Police Dep’t v. Kaba
OATH Index No. 2211/16, mem. dec. (June 27, 2016)
Petitioner is entitled to retain seized vehicle pending the outcome
of a civil forfeiture proceeding. ALJ finds that claimant did not
have standing to seek a return of the seized vehicle, and that even
if he had, his challenges to probable cause for the stop and search
of the vehicle are rejected.
______________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND TRIALS
In the Matter of
POLICE DEPARTMENT
Petitioner
-againstBEN KABA
Respondent
______________________________________________________
MEMORANDUM DECISION
INGRID M. ADDISON, Administrative Law Judge
Petitioner brought this proceeding to determine its right to retain a vehicle seized as the
alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code (ALJ
Ex. 1). Respondent Ben Kaba was operating the vehicle at the time of its seizure (Pet. Ex. 1).
This proceeding is mandated by Krimstock v. Kelly, 2007 U.S. Dist. LEXIS 82612 (S.D.N.Y.
Sept. 27, 2007) (the "Krimstock Order"). See generally Krimstock v. Kelly, 306 F.3d 40 (2d Cir.
2002); County of Nassau v. Canavan, 1 N.Y.3d 134 (2003).
On April 11, 2016, petitioner seized a 2006 white Chevrolet Box Truck, voucher number
1000785816, following the arrest of Mr. Kaba for (1) possession of forged instruments and
possession of forged documents, in violation of Penal Law sections 170.10(3) and 170.25, and
(2) unlicensed operation of a motor vehicle and unlicensed driving, in violation of Vehicle and
Traffic Law sections 511(1) and 509(1) (Pet. Exs. 2, 4). The charges are pending. On May 9,
2016, the Department received respondent’s demand for a trial and one was scheduled for May
24, 2016. After multiple adjournments at respondent’s request, a trial was held before me on
June 23, 2016. At the trial, the Department relied exclusively on documentary hearsay evidence,
-2as permitted by the Krimstock Order and section 1-46 of this tribunal’s rules of practice.
Respondent, who was represented by Ronnie K. Minor, a community advocate, did not testify.
For the following reasons, I find that petitioner is entitled to retain the vehicle.
ANALYSIS
Even though petitioner did not raise it, I find it necessary to preliminarily address
whether or not Mr. Kaba has standing to appear in this trial. In previous cases, this tribunal has
found a lack of standing where the claimants were unable to prove that they were the registered
or titled owner. See Police Dep’t v. Neiss, OATH Index No. 2094/09, mem dec. (Feb. 9, 2009);
Police Dep’t v. Scott, OATH Index No. 169/07, mem. dec. (Sept. 1, 2006). On his demand for
this trial, respondent checked the box to indicate that the seized vehicle was “owned outright”
(Pet. Ex. 1). While that may be interpreted to mean that he owns the vehicle, Department of
Motor Vehicle (“DMV”) records identify Trilokie Khemai as the titled and registered owner of
the seized vehicle (Pet. Ex. 7). But this is not an automatic bar to respondent’s claim. In terms
of claimants, the Krimstock Order provides in pertinent part that:
The claimant seeking release of the vehicle at the trial may be
either the person from whom the vehicle was seized, if that person
was then in lawful possession of the vehicle, or the owner if
different from such person. Only one person or entity may appear
as claimant at the trial, and preference shall be given to the
registered owner of the vehicle.
Krimstock Order at ¶6 (emphasis added). Thus, respondent would have standing to claim the
vehicle’s return to him, if he could establish that he was in “lawful” possession of it at the time
of his arrest.
According to the criminal court complaint, respondent admitted to the arresting officer
that his license was suspended, and the officer confirmed the suspension via a computer check
(Pet. Ex. 4). Respondent did not testify and the registered and titled owner did not appear.
Indeed, there was no evidence as to how respondent came into possession of the vehicle. So
there was no indication that in spite of his suspended license, respondent had the owner’s
authorization to drive the vehicle. Accordingly, respondent presented no evidence to establish
his standing to appear in this proceeding. Since the registered owner did not file a claim for the
-3return of the vehicle and respondent lacks standing to seek its return, petitioner is entitled to
retain possession of the seized vehicle.
But, even assuming that respondent was in lawful possession of the vehicle and had
standing in this proceeding, he is not entitled to the return of the vehicle for the following
reasons.
In a Krimstock proceeding, the Department has the burden of establishing by a
preponderance of the evidence: (i) that probable cause existed for the arrest pursuant to which
the vehicle was seized; (ii) that it is likely that the Department will prevail in a civil action for
forfeiture of the vehicle; and (iii) that it is necessary that the vehicle remain impounded to ensure
its availability for a judgment in a civil forfeiture action. Krimstock Order, at ¶ 3. See generally
Krimstock, 306 F.3d 40; Canavan, 1 N.Y.3d at 144-45. Due process requires an “initial testing
of the merits of the [Department’s] case,” not “exhaustive evidentiary battles that might threaten
to duplicate the eventual forfeiture trial.” Krimstock, 306 F.3d at 69-70. The probable cause
inquiry includes not only a sufficiency of the evidence supporting the arrest, but also the legality
of the means by which the Department obtained such evidence. Police Dep’t v. Burnett, OATH
Index No. 1363/04, mem. dec. (Mar. 11, 2004), aff'd sub nom, Property Clerk v. Burnett,
N.Y.L.J., May 19, 2005 (Sup. Ct. N.Y. Co. July 19, 2004), aff’d, 22 A.D.2d 201 (1st Dep’t
2005).
