People v. Quattrachi

• Citation: 63 A.D.2d 655,404 N.Y.S.2d 386
• Parties: The PEOPLE, etc., Appellant, v. Angelo QUATTRACHI and Vincent Bilella, Respondents.
• Decision Date: 01 May 1978
• Court: New York Supreme Court — Appellate Division

Page 386

404 N.Y.S.2d 386

63 A.D.2d 655

The PEOPLE, etc., Appellant, v. Angelo QUATTRACHI and Vincent Bilella, Respondents.

Supreme Court, Appellate Division,Second Department.

May 1, 1978.

Thomas R. Sullivan, Dist. Atty., Staten Island (George E. McVay, Staten Island, of counsel), for appellant.

Anthony J. Crecca, Staten Island (Myron G. Lasser, Staten Island, of counsel), for respondents.

Before DAMIANI, J. P., and TITONE and COHALEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Richmond County, entered June 23, 1977, which granted defendants' motion to suppress certain physical evidence.

Order affirmed, indictment dismissed, and case remitted to the Criminal Term for the purpose of entering an order in its discretion pursuant to CPL 160.50.

The entry of the agents of the Federal Bureau of Investigation onto the private residential property where the defendants were loading cartons into a van constituted an unreasonable search in violation of the Fourth Amendment (see People v. Gleeson, 36 N.Y.2d 462, 369 N.Y.S.2d 113, 330 N.E.2d 72; People v. Abruzzi, 52 A.D.2d 499, 385 N.Y.S.2d 94, affd., 42 N.Y.2d 813, 396 N.Y.S.2d 649, 364 N.E.2d 1342). At the time the agents entered, they had only a vague suspicion, based upon an anonymous telephone call, that defendants were loading liquor into a van. They testified that at the time they entered the fenced-in yard they were unable to read the labels on the cartons. Furthermore, they were unaware that any crime had been committed, although the liquor was later traced to a truck hijacking.

The District Attorney maintains that the intrusion was minimal and authorized by the common-law power of the police to inquire into and investigate events and prevent crimes (see, e. g., People v. Rosemond Although a minimal encroachment on personal freedom may be justified where the investigation involves a serious crime, or is based upon a high degree of suspicion (see People v. Kuhn, 33 N.Y.2d 203, 351 N.Y.S.2d 649, 306 N.E.2d 777; People v. Morales, 22 N.Y.2d 55, 290 N.Y.S.2d 898, 238 N.E.2d 307), such is not the case here. Further, the agents had other practical alternatives to immediate entry (cf. People v. Wharton, 60 A.D.2d 291, 400 N.Y.S.2d 840), they could have walked to the gate and engaged defendants in conversation or continued their surveillance of the van until their suspicions were further substantiated. Consequently, the evidence seized as a result of the illegal entry was properly suppressed (see McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153).

26 N.Y.2d 101, 103-105, 308 N.Y.S.2d 836, 837-839, 257 N.E.2d 23, 24-25). The argument continues that the entry was made solely to determine what the defendants were doing and whether they had a right to be there. However, it is clear that part of the reason for entering was to make a determination of what property was being loaded. Such behavior amounted to an unconstitutional search since it was not based upon probable cause to believe a crime was being committed. "(T)he common-law authority of the police to make investigative inquiries * * * does not give the police a license to violate the Constitution" (People v. Cantor, 36 N.Y.2d 106, 113, 365 N.Y.S.2d 509, 517, 324 N.E.2d 872, 878).

Additionally, the prosecutor's reliance on People v. Farenga, 42 N.Y.2d 1092, 399 N.Y.S.2d 651, 369 N.E.2d 1184 is misplaced. Although the factual situation is somewhat similar, in that a warrantless search of a van and a garage on private premises was upheld, the case is distinguishable. Unlike the case at bar, the investigators in the Farenga case were tentatively able to identify cartons of untaxed cigarettes from their vantage point on the street based upon the suspicious brown wrapping paper on the cartons. Furthermore, the license plate of a car parked in front of the premises was traced to a prior seizure of untaxed cigarettes before the search took place. Finally, the reasonable expectation of privacy was not as great in the Farenga situation since the driveway used by defendants was a common driveway shared by the adjoining building. Irrespective of whether the enclosed area in this case constituted a "curtilage" (see United States v. Potts, 297 F.2d 68, 69 (CCA 6th, 1961)), it is clear that defendants, as tenants or licensees, had a legitimate expectation of privacy while on the premises which could not be violated on the basis of mere suspicion. The garage was recessed from the street and the yard was completely fenced. The street visibility of the activities on the driveway was minimal, as evidenced by the need for entry before the agents were able to identify the nature and contents of the items being loaded on the van (cf. United States v. Magana, 512 F.2d 1169, 1171 (CCA 9th, 1975), cert. den., 423 U.S. 826, 96 S.Ct. 42, 46 L.Ed.2d 43).

