People v. Mahoney

• Decision Date: 16 December 1977
• Citation: 60 A.D.2d 107,400 N.Y.S.2d 257
• Parties: PEOPLE of the State of New York, Respondent, v. Odell MAHONEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 257

400 N.Y.S.2d 257

60 A.D.2d 107

PEOPLE of the State of New York, Respondent, v. Odell MAHONEY, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 16, 1977.

Louis J. Colella, Dansville, for appellant.

Raymond L. Sciarrino, Dist. Atty., Livingston County, Geneseo, for respondent.

Before MARSH, P. J., and DILLON, HANCOCK, DENMAN and WITMER, JJ.

OPINION

WITMER, Justice.

On this appeal we consider police searches of the owner of a vehicle and of the vehicle, both without a warrant; and we conclude that in the circumstances of this case County Court erred in denying defendant's motion to suppress marijuana seized from the air vent in the vehicle, a van.

The evidence on the suppression hearing is that Officer Mahus stopped the vehicle because he observed that it had an inadequate muffler. The driver informed him that the passenger (the defendant) was owner of the vehicle. On learning defendant's identity Officer Mahus checked with his police headquarters and learned that defendant was wanted on an outstanding warrant for issuing a bad check. He thereupon arrested defendant and handcuffed him and, as he was about to search him incidental to the arrest, defendant stated that he had a knife. The officer found a 12 inch knife on him. At this point Officer Mahus was joined by Officer Smith. While the four of them were beside the vehicle, with Officer Smith watching defendant and the driver, Officer Mahus observed license plates on a shelf in the vehicle; he entered the vehicle to read them and, on checking with police headquarters, he learned that one of them was stolen. Officer Mahus then re-entered the vehicle, purportedly to search for "additional weapons or stolen property". When asked whether he was then in fear for his safety, he replied, "There's a possibility there, I believe". He acknowledged, however, that he entered the vehicle to get the license plates and not to search for weapons, and that he was not then concerned for his safety. He later testified that he reentered the vehicle to search for weapons because he feared for his safety. At this time he reached into the air vent in front of the passenger seat and withdrew a bag of marijuana; and then arrested both the defendant and the driver for possession thereof. He testified that both the driver and defendant were then out of the vehicle under watch by Officer Smith, and there was no reasonable possibility that they could reach any weapon in the vehicle, if one was there. At this point, the officers could have detained the vehicle and sought a warrant to search its contents, without danger to themselves or danger of disappearance of the contents.

"The Federal and State Constitutions do not prohibit all warrantless searches and seizures, but only those which are 'unreasonable' " (People v. Kreichman, 37 N.Y.2d 693, 696, 376 N.Y.S.2d 497, 501, 339 N.E.2d 182, 185). It is, however, a basic constitutional rule that "searches conducted outside the judicial process * * * are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions" (Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576). The classical categorical exceptions which permit searches without a warrant are (1) a consensual search, (2) seizure of evidence and contraband in plain view, (3) search and seizure incidental to a lawful arrest and (4) search and seizure based upon probable cause (People v. Singleteary,35 N.Y.2d 528, 531-532, 364 N.Y.S.2d 435, 437-438, 324 N.E.2d 103, 104-105). A further exception, applicable to automobiles, permits (5) a search without a warrant in exigent circumstances where there exists probable cause (People v. Kreichman, 37 N.Y.2d 693, 697, 376 N.Y.S.2d 497, 501, 339 N.E.2d 182, 185, supra; People v. Singleteary, 35 N.Y.2d 528, 532, 364 N.Y.S.2d 435, 438, 324 N.E.2d 103, 105, supra; Coolidge v. New Hampshire, 403 U.S. 443, 460, 91 S.Ct. 2022, 29 L.Ed.2d 564; Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419).

In upholding the search of the van and the seizure of the marijuana, County Court found that the search and seizure were incident to a lawful arrest. It is well-settled that upon a lawful arrest, "a search may be made of the person of the arrestee by virtue of the lawful arrest * * * (and) of the area within the control of the arrestee" (United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427). The area within the immediate control of the person arrested has been construed to mean, "the area from within which he might gain possession of a weapon or destructible evidence" (Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685), and "includes those personal effects of the arrestee that are 'ready to hand' " (People v. Weintraub, 35 N.Y.2d 351, 354, 361 N.Y.S.2d 897, 900).

"It is generally accepted that, based on reasonable grounds, the legitimate objective(s) of a warrantless search incident to arrest are to permit the '(1) seizure of fruits, instrumentalities and other evidence of the crime for which the arrest is made in order to prevent its destruction or concealment; and (2) removal of any weapons that the arrestee might seek to use to resist arrest or affect (sic) his escape' " (People v. Adams, 32 N.Y.2d 451, 455, 346 N.Y.S.2d 229, 231, 299 N.E.2d 653, 655; see, also United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, supra; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, supra ).

The ground asserted by Officer Mahus for the warrantless search of the van was the removal of weapons. However, his testimony controverts this assertion. When he...