceedings not

inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court