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New York City Office of Administrative Trials and Hearings


Property Clerk of the Police Dept. of the City of N.Y. v Burnett

Court Discusses the Krimstock v. Kelly Principle after the Seizure of Motor Vehicle
On February 16, 2004, the defendant was arrested on three drug charges: felony possession of a controlled substance, Viagra, with intent to sell; felony possession of more than 16 ounces of marijuana; and misdemeanor possession of marijuana in a public place. At the time of the defendant’s arrest, his 2000 Lexus was seized by the Police Department under voucher number B161371, because the drugs were found in the vehicle. At the time of the arrest the defendant provided paperwork that the vehicle belonged to the defendant. At the time of the arrest, the vehicle had a retail value of $24,550.00.

The Krimstock Hearing

The defendant who was unrepresented by a Nassau County Criminal Attorney, in accordance with his new rights requested a post-seizure retention hearing. The Krimstock hearing was held for the Police Department to prove that probable cause existed for the arrest of the vehicle operator. The defendant offered only an unsworn statement that the police officer never pulled him over, but, rather, approached him as he came out of the car, which was parked. The Police Department maintained that the arrest report, which indicated that the defendant was arrested for criminal possession of a controlled substance and large quantities of marijuana, provided sufficient evidence to establish the first prong of the Krimstock analysis, namely, that there was probable cause for the arrest. The judge questioned the police officer’s observations that led to the arrest, maintaining that, to validate the arrest, evidence was necessary to demonstrate why the officer initially stopped the defendant. The Police Department, believed that the arresting officer observed marijuana sales inside the vehicle as he was a member of the Manhattan Gang Unit who monitored neighborhoods that were at high risk of drug sales. The trial judge ordered that the department was required to show probable cause for the arrest.

The New York City Office of Administrative Trials and Hearings (O.A.T.H.) Hearing

The New York City Office of Administrative Trials and Hearings on March 8, 2004, the Department petitioned to retain possession of the vehicle pending forfeiture of the defendant’s 2000 Lexus, seized upon the arrest of the defendant for felony possession of marijuana. The judge analyzed the necessity of retaining the defendant’s vehicle by the Police Department. The Police Department argued that it was necessary to do so because the criminal case was still pending and, thus, it was necessary to maintain an unbroken chain of custody so as to preserve the integrity of the evidence for the criminal case. Moreover, the Police Department maintained that public safety was at issue here, not just because of the severity of the crime in terms of the amount of drugs that the defendant possessed, but also his long history of prior drug arrests. The Police Department argued that a bond would not be appropriate in such a situation and that it should be permitted to retain the vehicle during the pendency of the forfeiture proceeding. The O.A.T.H. court decided that the Department was not entitled to retain the vehicle, and ordered its release, because of a failure to adduce sufficient evidence of probable cause for the arrest. The Department offered no evidence to show how the arresting officer came to know that the vehicle contained marijuana. That is, the record contained no indication of the factual basis for the suspicion, if any, that brought the arresting officer to stop, question or search the defendant. The Department did not adduce any evidence which showed that the officer’s actions were consistent with Fourth Amendment principles.

Civil Practice Law and Rules Article 78 Proceeding

Under section 78 of the CPLR the Department sought relief to quash the decision under the OATH hearing. The Department reiterated that the O.A.T.H. court acted in excess of its jurisdiction in requiring the Department to establish probable cause of the initial stop. The Krimstock order required only that the Department establish probable cause for the arrest. The defendant who was represented by legal aid responded that the O.A.T.H. court’s decision was not reviewable by way of CPLR Article 78. Rather, only the presiding judge in the forfeiture action can give interim relief from release pending forfeiture. Moreover, the O.A.T.H. court was correct in denying the petition for retention of the motor vehicle, because the Department had failed to meet its burden under Krimstock to show both probable cause for the initial warrantless seizure, and likelihood of success on the merits. The Supreme Court denied the Department’s Article 78 petition as the initial stop of arrestee was not valid, and thus order that vehicle should be released. The Department appealed the decision.

Appellate Division

The court examined the Administrative Code provisions relating to the seizure of vehicles and the standards relating to due process. A brief overview of the case Krimstock v. Kelly 306 F.3d 40 [2d Cir., 2002] was required by the court. In Krimstock, the plaintiffs were arrested for driving while under the influence and had their vehicles seized as a result and retained as instruments of an offense. A class action suit was initiated challenging the constitutionality of the forfeiture as the statute violated their due process rights. It was held that due process required a person to be afforded a post seizure hearing before a judicial or officer to show the likelihood of success on the merits in the forfeiture action. The court should enable the claimant to test the probable cause of the initial seizure. The case remanded to the magistrate court where it was held that the court should determine whether there was probable cause for the arrest, whether the property clerk will be successful in the forfeiture action and whether the impoundment will ensure the availability of the evidence or the forfeiture judgment. The burden is on the property clerk to prove every element of the DWI.

Therefore, the previous court did not exceed the jurisdiction ordering the defendant to show probable cause. It held that the officers lacked factual basis for initial stop of vehicle and such there was not entitlement to seize vehicle.

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