People v. Millan

• Court: New York Supreme Court Appellate Division
• Writing for the Court: Before KUPFERMAN; SULLIVAN; All concur except CARRO, J., who dissents in an Opinion in which FEIN, J., concurs and FEIN; CARRO; FEIN
• Citation: 118 A.D.2d 236,505 N.Y.S.2d 84
• Parties: The PEOPLE of the State of New York, Respondent, v. Hector MILLAN, Defendant-Appellant.
• Decision Date: 26 June 1986

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505 N.Y.S.2d 84 118 A.D.2d 236 The PEOPLE of the State of New York, Respondent,
v.
Hector MILLAN, Defendant-Appellant. Supreme Court, Appellate Division,
First Department. June 26, 1986.

John T. McClintock, New York City, of counsel (Gould & Reimer, New York City, attorneys), for defendant-appellant.

Eleanor J. Ostrow, White Plains, of counsel (Norman Barclay, New York City, with

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her on brief, Robert M. Morgenthau, New York City, attorney), for respondent.

Before KUPFERMAN, J.P., and SULLIVAN, CARRO, ASCH and FEIN, JJ.

SULLIVAN, Justice.

Defendant appeals from his conviction of criminal possession of a weapon in the third degree. The following account of the incident is derived from the trial evidence.

Sometime before 11:15 p.m., on the night of June 15, 1985, Police Officers Gilligan, a nineteen-year veteran of the New York City Police Department, and Bowen, an eleven-year veteran, assigned to a Taxi Robbery Squad, were on patrol in plainclothes in a medallion taxicab. While the officers were stopped facing north on Lenox Avenue near 112th Street, they observed a gypsy taxicab, which was proceeding easterly at a fast rate of speed on 112th Street, pass a red light at the intersection. Since the officers knew from experience that taxicab operators sometimes pass lights or drive at an excessive speed as a distress signal, they decided to follow.

The officers caught up with the taxicab at the intersection of 111th Street and Fifth Avenue, and pulled alongside the passenger side. Unable to get the driver's attention, Officer Gilligan displayed his shield and told the passenger closest to him, Anthony Veggecada, that he wanted the driver to pull over. The driver was so notified and quickly complied.

Both officers exited their vehicle and approached the taxicab, Gilligan from the driver's side and Bowen, possibly with gun in hand, from the passenger side. As they did so, they noticed that the taxicab's three male passengers were moving from side to side in the rear seat and turning around to look at them. The driver, Dean St. Clare, overheard one of the passengers say "You don't do things like that, be cool." St. Clare had picked up the three passengers, defendant, Veggecada and Hector Colon, at Seventh Avenue and 112th Street. They had asked to be driven to Lexington Avenue and 112th Street. Defendant sat behind St. Clare. Veggecada sat on the passenger's side and Colon in the middle.

After speaking with St. Clare, Officer Gilligan opened the rear door and told the three passengers to exit one at a time. As each got out, he was frisked by Gilligan, who then directed him to step to the rear of the taxicab, where Officer Bowen was standing. After he had patted down the third man, Gilligan looked into the passenger compartment and observed a brown zippered bag lying on the seat on the driver's side, where defendant and Colon had been sitting. Gilligan asked whose bag it was, but none of the three men responded. The bag did not belong to St. Clare, who, as was his practice, had checked the rear seat of the taxicab after the two passengers immediately preceding defendant and his friends had exited the car. At that time, he had not seen anything lying on the rear seat. As Gilligan took the bag he felt the weight of a weapon inside and warned his partner that he had discovered a gun. The bag was opened and a gun, later identified as a loaded and operable 9mm. semi-automatic pistol, recovered. All three passengers were charged with its possession. ¹

Defendant and Colon, each a felon, both testified. Defendant variously recalled that when the officers approached the taxicab, after it had been stopped, he either was nervous, began to fidget and tried to look at Police Officer Bowen, or only turned around once to look at the officer, and otherwise sat motionless with his friends. Colon recalled that all three men turned around to look at the officers as they approached. They both testified that subsequent to the frisk, and about one and one-half minutes after entering the rear compartment, Gilligan came partially out of the taxicab and said something to his partner. He then ordered defendant and his

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friends to get on their knees. They were thereafter ordered into the unmarked police car, and asked about the zippered bag. They both denied any knowledge as to its ownership. Neither defendant nor Colon had ever seen the bag until Officer Gilligan showed it to them after they had been arrested. Neither knew anything about the gun.

