Judge suppresses gun evidence found during illegal vehicle search

A state Supreme Court justice has suppressed physical evidence and statements made to police in a weapon case because of an illegal search.

At 8:43 p.m., Oct. 16, Rochester Police Department Officer James Breen was driving a patrol car with his partner, Javier Algarin, riding in the passenger seat.

Breen was directed by his supervisor to a blue Dodge Charger vehicle. As the officers followed the Charger, they noticed the plate lamp was not working and initiated a traffic stop.

Breen testified that the Charger continued on for a few houses after the stop was initiated and pulled into a driveway of a private residence on Pomeroy Street.

Breen parked behind the Charger.

Both officers approached the driver’s side of the vehicle with their guns drawn. As they came up to the driver’s door, the door opened slightly, and they told the driver, Timothy Nathan, to get out of the car.

He was immediately handcuffed and placed in the back seat of the patrol car.

Breen ran a DMV check and learned that Nathan’s license was suspended. The car was properly registered to Nathan’s mother and insured.

A man appeared on the front porch of the home as Nathan was being led to the patrol vehicle and identified himself as Nathan’s uncle.

Breen testified that he decided to have the vehicle towed. Algarin conducted an inventory search of the vehicle and found a handgun under the driver’s seat.

Algarin testified that the towing and search procedure was conducted in accordance with RPD General Order 511.

Peterson, along with Sgt. Angel Pagan, later interviewed Nathan at a police station.

Nathan was asked pedigree questions and then Miranda rights and warnings were read to him. Nathan indicated that he understood his rights and agreed to speak to police.

Nathan was charged with second- and third-degree criminal possession of a weapon.

Nathan’s attorney, Brittney Clark, filed a motion to suppress the physical evidence and statements allegedly made to police officers.

Breen, Algarin, and Detective Julius Peterson testified at a Mapp and Huntley hearing on May 12 and 16. Clark called no witnesses.

“The court finds police had reasonable suspicion to stop defendant’s vehicle,” state Supreme Court Justice Charles A. Schiano wrote in a recent decision.

The prosecution argued that the warrantless search of the car, yielding the firearm, was a valid inventory search.

“Following a lawful arrest where the vehicle is to be towed or impounded, the police may conduct an inventory search of the vehicle,” Schiano wrote.

But an inventory search “must not be a ruse for a general rummaging in order to discover incriminating evidence,” he wrote.

“The search must be conducted pursuant to an established procedure clearly limiting the conduct of the individual officers that assures that the searches are carried out consistently and reasonably,” he wrote.

“While incriminating evidence may be a consequence of an inventory search, it should not be its purpose,” Schiano added.

Schiano ruled that the prosecution failed to meet their burden to show that the warrantless inventory search was conducted according to established RPD regulations.

Breen testified that he had the vehicle towed, which required an inventory search, because Nathan was being arrested and charged with aggravated unlicensed operation.

According to RPD General Order 511, when the operator of a vehicle is charged with aggravated unlicensed operation, and any of the following conditions exist, the vehicle will be towed: The operator is the registered owner; the vehicle is not properly registered; there is no valid proof of insurance; the operator is not the owner and no one is available who can legally drive the vehicle.

The first three conditions are not applicable in Nathan’s case. As to the fourth condition, there was no testimony that the officers made a determination that no one else was available to legally drive the vehicle, according to Schiano’s decision.

Nathan’s uncle was present at the scene and identified to the officers. The officers talked with him but failed to determine whether he was available to legally drive the vehicle.

Whether another person is available to drive the vehicle applies mainly to vehicles that may be towed if on public property.

When a vehicle is on private property, due to an RPD initiated incident, and the vehicle is not being held for evidence, the vehicle will be towed only where the owner of the property has no knowledge of the vehicle, or objects to presence of the vehicle, Schiano wrote.

In Nathan’s case, the car was parked on private property belonging to the uncle, who was present and identified to the officers, and did not object to the vehicle on his           property.

Schiano ruled that the decision was not in line with the standard criteria in the RPD’s written policy.

The prosecution argued that the car was on the uncle’s private property because Nathan was evading police.

But Breen testified that, after the stop was initiated, Nathan only continued to drive “a few more houses east bound and then pulled into the driveway.”

“Driving ‘a few more houses’ after the stop is initiated does not constitute fleeing or evading a traffic stop, nor does it provide a basis to find officers here need not follow written RPD procedures when deciding to tow a vehicle and conduct an inventory search,” Schiano wrote.

“Accordingly, the firearm found in the vehicle as result of the search must be suppressed. Any statements made by defendant in reference to the firearm recovered from his vehicle during the unlawful warrantless search are suppressed as ‘fruit of the poisonous tree,’” he wrote.

“It is ordered that defendant’s motion to suppress tangible evidence and statements is granted,” he wrote.

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