New York County Court, St. Lawrence County
[967 N.Y.S.2d 819] Nicole M. Duvé, Esq., District Attorney, Jonathan Becker, Esq., of counsel, for the People.
Vaughn Aldrich, Esq., with John Piasecki, Esq., for defendant Michael L. Jock.
JEROME J. RICHARDS, J.
Defendants were both charged with acting in concert in the alleged possession or transportation of unstamped cigarettes, contrary to Tax Law § 1814(c)(2), a Class D felony. On November 8, 2012, the court dismissed the indictment with respect to defendant Thompson, finding that the evidence showed nothing more than that he was present in the vehicle when it was stopped. The People were given leave to re-present, but advised the court that they did not intend to do so.
On May 10, 2013, the court conducted a suppression hearing to inquire into the reasonable suspicion or probable cause for the arrest of defendants, and the voluntariness of the ensuing statement given by Mr. Jock to Trooper Loveland. The court makes the following findings of fact and conclusions of law.
Findings of Fact
Brian Hotz testified that he is a Border Patrol Agent, and has worked in that capacity for more than sixteen years, serving in this county since March 2012. He noted that his work involves detection and arrests for alleged cross-border smuggling, cigarettes and illegal aliens, much of the illegal traffic coming through the St. Regis Mohawk Reservation, known as Akwesasne.
[967 N.Y.S.2d 820] On May 31, 2012, Hotz was working a swing shift and was in charge of a temporary checkpoint with traffic control cones and portable stop signs. There were 4 or 5 Border Patrol agents staffing the checkpoint, which Hotz described as being as immigration checkpoint on U.S. 11 in the Town of Rossie, near the county line between St. Lawrence and Jefferson counties. The checkpoint involved vehicles traveling west on U.S. 11. The procedure for operation of the checkpoint was that the initial, or primary inquiry involved asking the vehicle occupants if they are U.S. citizens. While not every car was stopped, the majority were. Sometimes vehicles were allowed to pass without questioning in order to prevent a blockage in traffic. If the agent at the primary station had concerns, he or she would direct the vehicle to secondary inspection in the same area, but to the side of the road and outside the stream of traffic.
Hotz identified Jock in court as a person who was stopped at about 6:30 p.m. at the checkpoint. Jock was driving a Dodge Ram pickup towing a U-Haul trailer. Jock had a passenger, later determined to be Thompson. At the primary checkpoint station Jock had a brief conversation with Hotz, said he was a United States citizen and that he was coming from Hogansburg. Hotz asked Jock what was in the trailer, Jock told him the cargo was cigarettes, and he was going to Syracuse. Hotz asked about the passenger's citizenship, and then directed the vehicle to secondary inspection. Hotz was shown Jock's driver's license, and had another officer run it for a radio check for outstanding warrants (none reported). Hotz was in uniform and did not un-holster his sidearm. The primary checkpoint conversation lasted two or three minutes.
At the secondary inspection Jock remained in the vehicle. He was asked what was in the trailer, and Jock responded that he was transporting cigarettes for his wife's company. Hotz asked if he could take a look in the trailer, and Jock said sure. After Jock opened the trailer, Hotz saw a large quantity of what appeared to be cigarettes. Hotz asked if he could inspect them, and Jock again said sure. He opened a case and a carton, and looked at the cigarettes. Hotz did not have special training in identifying unstamped cigarettes. Hotz called Senior Agent Kenna to look at the cigarettes, and Kenna told Hotz that the cigarettes were not tax stamped. The trailer was not locked or sealed before being opened during the inspection. Hotz asked Jock if he had any documentation making his possession or transportation of the cigarettes legal, and he said no.
Hotz notified Alcohol, Taxation and Finance Agent Dickey about the situation, but ATF declined to become involved with the case, so Kenna called the State Police. Trooper Loveland responded. The secondary inspection process lasted for approximately five minutes. Kenna did not recall how long the checkpoint was in operation. Hotz received no adverse information concerning Jock from the record check. Hotz recalled that Jock seemed nervous, his voice was shaking, and the pitch of his voice changed, when Hotz asked him to come to the back of the trailer.
On cross-examination by Mr. Piasecki, Hotz said that the purpose of the checkpoint was related to immigration, checking citizenship and whether non-citizens were legally in the country. He was reasonably certain that Jock was a U.S. citizen ...