The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined the trooper who stopped defendant’s vehicle did not have a founded suspicion of criminal activity at the time the trooper asked questions which amounted to a De Bour level two inquiry:
Defendant appeals from a judgment convicting him upon his plea of guilty of possessing or transporting 30,000 or more unstamped cigarettes … . When a State Trooper pulled over defendant for speeding on Interstate 81, he noticed “several large nylon bags” with “square edged contours” filling the area behind the driver’s seat. The Trooper initially asked defendant what was inside the bags, i.e., whether there was luggage in the bags, and defendant gave a series of increasingly implausible answers, including “clothing,” “presents,” “riding toys,” and “bicycles.” Defendant asked if he could leave, but the Trooper instead requested that he exit the vehicle while the Trooper spoke to two passengers. When the Trooper returned to speak to defendant, but before he advised defendant of his Miranda rights, defendant admitted that the bags contained nearly 300 cartons of untaxed cigarettes purchased from an Indian reservation.
We conclude that the court erred in refusing to suppress the physical evidence and statements at issue. Contrary to defendant’s contention, however, our rationale is not grounded in custody and/or Miranda issues. “In light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car” … . Here, defendant was not in custody during his temporary roadside detention, and it was permissible for the Trooper to engage in a reasonable interrogation of defendant without first advising him of his Miranda rights … .
We conclude, however, that the Trooper’s initial inquiry concerning the contents of the bags constituted a level two common-law inquiry, which required a founded suspicion of criminality that was not present at the time … . Indeed, we note that nervousness, fidgeting, and illogical or contradictory responses to level one inquiries do not permit an officer to escalate an encounter to a level two De Bour confrontation … . Here, the facts are even more strongly in favor of defendant inasmuch as defendant’s evasive and inconsistent answers were themselves induced by a level two inquiry from the Trooper. Because a founded suspicion of criminality did not arise until after the Trooper asked defendant what was inside the bags, the court erred in refusing to suppress the evidence. People v Gates, 2017 NY Slip Op 05549, 4th Dept 7-7-17
CRIMINAL LAW (STREET STOP, SUPPRESSION, TROOPER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN DEFENDANT WAS QUESTIONED ABOUT THE CONTENTS OF BAGS IN HIS VEHICLE, DEFENDANT’S NERVOUSNESS AND INCONSISTENT ANSWERS DID NOT JUSTIFY THE QUESTIONING, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED 4TH DEPT)/STREET STOPS (SUPPRESSION, TROOPER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN DEFENDANT WAS QUESTIONED ABOUT THE CONTENTS OF BAGS IN HIS VEHICLE, DEFENDANT’S NERVOUSNESS AND INCONSISTENT ANSWERS DID NOT JUSTIFY THE QUESTIONING, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED 4TH DEPT)/SUPPRESS, MOTION TO (STREET STOP, TROOPER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN DEFENDANT WAS QUESTIONED ABOUT THE CONTENTS OF BAGS IN HIS VEHICLE, DEFENDANT’S NERVOUSNESS AND INCONSISTENT ANSWERS DID NOT JUSTIFY THE QUESTIONING, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED 4TH DEPT)/TRAFFIC STOPS (SUPPRESSION, TROOPER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN DEFENDANT WAS QUESTIONED ABOUT THE CONTENTS OF BAGS IN HIS VEHICLE, DEFENDANT’S NERVOUSNESS AND INCONSISTENT ANSWERS DID NOT JUSTIFY THE QUESTIONING, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED 4TH DEPT)/DE BOUR (LEVEL TWO INQUIRY, TROOPER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN DEFENDANT WAS QUESTIONED ABOUT THE CONTENTS OF BAGS IN HIS VEHICLE, DEFENDANT’S NERVOUSNESS AND INCONSISTENT ANSWERS DID NOT JUSTIFY THE QUESTIONING, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED 4TH DEPT)