People v. Brnja

• Decision Date: 03 June 1980
• Citation: 406 N.E.2d 1066,50 N.Y.2d 366,429 N.Y.S.2d 173
• Parties: , 406 N.E.2d 1066 The PEOPLE of the State of New York, Respondent, v. Isa BRNJA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 173

429 N.Y.S.2d 173

50 N.Y.2d 366, 406 N.E.2d 1066

The PEOPLE of the State of New York, Respondent, v. Isa BRNJA, Appellant.

Court of Appeals of New York.

June 3, 1980.

Richard G. Fontana, Yonkers, for appellant

Carl A. Vergari, Dist. Atty. (Gerald D. Reilly, Carl J. Rubino, Jr., and Anthony J. Servino, White Plains, of counsel), for respondent.

OPINION OF THE COURT

MEYER, Judge.

Defendant urges, and the dissenting Judges at the Appellate Division agreed, that his arrest was without probable cause and that, though the police had a reasonable basis upon which to make inquiry, they exceeded constitutional bounds in transporting him from the scene of the inquiry to the scene of the robbery, where he was identified by the victim of the robbery. He contends that identification testimony, both in-court and pretrial, should have been suppressed, as should the revolver found on postarrest station house search of the van he was seated in when first seen by the police. We conclude, however, that there was probable cause for arrest at the time defendant was placed in the police car for transportation to the robbery-scene showup ¹ and, therefore, do not reach the question, the basis of the dissent below, when, if ever, a person stopped by the police for inquiry on reasonable suspicion but not probable cause may be transported to the crime scene for possible identification. The order of the Appellate Division should, therefore, be affirmed.

On November 11, 1976 at about 8:00 p.m. a man entered a liquor store in Yonkers and asked for a pint of vodka. The clerk, Frank Mutalipassi, testified that the man was in the store about two minutes, that the man spoke with a slight Slavic, Polish or Russian accent, and that he told the man he had nothing smaller in vodka than a fifth. At 8:30 p.m. the man returned and asked for a fifth of vodka, placing a $20 bill on the counter, but when Mutalipassi obtained the vodka from a shelf at the back of the store and returned to the counter, the man pointed a gun at him and ordered him to lie down on the floor. Mutalipassi was clearing the cash register as the man came in and had left the drawer slightly ajar, but had not removed the bills from it. Lying on the floor, he heard the noise of the spring clips in the register compartments, indicating to him that the money was being removed from it, and the noise of the door to the store opening and closing. After the robber left, Mutalipassi noted that the $190 that had been in the register was gone and that the vodka was still on the counter. The elapsed time from beginning to end of the man's second visit was four to five minutes.

Mutalipassi called the police, and Patrolmen Drexel and Williams arrived within 10 to 15 minutes. Mutalipassi told Drexel that the man was about 5 feet 9 inches with long hair roughly to his collar and light brown in color, with a long thin face and a slight mustache, that he was wearing a long leather-type jacket with a belt and baggy pants of navy blue, and that the gun was black, with a short barrel and short chamber. Williams sought witnesses outside, and was advised by Sandra Thela that she had seen a tan van, possibly rust color too, with two male occupants and bearing out-of-State plates circle the area approximately four times, that it had stopped about 50 yards ² from the liquor store, and thereafter proceeded south. Drexel broadcast the description of the robber received from Mutalipassi and Williams added, as part of the same broadcast, the description he had received of the van. Williams then went back to Ms. Thela and asked her whether the van was colored like a U-Haul van to which she responded that she believed so since there was writing on the side, that the driver of the van had asked for directions, and that he was a white male, with brown curly hair, a slight mustache and a thin face. Williams then made a second radio broadcast stating that the van could possibly have been a rental van, a U-Haul van. His testimony does not reveal whether the second broadcast included the description of the driver of the van that he had received from Ms. Thela.

The initial broadcast by Drexel and Williams describing the robber and the van was received by Patrolman Molinaro and his partner Patrolman Howe, who had also heard a headquarters broadcast concerning a "robbery in progress" at the liquor store. While proceeding toward the robbery scene, Molinaro observed a U-Haul van with California license plates parked on Palmer Road, in the front seat of which were two white males. The van was facing in the direction away from the liquor store and was legally parked and Molinaro could see two "white mouths" and dark hair, though not the exact color of the hair of the occupants. Neither he nor his partner heard Williams' second broadcast ³ since they were both out of the car at the time.

The point at which the van was parked was approximately half to three quarters of a mile from the liquor store. Molinaro and Howe stopped and approached the van from different sides, with drawn guns. Molinaro ordered the occupants out of the van. They got out and Molinaro noted that the driver fit the description given over the air. He frisked them and on inquiring what they were doing in the area was told that they were unfamiliar with the area and were waiting for the return of a friend, who was in the process of dropping off some girls. Molinaro then told them of the liquor store robbery and that they were possible suspects. They were then handcuffed and placed in the police car. After checking the hood of the van and finding it warm and looking cursorily around inside the van, Molinaro locked the van and proceeded in the police car with defendant and his companion and Howe to the scene. Roughly 15 minutes had elapsed from the time of the robbery to defendant's return with the police to the scene.

Mutalipassi, having looked out the store window to the area where defendant and his companion were standing, stated as to the shorter one (the companion) that he was too short. Asked about the other man, he stated that he could not see his full face through the window. However, when the detective in charge at the scene caused defendant to walk toward the store Mutalipassi immediately identified defendant as the man who held him up, although at the suppression hearing he conceded that the jacket and possibly the pants were not the same as he had originally described.

Molinaro testified that he placed defendant under arrest after being instructed to do so by the detective in charge following Mutalipassi's identification. The van, taken to police headquarters and there searched without a warrant, yielded up from the space behind its roof cross members a short barreled black steel gun. Search of the van occurred within 15 minutes of defendant's formal arrest and was regular police procedure with respect to an impounded vehicle.

Evident from the foregoing recital of the facts is it that though Patrolman Molinaro testified that he did not arrest defendant until directed to do so by the detective in charge after Mutalipassi's identification, defendant was in fact arrested during Molinaro's first encounter with him, for he was detained under threat of police firearms and by words and acts, which while short of stating that he was being arrested, made it clear that he was not free to leave. At the very least, when handcuffed and placed in the police vehicle for transportation back to the robbery scene, defendant was under arrest (People v. Allende, 39 N.Y.2d 474, 384 N.Y.S.2d 416, 348 N.E.2d 891; see People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872; United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607). Equally evident, however, is it that if there was at that point probable cause for arrest there was no constitutional infirmity in either the one-on-one showup at the scene in view of its proximity in time and...