Petitioner submitted an arrest report and an online complaint report (Pet. Exs. 2, 3). Both
reports establish that on the day of the arrest, Mr. Kaba was observed driving the seized vehicle
which displayed a fraudulent Alabama license plate. A search of the vehicle uncovered an
additional fraudulent Alabama license plate and fraudulent vehicle registration documents from
multiple states. Respondent contends that petitioner lacked probable cause to search the interior
of the vehicle and that the search constituted an unreasonable search under the Fourth
Amendment of the United States Constitution.
In the criminal court complaint, the officer noted that he saw respondent operating the
vehicle which had graffiti on it. Based on the officer’s training and expertise gleaned while
working on auto-crime cases, he recognized that the Alabama dealer-transport license plate
affixed to the vehicle were fraudulent,
[B]ecause it [was] made of a thin lightweight metal, the license
plate number was printed on a plastic sticker that was affixed to the
said metal, said print was blurry, and the registration expiration
-4date was printed on the same sticker as the license plate number;
whereas, a genuine license plate would be made of a thicker metal
material, the license plate number would be printed directly on the
metal, and the registration expiration would be affixed via a
separate sticker.
(Pet. Ex. 4 at 2). I find that the arresting officer had probable cause to stop respondent and
effectuate an arrest based on his observation of the fraudulent Alabama license plate on the
exterior of the vehicle. Pennsylvania v. Mimms, 434 U.S. 106 (1977) (operating vehicle with
expired license plate justified stop).
The criminal court complaint further indicated that the officer removed several forged
Alabama, Tennessee and Michigan vehicle registrations from a grey bag inside respondent’s van.
It was not clear how the officer came upon the grey bag, and respondent appears convinced that
the officer conducted an unreasonable search. He argued, in essence, that this would render the
contents of the grey bag, fruits of the poisonous tree. In this regard, respondent’s argument
implicated prong two, that is, petitioner’s likelihood of success in a civil forfeiture action. I find
that petitioner satisfied prong two.
To establish prong two, petitioner must prove that the seized vehicle was used as the
instrumentality of a crime. Police Dep’t v. Ricci, OATH Index No. 1404/06, mem. dec. (Mar.
20, 2006). Administrative Code section 14-140 permits the property clerk to seize and retain
possession of any property suspected of having been “used as a means of committing crime or
employed in aid or furtherance of a crime.” Admin. Code § 14-140(e)(1) (Lexis 2016). CPLR
section 1310(4) defines “instrumentality of a crime” as “property . . . whose use contributes
directly and materially to the commission of a crime.” See Borzuko v. City of New York Police
Dep’t Property Clerk, 136 Misc.2d 758, 765 (Sup. Ct. N.Y. Co. 1987). Respondent focused his
argument solely on the legality of the search of the interior of his vehicle.
Respondent’s
argument overlooks that operation of a vehicle with a fraudulent license plate is itself a criminal
offense, and that one of the charges against him stems from such conduct. Thus, even absent the
other indicia of criminal activity recovered from within the vehicle, prong two has been satisfied.
In order to establish the third prong, that is, the necessity to retain respondent’s vehicle
pending the outcome of a civil forfeiture action, the Department must show that the vehicle must
remain impounded either to protect public safety or to ensure its availability for a judgment in a
civil forfeiture action. Krimstock Order, at ¶ 3; see also Police Dep’t v. Cortorreal, OATH Index
-5No. 1479/06, mem. dec. at 7 (Mar. 29, 2006); Police Dep’t v. Vanegas, OATH Index No.
1056/06, mem. dec. at 3 (Jan. 10, 2006); Police Dep’t v. McFarland, OATH Index No. 1124/04,
mem. dec. at 2 (Feb. 24, 2004).
By itself, the charge that respondent was driving the vehicle with a forged license plate
demonstrates that respondent openly flouts the law and lawful authority. See Police Dep’t v.
Longmore, OATH Index No. 1542/07, mem. dec. at 3 (Mar. 30, 2007) (respondent’s possession
of a forged registration and title at the time of arrest demonstrated that respondent ignores lawful
authority and poses a danger to others). Moreover, driving with a fraudulent license plate means
that in the event of an accident, potential victims will have no financial recourse since respondent
cannot insure a vehicle with fraudulent plates. In addition, respondent’s own admission at the
time of arrest that he was driving with a suspended license is sufficient to find that he poses a
heightened risk to public safety. See Police Dep’t v. Solomon, OATH Index No. 1783/04, mem.
dec. at 4 (Apr. 22, 2004) (heightened risk found where driver had suspended license).
Finally, given that respondent was arrested for the criminal possession of a forged
instrument, return of the vehicle would create an unacceptable risk that respondent would sell,
transfer ownership, or otherwise dispose of the vehicle, in an attempt to defeat the Department’s
forfeiture action. See Police Dep’t v. Pierre-Louis, OATH Index No. 1452/04, mem. dec. at 3-4
(Mar. 24, 2004). In other words, there is simply no guarantee that respondent will not employ
some other fraudulent means to thwart the Department’s claim on the vehicle.
ORDER
The Police Department is therefore entitled to retain the seized vehicle.
Ingrid M. Addison
Administrative Law Judge
June 27, 2016
APPEARANCES:
KATHERINE OBANHEIN, ESQ.
Attorney for Petitioner
RONNIE K. MINOR
Respondent’s Representative