People v. Millan

Citation508 N.E.2d 903,516 N.Y.S.2d 168,69 N.Y.2d 514
Parties, 508 N.E.2d 903 The PEOPLE of the State of New York, Respondent, v. Hector MILLAN, Appellant.
Decision Date07 May 1987
CourtNew York Court of Appeals
Robert M. Morgenthau, Dist. Atty. (Eleanor J. Ostrow and Norman Barclay, New York City, of counsel), for respondent
OPINION OF THE COURT

HANCOCK, Judge.

The People charged defendant with criminal possession of a weapon solely on the basis of the statutory presumption of possession (Penal Law § 265.15[3] ) 1 arising from the fact that the weapon was discovered in the passenger compartment of the taxicab in which he was riding. We hold that under these circumstances the People's imputation of constructive possession of the weapon to defendant as the predicate for the crime with which he was charged constituted a sufficient basis for defendant to challenge the police conduct in searching the passenger compartment of the cab. Moreover, irrespective of his right to challenge the search, defendant, as a passenger in the cab, had a right to contest the legality of the stop of the cab and to seek suppression of the weapon as the product of that allegedly unlawful police conduct. On the moving papers presented to it, the suppression court should not have denied suppression without according defendant a hearing on these issues.

I

Defendant seeks a reversal of his conviction for criminal possession of a weapon, third degree. On the evening of June 15, 1984, defendant and two companions, Hector Colon and Anthony Veggacada, were riding in a taxicab near the intersection of 112th Street and 5th Avenue in Manhattan. 2 Plainclothes police officers assigned to the street crime unit and traveling in a yellow medallion taxi directed the driver of defendant's cab to pull over. The three occupants were ordered out of the passenger compartment and searched without their consent. When the police, in searching the interior of the cab, discovered a gun in a black leather bag resting on the back seat, they placed the passengers under arrest and charged them with its possession. The explanation for the arrest given by the prosecutor, as related in the decision of the suppression court, was that "the police saw [defendant, Colon and Veggacada] seated in the back of a livery cab and approached. The police claimed the [three occupants] made 'suspicious moves' and, accordingly, the People assert, [they] were ordered out of the cab." Defendant's motion to suppress the weapon because of the illegality of the stop and search was denied without a hearing.

In the jury trial which followed, as in the proceedings before the suppression court, there was no evidence that defendant owned the gun or knew of its presence; the only basis for guilt was the statutory rule that the presence of a gun in an automobile "is presumptive evidence of its possession by all persons occupying such automobile at the time [it] is found" (Penal Law § 265.15[3] ). 3 After defendant was convicted of the gun possession charge, the Appellate Division affirmed with a divided court (118 A.D.2d 236, 505 N.Y.S.2d 84).

The contentions of defendant which we address concern the propriety of the court's denial of his motion to suppress the weapon without a hearing. Noting that defendant disavowed any interest or claim of a privacy right in the bag and that "automatic standing" is no longer the rule in New York (People v. Ponder, 54 N.Y.2d 160, 445 N.Y.S.2d 57, 429 N.E.2d 735), the suppression court held that defendant lacked standing to contest the search of the passenger compartment. It concluded that his rights as a passenger in a taxicab were no greater than the rights of the passenger in the private automobile involved in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387, and reasoned that defendant could, therefore, claim no right of privacy in the area searched. It also determined that there was an insufficient showing that the seizure of the gun resulted directly from the stop. Thus, his claim that the stop had been unlawful could provide no basis for suppression.

The Appellate Division majority, in its opinion, agreed that Rakas was controlling on the question of defendant's right of privacy in the passenger compartment of the cab and rejected defendant's argument that under Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 "a taxicab passenger has greater standing to object to a search of the taxicab than the passengers in Rakas had to contest the search of a private car" (118 A.D.2d 236, 242, n. 3, 505 N.Y.S.2d 84, supra). It also agreed that there was no ground for suppression of the gun as the product of the allegedly unlawful stop, finding on its review of the trial record a sufficient showing "that the taxicab in which defendant was a passenger passed a red light and that the stop was justified" (118 A.D.2d 236, 244, 505 N.Y.S.2d 84, supra ). 4

For reasons stated hereafter, there should be a modification. Defendant should have the right to a suppression hearing at which he may, if he chooses, contest the legality of the conduct of the police both in making the initial stop and in searching the interior of the cab.

