People v. James

• Decision Date: 07 April 1965
• Citation: 46 Misc.2d 138,259 N.Y.S.2d 241
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Hezekiah JAMES, Defendant.
• Court: New York Supreme Court

Page 241

259 N.Y.S.2d 241

46 Misc.2d 138

The PEOPLE of the State of New York, Plaintiff, v. Hezekiah JAMES, Defendant.

Supreme Court, Criminal Term, Kings County, Part I.

April 7, 1965.

Frederick D. Kranz, Brooklyn, for defendant for the motion.

Aaron Koota, Dist. Atty., Kings County (Martin Light, Asst. Dist. Atty.) of counsel opposed.

J. IRWIN SHAPIRO, Justice.

Motion for reargument of a motion to suppress a revolver found in the glove compartment of an automobile owned by the defendant.

The police officer was attracted to the automobile because it was parked (at about 9 A.M.) in a zone which was restricted against parking from 8 A.M. to 6 P.M. Closer observation of the automobile revealed that the rear license plate was loosely attached by wire. He looked into the automobile but observed nothing lying about. Seeing a woman walking her dog, the police officer asked her if she knew anything about the car and she said it had been there for about two days. At that point the officer had no other information about the automobile. He then went to the glove compartment (which was closed but not locked) and found a loaded revolver therein. After taking the revolver from the glove compartment and while he was standing on the sidewalk, the defendant approached the automobile. He was asked by the police officer whether it was his automobile and whether the revolver was his and obtained affirmative answers to both questions. He then placed the defendant under arrest for the possession of the revolver as a dangerous weapon. (Violation of Penal Law, § 1897.)

The crucial question here is whether the officer, with the knowledge he possessed prior to finding the revolver, had a right to search the car. It is now axiomatic that a search may not be justified by what it reveals. It was either good or bad when it started. (People v. Malinsky, 15 N.Y.2d 86, 95, 255 N.Y.S.2d 850, 859, footnote 3, 204 N.E.2d 188, 195; People v. Loria, 10 N.Y.2d 368, 373, 223 N.Y.S.2d 462, 466, 179 N.E.2d 478, 482.)

At the time the car was searched it was illegally parked but there was no causal connection between that traffic violation and the search. The police officer could have 'tagged' the car for the parking violation, but there his duties, rights and responsibilities ended.

The contention now made by the People that the facts here warranted the officer's believing that the car had been abandoned and that, therefore, the search was justified is an afterthought brought about by a suppositious example mentioned by me during the agrument.

While 'It is clear that an abandoned motor vehicle does not have the same sanctity as a defendant's dwelling house in the constitutional field of search and seizure' (People v. Harper, 26 Ill.2d 85, 90, 185 N.E.2d 865, 868) and that whether there has been an abandonment of an object is 'largely a question of intent' (United States v. Minker, 3 Cir., 312 F.2d 632) determinable as a question of fact (Schauffler for and on Behalf of N. L. R. B. v. United Association of Journeymen & Apprentices of Plumbing and Pipefitting Industry of U. S. and Canada, Local 420, A.F.L., 3 Cir., 230 F.2d 527, 576, cert. denied 352 U.S. 825, 77 S.Ct. 37, 1 L.Ed.2d 48), the claim of abandonment of the motor vehicle here asserted by the People in an effort to sustain the search must be ruled aborive as not being borne out by the facts. An alleged statement by an unknown woman...