People v. Gonzalez

• Decision Date: 04 March 1986
• Citation: 115 A.D.2d 73,499 N.Y.S.2d 400
• Parties: The PEOPLE of the State of New York, Appellant, v. Antonio GONZALEZ, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 400

499 N.Y.S.2d 400

115 A.D.2d 73

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

Supreme Court, Appellate Division,

First Department.

March 4, 1986.

Steven M. Jaeger, for defendant-respondent.

Peter D. Coddington, of counsel (Stuart L. Sanders with him on brief, Mario Merola), for appellant.

Before KUPFERMAN, J.P., and SULLIVAN, FEIN, KASSAL and ELLERIN, JJ.

KASSAL, Justice.

The primary issues before us are: (1) defendant's standing; (2) was there probable cause to search the brown paper bag situated between defendant, seated in the front passenger seat of the vehicle, and Brenda Martinez, who was seated in the driver's seat; and, (3) have the People established that there was a voluntary consent to the warrantless search. In our view, defendant does have requisite standing and, at the time, there was no basis rising to the level of reasonable suspicion to search the bag and defendant's person. The record also supports the finding by the suppression court that there was no voluntary consent to the search.

On January 20, 1984, at about 12:05 A.M., Officers Biller and O'Connor were on patrol in a marked police car, when they observed a white, 2-door Pontiac LeMans stopped or standing adjacent to a fire hydrant, at the intersection of Watson and Ward Avenues, in the Bronx. Officer Biller, who had been operating the patrol car, stopped and requested Ms. Martinez to move the auto from the hydrant, whereupon she stated that she did not have a license and that it was not her car. The officer maneuvered the patrol car so that its headlights faced the front of the Pontiac and both officers exited their vehicle carrying flashlights, with Biller proceeding to the passenger side and O'Connor to the driver's door.

O'Connor asked Ms. Martinez to produce her operator's license, registration and insurance certificate. She responded that she did not have a license but the registration was produced from the glove compartment, although the record does not reflect whether it was retrieved by defendant or by Martinez. In any event, after Ms. Martinez was unable to state the name of the owner in response to the officer's inquiry, O'Connor, who was shining a flashlight into the car, noticed a closed, brown paper bag, resting against the seat, between defendant and Martinez. He inquired as to the contents of the bag, whereupon Martinez picked up the bag, handed it out the window and stated: "It's only boxes of envelopes." According to O'Connor, "she became confused at that point, and didn't understand me. I said: The bag right there", whereupon she complied with the command and handed the bag out the window. Biller, who was positioned on the sidewalk behind the passenger door, only heard "highlights" of what had transpired between Officer O'Connor and Ms. Martinez. But, in response to a question on cross-examination as to at what point Officer O'Connor "ask[ed] her to give him the bag", Biller responded, "That was after the papers, sir."

O'Connor took the bag and placed it on the roof of the car. He then shook it and heard a metallic sound. Contrary to the fact-finding analysis by the dissent, O'Connor did not testify that he believed the bag to contain "a hidden weapon" or an object heavy enough to be a weapon. Without any further inquiry, he opened the bag to examine the contents and discovered two After examining the bag's contents, O'Connor directed Ms. Martinez to exit the car while Biller proceeded to search defendant. As far as Biller was concerned, at that moment, both had been arrested and he was going to make sure that they did not have any weapons. He directed defendant to place his hands on the dashboard and, noticing that defendant had only one hand, patted him down. In defendant's left jacket pocket he found what appeared to be a tin foil, which he felt through the material. It was soft, about an inch and a quarter wide and a half inch thick. Examination of the foil disclosed that it contained two other tin foils, containing a white powder, later discovered to be cocaine. The two occupants were handcuffed and taken to the precinct for a further check to ascertain whether the vehicle had been stolen. During the ride to the stationhouse, defendant told O'Connor that if anything was wrong, he would take the "heat" for the car: "If the car's stolen, it's my fault. I borrowed it ... Anything that you have got here tonight, is mine ... The stuff that was on me was a wedding present; we're getting married, and I got it as a present." A subsequent search of Ms. Martinez at the precinct revealed her to be in possession of marijuana but the record is unclear as to whether any formal charges were filed against her or whether she was prosecuted for possession of a controlled substance. However, she was issued summonses for being an unlicensed operator (Vehicle and Traffic Law § 509[1] ) and for parking next to a fire hydrant (Traffic Regulations of the City of New York § 81[b] ).

