People v. DeSantis

• Citation: 59 A.D.2d 257,399 N.Y.S.2d 514
• Parties: PEOPLE of the State of New York, Respondent, v. James L. DeSANTIS, Appellant.
• Decision Date: 04 November 1977
• Court: New York Supreme Court Appellate Division

Page 514

399 N.Y.S.2d 514

59 A.D.2d 257

PEOPLE of the State of New York, Respondent, v. James L. DeSANTIS, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Nov. 4, 1977.

William B. Mahoney, Buffalo, for appellant.

Edward C. Cosgrove, Dist. Atty., Buffalo, for respondent (John DeFranks, Buffalo, of counsel).

Before CARDAMONE, J. P., and SIMONS, DILLON, HANCOCK and DENMAN, JJ.

DILLON, Justice:

Defendant and one Joseph Sarcinelli purchased airline tickets in San Diego, California for a United Airlines flight to Buffalo by way of Chicago, and checked two suitcases through to their destination. They paid for the tickets with one hundred dollar bills which, according to the ticket agent, were removed from a "group" of others of the same denomination. This fact, coupled with the apparent nervousness of the two men, aroused the suspicion of the ticket agent and, in keeping with his "responsibility to the company", he opened the two suitcases and in one he observed two plastic bags containing what appeared to be marijuana.

He communicated this information to a drug enforcement agent in San Diego and furnished him with the men's names and descriptions, together with descriptions of their luggage, their flight number and destination, and the baggage claim ticket number for the suspected suitcase.

That information, in turn, was forwarded to drug enforcement officers in Buffalo who observed the defendant and Sarcinelli arrive at the Buffalo Airport. Agent Johnson followed them to the baggage claim area where he observed the defendant pick up the suitcase bearing the baggage claim ticket number which Johnson had been furnished. Addressing the defendant, Johnson said "Excuse me, I believe you have my suitcase." When the defendant showed Johnson a claim check which had the matching number of the ticket on the suitcase, Johnson apologized and the defendant walked away, carrying the suitcase. Johnson then gave a prearranged signal to other officers stationed at the airport, and Deputy Sheriff Petronella placed the defendant under arrest and took possession of the suitcase.

Both the defendant and the suitcase were immediately taken to a police substation located within the airport where the suitcase was opened by Deputy Petronella. It contained two large plastic bags of marijuana and a brown bag containing smaller bags of white amphetamine pills.

The defendant's motion to suppress the evidence was denied and upon a jury trial he was convicted of criminal possession of a controlled substance in the second degree (Penal Law, § 220.18, subd. 3) and criminal possession of a controlled substance in the fifth degree (Penal Law, § 220.09, subd. 10).

The defendant contends on appeal that the facts upon which the airline ticket agent based his suspicion were insufficient to constitute probable cause for inspection of the content of defendant's suitcase. It follows, the defendant says, that the information communicated to the federal narcotics officers was the product of an unlawful search requiring the suppression of the marijuana and amphetamines as evidence. Relying on Jones v. United States (357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514), Agnello v. United States (269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145), People v. Brown (24 N.Y.2d 421, 301 N.Y.S.2d 18, 248 N.E.2d 867) and People v. Corrado (22 N.Y.2d 308, 292 N.Y.S.2d 648, 239 N.E.2d 526), he argues that the ticket agent's observations fell short of raising "the level of inference from suspicion to probable cause" (People v. Corrado, supra, p. 313, 292 N.Y.S. p. 652, 239 N.E. p. 529).

Those cases are inapposite, however, in that they all involved searches made by or at the behest of the police. We would agree, of course, that suppression would be required here if the ticket agent's search of the suitcase could be characterized as state action within the contemplation of the Fourth Amendment.

