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Police Dep’t v. Peters

OATH Index No. 410/08, mem. dec. (Nov. 7, 2007)

Petitioner failed to prove that probable cause existed for the arrest of James M. Peters Jr. The Department is ordered to release the vehicle.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

-against-

JAMES PETERS

Respondent

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MEMORANDUM DECISION

JULIO RODRIGUEZ, Administrative Law Judge

Petitioner brought this proceeding to determine its right to retain a vehicle seized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code. Respondent is the owner of the car. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), second amended order and judgment (S.D.N.Y. Dec. 6, 2005), (the "Krimstock Order"). See generally Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002), cert. denied sub nom. Kelly v. Krimstock, 539 U.S. 969 (2003); County of Nassau v. Canavan, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (2003).

The 2002 Lexus at issue, bearing Pennsylvania plate number GHK9132, was seized by the Department on April 8, 2006, pursuant to the arrest of respondent’s son, James M. Peters Jr., for criminal possession of a weapon in the third degree, criminal possession of stolen property in the fourth degree, criminally using drug paraphernalia in the second degree, and unlawful possession of marijuana in violation of Penal Law sections 265.02(4), 165.45(4) 220.50(2) and 221.05 respectively (Pet. Ex. 3).

Respondent appeared at the hearing on November 1, 2007,with counsel. Respondent and his son testified. Respondent argued that the Department failed to establish each of the three prongs under the Krimstock Order.

Based on the reasons discussed below, I find that the Department failedto establish probable cause for James Peters Jr.’s arrest. Therefore, I conclude that the Department is not entitled to retain the vehicle.

ANALYSIS

The Department’s documentary evidence consisted of an arrest report, a police officer’s complaint report, a criminal court complaint, and criminal history reports for James Peters Jr. and Chris L. Stevenson (Pet. Exs. 1, 2, 3, 5a & 5b). No police officers testified. The criminal court complaint establishes the following. On April 8, 2007, a police officer observed James Peters Jr. and Chris Stevenson sitting in the 2002 Lexus at issue. Peters Jr. was seated in the driver’s seat and Stevenson was in the rear driver’s side seat. Peters and Stevenson exited and began to walk to the back of the car as the officer approached. Stevenson began to run. The officer recovered one large zip-lock bag containing marijuana, glassine envelopes, and a loaded .38 caliber revolver from the car(Pet. Ex. 3).

James Peters Jr. testified that he had borrowed his father’s car to go to a house party. At approximately 11:00 p.m. he went outside to cool off. While outside he decided to sit in the car. He confirmed that he was sitting in the driver’s seat of the car and that Stevenson was sitting in the back seat. After a while, he decided to return to the party. He and Stevenson exited the car and were crossing the street when the police arrived. According to Peters, the police ordered everyone, including other individuals who were standing nearby, to lie on the ground. As Peters complied, Stevenson took off running. Peters’ sight was blocked by officers who were standing in front of him; therefore he was unable to see what happened after Stevenson ran. Peters testified that the officers then searched the car.

Respondent did not contest that a loaded gun and marijuana were recovered from inside the car. Instead counsel argued that the gun belonged to Stevenson and that the Department failed to meets its burden under the Krimstock Order.

In order to retain the seized vehicle as the instrumentality of a crime pending the outcome of its civil forfeiture action the Department bears the burden of proving by a preponderance of the evidence that: (i) probable cause existed for the arrest pursuant to which the vehicle was seized; (ii) it is likely that the Department will prevail in a civil action for forfeiture of the vehicle; and (iii) it is necessary that the vehicle remain impounded either to protect the public safety or to ensure its availability for a judgment of forfeiture. Krimstock Order, at 3; Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 286. The due process rights at issue here require an “initial testing of the merits of the City’s case,” not “exhaustive evidentiary battles that might threaten to duplicate the eventual forfeiture hearing.” Krimstock, 306 F.3d at 69-70; see Canavan, 1 N.Y.3d at 144-45 n.3, 770 N.Y.S.2d at 286 n.3, citation omitted (hearing is intended to establish “the validity, or at least the probable validity, of the underlying claim”).

Central to the issue of whether probable cause existed for Peters’ arrest is the lawfulness of the warrantless search of the car pursuant to which the loaded gun and marijuana were recovered. The Department presented no proof that the police officer had an articulable basis to fear for his safety that would have justified a limited search of the car. See, People v. Torres, 74 N.Y.2d 224, 544 N.Y.S.2d 796(1989). Instead the Department argued that the officer had probable cause to search the car because the loaded firearm was in plain view in the back seat of the car.

When queried as to the evidence that established that the gun was in plain view, the Department relied on the criminal court complaint which reads in relevant part:

Deponent further states that he recovered a .38 caliber revolver from the back seat of the [car] and that said revolver had five (5) rounds in the cylinder.

(Pet. Ex. 3).

The statement in the criminal court complaint is ambiguous and fails to establish whether thegun was on the back seat in plain view or had been secreted in the back seat. Neither the arrest report nor the police officer’s complaint report shed any light on the issue. Both read that Peters was in possession of a loaded gun but fail to state how or where the gun was recovered.

While it is possible that the gun was in plain view it is equally possible that it was not. Therefore, the evidence before me is insufficient to conclude that the gun was in plain view. I decline to infer that the gun was in plain view based solely on the language cited in the criminal court complaint. To do so would be to relieve the Department of its burden to establish probable cause for Peters’ arrest as required by the Krimstock Order. During several other Krimstock hearings the Department has obtained affidavits from police officers to fill in gaps in its documentary evidence. Here, the Department could haveobtained an affidavit from the officer to establish that the gun was in plain view. The Department could also have questioned James Peters Jr. during the hearing about the location of the gun. The Department opted to do neither.

Having concluded that the Department failed to satisfy its burden under the first prong of the Krimstock Order, I need not analyze the remaining prongs.

ORDER

The Department is directed to release respondent’s vehicle forthwith.

Julio Rodriguez

Administrative Law Judge

November 7, 2007

APPEARANCES:

SGT. LAWRENCE V. SISTA, ESQ.

Attorney for Petitioner

ROBERT A. WALTERS, ESQ.

Attorney for Respondent