People v. Bannister

• Citation: 112 Misc.2d 770,447 N.Y.S.2d 829
• Parties: The PEOPLE of the State of New York, v. Frank BANNISTER, Maurice Martinez and Marc Fisher, Defendant.
• Decision Date: 19 February 1982
• Court: United States State Supreme Court (New York)

Page 829

447 N.Y.S.2d 829

112 Misc.2d 770

The PEOPLE of the State of New York, v. Frank BANNISTER, Maurice Martinez and Marc Fisher, Defendant.

Supreme Court, Criminal Term,

Queens County, Part J8.

Feb. 19, 1982.

John J. Santucci, Dist. Atty. of Queens County, for the people; William Sarro, Asst. Dist. Atty., Kew Gardens, of counsel.

Markewich, Rosenhaus, Markewich & Friedman, P. C., Daniel Markewich, New York City, for defendant Martinez.

Sakona, Ginsberg & Katsorhis, Jamaica, for defendant Fisher; Jerome M. Ginsberg, and Kerry J. Katsorhis, Jamaica, of counsel.

Joseph Miller, Kew Gardens, for defendant Bannister.

ARTHUR W. LONSCHEIN, Justice.

This case presents certain aspects of the law of search and seizure, not previously encountered in New York, with regard to "controlled deliveries" of previously seized contraband matter. The defendants were indicted for the crime of possession of marihuana in the first degree. They now move to suppress the physical evidence of that marihuana.

The essential facts are not in dispute and can be summarized briefly as follows: On February 22, 1981, certain crates arrived at Kennedy Airport, aboard a Lufthansa Airlines cargo flight from Nigeria. The defendant Bannister was listed on the manifest as consignee. United States Customs officials viewed the shipment as suspicious, since Nigeria is known by them to be a frequent source of marihuana smuggled into this country.

The Customs agents then utilized the services of a dog which had been trained to detect the odor of marihuana. This dog was allowed to sniff the outside of the crates and immediately indicated the presence of marihuana in each of them. The agents opened the crates, confirmed the presence of marihuana inside, and then re-sealed them. They then contacted the Federal Drug Enforcement Agency. They regarded the crates as seized, and would not have released them to the consignees except in the context of a "controlled delivery", which is what followed.

The DEA, acting jointly with the Customs agents, removed the crates to an area over which they maintained control, and kept them under constant surveillance.

On February 23, 1981, the defendants appeared at the terminal, signed for the crates, which were released to them by Customs, and loaded them onto a rented van. During this time, the crates and the defendants were under close DEA scrutiny, and the DEA had the entire area surrounded and under their control. Before the defendants could leave, the agents revealed themselves, arrested the defendants, and seized the crates. The DEA then turned the defendants and the evidence over to the New York City Police for prosecution.

None of the Customs service or DEA activity described here was carried out under the authority of a warrant.

The defendants, quite properly, do not challenge any of the actions of the Customs agents, from the initial search and seizure of the crates until they were taken to the storage area. As the Court of Appeals has recently held, the sniffing of the outside of the crates by the police detector dog did not constitute a search. (People v. Price, 54 N.Y.2d 557, 446 N.Y.S.2d 906, 431 N.E.2d 267). The subsequent opening of the crates and inspection of the contents was a bona fide border search and that fact, in and of itself, rendered the search reasonable and valid under the Fourth Amendment without requiring a warrant. "This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless 'reasonable' has a history as old as the Fourth Amendment itself. We reaffirm it now." U. S. v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 1980, 52 L.Ed.2d 617. The authority of the Customs agents in this regard is circumscribed only by the applicable statute, 19 U.S.C. § 482, which requires "reasonable cause to suspect" that the articles inspected may contain merchandise imported contrary to law. This standard is far less stringent than "probable cause." (See People v. Regnet, 111 Misc.2d 105, 443 N.Y.S.2d 642, and U. S. v. Doe, 472 F.2d 982 (2d Cir. 1973) cert. den. 411 U.S. 969, 93 S.Ct. 2160, 36 L.Ed.2d 691).

In order to justify suppression, defendants ask the court to view the seizure of the crates from the van as being a totally separate and independent police action, deriving no justification whatever from the earlier Customs seizure. If the court were to accept this argument, the evidence might well have to be suppressed, as the search was not merely incidental to a lawful arrest, was not prompted by any exigency, and was not justified by what remains of the "automobile exception." Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744; New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, on remand 50 N.Y.2d 447, 429 N.Y.S.2d 574, 407 N.E.2d 420; U. S. v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538; Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235.