DAMIANI, J. P., and TITONE and COHALAN, JJ., concur.

SHAPIRO, Justice, dissents and votes to reverse the order appealed from and to deny the motion to suppress, with the following memorandum:

THE FACTS

On November 5, 1976 an anonymous call was received by the Manhattan office of the Federal Bureau of Investigation. The message was that "two men were loading liquor * * * from a truck * * * into a garage, and this garage has been used previously for storing cigarettes".

The location indicated was a residential neighborhood and the premises were a private two-story dwelling with a detached garage. The property was fenced, but the fence was open.

Two FBI agents went to that address pursuant to the telephone call, arriving at about 2 P.M.

The agents initially saw no activity but, on their return from making a telephone call to confirm the address, they observed One agent described the boxes as "cardboard * * * maybe cube-shaped, eighteen inches cube-shaped" of different colors, with writing on them. The writing could not be distinguished from the street. The observation from the front and back streets of the premises lasted ten or more minutes. The two agents then drove into the yard, got out of their car and approached the two men.

two individuals loading boxes on to "a small van, something like an Econoliner Ford". They "saw them (indicating the defendants) picking boxes up from the garage and putting them on to the van". The agents went around the block to another vantage point, from which they continued to see activity.

No consent was asked or given for the agents initially to enter the yard where the garage was located, nor was a warrant applied for. One of the agents testified that their purpose in going on to the property was to see whether the individuals had a reason to be on the property and whether the liquor was theirs.

The agents identified themselves to defendants and told them that a call concerning some liquor had been received and asked whether they had any receipts for the boxes now identified as liquor (Smirnoff's Vodka and J & B Scotch). Both defendants said they did not have receipts. The defendants were informed that the agents intended to "call our office, see if we could determine where this shipment came from." There were 250 cartons of liquor in all 15 in the van and the remainder stacked in the garage.

Simultaneously with the initial inquiry, one of the agents found a stack of invoices, which were shown to defendants, who said that they did not know what they were or that they had been there. The invoices were found by the agent "on the driveway, parking pad (sic ) next to the rear doors that were opened." The invoices had the delivery names "razor-bladed off", except that one still had the name "Pippens" remaining on it. The agent took that invoice and recorded information from some of the cartons and relayed the information to the FBI hijacking supervisor in New York. The defendants were told that inquiry was being made "whether it was a regular or stolen shipment." The response from New York was that a truck belonging to the only firm which supplied liquor to Pippens had been hijacked the previous day. The liquor was, in fact, the shipment hijacked from that truck.

The defendants were told that the New York City Police Safe and Loft Squad was on its way since the hijacking was an intra-State event over which the Federal Agents had no jurisdiction. Both defendants were given Miranda warnings as soon as they were unable to supply invoices for the liquor.

During the period between the receipt of information that the liquor was a stolen shipment and the arrival of the New York City Police, the defendants were neither advised they were under arrest nor handcuffed. At the defendants' request, because of the cold, the two agents and the two defendants waited in the agents' car.

One of the defendants testified that he had gotten permission to use the garage from his brother's mother-in-law. No rent had been paid or specifically agreed upon.

The hearing Judge, in suppressing the liquor and invoices, made findings of fact and conclusions of law, the essential elements of which were:

(1) The agents had no right to enter the property for the area was within a curtilage and the agents were therefore trespassers.

(2) The credibility of the FBI agents was accepted and the conduct of the defendants was held to be suspicious only because of the anonymous tip.

(3) Anything that happened after the entry tainted the seizure of both the liquor and the invoices.

THE ISSUES

I. Was there here an Unreasonable Search and Seizure by the

FBI Agents?

The Fourth Amendment of the United States Constitution guarantees the right of The question of whether a driveway is part of the "curtilage" of a dwelling was addressed, but not answered, in United States v. Bustamante-Gamez, 488 F.2d 4, 7-8 (CCA 9th, 1973), cert. den., 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559. The court there stated: "It is by no means certain that the entry upon the driveway was contrary to the Fourth Amendment, even though there were...