N.Y. Court Finds Texting While Driving No Basis for Search

Mark Fass

New York Law Journal

A Brooklyn, N.Y., judge has granted a motion to suppress in a weapon-possession case, holding that texting while driving was not illegal in June 2009 and could not serve as the basis of a search and seizure.

In any case, Acting Supreme Court Justice Mark Dwyer held that even if texting had been illegal, doing so still would not have supported arresting drivers who text or searching their cars.

Texting while driving was banned in November 2009.

"When the Legislature enacted cell phone legislation and authorized a fine of not more than $150 for an infraction, it could not have thought it was giving police officers the right arbitrarily to arrest drivers for such a violation, to seize their vehicles, and to conduct intrusive searches," Justice Dwyer held in People v. Abdul-Akim, 5518/09.

The judge also found that the arresting officer's mistaken belief that the driver's Virginia license was only a permit and did not authorize him to drive in New York did not justify the subsequent search and arrest.

"This court concludes that the mistake ... was simply not reasonable," Justice Dwyer concluded.

The defendants, Ali Abdul-Akim and Marcus Ayala, were pulled over on the afternoon of June 16, 2009, while driving in the Brownsville section of Brooklyn, when two officers on foot patrol saw the driver, Ayala, operating a cell phone with both hands.

The officers had been shown a photograph of Ayala's passenger, Abdul-Akim, at a roll call that morning and been warned that he might be seeking revenge for the recent murder of his brother.

When asked for his license, Ayala presented the officer with a document that the officer later testified appeared to be a Virginia learner's permit, not a license.

The officer also recognized that Abdul-Akim was wearing a bulletproof vest, which is a felony in New York when another felony, such as weapons possession, is being committed.

The two men were arrested and Ayala's car was brought back to the precinct for inventory and storage. During the inventory search, the police discovered a nine-millimeter gun and one loose bullet in the glove compartment.

The defendants filed a motion to suppress the evidence, contending there was no legal basis for the stop and that everything subsequently discovered -- the gun, the vest, the bullet -- was inadmissible.

Dwyer agreed with the defendants and granted their motion. He cited several grounds, but dedicated the largest portion of his analysis to the issue of the officer's mistake regarding the license.

"As noted, in cases like [People v. David, 223 AD2d 551] it has been held that intrusive action may be justified by a 'reasonable' mistake of fact ... The question, therefore, is whether the mistaken determination by [the officer] and his supervisor that defendant Ayala was not a licensed driver was reasonable under the circumstances," Dwyer wrote.

Here, the judge said the mistake was unreasonable.

"First and foremost, the document proffered by defendant Ayala indicated on its face that it was a 'driver's license,'" Dwyer wrote. "Beyond that, defendant Ayala indisputably produced Virginia registration and insurance papers for his vehicle, a circumstance clearly at odds with any thought that he had only a learner's permit."

Dwyer is the former chief of the appeals bureau at the Manhattan District Attorney's Office who was appointed to the Court of Claims last year and assigned to Brooklyn Supreme Court.

Solo-practitioner Kleon C. Andreadis appeared on behalf of the driver, Ayala.

Andreadis said that the fact that the anti-texting law had been passed but not yet enacted was sufficient grounds on its own for granting the motion.

"If they don't have a predicate to stop him," Andreadis said, "everything else falls."

Tarsha N. Ricks of the Legal Aid Society in Brooklyn represented Abdul-Akim.

Brooklyn Assistant District Attorney Cary S. Fischer appeared for the prosecution. An office spokesman said the decision is under review.