People v. Boswell

—Order, Supreme Court, Bronx County (Robert Cohen, J.), entered on or about March 13, 1997, which, to the extent appealed from as limited by appellant’s brief, upon reargument, adhered to its initial order, dated October 25, 1996, granting defendant’s motion to suppress physical evidence, reversed, on the law, the motion to suppress denied and the matter remanded for further proceedings.

Defendant was indicted for two counts of criminal possession of a controlled substance in the third degree after the police stopped the taxi in which he was a passenger, and recovered drugs from a bag that they observed him kicking under the passenger seat. Defendant moved pre-trial to suppress the physical evidence recovered from the vehicle. Police Officer Ray Winslow testified at the suppression hearing that he was assigned to the Taxi Livery Task Force, where his duties included setting up taxi checkpoints, stopping cabs, and handing out literature containing safety tips to drivers. Winslow stated that the normal procedure required the presence of a supervisor at the checkpoint, and the stopping of every third taxi. It was the supervisor’s responsibility to set the exact procedure and location of the checkpoint. To Winslow’s knowledge, there were no written guidelines.

On February 27, 1995, at approximately 9:00 p.m., Winslow and his partner, Sergeant Thomas Galati, parked their unmarked patrol car at 139 Exterior Avenue. When the third taxi passed, they pulled their car out, placing on the turret light. They caught up to the taxi approximately a half a block later, and pulled it over. As the officers approached the taxi, they observed defendant kicking á bag under the seat. In response to the officer’s questions as to whether the bag was his, defendant first responded “what bag,” and then denied ownership of it. The police searched the bag and recovered drugs, money and two walkie talkies.

In a decision dated October 25, 1996, the suppression court *174granted defendant’s motion to suppress, concluding that the stop of the cab was unlawful since the People failed to produce any evidence of a written, systematic procedure limiting the officers’ discretion in conducting the checkpoint stop. The People moved for reargument based on this Court’s intervening decision in People v Serrano (233 AD2d 170, lv denied 89 NY2d 929). In Serrano {supra, at 171), we upheld a checkpoint stop as “nondiscriminatory and nondiscretionary,” and specifically stated the procedure utilized was not invalid merely because it was not in writing. The suppression court granted reargument but adhered to its initial determination. The court distinguished the checkpoint stop in Serrano, since there, six to eight officers were involved, the checkpoint was visible to motorists and there was no pursuit of any vehicle. The court concluded that the stop in this case was more akin to a random patrol stop, and as such, required reasonable suspicion by the police that the driver was committing a traffic violation or that an occupant was engaging in criminal activity.

While it is beyond question that a roadblock stop constitutes a seizure within the meaning of the Fourth Amendment (People v Scott, 63 NY2d 518, 524; People v John BB., 56 NY2d 482, cert denied 459 US 1010; Delaware v Prouse, 440 US 648), it is likewise accepted that there is a diminished expectation of privacy in an automobile (People v Scott, supra, at 525; United States v Martinez-Fuerte, 428 US 543, 556). Thus, “individualized suspicion is not a prerequisite to a constitutional seizure of an automobile which is ‘carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers’ ” (People v Scott, supra, at 525, quoting Brown v Texas, 443 US 47, 51).

The reasonableness of such a seizure must be judged “by balancing its intrusion on the Fourth Amendment interests of the individual involved against its promotion of legitimate governmental interests” (People v Scott, supra, at 525; see also, People v Spencer, 84 NY2d 749, 754, cert denied 516 US 905). The key factors in this analysis “are the governmental interest involved and the effect of the procedure in relation to it” on the one hand, and “the degree of intrusion of the procedure on the individual subjected to it, measured in terms of both its subjective effect and the degree of discretion vested in the officials charged with carrying it out” on the other (People v Scott, supra, at 525; see also, People v Spencer, supra, at 754).

