People v. Jones

• Decision Date: 02 July 1984
• Citation: 125 Misc.2d 91,477 N.Y.S.2d 975
• Parties: The PEOPLE of the State of New York v. Derek JONES, William Talbert and William Best, Defendants.
• Court: New York Supreme Court

Page 975

477 N.Y.S.2d 975

125 Misc.2d 91

The PEOPLE of the State of New York v. Derek JONES, William Talbert and William Best, Defendants.

Supreme Court, Trial Term,

New York County,

Part 52.

July 2, 1984.

Robert M. Morgenthau, Dist. Atty., New York County (Mario DiNatale, Asst. Dist. Atty., of counsel), for the People.

Ira Levitas, New York City, for defendant Jones.

David Cooper, Brooklyn, for defendant Talbert.

Caesar Cirigliano, New York City (Christopher South, New York City, of counsel), for defendant Best.

STANLEY L. SKLAR, Judge.

The principal issue presented in this case is: Can a defendant, who ordinarily, as a mere passenger, lacks standing to contest the validity of a search of a car, seek suppression of guns recovered in a search which followed an arbitrary stop of the car by the police, based on less than reasonable suspicion?

I hold that he can; accordingly, suppression is granted as to all of the defendants.

FACTS

Derek Jones, William Talbert and William Best tried to hire a taxicab during the evening of July 19, 1982. Since a taxi was unavailable, their order was referred to another car service, and they accepted a Cadillac limousine, with a chauffeur. The Cadillac which they hired turned out to have tinted rear windows, making it most difficult for persons outside the car to see the occupants in the rear.

Two police officers testified that they stopped the limousine on July 20, 1982 at about 2:15 a.m. on Broadway near 158th Street in Manhattan. They claimed that they stopped the limousine because it passed a red light. However, I do not credit their testimony as to the reason for the stop. Their testimony was hesitant, contained inconsistencies, was lacking in details that one could reasonably expect would have been recalled (but details which, particularly if invented, might have resulted in additional contradictions), was lacking in candor, and appeared tailored to try to meet constitutional standards. In addition, their testimony was directly contradicted by the chauffeur, who gave the impression of being candid and trustworthy. Furthermore, one of the officers admitted to suspicion of the limousine, since crimes, including narcotics activity, had been committed in that area by persons riding in new and expensive cars, and that the limousine was approaching a bar that was known for narcotics activity. Finally, I note that no traffic citation was issued. (Cf. In re Robert M., 99 Misc.2d 462, 416 N.Y.S.2d 679.)

Because I do not credit the officers' testimony as to their reason for stopping the limousine, the People have failed to meet their burden of coming forward on this issue, and it is presumed that the officers acted without reasonable suspicion justifying the stop. (Cf. People v. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884, 270 N.E.2d 709.)

After the officers stopped the limousine, they, as a safety measure, had the chauffeur lower the rear windows. One used a flashlight to illuminate the interior and saw a gun in plain view, sticking out of a bag. They ordered the passengers out, and recovered two guns from the bag on the floor of the passenger compartment.

STANDING TO CONTEST THE SEARCH

Beginning in 1978 (Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387) and continuing in 1980 (United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619), the Supreme Court abandoned the automatic standing rule set forth in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. "That rule relievea defendant charged with a possessory offense of the burden of establishing that he has an interest in the premises searched or the property seized in order to have standing to challenge the search or seizure." (People v. Ponder, 54 N.Y.2d 160, 163, 445 N.Y.S.2d 57, 429 N.E.2d 735.) New York, in the Ponder decision, followed suit. ^*

The Rakas court held that the defendants, passengers in a car, who asserted "neither a property nor possessory interest in the automobile, nor an interest in the property seized," failed to demonstrate an expectation of privacy adequate to establish a violation of their Fourth Amendment rights, even though they were legitimately present in that car (Rakas v. Illinois, 439 U.S. 128, 148, 99 S.Ct. 421, 433, 58 L.Ed.2d 387).

While recognizing that searches of cars and homes have traditionally been treated differently in terms of Fourth Amendment expectation of privacy analysis (see generally Rakas v. Illinois, 439 U.S. 128, 153-4, 99 S.Ct. 421, 435-6, 58 L.Ed.2d 387, supra; State v. DeMasi, 419 A.2d 285, 294 ), the defendant-passengers in this case claim that Rakas is distinguishable. They urge that because they were riding in a "stretch limousine" with tinted glass and a separate passenger compartment, they had a legitimate expectation of privacy sufficient to pass constitutional muster.

