People v. Castro

• Decision Date: 18 July 1984
• Citation: 479 N.Y.S.2d 414,125 Misc.2d 15
• Parties: PEOPLE of the State of New York, v. Miguel CASTRO and Jose Perez, Defendants.
• Court: New York Supreme Court

Page 414

479 N.Y.S.2d 414

125 Misc.2d 15

PEOPLE of the State of New York, v. Miguel CASTRO and Jose Perez, Defendants.

Supreme Court, Criminal Term New York County, Part 83.

July 18, 1984.

Robert M. Morgenthau, Dist. Atty. (David Brownstein, New York City, of counsel), for the People.

The Legal Aid Soc. (Helen Coady, New York City, of counsel), for Miguel Castro.

Victor Hervey, for Jose Perez.

KRISTIN BOOTH GLEN, Justice.

This case presents the important but unresolved issue of the right of passengers in a cab or livery to challenge, on Fourth Amendment grounds, both a police stop of the vehicle and the subsequent search of the back seat where they were sitting. For the reasons discussed below I hold that passengers who have hired a vehicle have standing to raise the reasonableness of police action in stopping the vehicle and that they have a reasonable expectation of privacy in the floor of the area in which they are seated so as to give them standing to challenge a search and seizure from that area.

In addition, some special note should be taken of the police testimony in this case, since it exemplifies an alarming trend not only in testimony "patently tailored to nullify constitutional objections", People v. Garafolo, 44 A.D.2d 86, 353 N.Y.S.2d In this case, as in a number of others where hearings were held before this and other courts, e.g. People v. Judge, 117 Misc.2d 912, 455 N.Y.S.2d 926 (Sup.Ct., N.Y.Co.1982); People v. Riddick, Ind. No. 7661/83 (unreported opinion), ¹ police officers from the Taxi Squad of the Street Crime Unit have testified to stops of "suspicious" liveries or gypsy cabs in the Harlem/Northern Manhattan area. In all these cases, the police are patrolling, allegedly surreptitiously, in otherwise unmarked yellow cabs. ² Repeatedly they make stops based on their "observation" of glances by passengers in their direction, followed by "suspicious" arm or hand movements of a passenger in the back seat. In another variation, they observe a defective taillight although no notation of the violation is made and no summons issued to the driver. See, e.g. People v. Nelson, App.Div., 477 N.Y.S.2d 295 (2d Dept.1984) (dissenting op.). Although they testify that they approach the driver, who either answers that everything is OK (the instant case), or shrugs because he does not speak English (Judge, supra; Riddick, supra ) they inevitably proceed to the passenger area where they either observe additional "suspicious" gestures or see contraband in plain sight. Inevitably a gun or other contraband is discovered.

500 (2nd Dept.1974), but in an apparently routine police procedure which threatens the constitutionally protected civil liberties of our citizens.

Crime against cabs and cabdrivers, both medallion and livery, is a serious problem, and the mission of the Taxi Squad, to detect and prevent such crime is a useful and appropriate one. However, it appears that members of the squad patrolling in minority neighborhoods may use the pretext of possible taxi crime as an excuse for stopping gypsy cabs and searching the passengers with the hope of finding guns or other contraband. The number of such stops and searches which do not result in the seizure of evidence cannot be determined, but the increase in suppression hearings where this pattern is exhibited has risen dramatically, suggesting that such livery stops may, as one judge has stated, "evolve into an art form to complement its cousin, the 'dropsy' case." See People v. Aguirre, 111 Misc.2d 586, 589, 444 N.Y.S.2d 501 (Sup.Ct., Kings Co.1982).

Whatever the absolute number or percentage of such unwarranted livery stops and seizures may be, the deprivation of rights they entail cannot be tolerated. When a court is confronted with such a constitutional violation, it should and must suppress the evidence seized to deter such unlawful police conduct as the spirit and purpose of the exclusionary rule require.

