People v. Ocasio

• Citation: 119 A.D.2d 21,505 N.Y.S.2d 127
• Parties: The PEOPLE of the State of New York, Respondent, v. Jesus OCASIO, Defendant-Appellant.
• Decision Date: 24 July 1986
• Court: New York Supreme Court Appellate Division

Page 127

505 N.Y.S.2d 127 119 A.D.2d 21 The PEOPLE of the State of New York, Respondent,
v.
Jesus OCASIO, Defendant-Appellant. Supreme Court, Appellate Division,
First Department. July 24, 1986.

Page 128

James J. Hanrahan, New York City, for defendant-appellant.

Douglas Harper, of counsel (Roger L. Stavis, with him on brief; Mario Merola, New York City), for respondent.

Before SANDLER, J.P., and CARRO, ASCH, FEIN and LYNCH, JJ.

FEIN, Justice.

At about 3 a.m. on September 20, 1983, Officers Dardzinski and Biller, in uniform in a patrol car, observed defendant's car, one of several double parked cars, on Southern Boulevard in the Bronx. The front windshield on the passenger side of the car was cracked. So far as appeared, there were no occupants in the car. Approximately two hours later the officers observed the same vehicle, this time with its motor running, and with defendant in the driver's seat and another person in the passenger seat. The car was stopped by the officers. Dardzinski testified:

I observed a car that was doubleparked and had a cracked windshield at the location of Southern Boulevard and Longwood Avenue. I approached the car from the driver's side, and my partner approached the car from the passenger side. I inquired of the driver, Mr. Ocasio, license, registration and insurance card. He complied with some of the papers. At that time I noticed a plastic bag protruding from underneath the driver's seat--partially protruding from underneath the driver's seat; I asked him what it was, he bent down and pushed it further underneath the seat. This aroused my suspicion, and I told him to place his hands on the steering wheel, I opened up the door of the car, went underneath the seat, pulled the white bag out and, felt the handle of a gun. I alerted my partner what I had found and he contained the individuals in the auto.

Defendant and the passenger were both searched and arrested.

It is undisputed that the officers had the right to approach the car to request documentation required to issue a summons for double parking and having a cracked windshield. It is notable that no summonses were issued for the other double parked vehicles, and that the summons here was apparently issued after the arrest for the cracked windshield only.

The suppression court concluded that the inquiry regarding the contents of the plastic bag was justified in view of the time of night and the fact that the incident occurred

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in a so-called "high crime area". It may be inferred from such finding that if the same circumstances had occurred in an area not so characterized, the police conduct would have amounted to an unlawful intrusion, a violation of the Fourth Amendment to the United States Constitution and Article 1 § 12 of the New York State Constitution.

The suppression court's basis for determination was plainly that the Fourth Amendment and the State Constitution permit an inquiry as to the contents of any enclosed package within a vehicle which has been stopped for the sole purpose of a traffic violation, with the proviso that it may not be appropriate in areas other than those described as "high crime areas".

The dissenters go further. In essence they conclude that the police have a right to inquire into the contents of any package within a vehicle stopped on the sole basis of a traffic violation and that the driver is required to respond or be subjected to a search and seizure.

Plainly, Dardzinski's actions constituted a search and seizure. The question is not whether the package was observed by the use of a flashlight or without a flashlight. It is curious that neither officer told the grand jury about the use of flashlights, although both testified to that effect at the Mapp hearing. There was plainly no foundation for any inquiry as to the contents of the package.

Dardzinski was asked whether, at the very moment that he approached the double parked car and asked for identification papers, he had any suspicion that defendant was "involved in any criminal activity", to which he responded: "At that particular moment I would say no."

The testimony continued:

Q: Did you ask him to produce any other papers?

A: Other than his license, registration, insurance card?

Q: Yes.

A: I don't believe I asked him to produce anything else.

Q: What did he produce; do you know?

A: At that time I'm not sure.

Q: And what was the next thing that happened?

A: I observed a bag on the floor, partially protruding from underneath the seat of the car, the driver's side.

Q: Now, the window was down; is that right?

A: As I recall; yes.

Q: And did you tell Mr. Ocasio to produce it from the automobile?

A: At one particular point, yes.

* * *

* * *

Q: Well, when you shone the flashlight, how much of this white plastic bag did you see?

A: A portion of it.

Q: About an inch?

A: I would say a little more than an inch.

* * *

* * *

Q: When did you observe a plastic cup holder?

