People v. Bramma

• Decision Date: 28 January 1997
• Citation: 171 Misc.2d 480,655 N.Y.S.2d 280
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Hugo BRAMMA, Defendant.
• Court: New York District Court

Page 280

655 N.Y.S.2d 280

171 Misc.2d 480

The PEOPLE of the State of New York, Plaintiff, v. Hugo BRAMMA, Defendant.

District Court, Nassau County First District.

Jan. 28, 1997.

Louis N. Agresta, Mineola (Dennis Lemke, of counsel), for defendant.

Denis E. Dillon, District Attorney of Nassau County (Joseph S. Wiener, of counsel), for plaintiff.

LEA RUSKIN, Judge.

Defendant was charged with Unlawful Possession of Marijuana on June 13, 1996, a violation of New York Penal Law section 221.05. A Mapp/Huntley hearing was held before this Court on December 11, 1996, to determine whether the marijuana seized from the defendant's person and his subsequent oral statement should be suppressed as fruits of an illegal search.

At the hearing, there was only one witness, Detective John Hanrahan, the arresting officer. He testified, on direct examination, that the police were acting pursuant to a valid search warrant, issued on probable cause. ^* The warrant allowed them to conduct a canine "sniff" search of the rear yard of the building located at 265 Babylon Turnpike, Roosevelt, New York, the entire inside of the building at that address and "the person found behind the plexi-glass area" inside the building. The building identified in the warrant was a grocery store open to the public which was conducting business at the time the search warrant was executed.

Detective Hanrahan testified that after entering the front door of the grocery store, the first police officer inside ordered all the patrons in the store to lie flat on their stomachs to ensure the safety of the incoming officers. All those now on their stomachs were then told to throw out any drugs they might have on their persons as the police had a trained drug-sniffing dog with them which could potentially bite someone possessing a controlled substance.

Detective Hanrahan stated that the police officer holding the canine proceeded into the store through the front door. He held the dog on a tight leash leading him toward the plexi-glass partition and the rear of the store when the animal "lunged to the right" toward the prone defendant's back pants' pocket. Detective Hanrahan testified that this indicated the presence of a controlled substance and at that point he noticed that the defendant's back pants' pocket was "puffed-out." ^**

Based on the dog's "sniff," and his observation of the puffy pocket, the Detective concluded that probable cause existed and he searched the defendant's back pocket. The search yielded a brown paper packet holding eight (8) 1"' by 1"' glassine envelopes, containing what appeared to be marijuana.

Some time later, while in custody at the police station, the defendant made a spontaneous, and voluntary, incriminating declaration about his possession of the "weed."

This case presents two initial questions: first, whether a sniff of the air around a person by a drug-sniffing dog constitutes a "search," and second, if it is a search, whether that search is unreasonable in the circumstances of this case.

Federal and State authorities differ when characterizing the canine "sniff" of the air around a person, his realty or his property. In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110, the United States Supreme Court determined that a canine sniff of a person's luggage, while at an airport, by a well-trained narcotics-detection dog does not constitute a search within the meaning of the Fourth Amendment. (See also, United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85.) However, the Court of Appeals of the State of New York has concluded that a canine "sniff" may constitute a search within the provision of Article 1, Section 12 of the New York Constitution. (People v. Dunn, 77 N.Y.2d 19, 563 N.Y.S.2d 388, 564 N.E.2d 1054, cert. denied 501 U.S. 1219, 111 S.Ct. 2830, 115 L.Ed.2d 1000.) In Dunn, the police conducted a canine sniff of the hallway outside defendant's apartment to determine whether illegal drugs were present inside the apartment. The Court held that "sniff" to be a search because it divulged information regarding the contents of an apartment, a place that is generally considered highly private. (See also, People v. Offen, 78 N.Y.2d 1089, 578 N.Y.S.2d 121, 585 N.E.2d 370.) This Court concludes that a person's body is, at least, as private as his apartment and, accordingly, this Court finds that the sniffing of the defendant's pocket in the instant case was a search. The question of whether that search is reasonable, given the facts in this case, remains.

In People v. Price, 54 N.Y.2d 557, 446 N.Y.S.2d 906, 431 N.E.2d 267, the Court found that the sniffing of the air around a person's closed luggage being transported by airplane was a search but constituted a minimal intrusion when balanced against air travel safety. Similarly, in People v. Dunn, supra, the Court found no infringement of a defendant's legitimate and reasonable expectation of privacy in the canine sniff of the exterior of defendant's apartment. In Dunn, the sniff constituted probable cause for the issuance of a subsequent search warrant for the apartment. The Court in People v. Offen, supra, found there was no infringement of a defendant's privacy by a Customs Service dog sniffing a package being shipped by UPS. (See also, People v....