The leading New York case in this area is People v. Adler, 50 N.Y.2d 730, 431 N.Y.S.2d 412, 409 N.E.2d 888, cert. den. 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473. Adler involved a search originally made by private parties not subject to the requirements of the Fourth Amendment. Employees of an airline in Los Angeles had accepted a package for shipment to New York. Suspecting that it contained hazardous material, they opened it and found a large quantity of pills. They notified the Los Angeles police, who seized the package and determined that the pills were contraband material. They then returned the package to the airline for shipment to the New York police. In New York, the police took custody of the package and confirmed the contraband nature of its contents. They allowed the defendant to take possession of the package, at which time she was arrested.

The Court of Appeals held that the warrantless police action in New York was not a separate and independent search, but merely a continuance of the Los Angeles search. The court analyzed the Los Angeles search, and found that it did not violate the Fourth Amendment since the pills had, in effect, been opened to plain view by the action of private persons. The court concluded:

(W)hen the New York police searched the package, there was no independent intrusion requiring a warrant, but simply a continuation of the valid search and seizure effected in Los Angeles.... The property here ... once lawfully seized and under continuous police control, simply was permitted to come into the suspect's hands as bait in a trap set not by the police but apparently by the suspect herself. (50 N.Y.2d 730, 738-739, 431 N.Y.S.2d 412, 409 N.E.2d 888).

The Court of Appeals was unanimous in its opinion that the Los Angeles and New York searches constituted but a single episode of police activity which had to be justified at its inception in Los Angeles, or not at all. ¹

This doctrine of "continuous seizure" was first enunciated in U. S. v. DeBerry, 487 F.2d 448 (2d Cir. 1973) which also involved a search initiated by private persons. It has been adopted by numerous Federal and State courts in similar cases: U. S. v. Bulgier, 618 F.2d 472 (7th Cir. 1980) cert. den. 449 U.S. 843, 101 S.Ct. 125, 66 L.Ed.2d 51; U. S. v. Ford, 525 F.2d 1308 (10th Cir. 1975); U. S. v. Andrews, 618 F.2d 646 (10th Cir. 1980); cert. den. 449 U.S. 824, 101 S.Ct. 84, 66 L.Ed.2d 26; U. S. v. Issod, 508 F.2d 990; (7th Cir. 1974) cert. den. 421 U.S. 916, 95 S.Ct. 1578, 43 L.Ed.2d 783; State v. Johnson, 569 S.W.2d 808 (Tenn., 1978): McConnell v. State, 595 P.2d 147 (Alaska, 1979) cert. den. sub nom. McConnell v. Alaska, 444 U.S. 918, 100 S.Ct. 235, 62 L.Ed.2d 173; and State v. Pohle, 166 N.J.Super. 504, 400 A.2d 109, cert. den. 81 N.J. 328, 407 A.2d 1202.

Defendants attempt to distinguish Adler on the grounds that the search in this case was wholly governmental in nature from its inception, whereas the original search in Adler was made by private persons. There are no New York cases which rule on the applicability of the DeBerry-Adler continuous-seizure doctrine to searches initiated by government action. The reasoning in Adler, however, gives no indication that the private nature of the original search was in any way related to the question of continuous seizure. It was the ultimate legality of the initial police action, and not the reason for its validity, which was essential to the Court of Appeals' holding.

The court views the continuous seizure doctrine as fully applicable to this case. Here, as in Adler, supra, and DeBerry, supra, there was a proper, warrantless, initial search and seizure, followed by a period of continuous police control over the package, until the police allowed its delivery into the hands of one who claimed possession, at which time the claimant was arrested. In both cases, the circumstances of the delivery to the claimants were such that at all times the package remained within the effective control of the police, notwithstanding the fact that the claimants may have thought that they enjoyed exclusive possession for a time.

Thus, the intrusion into the van, the removal of the containers and their subsequent search is properly viewed not as an independent action requiring a warrant, but as merely a continuation of the valid warrantless search and seizure effected by the Customs agents.

The court finds no merit in defendant's argument that the Customs search and seizure, as a governmental act, in some vague sense "triggered" or "implicated" the Fourth Amendment even though it did not require a warrant, and that the Fourth Amendment then demanded a warrant when the crates were transferred to the drug agents or reopened by them. The drug agents entered this affair acting jointly with the Customs agents, and could lawfully continue the investigation they had begun. ² (See U. S. v. Bates, 526 F.2d 966, 5th Cir. 1976). As the Second Circuit observed in DeBerry : "Such cooperation and teamwork are a laudable and...