A: When I asked him what that was under the seat and when he did bend down and pushed the bag under the seat, he came up and showed me a plastic cup holder.

Biller's testimony was similar:

Q: When you first observed the bag, were you suspicious that in this bag was some contraband?

* * *

* * *

A: No, it is possible.

Q: Were you suspicious? In other words did you suspect that the bag that you saw contained drugs? a gun? a part of a body? or anything like that?

A: No, no, sir.

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Q: As far as you were concerned it was an innocence [sic] looking bag, at that stage?

A: At that stage, yes, sir.

Dardzinski's testimony on redirect was consistent:

Q: Was there anything--was there something that one of the defendants did that raised your level of suspicion?

A: When I asked--when I asked him about the plastic bag that was partially protruded from under the front of the seat, he pushed it as he reached down, he pushed it further under the seat of the car.

Q: You asked Mr. Ocasio to present you with the bag; is that correct?

A: As I recall, I believe I asked him what was the bag and what was in the bag.

Q: Did he ever answer that question?

A: No.... As I recall; no.

Q: What did he do in response to that question?

A: He pushed the bag further underneath the seat.

The suppression justice and the dissenters concur that defendant was not obligated to answer the officer (People v. Howard, 50 N.Y.2d 583, 590-592, 430 N.Y.S.2d 578, 408 N.E.2d 908, cert. den. 449 U.S. 1023, 101 S.Ct. 590, 66 L.Ed.2d 484). In Howard the police sought to question the male defendant who was crossing the street, carrying what appeared to be a woman's vanity case in an area which had a "high incidence of burglaries". The defendant ran off without answering the police. He was chased and caught. The bag contained a gun and drugs. Suppression was granted precisely because there was no obligation to answer the police questions. Describing the defendant's conduct as "at best equivocal", the Howard court stated 50 N.Y.2d at p. 590, 430 N.Y.S.2d 578, 408 N.E.2d 908:

But while the police had the right to make the inquiry, defendant had a constitutional right not to respond. This is so both because the Fifth Amendment to the United States Constitution and its State counterpart (New York Const., art. I, § 6) permitted him to remain silent and because the Fourth Amendment and its State counterpart (art. I, § 12) protect him from detention amounting to seizure unless there is probable cause.

Similarly, there was no obligation here to answer the question and no right to inquire concerning the bag's contents. There was nothing suspicious about the bag. The fact that this was a "high crime area" is not dispositive. Despite Justice Sandler's suggestion to the contrary, Howard, supra, 50 N.Y.2d at 590, 430 N.Y.S.2d 578, 408 N.E.2d 908 speaks to this very issue:

There was, therefore, basis for questioning defendant, but there was nothing that made permissible any greater level of intrusion. The officers had no information that a crime had occurred or was about to take place, had not seen defendant do anything criminal, and were confronted only by facts susceptible of innocent interpretation (State v. Saia, 302 So 2d 869 [La], cert den 420 US 1008 [95 S.Ct. 1454, 43 L.Ed.2d 767] ). Presence in an area of "frequent burglaries" was an insufficient basis (People v. Schanbarger, 24 NY2d 288, 291 [300 N.Y.S.2d 100, 248 N.E.2d 16] ) ...

People v. Cruz, 34 N.Y.2d 362, 370, 357 N.Y.S.2d 709, 314 N.E.2d 39, relied upon by the dissenters, lends no support to the view that a search of the bag was proper. In that case the vehicle had stopped and blocked traffic. When the police officer approached and shone his flashlight about the interior of the car, he noticed a brown bag on the back seat behind the driver. There was further questioning of the driver because the registration was in the name of another. The driver explained that he intended to purchase the car from the registered owner when the latter returned from Puerto Rico in about two weeks. As the officer returned the papers to the driver, the passenger made a "sudden movement toward the brown bag on the rear seat". The officer then snatched the bag from his grasp and the passenger shouted "Be careful man, that's a bomb".

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Plainly, the sudden movement of the passenger to the bag and his announcement that it contained a bomb warranted the officer in opening the bag and examining its contents, which did indeed consist of a bombing mechanism.

This has nothing to do with our case. The dissenters suggest that the observation of a plastic bag, partially hidden, apparently under the seat, provided an "objective, credible reason" to inquire what was inside, citing People v. DeBour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562. However, there is nothing in DeBour that suggests that the observation of a package, in a vehicle which has been stopped for a traffic violation, authorizes an inquiry into the bag's contents or an examination of the...