People v. Alberti
| Decision Date | 22 May 1984 |
| Citation | 124 Misc.2d 532,476 N.Y.S.2d 1004 |
| Parties | PEOPLE of the State of New York v. Victor ALBERTI. |
| Court | New York Supreme Court |
Joel Bassoff, Brooklyn, of counsel to Elizabeth Holtzman, Dist. Atty., Kings County, for the People.
Gary Schoer, Forest Hills, of counsel to Schoer & Sileo, Forest Hills, for defendant.
A hearing was held by me on the issues of suppression of physical evidence and statements. The location in question was the subject of continuing police investigation concerning the use of the premises as a chop shop. Officer Hanna, now deceased, was assigned to stake out the premises on various occasions. The premises were a one-story brick commercial building with two entrances, including one for people and one for vehicles. Hanna reported seeing vehicles coming in but, at times, none leaving. There was no evidence adduced as to any commercial signs or markings. The officers were previously on that site and discovered no indicia of criminality.
On the date of the arrest, Officer Hanna, accompanied by the witness, Detective Milau, was stationed across from the premises early in the day. Hanna looked through the space between the garage door and floor and discerned a license number, vehicle type and color. Computer verification indicated that the license plate number was similar to a vehicle which had been reported stolen.
Subsequently, the officers observed the defendant enter the premises by use of a key that he previously had on his person. The officers thereupon knocked on the door without response. Officer Hanna went to the rear of the premises, emerging shortly thereafter with the defendant in custody.
The officers thereupon removed the keys from the defendant's person and by use of the key entered the premises. They observed automobiles, automobile parts and equipment therein.
No testimony was elicited at the hearing or in the affidavit signed by Hanna in support of a warrant indicating any evidence of illegality concerning any contents contained therein aside from the aforementioned license plate and stolen vehicle. There was a statement by Detective Milau that he observed "cut up" vehicles. No factual predicate exists for this conclusion or that this particular configuration of automobiles and parts was typical of or indicative of criminality.
The officers remained in the premises for one half hour to secure same and to determine whether any danger to their physical safeties resided therein. Thereafter, Hanna went and secured a search warrant. The search pursuant to the warrant determined numerous parts of stolen automobiles.
The issues presented herein include the efficacy of the initial sidewalk observation, the validity of the premises entry, and the police conduct at each stage of this event.
The People contend that the original observation was from the public sidewalk, did not involve a trespass and was in "plain view" of the police. This view misapprehends the "plain view" doctrine (Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 reh. den. 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120). The test balances the level of intrusion as against the level of expectation of privacy involved. Thus, in Michigan v. Clifford, 465 U.S. 1084, 104 S.Ct. 1457, 79 L.Ed.2d 773 (1984), the court reaffirmed the Coolidge doctrine and applied it to the suppression of evidence seized in the upstairs portions of a private dwelling where the original entry was permitted to firefighting needs and a determination of the cause of the fire in order to foreclose reignition. Once the cause was determined and other exigencies terminated, the expectation of privacy resumed. The sole reason for the search of the upstairs, in the court's view, was to gather evidence of crime which required the securing of a warrant based on probable cause.
Similarly, in Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 the court reaffirmed the right to trespass where no right to privacy reposed and in violation of express notices, in open fields, beyond a premises and its curtilage.
Thus, we must conclude that only where an expectation of privacy exists, "plain view" is dependent on (1) the vantage point of viewing being lawful and arrived at lawfully and (2) the...
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State v. Halczyszak
...that the vehicles had been stolen, which does not justify a search beyond the scope of the warrant." See, also, People v. Alberti (1984), 124 Misc.2d 532, 476 N.Y.Supp.2d 1004. I also take issue with the majority's version of the facts in this case and its characterization of the apparent n......
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People v. Alberti
...an aperture beneath defendant's garage door, and observed a license plate registered to a stolen vehicle inside (see, People v. Alberti, 124 Misc.2d 532, 476 N.Y.S.2d 1004). At the time, the officers were engaged in an on-going surveillance of the commercial premises, which was suspected of......