People v. DeVito

• Decision Date: 08 March 1974
• Citation: 77 Misc.2d 463,353 N.Y.S.2d 990
• Court: New York Supreme Court
• Parties: The PEOPLE of the State of New York v. Thomas DeVITO and Amelia Addonizio, Defendants.

Page 990

353 N.Y.S.2d 990

77 Misc.2d 463

The PEOPLE of the State of New York v. Thomas DeVITO and Amelia Addonizio, Defendants.

Supreme Court, New York County, Part 47.

March 8, 1974.

Richard H. Kuh, Dist. Atty., New York County, by Paul Sobell, Asst. Dist. Atty., for the People.

Iannuzzi & Iannuzzi, by Louis R. Aidala, New York City, for defendants.

IRVING LANG, Justice:

Defendants were arrested and charged with burglary, grand larceny, and possession of a loaded gun. They now move to suppress evidence seized pursuant to a warrantless search of an automobile owned by defendant Addonizio.

The facts are as follows: On December 20, 1972, at approximately 1:30 A.M., Patrolman Brady, accompanied by his partner, was on routine patrol duty when he observed, at South Street and Market Slip, an area located near the East River and deserted at that early morning hour, a black Cadillac backed up about two to four feet from the rear of a U-Haul rental truck, with the back of the truck open. At the hearing on the motion to suppress, Officer Brady testified that the Cadillac and the truck were facing in opposite directions and that to arrive at the position the two vehicles were in, if the truck was already there, the Cadillac would have had to back up into that position. Defendant DeVito, when first seen, was standing at the right rear side of the automobile but, according to the officer, upon noticing the police, the defendant got into the Cadillac on the operator's side. Patrolman Brady observed some merchandise in the back of the truck which, upon investigation, turned out to be apparently new stereo equipment and a stereo-type cabinet. He then asked defendant DeVito for indentification who, along with defendant Addonizio, the latter sitting on the passenger side of the car, produced both license and registration. When the officer inquired after the truck's ownership, defendant DeVito replied that he did not know, whereupon the officer demanded that the trunk of the Cadillac be opened. At first, the defendant refused, but when Patrolman Brady stated that 'We will have to check out the car, take it into the station house and check out the car,' the defendant complied. Inside the trunk were two boxes of stereo equipment of the same type as that contained in the truck. A further search of the automobile revealed a gun under the front seat on the operator's side.

It is conceded by Patrolman Brady that, at the time of this incident, the two officers were unaware of any outstanding stolen property report for the particular items at issue here, although subsequently a complainant alleging the theft of one of its trucks was located, and the equipment recovered on December 20th was evidently part of the hijacked shipment. Moreover, the People make no claim that the search of the defendants' vehicle was by consent. A hearing on the motion to suppress was held on April 5, 1973, at which time decision was reserved pending the submission of briefs on the legal issues raised by this case. The hearing was reopened on September 26, 1973, on the court's own motion and over defense objection, for the purpose of clarifying previous testimony. This court fails to perceive how reopening a hearing for additional evidence to complete the record can constitute an abuse of discretion when there has been no claim or demonstration of any prejudice and before a final determination has yet been made. A trial judge possesses certain inherent authority over the procedure in his court and, without a showing that he has abused his discretion, he is entitled to reopen prior to rendering a decision so long as the exercise of that discretion is governed primarily by the materiality and relevancy of the evidence sought to be introduced.

Counsel for the defense asserts that the warrantless search conducted of the trunk and interior of the Cadillac was illegal in that before the trunk was unlocked, the defendants were not under arrest and the officer had no knowledge of any crime having been committed. Generally, all searches and seizures are deemed unreasonable if conducted without a warrant unless they fall within various recognized exceptions, which include a search on consent, ¹ a search incident to a lawful arrest, ² a search under the 'stop and frisk' rule, ³ a search of impounded vehicles and property subject to forfeiture, ⁴ a search conducted in the course of a 'hot pursuit,' ⁵ a search of an open field, even if private property, ⁶ a search of abandoned property, ⁷ a search conducted in an emergency situation or under exigent circumstances, ⁸ and a search of a vehicle where probable cause exists for the belief that the vehicle contains contraband. ⁹ Since, in the instant case, the search of defendants' automobile preceded their arrest and thus cannot be considered as incident to a lawful arrest, the search can only be upheld if it comes within the ambit of at least one of the other exceptions.

In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the United States Supreme Court stated that on 'reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.' p. 149, 45 S.Ct. p. 283. The Court then proseeded to distinguish between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. Further, the 'right to search and the validity of the seizure are not dependent on the right to arrest. They are dependant on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.' pp. 158--159, 45 S.Ct. p. 287.

The Supreme Court dealt with the same issue in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), where it was held, in a case involving the illegal transportation of intoxicating liquors, that the validity of a warrantless automobile search depends upon the existence of probable cause for that search. According to the Court, in 'dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' p. 175, 69 S.Ct. p. 1310. Probable cause, the Court continued, requires more than bare suspicion and exists where the facts and circumstances within the knowledge of the officers and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. 'Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating those often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave lawabiding citizens at the the mercy of the officers' whim or caprice.' p. 176, 69 S.Ct. p. 1311.

In Nugent v. United States, 409 U.S. 1065, 93 S.Ct. 564, 34 L.Ed.2d 518 (1972), the Supreme Court, by majority vote, denied certiorari in a case (462 F.2d 574 (2nd Cir., 1972)) where police officers, acting on an informant's tip that one 'Cherokee' had a mill for diluting narcotics in a certain apartment building, secured the consent of the landlord to search and then searched the basement area of the building available to use by both landlord and tenants. In one storage room, they noticed a closed but unlocked trunk, on top of which were a can of milk-sugar, a scale, rubber bands, and a brown paper bag with a message telling 'Cherokee' that 'we are out of . . . action.' The trunk was then opened. Heroin and narcotics paraphernalia were discovered, seized and introduced as evidence against 'Cherokee', who was later arrested and tried. The Second Circuit here had affirmed an order by the Southern District of New York holding that there was probable cause to believe that the trunk contained contraband and evidence of a crime.

Therefore, the warrantless search of an automobile may at times be justified by the belief, arising out of circumstances known to the seizing officers, that the vehicle contains contraband or evidence of a crime. People v. LaBelle, 37 A.D.2d 135, 322 N.Y.S.2d 746 (3rd Dept., 1971); and People v. Lombardi, 18 A.D.2d 177, 239 N.Y.S.2d 161 (2nd Dept., 1963), affirmed 13 N.Y.2d 1014, 245 N.Y.S.2d 595, 195 N.E.2d 306. In the present situation, Patrolman Brady observed defendants' automobile backed up approximately two to four feet from the rear of a U-Haul rental truck and facing in an opposite direction. The back of the truck was open to reveal apparently new stereo equipment and a stereo-type cabinet and, when first seen, the defendant was standing at the right rear side of the automobile, but he returned to the car upon noticing the police. It was then about 1:30 in the morning and the area completely deserted. Considering these circumstances, it was not unreasonable for the officer to believe that a burglary was in the process of being committed and that, consequently, the trunk of the automobile contained contraband or evidence of a crime.

Further, the mere fact...