Court Determines If Officer Had Probable Cause of Vehicle & Traffic Law Violation
NYPD Detective Gregory Fortunato and his partner observed a car with “excessively tinted windows” traveling on a public road. Detective Fortunato pulled the car over and, upon approaching, observed marijuana in plain view. The officers arrested and searched the passenger Samuel Nektalov, recovering two bags containing cocaine from him. Nektalov moved to suppress the drugs, arguing that the officers lacked probable cause to stop the vehicle on the basis of a traffic violation.
At the suppression hearing in the Criminal Court, Detective Fortunato testified that he pulled the vehicle over because he observed that it was traveling with “excessively tinted windows,” but failed to elaborate further. The Court denied Nektalov’s suppression motion, finding that Fortunato properly stopped the vehicle in which Nektalov was a passenger because the car apparently violated the Vehicle and Traffic Law for having excessively tinted windows.
Nektalov pleaded guilty to criminal possession of a controlled substance in the seventh degree, reserving his right to appeal denial of the motion to suppress. The Appellate Term affirmed the denial, with one Justice dissenting . The court held that Fortunato’s testimony sufficiently established that the detective had probable cause to lawfully stop the vehicle due to an apparent violation of the V&TL Nektalov appealed to the Court of Appeals.
V&TL§ 375 (12-a) (b) provides that “[n]o person shall operate any motor vehicle upon any public highway, road[,] or street” with windows which have a light transmittance of less than 70%.”
An automobile stop may be lawfully effectuated where law enforcement has “probable cause that a driver has committed” a traffic violation. The relevant question for the suppression court in determining whether law enforcement had probable cause was whether “the officer who stopped the car reasonably believed the windows to be over-tinted in violation of” the V&TL.
When a defendant challenges the sufficiency of the factual predicate for the stop, it is the People’s burden to come forward with evidence sufficient to establish that the stop was lawful. Summary statements that the police had arrived at a conclusion that sufficient cause existed will not do. Rather, the prosecution must establish the basis for the belief that law enforcement possessed the requisite suspicion in the form of facts, not assurances. While review of probable cause determinations typically presents a mixed question of law and fact, when an issue arises as to the standard by which probable cause is measured—the minimum showing necessary to establish probable cause—a question of law is presented for review..
The full extent of Detective Fortunato’s testimony regarding the tinted windows was that the windows were “excessively tinted.” Window tints are not categorically impermissible under New York law; they are only prohibited for specified windows to the extent that they allow less than 70% light transmittance. Fortunato’s testimony that the tint was “excessive” was, thus, effectively a legal conclusion that the tint violated the V&TL. Yet, the People failed to elicit any factual basis for that conclusion. The detective did not testify, for example, that the windows were so dark that he could not see into the vehicle or that he had training and experience in identifying illegally tinted windows or conducting that type of stop. Nor did the detective testify that he measured the tint after stopping the vehicle and the results confirmed that the tint level violated the V&TL which could have provided objective, corroborative evidence of the reasonableness of his conclusion. Without more, the record was bereft of evidence of the basis to support the detective’s conclusory belief that the tinted windows violated the law. Consequently, Criminal Court should have granted Nektalov’s motion to suppress.
The Court of Appeals granted the motion to suppress. The order of the Appellate Term was reversed . And the accusatory instrument was dismissed.