People v. Green

• Decision Date: 04 October 1983
• Citation: 468 N.Y.S.2d 309,121 Misc.2d 522
• Parties: The PEOPLE of the State of New York, v. Stephen GREEN, Defendant.
• Court: New York District Court

Page 309

468 N.Y.S.2d 309

121 Misc.2d 522

The PEOPLE of the State of New York, v. Stephen GREEN, Defendant.

District Court, Nassau County,

First District, Criminal Part III.

Oct. 4, 1983.

Denis Dillon, Dist. Atty. of Nassau County, by Ronald Goldstein, Mineola, for the People.

Roth, Koval & Woods, by Saul Roth, Garden City, for defendant.

DECISION ON MOTION

HAROLD FERTIG, Judge.

On November 19, 1981, the Court of Appeals, in the case of People v. Ponder, 54 N.Y.2d 160, 445 N.Y.S.2d 57, 429 N.E.2d 735, adopted the rule defined in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619, which abrogated the "automatic standing" rule for a defendant to challenge a search which was in violation of his Fourth Amendment rights. This defendant, a passenger in a motor vehicle, brought a motion requesting the court to order a hearing to determine the standing of the defendant to move for the suppression of evidence seized, on some grounds which are novel in the State of New York.

The original motion of the defendant was granted to the extent that the court ordered a hearing to determine whether the defendant had such standing.

At the hearing, testimony was presented, and the Court finds that on or about September 15, 1982 at about 4 A.M. the defendant left a discotheque known as "The Native New Yorker." Outside, he met Kenneth Bass and John Bass, who were parked in their vehicle and, at their invitation, entered the car with the intent of going to the White Castle for hamburgers. Just before reaching their destination, the vehicle was pulled over by a police officer and everyone was ordered out of the car. Kenneth Bass was arrested and handcuffed and both the defendant and John Bass were searched. Subsequently, the vehicle itself was searched. A small amount of cocaine was found under the seat where defendant had been sitting in the rear of the vehicle and other controlled substances were found in the trunk of the vehicle. Neither John nor Kenneth Bass are before the court at this time.

The defendant contends that the stop was made without probable cause and that the search was in violation of his constitutional rights. He contends that he had a right to privacy in the vehicle where he was a passenger and particularly the area under that seat which he himself occupied. He further contends that he has standing to question both the search and the stop. He argues that he had a reasonable expectation of privacy in the vehicle, primarily because of the provisions of Section 220.25 P.L., which provides that the presence of a controlled substance in an automobile is presumptive evidence of knowing possession by each person in that vehicle. He states that there is an inconsistency in permitting the prosecution to prove a possessory crime by a presumption and at the same time take the position that the defendant has no standing to question the search.

In Rakas v. State of Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387, the court in part addressed a similar situation and found that merely because the defendants in that case were in the car, (at page 148, 99 S.Ct. at 433) " * * * with the permission of its owner, is not determinative of whether they had a legitimate expectation of privacy in the particular areas of the automobile searched." The Court held (page 134, 99 S.Ct. at 425), "A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." The defendants in that case asserted neither a property nor a possessory interest in the automobile or in the property seized, and the fact that they were legitimately on the premises, that is, with the permission of the owner, was held not determinative of whether they had a legitimate expectation of privacy in the particular areas of the automobile searched. Nor was there a showing that they had any legitimate expectation of privacy in the area under the seat of the car in which they were merely passengers, or in the trunk of that vehicle.

One thrust of the defendant's argument, in this case, is that the law is inconsistent if it provides that there is a presumption that he owned the property seized and at the same time he has no standing to question the search which resulted in discovering that property. In United States v. Salvucci, supra, the court reasoned that the original "automatic standing" rule was adopted to prevent both the risk that self-incrimination would attach to the assertion of Fourth Amendment rights and prevent prosecutorial self-contradiction. The court then further reasoned that the automatic standing had been affected by time since testimony given by a defendant in support of a motion to suppress cannot be admitted as evidence of his guilt at trial, citing, Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. In addition, that court found that a prosecutor may with legal consistency and legitimacy assert that a defendant charged with possession of a seized item did not have a privacy interest violated in the course of the search and seizure, and found that it was clearly established in Rakas v. Illinois, supra, that a prosecutor may simultaneously maintain that a defendant criminally possessed the seized goods, but was not subject to a Fourth Amendment deprivation, without legal contradiction.

It is not merely the right of ownership or possession which determines a person's Fourth Amendment privileges and the court went on to say, (on 448 U.S. at page 91, 100 S.Ct. at page 2552) "While property ownership is clearly a factor to be considered in determining whether an individual's Fourth Amendment rights have been violated ... property rights are neither the beginning nor the end of this Court's inquiry." The court reasoned that an illegal search violates the rights of those that have a legitimate expectation of privacy in the invaded place and that merely the possession of the seized goods is not sufficient for the owner to have a legitimate expectation of privacy in the area searched. In People v. Belton, 55 N.Y.2d 49, at page 53, 447 N.Y.S.2d 873, 432 N.E.2d 745, the court found, that there "is the reduced expectation of privacy associated with auto mobility and the inherent mobility of such vehicles."

"Under Rakas, a passenger will virtually never have standing to challenge a search of a vehicle absent a claim of ownership of the articles seized, * * * 'a distinction also properly...