Although the dissent does not urge the point, defendant argues that the presumption of possession applicable to the occupants of an automobile (see Penal Law 265.15(3)) should not have been charged. Since we find that "there is a 'rational connection' between the basic facts that the prosecution proved and the ultimate fact presumed, and the latter is 'more likely than not to flow from' the former." (County Court of Ulster County v. Allen, 442 U.S. 140, 165, 99 S.Ct. 2213, 2228, 60 L.Ed.2d 777, citing Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1244, 87 L.Ed. 1519; Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57), the presumption was properly charged and defendant's guilt proven thereunder beyond a reasonable doubt.

Defendant also argues that the gun which he was convicted of possessing should have been suppressed or, alternatively, that he should have been granted a hearing on his suppression motion. Claiming only that he and his co-defendants had been passengers in a taxicab which was stopped by police officers "despite the fact that they had no reason to believe that any of the occupants of the vehicle had committed a crime or were committing a crime at the time of the arrest", defendant, as part of a pre-trial omnibus application, had moved to suppress any property taken from his person or possession. Defendant alleged that the police ordered him and the two other passengers to leave the cab, searched them and, without a warrant or their consent, "allegedly recovered a gun from the rear passenger area of the cab." The People opposed the motion on the ground that defendant lacked standing to contest the search.

In its decision denying the motion without a hearing, the suppression court (Berkman, J.) noted the police officers' claim that the three passengers had made "suspicious moves" as the officers approached the taxicab, that as a result the officers had ordered them out of the taxicab, and that the officers thereupon recovered a gun which had been secreted in a zippered bag found in the rear seat. The court further noted that none of the occupants had asserted ownership of the bag or claimed that he had abandoned it as a result of unlawful police action. The court concluded that since the gun was found in a bag none of the passengers claimed to own, their Fourth Amendment rights would not be violated by its admission in evidence, even if the initial stop of the taxicab had been illegal.

Suppression of the gun was properly denied. The rights protected by the Fourth Amendment are personal rights which "may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure." (Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 973, 19 L.Ed.2d 1247.) "[L]ike some other constitutional rights, [they] may not be vicariously asserted." (Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176.) Thus, it has been held, "A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." (Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387, citing Alderman v. United States, supra, 394 U.S. at 174, 89 S.Ct. at 966.) Since the Fourth Amendment protects people, not places, the right to claim its protection turns upon whether the person seeking it has a legitimate expectation of privacy in the area searched. (Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576.)

In Rakas two passengers in an automobile challenged the seizure of a box of rifle

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shells from the glove compartment, which had been locked, and a sawed-off rifle from under the front passenger seat. The Supreme Court held that since the petitioners asserted neither a proprietary or possessory interest in the automobile searched, nor an interest in the property seized, and, as mere passengers in the automobile, had failed to show that they had any legitimate expectation of privacy in the searched areas, they were not entitled to challenge the search. In rejecting their claim to a legitimate expectation of privacy in the glove compartment or area under the seat, the court held, "Like the trunk of an automobile, these are areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy." (Id. 439 U.S. at 148-149, 99 S.Ct. at 432-33; see, also, People v. David L., 56 N.Y.2d 698, 451 N.Y.S.2d 722, 436 N.E.2d 1324, rev'g 81 A.D.2d 893 on dissenting opinion at 895-96, 439 N.Y.S.2d 152 [the defendant, a passenger in car legally stopped, could not object to the opening of the car door since he did not have any possessory interest in the car]; People v. Hunter, 55 N.Y.2d 930, 931, 449 N.Y.S.2d 191, 434 N.E.2d 260 [the defendant, a passenger in a car, lacked standing to challenge seizure of weapon observed on the floor in plain view and failed to demonstrate a reasonable expectation of privacy in the area searched].)

Thus, a police officer's intrusion into a particular area, be it an automobile or elsewhere, does not violate the Fourth Amendment "unless the area is one in which there is a 'constitutionally protected reasonable expectation of privacy" (New York v. Class, 442 U.S. ----, 106 S.Ct. 960, 89 L.Ed.2d 81, citing Katz...