People v. Manganaro
| Decision Date | 15 October 1990 |
| Parties | The PEOPLE of the State of New York, v. James MANGANARO, Defendant. |
| Court | New York Supreme Court |
John J. Santucci, Dist. Atty., Queens County, Kew Gardens by Kay MacDermott, Asst. Dist. Atty., for the People.
John V. Salierno, Middle Village, for defendant.
The primary question on this motion to suppress is whether the police may conduct a purposeful visual search of the interior of an occupied automobile without cause. The issue involves the plain view exception to the Fourth Amendment's warrant requirement and whether New York law has been affected by the Supreme Court's recent holding in Horton v. California, 496 U.S. ----, 110 S.Ct. 2301, 110 L.Ed.2d 112 which eliminated the element of inadvertence from the federal law of plain view.
The facts here are largely undisputed.
On the afternoon of December 13, 1989, Police Officer James Murphy of the 108th Precinct's Street Narcotics Enforcement Unit was manning an observation post on the rooftop of 50-04 46th street in Queens County. An experienced narcotics officer, Murphy was assigned to monitor drug activity along 46th street between 48th and 50th avenues, a known drug-prone area.
Across the street from the observation post was a privately owned apartment building. Entry to the building was through a 25-foot long archway which led from the street to an open-air courtyard. At each corner of the courtyard, a locked door controlled by a buzzer system provided access to the apartments. "No trespassing" signs were posted in the archway.
Although Murphy was familiar with the layout of the building, his view from the observation post extended only a few feet into the archway. He could not see the courtyard within.
At approximately 2:30 p.m., Murphy was watching the street through binoculars when he saw the defendant walking northbound on 46th street from 50th avenue. In front of the building across the street, the defendant stopped and engaged in a brief conversation with an Hispanic man. The two then entered the archway and disappeared from the officer's view.
Some two minutes later, Murphy saw the defendant emerge from the archway alone and begin walking southbound on 46th street toward 50th avenue. When the defendant reached the north side of 50th avenue between 46th and 47th streets, he used a key to enter a parked Ford automobile.
At the suppression hearing, Officer Murphy candidly testified that he had not observed any transaction between the two men and did not know whether either of them had any legitimate connection with the building. Nevertheless, in three separate radio transmissions, Murphy alerted his field team to what he had seen, describing the defendant and the car he had entered.
Officer Brian Smith, a member of the field team, received Murphy's transmissions. Working in uniform, Smith responded by immediately driving his marked radio car around a corner and up to the defendant's vehicle. The officer exited the radio car and approached the passenger side of the defendant's automobile.
Standing at its passenger window, Officer Smith saw the defendant, seated in the driver's seat, leaning over toward the passenger side. When the defendant sat up, the officer looked at the floor of the vehicle near the console on the passenger side and saw six hypodermic needles and a tinfoil packet which he believed to contain cocaine.
The officer walked around to the driver's side, ordered the defendant out of the vehicle, and placed him under arrest. He then seized the contraband which the defendant now moves to suppress.
At the outset, it seems plain that nothing observed by Officer Murphy justified any police action against the defendant. The officer saw no drugs or money exchanged; he overheard no incriminating conversation. There is no evidence that the officer had ever seen the defendant or the Hispanic man before, or knew anything about them. He articulated no reason to believe that they were engaged in other than innocent conversation or that they had entered the premises for other than a legitimate purpose.
Moreover, there is no evidence to suggest that the conduct of the two men fit any pattern of activity associated with previously-observed drug transactions at the location.
The fact that the general area was known to be drug-prone is without consequence under the circumstances here. The right to be free of unwarranted police interference is not diminished solely because citizens, engaged in entirely innocuous activity, do so in a neighborhood which suffers from a high rate of crime (see, e.g., People v. Johnson, 64 N.Y.2d 617, 618-619, 485 N.Y.S.2d 33, 474 N.E.2d 241; People v. Boulware, 130 A.D.2d 370, 373, 515 N.Y.S.2d 238 [1st Dept.]; People v. Cornelius, 113 A.D.2d 666, 671, 497 N.Y.S.2d 16 [1st Dept.]; People v. Allen, 124 A.D.2d 1046, 1047, 508 N.Y.S.2d 748 [4th Dept.]; cf. People v. Bronston, 68 N.Y.2d 880, 508 N.Y.S.2d 930, 501 N.E.2d 579).
