People v. Barclay

• Decision Date: 04 February 1994
• Citation: 201 A.D.2d 952,607 N.Y.S.2d 531
• Parties: PEOPLE of the State of New York, Appellant, v. Wayne BARCLAY, a/k/a Dwight D. Bennett, Sean Grossett, a/k/a Steve Cross, and Perry A. Rumnit, Jr., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 531

607 N.Y.S.2d 531

201 A.D.2d 952

PEOPLE of the State of New York, Appellant, v. Wayne BARCLAY, a/k/a Dwight D. Bennett, Sean Grossett, a/k/a Steve Cross, and Perry A. Rumnit, Jr., Respondents.

Supreme Court, Appellate Division Fourth Department.

Feb. 4, 1994.

William J. Fitzpatrick by Gary Kelder, Syracuse, for appellant.

Ralph Cognetti, Syracuse, for respondent.

Before CALLAHAN, J.P., and PINE, FALLON, DOERR and DAVIS, JJ.

MEMORANDUM:

County Court erred in granting defendants' motion to suppress the physical evidence seized by the police. The testimony at the suppression hearing establishes that defendant Barclay was lawfully arrested for exposure of a person, a violation (Penal Law § 245.01), which was committed in the officer's presence. The search of Barclay was thus authorized as a search incident to a lawful arrest (see United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 476, 38 L.Ed.2d 427; People v. Weintraub, 35 N.Y.2d 351, 354, 361 N.Y.S.2d 897, 320 N.E.2d 636; People v. Cox, 177 A.D.2d 963, 577 N.Y.S.2d 1007, lv. denied 79 N.Y.2d 855, 580 N.Y.S.2d 726, 588 N.E.2d 761). Such a search is proper without regard to whether the officer fears that the suspect may be armed (People v. Weintraub, supra, 35 N.Y.2d at 353-354, 361 N.Y.S.2d 897, 320 N.E.2d 636; People v. Anderson, 111 A.D.2d 109, 110, 489 N.Y.S.2d 486).

The search of Barclay's vehicle was based upon properly acquired probable cause after contraband was discovered on Barclay's person. Barclay had produced a Virginia driver's license and the automobile parked no more than 30 feet away and on the same side of the road had Virginia license plates. He admitted that it was his vehicle and was able to identify the two occupants only by their first names. The officer believed, based on his experience, that there might be drugs in the vehicle. Thus, the police had an objective credible reason to approach the parked vehicle to make inquiries of the occupants (see, People v. Hollman, 79 N.Y.2d 181, 581 N.Y.S.2d 619, 590 N.E.2d 204; People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562). As the officer approached the vehicle, he observed in plain view on the rear seat a "blunt" cigar, an item associated with drug activity. In addition, he detected the odor of burning marihuana.

Defendant Rumnit consented to a search of his person. Voluntary consent is a valid substitute for probable cause (see, People v. Hodge, 44 N.Y.2d 553, 559, 406 N.Y.S.2d 736, 378 N.E.2d 99; People v. Gonzalez, 39 N.Y.2d 122, 127-128, 383 N.Y.S.2d 215, 347 N.E.2d 575). Upon searching Rumnit and finding contraband on his person, the officer had probable cause to place him under arrest. The fact that both Barclay and Rumnit had contraband on their persons provided the officer with reasonable cause to believe that the vehicle contained drugs, allowing him to search the vehicle as well as any closed containers therein (see, People v. Harris, 190 A.D.2d 1043, 1045, 594 N.Y.S.2d 488, lv. denied 81 N.Y.2d 971, 598 N.Y.S.2d 773, 615 N.E.2d 230; see also, People v. Blasich, 73 N.Y.2d 673, 678-679, 543 N.Y.S.2d 40, 541 N.E.2d 40; People v. Ellis, 62 N.Y.2d 393, 397, 477 N.Y.S.2d 106, 465 N.E.2d 826; People v. Langen, 60 N.Y.2d 170, 180-181, 469 N.Y.S.2d 44, 456 N.E.2d 1167, cert. denied 465 U.S. 1028, ...