People v. DeLaCruz

• Decision Date: 04 September 1997
• Citation: 242 A.D.2d 410,662 N.Y.S.2d 300
• Parties: , 1997 N.Y. Slip Op. 7282 The PEOPLE of the State of New York, Appellant, v. Hector DeLaCRUZ, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 300

662 N.Y.S.2d 300

242 A.D.2d 410, 1997 N.Y. Slip Op. 7282

The PEOPLE of the State of New York, Appellant, v. Hector DeLaCRUZ, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Sept. 4, 1997.

Grace Vee, for Appellant.

Before WALLACH, J.P., and NARDELLI, TOM, MAZZARELLI and ANDRIAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Charles Tejada, J.), entered May 17, 1995, which granted defendant's motion to suppress physical evidence, unanimously reversed, on the law, and the motion denied. Order, same court and Justice, entered October 20, 1995, which dismissed the indictment charging defendant with one count each of criminal possession of a controlled substance in the first degree, and criminal possession of a controlled substance in the third degree, unanimously reversed, on the law, the indictment reinstated and the matter remanded for further proceedings.

Testimony educed at a suppression hearing, held in April 1995, reveals that defendant was a passenger in an automobile driven by one Dagoberto Gutierrez when it was observed passing through a steady red light at the intersection of Lexington Avenue and 114th Street by New York City Police Detective Richard Popp. Detective Popp, who was patrolling in an unmarked car, was accompanied by Detectives Torres and McGhee. After it had proceeded through the intersection, the car carrying the defendant immediately pulled to the curb and stopped, whereupon, the police officers double-parked their vehicle in front of it.

Detectives Popp and Torres, from inside their vehicle, then observed defendant begin to emerge from the passenger side of the car with a brown paper bag in his left hand. Defendant, however, did not fully exit the car but, upon looking in the direction of the unmarked police car, quickly re-entered the vehicle and, less than a minute later, completely re-emerged from the passenger side without the brown paper bag. At approximately the same time, Detective McGhee approached the driver's side of defendant's vehicle, Detective Popp approached the passenger side and Detective Torres approached defendant, who was now on the sidewalk.

Detective Popp then looked into the car and saw what he believed to be the brown paper bag defendant had been holding moments earlier, which was now on the floor of the car behind Gutierrez' legs and within his reach. Detective Popp, believing the bag could have contained a gun, reached into the car and retrieved it in order to secure the car. Upon picking up the bag, Detective Popp noted that it was heavy and contained a hard object, but through his handling of the bag, the detective determined that it contained a "brick of something solid", but not a gun. Detective Popp, however, testified that through his training and experience, he believed the bag might contain a brick of cocaine, so he opened the bag and, in fact, discovered a brick of cocaine. Gutierrez and defendant were then arrested.

Following the hearing, the court granted suppression of the physical evidence. In so ruling, the court held, inter alia, that the police were authorized to stop the car based on their observation of the traffic infraction, and that while a frisk of the bag for safety purposes was proper, once Detective Popp determined the bag did not contain a weapon, he was not authorized to look into it because there was no probable cause to support the search.

Initially we note that the hearing court correctly found that the police were entitled to stop the car because of the traffic infraction (People v. Ingle, 36 N.Y.2d 413, 420, 369 N.Y.S.2d 67, 330 N.E.2d 39; People v. Durgey, 186 A.D.2d 899, 589 N.Y.S.2d 631, lv. denied 81 N.Y.2d 788, 594 N.Y.S.2d 734, 610 N.E.2d 407; Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879-1880, 20 L.Ed.2d 889) and to conduct a cursory examination of the paper bag, which was well within Gutierrez' reach and posed a potential threat to the officers' safety (People v. Jackson, 79 N.Y.2d 907, 908, 581 N.Y.S.2d 655, 590 N.E.2d 240). We also agree with the hearing court that Detective Popp exceeded his authority when he opened the bag after concluding it did not hold a weapon (see, People v. Knight, 138 A.D.2d 294, 526 N.Y.S.2d 102, lv. dismissed 73 N.Y.2d 992, 540 N.Y.S.2d 1001, 538 N.E.2d 353; People v. Ocasio, 119 A.D.2d 21, 505 N.Y.S.2d 127). The court erred, however, when it concluded that defendant had standing to challenge the search of the bag and that he had not abandoned it.

In the case before us, the defendant does not have automatic standing to challenge the search inasmuch as he was not charged with criminal possession of a controlled substance under a statutory presumption (see, Penal Law § 220.25[1]; People v. Drakes, 175 A.D.2d 841, 573 N.Y.S.2d 313). Rather, the People made it clear that the basis of their prosecution was that the defendant had actual possession of the cocaine.

While it has been held that a passenger in an automobile has standing to challenge the legality of a stop of a vehicle in which he or she was riding (People v. Madera, 125 A.D.2d 238, 509 N.Y.S.2d 36; People v. Dawson, 115 A.D.2d 611, 496 N.Y.S.2d 273), no challenge has been raised as to the legitimacy of the stop in this case. Likewise, although a mere passenger has no standing to contest the search of the interior...