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CITY COURT OF NEW YORK, BUFFALO 1968.NY.42714 <>; 292 N.Y.S.2d 477; 57 Misc. 2d 285 July 22, 1968 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.JOHN PAUL MAZZONE, DEFENDANT Harry P. Weinrib for defendant. Michael F. Dillon, District Attorney (Robert Bolm of counsel), for plaintiff. Theodore S. Kasler, J. Author: Kasler

Theodore S. Kasler, J.

Author: Kasler

 On January 22, 1968, the defendant, John Paul Mazzone, was arrested for failing to produce an operator's license, a traffic misdemeanor, by Patrolmen Pelletier and Radwan, who were on routine patrol in a City of Buffalo police car.

Patrolman Pelletier testified that the defendant was driving west on Best Street in the City of Buffalo, New York, made "a motion to turn up Masten Street, the wrong way" (Masten being a one-way street), did proceed the "wrong way" for a short distance on Masten, and then, for some reason, turned his automobile around and resumed his journey on Best Street. Subsequently, he was stopped for a "car check" by Officers Pelletier and Radwan.

Officer Pelletier requested the defendant to produce his operator's license and motor vehicle registration. He did produce his motor vehicle registration, but could not produce his operator's license allegedly stating to Officer Pelletier that he had left it at home. Upon the defendant's failure to produce his operator's license, he was told that he would have to be taken to the station house and that he was under arrest for not having an operator's license, whereupon, according to Officer Pelletier, "he got mouthy with us".

On cross-examination, Officer Pelletier stated that the defendant may have been "patted down" at the time of arrest, but he was not searched. Ultimately he was handcuffed and transported to the station house in the police car.

During the "booking" procedure at the station house, he was directed by Officer Pelletier to empty his pockets. While in the process of emptying his pockets, he produced a slip of paper, which Officer Pelletier immediately determined was a betting slip, and, when the defendant had completed the procedure, Officer Pelletier made his search and found approximately six other betting slips.

The question before this court is whether a police officer may conduct a search of the person of a defendant taken into custody for violation of a traffic misdemeanor statute.

It is a matter of law that "a police officer is not authorized to conduct a search every time he stops a motorist for speeding or some other ordinary traffic infraction." (People v. Marsh, 20 N.Y.2d 98, 100.)

The question presented in that case was whether a search could be conducted, as incident to a lawful arrest, when a defendant is taken into custody for a traffic violation, on a warrant of arrest, following his failure to appear in court pursuant to the summons initially issued. The Court of Appeals stated that they found no basis for making such a distinction, on the ground that it would not only offend against the legislative design for the treatment of traffic offenders, but would also exceed constitutional limits on search and seizure.

The Marsh decision (supra) did not decide whether this rule of law is applicable to traffic misdemeanors, nor did it decide whether a search is permitted pursuant to Police Department Rules and Regulations to search all parties during the "booking" procedure.

This court has read, and is not persuaded by, the decision in People v. Anonymous A (56 Misc. 2d 1022) wherein it was held: "police officers, who, after stopping automobile speeding on turnpike, found that registration had expired, who had no report of recent burglaries, and who, apart from alleged traffic violations, were not investigating any crime, lacked probable cause for arrest of occupants and search of automobile yielding coin tray and approximately $8 in coins, and such evidence was thus subject to suppression."

The reason for rejecting this case as authority is that the facts and circumstances were entirely different from the instant case, and further, that this court disagrees with the conclusion that a search is not permitted after an arrest for a traffic misdemeanor.

The first question to be resolved in the case at bar is whether there was a valid arrest on the part of Officer Pelletier. His authority is derived from section 401 (subd. 4) and section 501 (subd. 1, par. e; subd. 10) of the Vehicle and Traffic Law of the State of New York.

An examination of the statutes will show that Patrolmen Pelletier and Radwan had the authority to stop the car for a car check (Vehicle and Traffic Law, § 401, subd. 4), had authority to demand the production of the operator's license (Vehicle and Traffic Law, § 501, subd. 1, par. e), and the failure on the part of the defendant to produce same immediately gave rise to the statutory presumption that he was not duly licensed to ...

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