It is well-settled that the constitutional prohibition against unlawful searches does not apply to purely private activity (Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048; People v. Horman, 22 N.Y.2d 378, 292 N.Y.S.2d 874, 239 N.E.2d 625; Sackler v. Sackler, 15 N.Y.2d 40, 255 N.Y.S.2d 83, 203 N.E.2d 481; People v. Defore, 242 N.Y. 13, 150 N.E. 585). "(E) xclusion of evidence (is not required) because a private individual has gathered it by unlawful means" (People v. Horman, supra, p. 381, 292 N.Y.S.2d p. 876, 239 N.E.2d p. 627). Evidence so gathered, however, is subject to the exclusionary rule if the ostensible private activity is so imbued with governmental involvement that the actor is in essence an agent of the government (People v. Esposito, 37 N.Y.2d 156, 371 N.Y.S.2d 681, 332 N.E.2d 863; Corngold v. United States, 367 F.2d 1).

Where the search into personal property is made by an employee of a common carrier in pursuit of the private interests of the employer and in furtherance of the common carrier's common law right to inspect goods presented for shipment, it is not constitutionally proscribed (United States v. Pryba, 163 U.S.App.D.C. 389, 502 F.2d 391, cert. den. 419 U.S. 1127, 95 S.Ct. 815, 42 L.Ed.2d 828; United States v. Ford, 525 F.2d 1308; but see United States v. Fannon, 556 F.2d 961). On the other hand, when the motivation for the search is provided by the government, an intrusion into such property may not be made other than in conformity with the Fourth Amendment (United States v. Newton, 510 F.2d 1149; United States v. Pryba, supra ). Put another way, the inquiry concerns whether the inspection was made for private purposes or made in concert with the police in furtherance of a criminal investigation.

There is no indication in this record that the airline ticket agent inspected defendant's suitcase at the behest of the police or otherwise in concert with them. He was in no way governmentally motivated. Indeed, upon observing what he believed was contraband, he notified a law enforcement agent, but only after the intrusion was complete. Once the ticket agent's observations were conveyed by the California agent to government agents in this state (see People v. Lypka, 36 N.Y.2d 210, 213, 366 N.Y.S.2d 622, 624, 326 N.E.2d 294, 296), and other relevant details were verified, as they were here, the police were possessed of "layers of information" constituting probable cause for both the arrest of the defendant and the seizure of the suitcase at the Buffalo Airport (People v. Tolentino, 40 A.D.2d 596, 335 N.Y.S.2d 958; see People v. Reisman, 29 N.Y.2d 278, 327 N.Y.S.2d 342, 277 N.E.2d 396; People v. Coffey, 12 N.Y.2d 443, 240 N.Y.S.2d 721, 191 N.E.2d 263).

Accepting then the propriety of both the defendant's arrest and the seizure of the suitcase, the more troublesome question arises as to whether the search of the suitcase without a warrant may be justified as incident to the arrest.

"The rule allowing contemporaneous searches is justified, * * * by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest." (Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777.)

The area of the accused's immediate control has been construed to mean "the area from within which he might gain possession of a weapon or destructible evidence" (Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685).

Chimel has been interpreted to justify as incident to the arrest a search of an attache case taken by the police from the hand of the accused at the moment of his arrest (People v. Darden, 34 N.Y.2d 177, 180, 356 N.Y.S.2d 582, 584, 313 N.E.2d 49, 51). In Darden, as here, there was probable cause to arrest the defendant and seize the attache case. Other facts in Darden are strikingly similar to those in the case at bar. The police arrested the defendant at the Rochester Airport following his arrival on a flight from New York City. The police immediately took possession of the attache case which defendant had been carrying in his hand. He was escorted to an airline office across a hallway where the police conducted simultaneous searches of the defendant's person and of the attache case. A substantial quantity of heroin was recovered from the attache case.

Not to have seized the attache case in such circumstances "would have been both to expose the arresting officers to the risk of serious injury by means of weapons which might have been concealed in the case, as well as to risk destruction of the incriminating evidence which the case might have contained." (People v. Darden, supra, p. 180, 356 N.Y.S.2d p. 585, 313 N.E.2d p. 51.) Drawing no distinction between the seizure of the attache case and its warrantless search after it was in the exclusive possession of the police, the Darden court concluded...