People v. Gonzalez

• Decision Date: 17 February 1983
• Citation: 92 A.D.2d 512,459 N.Y.S.2d 281
• Parties: The PEOPLE of the State of New York, Respondent, v. Miguel GONZALEZ, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 281

459 N.Y.S.2d 281

92 A.D.2d 512

The PEOPLE of the State of New York, Respondent, v. Miguel GONZALEZ, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Feb. 17, 1983.

M. McGerity, New York City, for respondent.

T.R. Legenhausen, Richmond Hill, for defendant-appellant.

Before CARRO, J.P., and SILVERMAN, BLOOM, FEIN and KASSAL, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County, rendered June 11, 1980, convicting defendant following a non-jury trial, of criminal possession of a controlled substance in the fifth degree (P.L. former § 220.09[1] ), and sentencing him to an indeterminate term of imprisonment of not more than three years, is affirmed.

Defendant having been arrested for a traffic offense (driving with a suspended license), the police took possession of the car and drove it to the station house. During the drive to the station house the officer saw a crumpled up paper bag suspended by a wire from the dashboard of the car. Concededly, the police had the right to make an inventory search of the car. On such an inventory search, the police examined the contents of the crumpled up paper bag and found cocaine. People v. Roman, 53 N.Y.2d 39, 439 N.Y.S.2d 894, 422 N.E.2d 554, places sharp limitation on the right of the police in making an inventory search of an automobile to conduct a warrantless search of a closed package (but cf. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572). But here we deal with an unsealed crumpled up paper bag. We do not see how it is possible for the police to conduct an inventory search of an automobile without looking into an unsealed crumpled up paper bag in plain view in the car. How can the police protect themselves as bailees and the owner of the car as bailor with respect to claims of missing property, etc., without looking into such a bag. A person who leaves such a bag in plain view in an automobile in the public street can hardly have much expectation of privacy with respect to that bag.

All concur except CARRO, J.P., and FEIN, J., who dissent in a memorandum by CARRO, J.P., as follows:

In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed. 572, the United States Supreme Court held that police officers who have legitimately stopped a car and have probable cause to believe contraband is concealed somewhere within may conduct a warrantless search of the vehicle and any containers therein. To the extent that this decision restated and explained the holding in New York v. Belton, 453 U.S 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, ^* it does not state the law under the New York homologue to the Fourth Amendment, the first unnumbered paragraph of section 12 of the Article I of the New York State Constitution. ^** cf. People v. Belton, 55 N.Y.2d 49, 50, 447 N.Y.S.2d 873, 432 N.E.2d 745. Still, even under federal constitutional law the requirement that probable cause be first present remains intact. --- U.S. at ----, ----, 102 S.Ct. at 2159, 2172, 72 L.Ed. at 578, 593. And though the Ross decision effectively overruled the law announced in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (see 456 U.S. at ----, 102 S.Ct. at 2173, 72 L.Ed. at 595, White, J., dissenting), the Court carefully noted that their new rule "applies equally to all containers, ... a constitutional distinction between 'worthy' and 'unworthy' containers would be improper...." 456 U.S. at ----, 102 S.Ct. at 2171, 72 L.Ed. at 592. Compare U.S. v. Robinson, supra ("crumpled up cigarette package").

Thus, under either New York or federal precedent the search at issue here can not be sustained unless some expansion of the "inventory" exception is to be declared. In So. Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 the "inventory" rule was set out, footed heavily in concerns for "protection"--of the owner's property, of the police against claims or disputes over lost or stolen property, and of the police from "potential danger," as when a loaded firearm is reasonably believed to be locked in the trunk of the car. 428 U.S. at 369, 96 S.Ct. at 3097. The second of these three "protective" functions of an inventory search is relied upon by the majority in today's ruling. However, as pointed out by Justice Powell in his concurring opinion,

It is not clear, however, that inventories are a completely effective means of discouraging false claims, since there remains the possibility of accompanying such claims with an assertion that an item was stolen prior to...