People v. Dougall

• Decision Date: 25 October 1984
• Citation: 126 Misc.2d 125,481 N.Y.S.2d 278
• Parties: PEOPLE of the State of New York v. Deloss DOUGALL, Defendant.
• Court: New York Supreme Court

Page 278

481 N.Y.S.2d 278

126 Misc.2d 125

PEOPLE of the State of New York v. Deloss DOUGALL, Defendant.

Supreme Court, Criminal Term New York County, Part 74.

Oct. 25, 1984.

Sterling Johnson, Jr., Sp. Asst. Dist. Atty., New York City (William Darrow, New York City, of counsel), for the People.

John J. Cirigliano, Legal Aid Society, New York City (Robert Melnick, New York City, of counsel), for defendant.

NORMAN C. RYP, Judge:

Does People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745, Belton III apply in New York absent an automobile, exigent circumstances, or a nexus between arrest and search? "Duties of law enforcement officials are extremely demanding in a free society.... A policeman's job is easy only in a police state." People v. Spinelli, 35 N.Y.2d 77, 82, 358 N.Y.S.2d 743, 315 N.E.2d 792 (Wachtler, J.).

A. Procedural History

Defendant, Deloss Dougall, was indicted on May 14, 1984, for Criminal Possession of a Weapon in the Third Degree (Penal Law Sec. 265.02).

On June 18, 1984, defendant moved for an Order, pursuant to CPL Secs. 710.20 and 710.60, suppressing statements and evidence (a pistol) obtained from him on or about May 3, 1984, contending the overlying arrest was not based on probable cause, negating any search and seizure thereunder.

Upon a motion to suppress, the People have the initial burden of going forward to show the legality of the police conduct, and, once met, the defendant has the residual burden, by a fair preponderance of the credible evidence to show the contrary. (People v. Bouton, 50 N.Y.2d 130, 428 N.Y.S.2d 218, 405 N.E.2d 699 People v. Di Stefano, 38 N.Y.2d 640, 382 N.Y.S.2d 5, 345 N.E.2d 548 People v. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884, 270 N.E.2d 709 ).

A pre-trial Mapp suppression hearing (367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081) was conducted before this Court on August 16, 17, 20 and 21, 1984. The People called two (2) witnesses: Police Officers Robert Masci and Gary Olmstead, and rested. The defense then rested without calling any witnesses or introducing any other evidence.

B. Findings of Fact

The Court makes the following findings of fact. On May 3, 1984, at approximately 12:15 p.m., Police Officers Robert Masci, Peter Guardino and Gary Olmstead were stationed in plainclothes on the West 40th Street side of Bryant Park between Fifth Avenue and Avenue of the Americas, in New York County. The police officers, standing outside the south side of Bryant Park, observed defendant standing within said park, approximately 100 feet away, remove a small manila envelope from his right shoulder bag and hand it to two (2) males in exchange for a sum of U.S. currency. These men then went to a nearby Bryant Park bench and began to roll what appeared to be a marijuana cigarette using the contents of said manila envelope. Approximately two (2) minutes later, defendant was approached by a third male who also gave what appeared to be a sum of U.S. currency to defendant in exchange for a small manila envelope which defendant had removed from said right shoulder bag. This third male thereafter exited Bryant Park whereupon he was stopped and issued a summons by Police Officer (P.O.) Olmstead who recovered said manila envelope. While P.O. Olmstead was issuing the summons, P.O. Masci went to and entered the 42nd Street or north side of Bryant Park, and without drawing his service revolver approached defendant. After this approach, a scuffle ensued, whereby defendant's shoulder bag fell and then defendant was knocked to the ground. Thereafter, P.O. Masci first handcuffed defendant, then picked up defendant's shoulder bag and was joined by P.O. Guardino who escorted defendant out of Bryant Park. Said shoulder bag had an adjustable strap, a "Big Apple" plaque and three (3) zippered compartments. As they were walking out of the park, P.O. Masci, without first obtaining a search warrant, opened one (1) large zippered compartment (9"' X 13"') on said shoulder bag, looked inside and observed what appeared to be marijuana (in both metal and plastic bags), then opened a second smaller zippered compartment, saw papers within, and alongside the papers noticed and felt the outline of, and then saw, a small black revolver. The latter two zippered compartments were approximately eight (8) by ten (10) inches. When he searched the shoulder bag, P.O. Masci was seeking evidence of marijuana and did not expect to find a weapon therein. Thereafter, defendant was taken to a police substation on 43rd Street near Broadway where the officers called for a car to transport defendant to the precinct station.

