
    [782 NYS2d 499]
    The People of the State of New York, Appellant, v Daniel Moya, Respondent.
    Supreme Court, Appellate Term, Second Department,
    June 9, 2004
    APPEARANCES OF COUNSEL
    
      Charles J. Hynes, District Attorney, Brooklyn (Leonard Job-love, Ann Bordley and Ruth E. Ross of counsel), for appellant.
    
      
      Legal Aid Society, Brooklyn (Andrew C. Fine and Steven Miraglia of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Order unanimously reversed on the law, defendant’s motion to suppress denied and matter remanded to the court below for all further proceedings.

After placing a garage under surveillance pursuant to a warrant that authorized a search of the garage for a stolen automobile and of anyone found therein, and having observed an individual leave the garage, lock the garage door, and depart the scene in an automobile driven by defendant, the police lawfully stopped defendant’s car to search the passenger. The officer requested defendant’s driver’s documentation. After a review of defendant’s Department of Motor Vehicles (DMV) records revealed that defendant’s driver’s license had been suspended, the officer arrested defendant. The court below granted defendant’s subsequent motion to suppress the officer’s observations of defendant, defendant’s identity, and the DMV records, holding that in the absence of any traffic offense or any reason to connect defendant to the stolen automobile, the officer’s demand for defendant’s driver’s documentation was unlawful, requiring suppression of all resulting evidence pursuant to the exclusionary rule. The People appeal and we reverse.

At the outset, we note that at oral argument, defendant conceded that the stop of his vehicle was lawful. Under the circumstances presented, and given defendant’s voluntary production of the documentation upon request of the police officer, defendant failed to establish a privacy expectation in his DMV abstract, a public record compiled independently of the police conduct challenged herein (People v Principe, 65 NY2d 33 [1985]; People v Sikorski, 280 AD2d 414 [2001]; People v Smith, 258 AD2d 245, 248 [1999]; see generally People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]; People v Myers, 303 AD2d 139, 142 [2003]; People v Bryant, 187 Misc 2d 259, 262 [Grim Ct, NY County 2001]). Accordingly, we reaffirm our determination in People v Sajous (180 Misc 2d 693 [App Term, 2d Dept 1999]) that, absent a cognizable privacy interest in DMV records, a defendant lacks standing to demand their suppression. We therefore do not reach the issue of whether the records would be admissible in the event of a Fourth Amendment violation since the lawfulness of the stop was conceded (cf. United States v Crews, 445 US 463, 475 [1980]; People v Bargas, 101 AD2d 751, 752 [1984]; People v Deleon, NYLJ, Sept. 10, 1999, at 27, col 3 [Crim Ct, Bronx County]; People v Cobb, 182 Misc 2d 808, 812 [Crim Ct, Kings County 1997]). We remain unpersuaded by the rationale of cases taking a contrary position (e.g. People v Giacalone, NYLJ, Feb. 23, 1998, at 32, col 3 [Dist Ct, Nassau County]; People v Armour, NYLJ, Oct. 27, 1998, at 30, col 4 [Crim Ct, NY County]). It is to be noted that the Driver’s Privacy Protection Act of 1994 (18 USC § 2721 et seq.) conferred no privacy interest in DMV records relevant to exclusionary rule jurisprudence (see Reno v Condon, 528 US 141, 144-145 n [2000]).

The officer’s observations of defendant after the legal stop, as well as defendant’s identity, are not the suppressible fruits of an exclusionary rule violation (see Immigration & Naturalization Serv. v Lopez-Mendoza, 468 US 1032, 1039 [1984]; People v Pleasant, 54 NY2d 972, 977 [1981] [Jones, J., concurring]).

Patterson, J.

(dissenting). Because I disagree with the majority’s conclusion that Department of Motor Vehicles (DMV) records are admissible even if obtained in violation of the Fourth Amendment, I respectfully dissent.

The facts of this case are not in dispute. Defendant was arrested near a garage on Bedford Avenue that was under surveillance pursuant to a search warrant. The warrant authorized the search of the garage for a stolen car and “of any person who may be found to have [such car] in his possession or under his control, or to whom such property may have been delivered.” Defendant was not named in the warrant.

On February 23, 2002, pursuant to the warrant, a police officer observed an individual leave the garage, lock its door and enter a vehicle driven by defendant. It is undisputed that neither defendant nor his vehicle were in the garage. It is also undisputed that defendant’s vehicle did not match the vehicle described in the warrant. The officer stopped defendant’s car and asked defendant for his driver’s license. When defendant was unable to produce it, the officer searched defendant’s DMV records, and determined that his license was suspended.

While I agree that the officer had reasonable suspicion to stop the vehicle for the purpose of seizing the passenger, I would further conclude that he had no basis to demand defendant’s license or to search defendant’s DMV records. In my view, a demand for a driver’s license invokes a De Bour level II common-law right of inquiry, which requires “a founded suspicion that criminal activity is afoot” (People v De Bour, 40 NY2d 210, 223 [1976]). Here, no such suspicion existed as to defendant and nothing in the officer’s observations gave him the authority to question defendant. Neither defendant nor his vehicle were in the garage, nor was the defendant in possession of the stolen vehicle described in the warrant. Because the officer had no basis to demand defendant’s driver’s license, any evidence obtained from a search of his DMV records was suppressible as the fruit of an unlawful inquiry.

The majority, however, contends that regardless of the lawfulness of the officer’s inquiry, defendant has no privacy interest in the DMV records and, thus, lacks standing to challenge their admissibility. I disagree. Defendant was not required to establish an expectation of privacy in the items that arose from the unlawful seizure, as long as he had an expectation of privacy in the seizure itself (see People v May, 81 NY2d 725 [1992]; People v Gittens, 110 AD2d 908 [2d Dept 1985]). Had it not been for the officer’s unlawful inquiry, defendant’s DMV records would not have been discovered.

Accordingly, I agree with the court below that the DMV records are subject to suppression and would vote to affirm.

Aronin, J.E, and Rios, J., concur; Patterson, J., dissents in a separate memorandum.  