II

The critical factor in our analysis of defendant's right to challenge the search is that the charge against him was founded only on the statutory presumption arising from the facts that he was riding in the passenger compartment of the cab and that the gun was subsequently found in the passenger compartment. We hold simply that the People may not predicate defendant's guilt solely on the constructive possession of the weapon attributed to him as a passenger in the cab based on the presumption (Penal Law § 265.15[3] ) and simultaneously deprive him of the right to challenge the search. In a recent decision, People v. Mosley, 68 N.Y.2d 881, 508 N.Y.S.2d 931, 501 N.E.2d 580, we applied the same rationale where the police based their claimed probable cause for arresting defendant on their discovery of a starter pistol on the person of his companion, Mackie. In holding that defendant could question the lawfulness of his arrest by challenging the asserted basis for it--the search of his companion--we stated that "[i]nasmuch as the People rel[ied] on the discovery of the starter pistol on Mackie as the basis for the arrest of defendant--that defendant constructively possessed the weapon concealed on Mackie's person--defendant ha[d] standing to contest the frisk of Mackie" (id., at 883, 508 N.Y.S.2d 931, 501 N.E.2d 580; emphasis added).

The holding here is in no way inconsistent with our decision in People v. Ponder, 54 N.Y.2d 160, 445 N.Y.S.2d 57, 429 N.E.2d 735, supra. In Ponder we adopted the Supreme Court's ruling in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 abrogating the so-called "automatic standing rule" established in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 under which a defendant charged with a possessory crime was permitted to challenge the legality of the search without regard to whether he had an expectation of privacy in the premises searched and without alleging any possessory interest in the items seized. Here defendant does not ground his right to contest the legality of the search on any asserted right to possess the gun or on any claim that merely because he was accused in the indictment of a crime of possessing it he should have "automatic standing". His asserted right to question the legality of the search rests entirely on the circumstances giving rise to the presumption.

Our holding that defendant had a right to challenge the search of the taxicab on constitutional grounds is based on our analysis of applicable Federal and State authorities (see, United States v. Salvucci, 448 U.S. 83, 88, 100 S.Ct. 2547, 2551, supra; Rios v. United States, 364 U.S. 253, 262, n. 6, 80 S.Ct. 1431, 1437, n. 6 supra; People v. Mosley, 68 N.Y.2d 881, 508 N.Y.S.2d 931, 501 N.E.2d 580, supra; People v. Ponder, 54 N.Y.2d 160, 445 N.Y.S.2d 57, 429 N.E.2d 735, supra ) and on our conclusion that to deny a defendant a hearing under these circumstances would be repugnant to the requirements of fair play which have "evolved through centuries of Anglo-American constitutional history", particularly as applied to the relationship "between the individual and government" (Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 162, 71 S.Ct. 624, 643, 95 L.Ed. 817 [Frankfurther, J., concurring]; see, Wardius v. Oregon, 412 U.S. 470, 475-476, 93 S.Ct. 2208, 2212, 37 L.Ed.2d 82; Malinski v. New York, 324 U.S. 401, 414-415, 65 S.Ct. 781, 787-788, 89 L.Ed. 1029; Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166; People v. Isaacson, 44 N.Y.2d 511, 520, 406 N.Y.S.2d 714, 378 N.E.2d 78). The rule the People would have us sanction is this: the government, through its agents, may search a taxicab and, upon finding a gun, use the legal fiction of constructive possession to prosecute all passengers, conscious or not of the gun's existence, and yet deny those it accuses a right to question the actions of its agents in conducting the search. Such a rule offends fundamental tenets of fairness inherent in New York criminal jurisprudence (see, N.Y. Const., art. I, § 6; People v. Acevedo, 69 N.Y.2d 478, 515 N.Y.S.2d 753, 508 N.E.2d 665; People v. Mosley, 68 N.Y.2d 881, 508 N.Y.S.2d 931, 501 N.E.2d 580, supra; People v. Isaacson, supra; People v. Brown, 40 N.Y.2d 381, 386 N.Y.S.2d 848, 353 N.E.2d 811) and we reject it. 5

III

Before the suppression court defendant urged a separate and independent basis for excluding the gun: that irrespective of the legality of the police actions in searching the cab, their actions in stopping it were unjustified and the gun should be suppressed as the product of the unlawful stop. As a passenger, defendant had standing to contest the stop of the vehicle and he, therefore, should have been given a...

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