The People, for several reasons, urge that the defendants did not have a sufficient legitimate expectation of privacy. First, the defendants, who ordered a taxicab, may have accepted a limousine merely for its availability or for greater space and comfort. Second, there was no testimony indicating that the defendants ordered a car with tinted glass. This circumstance appears to have been strictly fortuitous. Third, no testimony was presented indicating that there was a partition, tinted or otherwise, between the driver and passenger compartments; or, if there was one, whether it was up or down. Absent a tinted partition that was in place, the interior of the passenger compartment would have been exposed to the view of the chauffeur and of anyone stopping the car and standing next to the chauffeur. Fourth, and most importantly, Fourth Amendment rights should not depend on one's economic status. A deep pocketed miscreant in a new limousine with tinted glass should be in no better, or worse, position than a passenger in an ordinary car.

I need not, and therefore do not, decide this issue because I must grant suppression on a narrower ground--the illegality of the initial investigative stop of the limousine.

STANDING TO CONTEST THE STOP

Rakas does not stand for the proposition that a mere passenger who has no expectation of privacy in the area searched may never seek suppression of the items seized. Rather, the gist of Rakas is that "in order to obtain the benefit of ... the exclusionary rule an individual must first demonstrate that his legitimate expectation of privacy in that which was either searched or seized was violated." (Parkhurst v. State, 628 P.2d 1369 Rakas v. Illinois, 439 U.S. 128, 138, 99 S.Ct. 421, 427, 58 L.Ed.2d 387; United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619.)

Because the legality of the initial stop of the vehicle in Rakas was never challenged (Rakas, 439 U.S. at 160, n. 5, 99 S.Ct. at 439 n. 5), that Court focused primarily on the alleged violation of the defendant's right with respect to the illegal search. In the instant case, the defendants do not merely challenge the search of the limousine. They challenge the allegedly illegal stop of the limousine as a constitutionally impermissible seizure of their persons (N.Y. Const., art. 1, § 12; U.S. Const., 4th Amdt.) and the subsequent seizure of the weapons as fruit of that illegal seizure (Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 ). (See: People v. Green, 121 Misc.2d 522, 526-7, 468 N.Y.S.2d 309; People v. Kunath, 99 Ill.App.3d 201, 54 Ill.Dec. 621, 425 N.E.2d 486 3 LaFave, Search and Seizure, pocketpart § 11.3, pp. 232-235, 1984; 1 Ringel, Searches and Seizures, Arrests and Confessions, § 11.7, pp. 11-32.)

A stop by the police of a vehicle on a public highway constitutes a seizure of its occupants within the ambit of the Fourth Amendment. (See: Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660; United States v. Brignoni-Ponce, 422 U.S. 873, 878-82, 95 S.Ct. 2574, 2578-80, 45 L.Ed.2d 607; People v. John BB., 56 N.Y.2d 482, 487, 453 N.Y.S.2d 158, 438 N.E.2d 864; People v. Sobotker, 43 N.Y.2d 559, 402 N.Y.S.2d 993, 373 N.E.2d 1218; People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39.)

This rule, although distinguishable "from the common-law right of inquiry of a pedestrian" (People v. Sobotker, 43 N.Y.2d 559, 563, 402 N.Y.S.2d 993, 373 N.E.2d 1218), is analogous to the rule in the stop-frisk pedestrian street encounter cases (State v. DeMasi, 419 A.2d 285 ) that "a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person within the meaning of the Fourth Amendment" (Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889).

Thus, by analogy, the Supreme Court has recognized that the occupants of a moving vehicle retain a reasonable interest in personal privacy. See: Delaware v. Prouse, 440 U.S. 648, 662-3, 99 S.Ct. 1391, 1400-01, 59 L.Ed.2d 660; see also People v. John BB., 56 N.Y.2d 482, 453 N.Y.S.2d 158, 438 N.E.2d 864; Parkhurst v. State, 628 P.2d 1369, 1374 [Sup.Ct. of Wyoming].

The reasonableness of the seizure "requires a balancing of the state's interest in the inquiry at issue against the individual's interest in being free from governmental interference." (People v. John BB., 56 N.Y.2d 482, 453 N.Y.S.2d 158, 438 N.E.2d 864; United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607; United States v. Montgomery, 561 F.2d 875, 878 State v. DeMasi, 419 A.2d 285, 291.) Accordingly, police officers may stop a car on a public highway only when that stop is "conducted pursuant to 'nonarbitrary, nondiscriminatory, uniform' highway procedures, or when there is specific cause, or at least, reasonable suspicion that a motorist is about to violate a law." (People v. Sobotker, 43 N.Y.2d 559, 563, 402 N.Y.S.2d 993, 373 N.E.2d 1218).

The New York Court of Appeals cases, particularly Sobotker and John BB., do draw a distinction between the illegalities involved in an improper stop of a car and the improper search of...