                tan stationery-type boxes.  When he opened the first, he found hundreds of glassine envelopes and yelled to Biller, "Watch out, I've got something here."   Although Biller did not examine the contents, he saw that it contained what appeared to be glassine envelopes and believed that they had powder in them.  Actually, the envelopes had no powder and were empty.  In any event, according to Biller, he heard Officer O'Connor say, "Look out, Rich.  They're going."   This, according to Biller, meant that the occupants were to be arrested for possession of drugs
                

Defendant, charged with criminal possession of a controlled substance in the fourth degree, moved to suppress the physical evidence seized at the time of his arrest. Following a hearing, the suppression court granted the motion, concluding that the seizure of the paper bag, on the front seat of the car, amounted to a warrantless, non-consensual search, in violation of defendant's Fourth Amendment rights. In so finding, the court cited the conflict in the proof as to whether the officers had requested or demanded that the bag be handed over to them and held that the People had not satisfied their burden of showing that the search was voluntarily consented to. Observing that the occupants were young and without experience in dealing with the police, it was concluded that they may have felt that they were not at liberty to challenge the authority of the officers, who had approached the vehicle on both sides, shining flashlights into the car. The court also found that no probable cause existed to search the paper bag. It held that, although the inability of the female occupant to produce a driver's license and her unfamiliarity with the name of the owner of the vehicle may have permitted further inquiry, the officers did not have the right to seize and search the occupants at that time.

STANDING

While the suppression court did not address or resolve defendant's standing in its written decision, albeit the issue was raised at the combined Mapp-Huntley hearing, we find the record sufficient to conclude that defendant does have requisite standing to contest the search. In concluding otherwise, the dissent overlooks that the criminal charges related to the search of defendant's person. Clearly, he has standing to move to suppress property taken from his person (see, People v. Barshai, 100 A.D.2d 253, 256, 474 N.Y.S.2d 288). There were no charges associated with the search of the bag, it being undisputed that In order to have requisite standing to challenge the validity of a warrantless search, a defendant must establish that he had a reasonable expectation of privacy in the area of the search. (Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889; Rakas v. State of Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 428, 58 L.Ed.2d 387; United States v. Salvucci, 448 U.S. 83, 95, 100 S.Ct. 2547, 2554, 65 L.Ed.2d 619; People v. Ponder, 54 N.Y.2d 160, 166, 455 N.Y.S.2d 57, 429 N.E.2d 735.) The ultimate burden is on the defendant but the operative facts relevant on the issue may be gleaned from the record as a whole, including the account of the events offered by the police officer (see, People v. Sutton, 91 A.D.2d 522, 456 N.Y.S.2d 771).

the bag contained empty glassine envelopes. The People argue, and the dissent agrees, that the search of the defendant's person resulted from what was found inside the bag and that Gonzales, as a passenger, lacked standing with respect to the search of the bag. We disagree.

As applied here, the only proof relating to standing was furnished by Officer O'Connor that defendant told him that he had borrowed the vehicle from a friend who was now in Puerto Rico. There is nothing in the record to dispute that. Although it is not disclosed precisely when the statement was made, the dissent adopts the People's contention and concludes that the information was imparted to the officer when the occupants were being taken to the precinct and, at the time, defendant was attempting to "protect" Martinez and persuade the officers to release her. In our view, this is unnecessarily speculative in that the only proof on the issue is that defendant stated that he had borrowed the car from a friend, which is sufficient to find that he had a legitimate expectation of privacy so as to confer requisite standing with respect to the bag.

It is irrelevant whether the statement was made at the scene or later, on the way to the precinct. The issue of standing in terms of the right of a defendant to contest the propriety of a search only arises when a motion to suppress is made, not at the time of the initial police encounter. Only where the People challenge a defendant's standing is it necessary to establish that there was a legitimate and reasonable expectation of privacy in the area of the search.

The critical consideration is not when the defendant related to the officers that he had a sufficient privacy interest, but rather,...