On the evidence presented, all that can be said here is that Officer Murphy, an experienced policeman, apparently had a hunch about what he had seen. That his hunch may have proved correct is irrelevant for Fourth Amendment purposes, for a hunch or vague suspicion without more will justify virtually no interference with a citizen's liberty (see, e.g., People v. Finlayson, 76 A.D.2d 670, 675, 431 N.Y.S.2d 839 cert. denied 450 U.S. 931, 101 S.Ct. 1391, 67 L.Ed.2d 364; cf. People v. Sobotker, 43 N.Y.2d 559, 564, 402 N.Y.S.2d 993, 373 N.E.2d 1218).
The People do not seriously contend to the contrary. They do maintain, however, that there was no unjustified interference with the defendant's liberty because the police took no action against him until after Officer Smith observed contraband on the floor of the defendant's vehicle. The People argue that, because Smith's observation was made from a position he was entitled to occupy, viz., standing on a public street, and because the needles and packet, immediately recognizable as contraband, were in plain view from that vantage point, the officer was entitled to seize the items and to arrest the defendant for their possession.
The defendant responds that, in looking into the car, Officer Smith was acting purposefully, with the intent to search for contraband and the expectation of finding it. Thus, the defendant maintains, the plain view exception cannot be invoked because the officer's discovery of the needles and the packet of cocaine on the floor of the vehicle was not inadvertent.
The People discount that argument, inter alia, on the ground that Horton v. California, supra, has eliminated inadvertence as an element of the plain view exception.
The Supreme Court has long held that evidence may be lawfully seized if it falls in the plain view of an officer who has the right to be in the position to make the observation (see, e.g., Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898; United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202; Ker v. California, 374 U.S. 23, 42-43, 83 S.Ct. 1623, 1634-1635, 10 L.Ed.2d 726; Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067). But it was not until Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh. denied 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 that the Court delineated the precise contours of what has come to be known as the plain view exception.
The Coolidge Court held that the exception would apply only where police officers, having a prior justification for an intrusion, inadvertently come across a piece of evidence which they immediately recognize as incriminating to the accused. In emphasizing the element of inadvertence, the Court wrote that the plain view exception would not apply "where the discovery [of the evidence] is anticipated, [or] where the police know in advance the location of the evidence and intend to seize it * * * " (403 U.S. at p. 470, 91 S.Ct. at p. 2040).
Although the portion of the Coolidge opinion dealing with the plain view exception did not command a majority of the Court, the courts of forty-six states and the District of Columbia, and twelve federal Courts of Appeal, subsequently adopted the requirement of inadvertence in their holdings on plain view 1. Among them was our own Court of Appeals (see, People v. Jackson, 41 N.Y.2d 146, 150, 391 N.Y.S.2d 82, 359 N.E.2d 677).
Nevertheless, in Horton v. California, (496 U.S. ----, 110 S.Ct. 2301, 110 L.Ed.2d 112, supra ), the Supreme Court re-examined the plain view exception and, on the question of inadvertence, came to precisely the opposite conclusion from the one it had reached in Coolidge.
The Court predicated its analysis on the difference between searches and seizures. The Court explained:
The right to security in person and property protected by the Fourth Amendment may be invaded in quite different ways by searches and seizures. A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property. * * * If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. (110 S.Ct. at p. 2306; citations and footnotes omitted).
The Court noted that Fourth Amendment privacy considerations require that the permissible scope of any search be limited by the terms of the warrant authorizing it or the character of the exception allowing it. Those considerations, the Court reasoned, would be adequately served if the lawfulness of the seizure of plain-view evidence turned not on whether the officers expected to find it but on whether they exceeded the permissible scope of a search in doing so. Thus, the Court concluded, inadvertence was essentially irrelevant to the protection of Fourth Amendment interests.
The Court then redefined the elements of the plain view exception:
It is * * * an essential predicate to any valid warrantless...
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People v. Manganaro
...J.), dated October 15, 1990, which granted the defendant's motion to suppress certain physical evidence (see, People v. Manganaro, 148 Misc.2d 616, 561 N.Y.S.2d 379). ORDERED that the order is reversed, on the law, and the motion is On December 13, 1989, a police officer approached the pass......