FACTS

A hearing was held before me on April 4, 1984, at which Police Officer Hugh Agar ("Agar") and the defendant Miguel Castro ("Castro") were the only witnesses. According to Agar, on November 23, 1983, at approximately 12:30 a.m. he and Police Officer DeWitt, members of the Street Crime Unit, Taxi Squad, were patrolling in a yellow cab, in plain clothes, in the vicinity of 170th Street and Broadway. They were headed northbound on Broadway when they stopped for a traffic light at the intersection of 170th Street. Agar, the driver, overshot the corner and stopped in the middle of the intersection, requiring him to back the car out of the intersection. At this point he noticed a livery, with the two defendants in the rear seat, stopped at the light, westbound on 170th Street. As the light changed, the defendant's vehicle turned left onto Broadway and proceeded southbound. Agar noticed that the defendants looked in his direction both before the Agar immediately made a U-turn and followed the defendants. Once again he saw the defendants look in his direction and then look away. Castro testified that his attention was drawn to the police car again when it made a U-turn right behind his car. Finally he noticed the car again when its horn started to blow. He turned and saw the flashing red light which Agar had placed in the front window. Agar claimed that he then saw the defendant Perez, who was sitting on the right side, "bend slightly forward". It was at this point that he took steps to stop the defendant's vehicle. Castro testified that he never saw Perez make this motion.

light changed and as their livery was making the turn onto Broadway. The defendant Castro testified that he had been lost in thought and looking out the window when Agar stopped short in the intersection. His attention was drawn to the unmarked police car at that time, but he had been looking in that direction anyway. He continued to look at the yellow cab as the car he was in turned.

As they exited the unmarked police car, there is a conflict in testimony as to whether both officers had their guns drawn and were holding flash lights or not. According to Agar, he went to the driver's window and his partner went to the opposite side of the car, to Perez's door, while Agar spoke to the driver. After ascertaining from the driver that everything was "OK", Agar allegedly shone his light through the driver's window and was able to see a shiny pistol on the back floor near Perez.

Castro's account of these events was quite different. According to him, Agar did not first speak to the driver, but instead went straight to his door, while DeWitt went to Perez's door. Both officers then made both defendants get out and searched them. Agar then held them at gun point at the rear of the livery, while DeWitt searched the interior of the car for several minutes. The gun was presumably the product of that search. Castro denied being in possession of the weapon or having seen it either in possession of the defendant, Jose Perez, or inside the livery.

I find, based on my assessment of the credibility of the witnesses, and as discussed above, that Agar observed the defendants looking at him, but that the suspicious "bending forward" which he reported either did not occur or was so innocuous as to be entirely inconsistent with criminal activity. See discussion, infra. In addition I credit the testimony of defendant Castro that the gun was seized only after he and Perez had been ordered out of the cab and the back seat searched.

THE LAW

Standing

The People argue that defendants have no standing either to contest the stop of the cab, citing People v. Judge, supra, or its search, citing Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745 (1982); and People v. Judge, supra. If they are correct, the reasonableness of the police action here need not be determined. Accordingly, the issue of standing must first be resolved as to each separate alleged Fourth Amendment violation. ³ This in turn requires a careful reading of Rakas and subsequent cases which have limited standing in analagous situations.

A. The Stop

There is little case law on the issue of whether passengers in livery cabs have standing to challenge the stop of the vehicle in which they were riding, ⁴ although at least one commentator has suggested that "while passengers are for the most part foreclosed from challenging searches of automobiles in which they are riding, they are not foreclosed from challenging the stop of the vehicle, since such a stop encompasses a personal seizure which each person in the vehicle has standing to challenge." 1 Ringel, Searches & Seizures, Arrests and Confessions, Section 11.7, pp. 11-32.

Cf. Kamisar, remarks on Rakas in Choper, Kamisar & Tribe, The Supreme Court: Trends and Developments 1978-79 (1978) at pp. 160-61. ⁵

Rakas itself draws a distinction between standing to challenge a stop and a search, ⁶ and leaves the former question open. It is, therefore, necessary to consider the underlying Fourth Amendment principles which support this distinction in order to resolve the open question.

As Rakas observes, the Fourth Amendment rights not to be unreasonably searched or seized are personal rights. Restriction of an individual's freedom to move, to "walk away", however brief, constitutes a seizure of that person which must be measured against constitutional standards, e.g. People v. DeBour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976). It is the interference with an individual's movement, even a temporary detention, which is protected against.

People choose to move from one place to another in various ways--by foot, by bicycle, by rollerskates, by private car, or by medallion or livery cab. Whatever the means, the movement is intentional, the product of the individual's choice and direction, and the choice itself is a manifestation of the individual's self-determination. As long as the movement is...