Balancing these factors, we conclude that the procedure' utilized by the police in the instant case does not exceed constitutional limits, and is consistent with governing prece*175dent. The testifying officer stated that he was a member of the Taxi Livery Task Force, whose unit had a specific program of stopping taxis at checkpoints in order to hand out safety literature. The governmental purpose of protecting taxi drivers and their passengers from criminal activity is patent. Moreover, the procedure, overseen by a supervisor, called for the “nondiscriminatory and nondiscretionary” stopping of every third taxi observed (People v Serrano, supra, at 172). Officer Winslow testified that, consistent with this procedure, the vehicle in which defendant was riding was the third taxi observed, and therefore was stopped. As the officer’s testimony regarding the checkpoint program and the circumstances surrounding the stop in this case stands uncontradicted in the record, the suggestion that the officers acted with unbridled discretion in stopping the subject vehicle is rejected (People v Serrano, supra, at 171). Moreover, the absence of written guidelines from the higher echelons of the Police Department does not automatically render a checkpoint program invalid where the procedure adopted is uniform and nondiscriminatory (supra, at 171).

Additionally, the fact that this checkpoint involved minimal pursuit does not render it constitutionally impermissible. In People v John BB. (supra), the Court of Appeals upheld the employment by police of a roving roadblock in a rural area where many burglaries had recently occurred. The procedure in John BB. called for the stopping of every vehicle in the area in order to ascertain the identity of the occupants, and to obtain information about the burglaries. The Court found the suspicionless stops permissible since they were accomplished pursuant to a “nonarbitrary, nondiscriminatory and uniform procedure” (supra, at 488). Although the present procedure involved the stopping of every third car, instead of every one, that fact does not affect its validity so long as a “specific nondiscriminatory pattern of selection i[s] called for” (People v Scott, supra, at 526). While Scott involved a fixed checkpoint, we believe this rule would similarly apply to the minimal pursuit procedure involved herein (but see, United States v Santiago, 950 F Supp 590 [SD NY 1996]).

We acknowledge the decisions of the United States Supreme Court disapproving of roving patrol stops (see, Delaware v Prouse, supra; United States v Brignoni-Ponce, 422 US 873; see also, United States v Martinez-Fuerte, supra), but find them distinguishable. In Delaware v Prouse (supra), the defendant’s vehicle was stopped by a Delaware patrolman who testified that he stopped the car solely to check the driver’s license and *176registration. The patrolman was not acting pursuant to any department guidelines or standards, but rather characterized the stop as “ ‘routine’ ” (supra, at 650). In United States v Brignoni-Ponce (supra), the procedure at issue was the asserted authority of Border Patrol agents to stop at random any vehicle near an international border to determine if it contained illegal aliens or was involved in smuggling operations.

As should be plain, these roving-patrol procedures are characterized by the unlimited discretion afforded the government officials involved. Far from being systematic, they apparently were developed by the officers in the field on an ad hoc basis. They had no objective mechanism to limit the officers’ discretion, nor did they profess to. In contrast, the procedure at issue incorporated many of the features of the traditional fixed checkpoint — the required presence of a supervisor, the fixed location of the police vehicle and a systematic selection process for stopping cars. In view of these similarities, that the police vehicle may not have been completely visible, and that the police car pursued the taxi for a short distance, does not tip the balance toward unreasonableness (see, People v John BB., supra; cf., Delaware v Prouse, supra; United States v Brignoni-Ponce, supra).

We further find Matter of Muhammad F. (235 AD2d 168 [decided herewith]) distinguishable from the instant case. In Muhammad F. (supra), this Court found that a police roving-patrol program whereby one out of every three occupied taxi or livery cabs would be stopped for “safety checks” was constitutionally infirm. We stated that the procedure gave the police far too much discretion in choosing which vehicle to stop. Here, unlike Muhammad F., the checkpoint was at a fixed location, and a supervisor was always required to be present.

As defendant abandoned the bag when he disclaimed ownership, and the abandonment was not precipitated by any illegal conduct of the police (see, People v Morales, 243 AD2d 391, lv denied 91 NY2d 877; People v Boyd, 213 AD2d 291, lv denied 85 NY2d 970), the motion to suppress should not have been granted. Accordingly, we reverse and remand for further proceedings. Concur — Williams, J. P., Mazzarelli and Andrias, JJ.