People v. Lee

• Decision Date: 25 May 1993
• Citation: 598 N.Y.S.2d 456,193 A.D.2d 529
• Parties: The PEOPLE of the State of New York, Respondent, v. Victor LEE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 456

598 N.Y.S.2d 456

193 A.D.2d 529

The PEOPLE of the State of New York, Respondent, v. Victor LEE, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

May 25, 1993.

Before CARRO, J.P., and MILONAS, ELLERIN and ASCH, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (Joan Carey, J.), rendered July 12, 1991, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the third degree and sentencing him to an indeterminate term of imprisonment of 2 to 4 years, reversed, the order of the same court and justice, entered on or about March 8, 1991, which denied defendant's motion to suppress evidence, reversed, the motion granted, and the indictment dismissed. The matter is remitted to the trial court for the purpose of entering an order in favor of the accused pursuant to CPL 160.50, not less than 30 days after service of this order upon the respondent, with leave during this 30 day period to respondent to move and seek any further stay of the implementation of CPL 160.50 as in the interest of justice is required.

At issue on this appeal is the legality of the search of a bag carried by the defendant and the seizure of the weapon which was within it. Detective DiCamillo, the only witness at the suppression hearing, testified that on the afternoon of July 17, 1988, he was working as a police officer with the Criminal Investigation Unit of the Penn Station Amtrak Police when he was told by Captain Rutter, the commanding officer at Penn Station, that Rutter had received a telephone call from the Philadelphia Amtrak Police Department advising that a man resembling Ralph Birdsong, a suspect wanted in connection with a double homicide which had occurred at 5:30 that morning, was traveling on train 140 to New York. The man was described as a male black, five feet eight inches tall, medium build, wearing blue suede shoes, a maroon shirt and four gold rings on his right hand one of which was square shaped. While DiCamillo testified that prior to going to the track where train 140 was scheduled to arrive, he called Laura Frank, the Amtrak ticket agent who had sold the ticket to the suspect, he did not indicate what was said during that conversation. When train 140 arrived, defendant, who matched the given description exactly, walked onto the platform carrying a gray, white and orange plastic bag. He was approached by DiCamillo and Rutter, who identified themselves as police officers and asked defendant to stop, advising him that they wanted to ask him some questions. Before asking any questions, DiCamillo reached for the bag because defendant matched the description of the suspect in the double homicide and the detective was concerned for his safety. Upon doing so, DiCamillo felt a hard object in the bag that "had some weight", which, based on his experience, he "knew" was a gun. DiCamillo then took the bag, without opening it, and defendant was brought for questioning to the Amtrak police office where he was put in a holding cell and given Miranda warnings. Subsequently, after calling an Assistant District Attorney to see if he should open the bag, Detective DiCamillo did open it and found a .22 caliber "long rifle" revolver wrapped in two tee shirts inside a paper bag. Defendant was then fingerprinted. It was ultimately determined, after conferring with the Philadelphia police, that defendant was not Birdsong.

At the conclusion of the hearing, defense counsel argued that the gun should be suppressed because Detective DiCamillo had no right to open the defendant's bag without a warrant. Additionally, counsel argued that the People had failed to meet their burden of showing that the initial stop was proper since there was no evidence to show either the basis on which the remitter of the information in Philadelphia had determined that Ralph Birdsong was a suspect in the homicide or why it was believed that appellant resembled Birdsong. While the People requested additional time to research the issue, the court rejected that request as unnecessary. The court then denied the motion to suppress, finding that the information upon which Detective DiCamillo acted was reliable because it came from the Philadelphia Police Department and that once the officers saw defendant leave train number 140, matching the exact description they had been given, they had a right to stop and detain him for a reasonable period to determine whether he was a suspect in the Philadelphia homicide. The court further found that once the officers stopped him they had the right to frisk defendant and any items he was carrying because he was a suspect in a double homicide. Additionally, the court found that, although defendant was never actually arrested, since Detective DiCamillo felt the "outline of the gun" during the initial frisk, he was justified in subsequently opening the bag without a search warrant.