C. Parties' Contentions

The People contend that P.O. Masci had probable cause to arrest and search defendant's shoulder bag and seize its contents herein. The People further submit that a police officer may make a warrantless arrest if he has reasonable cause to believe that a person has committed a crime in his presence. (CPL Sec. 140.10; People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ). Incidental to such lawful arrest, the police officer may contemporaneously search the suspect and seize any and all possessions. (Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 ). The People do not claim subject warrantless search to be part of an administrative inventory search but, rather, part of an investigative search.

In opposition, the defense contends the police lacked probable cause to arrest, and thus had no legal or state constitutional basis to search defendant's shoulder bag or seize its contents, especially in the absence of a warrant, or exigent circumstances (i.e., threat to the police officer's safety or a need to preserve evidence). (People v. De Santis, 46 N.Y.2d 82, 88-89, 412 N.Y.S.2d 838, 385 N.E.2d 577 cert. den. 443 U.S. 912, 99 S.Ct. 3102, 61 L.Ed.2d 876 People v. Smith, 59 N.Y.2d 454, 465 N.Y.S.2d 896, 452 N.E.2d 1224 ).

D. Issue

At issue in the present case is the legal and New York State Constitutional (Art. I, Sec. 12) validity of a Belton III warrantless search of personalty, absent an automobile, within the defendant's reach (grab area) at the time of the arrest, when the search is made contemporaneously with the arrest but after the suspect and his property are in custody en route to the police station, and there is no threat to the officer's safety or to the security of the evidence, which has no nexus to the arrest.

E. Applicable Law

The Court initially notes that the People do not claim recovery of subject pistol as part of an inventory search but rather as part of an investigative search. This post-arrest and pre-station house warrantless search of a closed zippered compartment was not part of a reasonable administrative inventory search for a dangerous article to protect the police and public or to eliminate false claims for allegedly "lost" items. (See, Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 People v. Gonzalez, 62 N.Y.2d 386, 477 N.Y.S.2d 103, 465 N.E.2d 823 People v. Roman, 53 N.Y.2d 39, 439 N.Y.S.2d 894, 422 N.E.2d 554 and authorities cited therein).

In People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745 (1982) on remand from New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1982) which sustained as not violative of the Fourth Amendment of the United States Constitution, a contemporaneous automobile warrantless search of any container within the "immediate control" of the suspect at the time of a custodial arrest, the Court of Appeals upheld such a search under Article I, Sec. 12 of the New York State Constitution. In Belton III, a State trooper stopped a speeding car, smelled marijuana and saw a suspicious envelope on the car floor. The occupants were ordered out of the car, the envelope upon inspection was found to contain marijuana, and then the occupants were arrested. Thereafter, the trooper entered the vehicle and found cocaine inside the closed and zippered pocket of defendant's jacket lying on the back seat. Suppression of the cocaine was denied and the contemporaneous grab area search doctrine was upheld when it applies to an automobile. In Belton III, the New York Court of Appeals recognized the inherent mobility and diminished expectation of privacy associated with automobiles; a warrantless search for a reasonable time and to a reasonable extent of the vehicle and a closed container in the passenger compartment was limited to situations where the circumstances surrounding the arrest indicate "that the car may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered or means of escape thwarted." (Belton III, supra, 55 N.Y.2d at 55, 447 N.Y.S.2d 873, 432 N.E.2d 745).

Thus, Belton III, for the first time now recognized in New York the "automobile exception" to the search warrant requirement of the New York State Constitution (Art. I, Sec. 12), previously recognized by the United States Supreme Court under the Fourth Amendment to the United States Constitution. (See, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543 Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 ). Probable cause for arrests and searches of motor vehicles is extended to the opening of locked containers if there is a nexus between the arrest and search. (See, United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 paper bag in auto trunk; People v. Langen, 60 N.Y.2d 170, 469 N.Y.S.2d 44, 456 N.E.2d 1167 locked suitcase behind seat in passenger compartment; People v. Ellis, 62 N.Y.2d 393, 477 N.Y.S.2d 106, 465 N.E.2d 826 locked glove compartment).

The Belton III reasoning was subsequently used in several recent cases which did not involve the search of an automobile. (See, People v. Johnson, 59 N.Y.2d 1014, 466 N.Y.S.2d 957, 453 N.E.2d 1246 from defendant, suppression denied]; People v. Smith, 59 N.Y.2d 454, 465 N.Y.S.2d 896, 452 N.E.2d 1224 People v. Gokey, 60 N.Y.2d 309, ...