People v. Miller

• Decision Date: 10 June 1976
• Citation: 52 A.D.2d 425,385 N.Y.S.2d 457
• Parties: The PEOPLE of the State of New York, Respondent, v. Cornell MILLER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 457

385 N.Y.S.2d 457

52 A.D.2d 425

The PEOPLE of the State of New York, Respondent, v. Cornell MILLER, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

June 10, 1976.

Joel S. Ezra, New York City, for defendant-appellant.

David Spokony, Asst. Dist. Atty., Bronx, of counsel, Mario Merola, Dist. Atty., for respondent.

Before MARKEWICH, J.P., and LUPIANO, SILVERMAN, NUNEZ and YESAWICH, JJ.

SILVERMAN, Justice.

Defendant appeals from a judgment convicting him after a jury verdict of criminal possession of a dangerous drug in the third degree and possession of a weapon as a felony.

Defendant contends that the Court below erred in (a) denying his motion to suppress physical evidence--the gun and the narcotics; (b) not granting in full defendant's motion to limit cross-examination of defendant as to previous crimes; and (c) in denying the motion to dismiss the indictment on the ground of double jeopardy.

With respect to the suppression motion the evidence showed that two police officers, Kelly and Iacovone, on May 20, 1972 at about 10:20 P.M. while on radio patrol drove past a parked car around which several people were congregating near the intersection of Hoe Avenue and Bruckner Blvd. in the Bronx. Officer Kelly testified that he decided to approach the car for a routine check of the driver's license and the car's registration. Accordingly Officer Kelly backed up his car alongside the parked car; Officer Kelly approached the passenger's side of the parked car while his partner walked over to the driver's side to ask the driver for the driver's license and registration. Before Officer Iacovone got there, the co-defendant Rudasill who was in the driver's seat had gotten out of the car. Meanwhile, Officer Kelly shined his flashlight through the front window on the passenger's side of the car and there observed a black automatic pistol on the front seat a few inches from where appellant was sitting in the passenger's seat. Officer Kelly then ordered defendant-appellant out of the car and as defendant-appellant got out, Officer Kelly observed something more or less under the defendant-appellant's legs. When Officer Kelly looked further he found that the something was two open boxes containing 466 glassine envelopes of heroin. Appellant contends that these circumstances constitute an unreasonable search and seizure and, therefore, the gun and narcotics should have been suppressed and the indictment dismissed.

We are of course concerned with the situation only up to the moment when Officer Kelly saw the gun; after that he obviously had probable cause to believe that a crime had been and was being committed and, thus had the right to arrest the occupants of the car and to conduct a search incident thereto.

As in any case involving a claim of unlawful search or seizure the 'threshold question is whether, on the facts of this case, there has been a search or a seizure.' People v. Cantor, 36 N.Y.2d 106, 110, 365 N.Y.S.2d 509, 514, 324 N.E.2d 872, 875 (1975). 'Whenever a street encounter amounts to a seizure it must pass constitutional muster' (Id. at 112, 365 N.Y.S.2d at 516, 324 N.E.2d at 877). But did this amount to a seizure? Was there here a 'stop' which falls within the definition of seizure (Id. at 112, 365 N.Y.S.2d at 515, 324 N.E.2d at 876), or a search of the kind to which the search and seizure provisions of the Fourth Amendment to the United States Constitution apply?

In the case at bar appellant's car was parked; it was not stopped or blocked by the police nor was there any indication it was about to move. Neither the co-defendant nor appellant was told to freeze or not to move or to move. All that happened was that the police officers approached the car without guns in their hands, and the co-defendant got out of the car. Furthermore, specifically with respect to the appellant, he was seated in the passenger's seat in a car that was parked and he apparently had a can of beer in his hand. Nobody touched him; nobody said anything to him; nobody asked him to move or not to move; he was not attempting to move; he was just sitting in the car and continued to do so until after the police officer had seen the pistol. It is difficult to see how any of this constituted a stop or seizure of appellant.

Appellant relies of course on People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872 (1975). But there it appears that the police officers in an unmarked car followed the defendant's car for some distance, then when the defendant pulled to the curb in front of his home, the unmarked police car stopped behind the defendant's car. Two of the officers got out and approached the defendant, while the third officer drove his car ahead of the defendant's car so as to block it from moving forward. Defendant reached into his back pocket and removed what one of the officers believed to be a pistol and pointed it at the officers whereupon one of the officers took his badge from his pocket, drew his revolver and identified himself as a policeman; the defendant was told to freeze and place his hands over his head, which he did. The Court of Appeals held that the defendant was deprived of his freedom of movement when he was encircled by three police officers as he stood alongside his car which was blocked by the police vehicle and that this constituted a seizure within the meaning of the Fourth Amendment.

Again in People v. Allende, 39 N.Y.2d 474, 384 N.Y.S.2d 416, 348 N.E.2d 891 (1976), the police officers, with guns drawn, approached a double-parked car whose engine was running. The Court of Appeals held this to be a seizure.

These situations appear to me to be very far from the present situation where appellant was neither prevented from doing anything he wanted to do nor directed to do anything nor was his car stopped or blocked by the police until after the police officer had seen the gun. Thus I think there was no 'seizure.'

Was there a search? As I have said, the police officer did not reach into the car, did not open a door or window, did not lay his hand on the car or on the door until he saw the gun; he merely flashed a light through the window of the car and then saw the gun.

Of course it is an elementary physical fact that all objects which are not themselves a source of light are seen because a light shines on them and is reflected from them. If this incident had happened in the daytime and the officer had seen the gun by daylight it could not be argued that this was a search, or if the officer saw the gun by the reflected light of a street light, or the headlights of a passing car, this would not constitute a search. What the officer did when he shone his flashlight into the car was to furnish the light which would otherwise have come from daylight, street light or the lights of a passing car. While a flashlight held in the hands of a police officer and purposely shined upon someone is doubtless more annoying and in that sense intrusive than indiscriminate daylight, street lights or passing headlights, I do not think this should be held to constitute a search within the meaning of the Fourth Amendment.

It is certainly a well recognized, proper procedure for a policeman to shine lights into dark or shadowed places, dark hallways, closed stores, areaways and under stairs and stoops, trees and bushes.

In People v. Cruz, 34 N.Y.2d 362, 370, 357 N.Y.S.2d 709, 714, 314 N.E.2d 39, 43 (1974) involving a traffic stop under what the court referred to as suspicious circumstances during which the police officer shined his light about the interior of the car, the Court of Appeals said, '(S)hining the Flashlight about the interior of the car was not an unreasonable intrusion.' Accord, People v. Howell, 78 Misc.2d 538, 540, 357 N.Y.S.2d 828, 380, Affd., 51 A.D.2d 1105, 382 N.Y.S.2d 213 (1st Dep't 1976).

If, however, this police activity is deemed a search or seizure within the Fourth Amendment, it is certainly minimal and this fact must be balanced against the need in order to arrive at a judgment as to reasonableness. As the Supreme Court has said, even where there is a search and seizure '(t)he manner in which the seizure and search were conducted is, of course, as vital a part of the inquiry as whether they were warranted at all.' Terry v. Ohio, 392 U.S. 1, 28, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968). In that case the Supreme Court defined as '. . . the central inquiry under the Fourth Amendment--the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' Id. at 19, 88 S.Ct. at 1878. The Court further said:

'. . . there is 'no ready test for determining reasonableness other than by balancing the need to search (or seize) against the invasion which the search (or seizure) entails. '' Id. at 21, 88 S.Ct. at 1879.

The same balancing test has been recognized and adopted by our state Court of Appeals.

'Whether or not a...