People v. Judge

• Decision Date: 05 August 1982
• Citation: 117 Misc.2d 912,455 N.Y.S.2d 926
• Parties: The PEOPLE of the State of New York v. Vaughn JUDGE and Craig Keels, Defendants.
• Court: New York Supreme Court

Page 926

455 N.Y.S.2d 926

117 Misc.2d 912

The PEOPLE of the State of New York v. Vaughn JUDGE and Craig Keels, Defendants.

Supreme Court, Trial Term New York County, Part 47.

Aug. 5, 1982.

Robert M. Morgenthau, Dist. Atty., New York County, for the People (Robert Nicholas, New York City, of counsel).

Leonard Levinson, New York City, for defendant Keels.

Ellen Schwartz, Legal Aid Society, New York City, for defendant Judge.

JEROME HORNBLASS, Justice:

This is a combined Ponder and Mapp hearing to suppress physical evidence, to wit, a gun. The defendants are charged with possession of a weapon, a violation of the Penal Law. The hearing was held on June 24, 1982. The People called as their sole witness, Officer James Canberry of the Street Crime Unit.

FACTS

Officer James Canberry testified that he was a nine year veteran of the police force. Officer Canberry stated he had been assigned to the Street Crime Unit 7 1/2 months when the incident occurred.

On December 14, 1981 at approximately 12:15 A.M. Officer Canberry, along with two fellow officers, was on duty in a yellow medallion cab located outside the Dante Bar in the vicinity of 160th Street and Amsterdam Avenue. According to the officer's testimony, this is a high crime area. At 12:15 the officer noticed two black males exit the bar. The two males were later identified as the defendants Judge and Keels. The officer testified that defendant Keels then made a motion to his waistband, "an adjustment".

The defendants then entered a yellow livery cab. The cab proceeded down Amsterdam Avenue toward 158th Street. The officers followed in their cab. In the course of their following the cab, the officers observed from an unobstructed distance of approximately two to three car lengths that the defendants continued to turn their heads around looking backward outside the rear window of the cab. According to the officer, he believed that both were looking in the officers' direction and eye contact was made.

After following for two blocks at 158th Street, the officers pulled astride the cab, showed police identification to the driver and told him to pull over to the side. The driver complied. The police officers exited from their car and asked the cab driver whether everything was alright. The driver's only response was a shrugging gesture.

Officer Canberry then asked both defendants to step out of the rear of the cab; both exited on the driver's side, near Officer Canberry. Both men were frisked. The officer then saw a gun lying on the floor of the rear portion of the cab. After recovering the gun, both men were placed under arrest. I find the officer's testimony credible. The following are the conclusions of law.

I. The Law

The case of People v. Ponder, 54 N.Y.2d 160, 445 N.Y.S.2d 57, 429 N.E.2d 735 (1981) abolished the "automatic standing" rule in New York State. Ponder was decided in the wake of United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619 and Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633, which abolished automatic standing in the federal courts. The new test to be followed when dealing with possessory crimes, is the standard enunciated in the aforementioned cases and the earlier cases of Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) which covered automobile searches on the question of whether the defendant can show a "legitimate expectation of privacy" in the area searched (see Rakas v. Illinois, 439 U.S. 128 at 148, 99 S.Ct. 421 at 433).

The defendants have the burden of establishing that they have standing to contest the allegedly unlawful search. The defendants argue that the hiring of the cab places that area of the cab, where the defendants sat, within the zone of a legitimate expectation of privacy, namely the area in the back of the cab where the passengers are seated. They also argue that the officers lacked probable cause to stop and frisk the defendants. Defendant Judge also argues, separately, that he has standing by virtue of the automobile statutory presumption of possession statute. (Penal Law § 265.15[3].)

II. The Statutory Possession Argument

Penal Law § 265.15(3) is addressed to the trier of fact and the Grand Jury in determining proof of possession. It is an evidentiary presumption which both bodies may consider in evaluating the evidence before it. This evidentiary presumption in no way addresses itself to the Fourth Amendment concerns needed to establish standing. There is no appellate authority for the proposition that it confers a kind of "automatic standing" and this court rejects the nisi prius court's reasoning in sustaining a determination that standing is conferred by virtue of the statute. The Supreme Court in overruling Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 has rejected any notion of inconsistency in having the state prove a possessory crime and at the same time have the defendant prove his "legitimate expectation of privacy" under the Fourth Amendment.

III. The Standing Issue

The defendants state that a legitimate expectation of privacy has been created in the rear of the cab by virtue of the fact that the defendants hired the cab for transportation. The defendants argue that this hiring of the cab creates a "leasehold interest" in the vehicle, that they had a "possessory interest" in the back seat of the cab by virtue of their exclusive use of the cab during the course of their ride; they believe a legitimate expectation of privacy has been established.

To support this proposition, defendant Judge cites Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960); defendant Keels cites People v. Adorno, 37 Misc.2d 36, 234 N.Y.S.2d 674 (1962), a nisi prius decision by Ringel, J. which stood for the proposition that a taxicab was like a man's home "during the period of the hire" and that it could not be searched "any more than ... (a) private automobile." (Supra at 678.)

As to Adorno, besides being a trial court opinion, this court must keep in mind that Adorno is a pre-Rakas decision and therefore its propositions are of doubtful continuing relevance. Its explicit analogy to a man's home and a private automobile is erroneous on its face. A plethora of Supreme Court decisions have developed a carefully calibrated sliding scale of privacy interests with a person's home having a higher degree of protection than his or her automobile. Therefore, we speak of the so-called "automobile exceptions" to the Fourth Amendment (see Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 and also Rakas).

While it is true the leasing of a vehicle is a form of a possessory interest which can create a legitimate expectation of privacy, a contractual arrangement to use a cab is not a lease. It is "neither a property nor a possessory interest in the automobile, nor an interest in the property seized." (Rakas v. Illinois, 439 U.S. at 148, 99 S.Ct. at 433.)

Somewhat more problematic is the defendant's citation of Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960). In Rios, a police officer approached a taxicab in an unmarked car in an area known for narcotics trafficking. Except for the reputation of the area, neither officer knew defendant, nor had the defendant engaged in any criminal activity. As the taxicab stopped at an intersection, the officers followed at a distance. At the intersection the two officers alighted and approached the cab. They identified themselves as officers. In rapid succession, the cab door was opened, the officers grabbed the defendant and the defendant dropped a recognizable quantity of narcotics on the floor. The record is not clear as to whether the narcotics were dropped before or after police entry.

In remanding the case back to the District Court, the Supreme Court stated that under no possible interpretation of the testimony could there be probable cause for a lawful arrest. The government conceded this, but stated it was only an investigatory stop. In a footnote the court noted that "A passenger who lets a package drop to the floor of the taxicab in which he is riding can hardly be said to have 'abandoned' it. An occupied taxicab is not to be compared to an open field." (Rios v. United States, 364 U.S. 262, 80 S.Ct. 1437.) The defendant contends this statement of the court evinces a notion that standing is conferred on taxicab passengers.

The problem with this...