In Matter of Marrhonda G., 81 N.Y.2d 942, 597 N.Y.S.2d 662, 613 N.E.2d 568, the Court of Appeals held that the police may not conduct a warrantless search of a bag legally in their possession based solely on their ability to feel that the bag contains a weapon. In the case at bar, no other rationale justified the search of defendant's bag. As defendant himself was already in a cell in the Amtrak office when the bag was searched, it can hardly be said to have still been in his "grabbable area" so as to make the search necessary as a protective measure (see, People v. Brooks, 65 N.Y.2d 1021, 494 N.Y.S.2d 103, 484 N.E.2d 132; People v. Gokey, 60 N.Y.2d 309, 312, 469 N.Y.S.2d 618, 457 N.E.2d 723). Moreover, even assuming that defendant was under arrest and subject to a search incident to such arrest, the search of the bag was conducted well after it had come into exclusive police custody and after it had been removed from the area where defendant was stopped and taken into custody, thereby "dissipat[ing] the reasonableness of conducting a search" (People v. Smith, 59 N.Y.2d 454, 459, 465 N.Y.S.2d 896, 452 N.E.2d 1224). Nor was there any evidence of other exigency compelling the warrantless search or of any consent by defendant to the search. The absence of exigency is further emphasized by the fact that prior to opening the bag Detective DiCamillo called an Assistant District Attorney to ascertain whether he should do so.

For these reasons, the weapon found in defendant's bag should be suppressed and the indictment dismissed. Moreover, were we not reversing based on the illegal search of defendant's bag, we would nevertheless require a new hearing on the legality of the original stop. Contrary to the suppression court, and our dissenting colleague, we find that once the defense raised the issue of the reliability of the Philadelphia report, the People were obliged to go forward to demonstrate its reliability, and, absent such showing, the record is insufficient to sustain denial of the motion to suppress on this ground (People v. Havelka, 45 N.Y.2d 636, 412 N.Y.S.2d 345, 384 N.E.2d 1269).

It is well established that the police have the right, and the duty, to stop a citizen and inquire of him or her if they have reasonable suspicion that the citizen has committed, is committing or is about to commit a crime (People v. Stroller, 42 N.Y.2d 1052, 399 N.Y.S.2d 207, 369 N.E.2d 763; People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562). This is so, even if the information initially prompting the inquiry is hearsay (People v. Stroller, supra; People v. Stewart, 41 N.Y.2d 65, 390 N.Y.S.2d 870, 359 N.E.2d 379). However, if an officer relies solely upon hearsay uncorroborated by his or her own observations at the scene, and, as a result, is not personally apprised of sufficient information to constitute a reasonable suspicion, the stop will be valid only if the hearsay was received from another officer who did, in fact, possess sufficient information to constitute the requisite knowledge to justify the police conduct, in which case, the corroborating information is imputed to the receiver (People v. Havelka, supra, 45 N.Y.2d at 641, 412 N.Y.S.2d 345, 384 N.E.2d 1269; see also, People v. Dodt, 61 N.Y.2d 408, 416, 474 N.Y.S.2d 441, 462 N.E.2d 1159). The officer in the field may presume the reliability of information received from a fellow officer ( People v. McLaurin, 43 N.Y.2d 902, 403 N.Y.S.2d 720, 374 N.E.2d 614, rev'g on dissenting opn. 56 A.D.2d 80, 84, 392 N.Y.S.2d 1) and the hearing court may, in turn, also rely on a presumption of reliability unless and until an objection is interposed by the defense. Upon such defense request, the prosecution must establish that the sender actually possessed reliable information upon which the transmission was based ( People v. Havelka, supra, 45 N.Y.2d at 641, 412 N.Y.S.2d 345, 384 N.E.2d 1269; see also, Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306). Such request was timely made in the instant case.

There is, however, an exception to the People's obligation to establish the reliability of the sending officer's information. In a case where the court finds that the officer in the field did not rely solely on inadequately corroborated hearsay, and that the circumstances confronting that officer were such as to lend sufficient reliability to the hearsay, the officer's actions can be found to have been justified without calling the sending officer (see, People v. Landy, 59 N.Y.2d 369, 465 N.Y.S.2d 857, 452 N.E.2d 1185).

In the case before us, both the suppression court and the dissent have concluded that the prosecution satisfied its burden of going forward by demonstrating that the hearsay upon which the arresting officer relied was sufficiently corroborated by the circumstances confronting the officer at the scene so as to constitute the necessary reasonable suspicion, thereby obviating the necessity of calling the sending officer. In reaching such conclusion the dissent relies primarily...