People v. Caldwell

• Citation: 107 Misc.2d 62,437 N.Y.S.2d 829
• Parties: The PEOPLE of the State of New York, Respondent, v. Emmett CALDWELL, Jr., Defendant-Appellant.
• Decision Date: 21 October 1980
• Court: New York Supreme Court — Appellate Term

Page 829

437 N.Y.S.2d 829

107 Misc.2d 62

The PEOPLE of the State of New York, Respondent, v. Emmett CALDWELL, Jr., Defendant-Appellant.

Supreme Court, Appellate Term, First Department.

Oct. 21, 1980.

Howard W. Rachlin, New York City, for defendant-appellant.

Mario Merola, Dist. Atty. (Alan D. Marrus and Howard Birnbach, New York City, of counsel), for respondent.

Before DUDLEY, P. J., and HUGHES and ASCH, JJ.

PER CURIAM:

Judgment rendered May 5, 1980 (Reinstein, J. at suppression hearing, Becker, J. at trial and sentence) affirmed.

On appeal the defendant argues that the warrantless search of the unoccupied parked car was illegal and the court erred in denying defendant's motion to suppress; guilt of the defendant was not proved beyond a reasonable doubt; the court wrongfully took judicial notice that the defendant's holster fit the weapon recovered but not a BB gun; the defendant did not knowingly and intelligently waive his right to a jury trial; and the sentence was excessive.

The court did not err in denying defendant's motion to suppress the weapon in question. In this regard it is noted that on a hearing held pursuant to a motion to suppress, hearsay evidence is admissible on the question of whether probable cause existed for a search without a warrant (Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; People v. Coffey, 12 N.Y.2d 443, 240 N.Y.S.2d 721, 191 N.E.2d 263). In the context of a suppression hearing hearsay evidence is admitted only "as to the sufficiency, for the arrest (or search) purposes, of the grounds for the arresting officer's belief that (the defendant) was guilty" (People v. Coffey, supra, p. 452, 240 N.Y.S.2d 721, 191 N.E.2d 263). The court thus properly entertained the arresting officer's testimony at the suppression hearing that defendant's father informed the police that the defendant had a gun.

It was shortly thereafter that the officer saw that defendant was wearing a shoulder holster, and having just been informed by defendant's father that defendant had a gun, the arresting officer had probable cause to search the person of the defendant as well as the car from which he had just exited. As observed by Justice Sullivan, writing for the Appellate Division, First Department in People v. Jackson, 72 A.D.2d 149, at p. 153, 423 N.Y.S.2d 173:

Ancillary to the statutory right to detain is the officer's authority to frisk if he reasonably suspects that he is in danger of physical injury (CPL 140.50 subd. 3). Whether a particular seizure is reasonable, "requires weighing the government's interest in the detection and the government's interest in the detection and apprehension of criminals against the encroachment involved with respect to an individual's right to privacy and personal security.... In conducting this inquiry we must consider whether ... the action of the police was justified at its inception and ... reasonably related in scope to the circumstances which rendered its initiation permissible" (People v. Cantor, 36 N.Y.2d 106, 111 (365 N.Y.S.2d 509, 324 N.E.2d 872), and citations therein.)

Here the police were informed by a reliable source defendant's father that the defendant had a gun. When the police then approached the defendant they observed he had an empty holster. It was reasonable and prudent for the police to search the car from which the defendant had just exited to ascertain whether defendant had left his gun in the car. Given the exigency of the circumstances the police were not required to secure a search warrant before examining the car (People v. Calhoun, 49 N.Y.2d 398, 426 N.Y.S.2d 243, 402 N.E.2d 1145).

It should also be noted that the police had been told by the defendant's father that the defendant had threatened him (defendant's father) with a gun, and the defendant might have posed a threat to all then present if he had been permitted access to the vehicle without a preliminary inspection of the vehicle by the police to determine whether it, indeed, contained a gun (People v. Cruz, 34 N.Y.2d 362, 357 N.Y.S.2d 709, 314 N.E.2d 39; People v. Miller, 52 A.D.2d 425, 385 N.Y.S.2d 457; People v. Howell, 78 Misc.2d 538, 357 N.Y.S.2d 828, affd. 51 A.D.2d 1105, 382 N.Y.S.2d 213).

What constitutes probable cause for a search under the 4th Amendment is a determination that must be made on the facts of each case. The test of reasonableness differs for cars and buildings. The constitutional protection from search and seizure afforded a man's home is greater than that afforded his car not only because cars are mobile, but because they are less private (People v. LaBelle, 37 A.D.2d 135, 322 N.Y.S.2d 746; People v. Caputo, 41 A.D.2d 165, 341 N.Y.S.2d 920, cert. den. 414 U.S. 1135, 94 S.Ct. 880, 38 L.Ed.2d 761; People v. Martin, 48 A.D.2d 213, 368 N.Y.S.2d 342). Finally, it has been consistently held that "... where there is a reasonable belief before the search begins that an automobile contains contraband or evidence of a crime, this constitutes...