People v. Rodriguez

• Decision Date: 30 July 1965
• Citation: 47 Misc.2d 551,262 N.Y.S.2d 859
• Parties: PEOPLE of the State of New York v. Miguel A. RODRIGUEZ, Defendant.
• Court: New York County Court

Page 859

262 N.Y.S.2d 859

47 Misc.2d 551

PEOPLE of the State of New York v. Miguel A. RODRIGUEZ, Defendant.

Nassau County Court.

July 30, 1965.

William Cahn, Dist. Atty. of Nassau County, Mineola, for the People.

Edwyn Silberling, Mineola, for defendant.

DOUGLAS F. YOUNG, Judge.

This is a motion to suppress evidence seized from defendant's person and other evidence seized subsequently at his home. The arresting officer saw the defendant driving a car on Jericho Turnpike and recognized him as a person to whom he had given a summons on a previous occasion for failure to have a driver's license. Defendant appeared confused and passed a red light. The officer stopped the defendant, who does not speak English, and inquired in broken Spanish and English for his documents. Defendant produced a registration but had no driver's license with him and indicated that he did not possess a license. At this point, the officer testified, he decided to arrest the defendant. However, since his orders required that he obtain consent of his superior to effect an arrest for a traffic violation, he radioed to his sergeant. The latter appeared in a few minutes and granted the permission. An arrest was made at this point and the Court makes a finding of fact to that effect. The officer then conducted a search of defendant's person outside the car and found in his pocket a stack of papers which proved to be policy slips.

Defendant was taken to the station house and interrogated. Patrolman Torres, a Spanish speaking officer, was called to act as interpreter. After interrogation in which defendant was alleged to have admitted having policy slips at his home, a written form (in the English language) purporting to grant consent to the police to search his home and seize any articles they desired was executed by defendant. Patrolman Torres attempted a translation and an explanation of this document to defendant; defendant subscribed it; a search of the home was made which produced more policy slips and some tally sheets. The court is asked to suppress the fruits of the two searches.

I hold that the arrest for driving without a license was a valid arrest based on the commission of a misdemeanor in the presence of the officer.

The first question posed by the facts as found in this case is: In a situation where a valid arrest is made for a traffic violation which constitutes a crime, is a contemporaneous search of the person of the violator lawful and, if so, to what extent is such a search reasonable?

In order to define the issue precisely we shall eliminate cases involving situations which are similar in some respects but not squarely in point on the facts.

Therefore we eliminate the cases having to do with arrests for traffic violations as pretexts for searches to obtain evidence of other crimes. In this case there is no claim that the arrest was a subterfuge or ruse (Taglavore v. U. S., 9 Cir., 291 F.2d 262; People v. Sapp, 43 Misc.2d 81, 249 N.Y.S.2d 1020).

We exclude cases involving searches of passengers (United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210).

We also eliminate situations where the basis for the arrest is a minor traffic infraction and not the commission of a traffic crime, although we think this distinction is not too significant since New York law equates the two for procedural purposes (Squadrito v. Griebsch, 1 N.Y.2d 471, 154 N.Y.S.2d 37, 136 N.E.2d 504). Similarly we eliminate cases involving traffic violations where a summons was issued and no arrest was made. Much discussion could be devoted to the distinction to be drawn between the case when a summons is issued for a future appearance in court, and the case of an arrest (sometimes termed a summary arrest) where the officer takes the accused in custody and escorts him to the police station for booking and arraignment. See, for example, Agata, 'Searches and Seizures Incident to Traffic Violations', St. Louis U. Law Review, Spring 1962, page 9, et seq. As this is not the factual situation we deal with here, we need not be concerned with this distinction.

We exclude cases where a visual inspection of the occupant or automobile, without a search, revealed a weapon or other contraband to the officer (People v. Lopez, 19 A.D.2d 809, 243 N.Y.S.2d 333; People v. Jordan, 37 Misc.2d 33, 234 N.Y.S.2d 323).

Also eliminated are cases where the question involved the legality of a search of the automobile, rather than a search of the person of the defendant (Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; People v. Gonzales, 356 Mich. 247, 97 N.W.2d 16). Finally we eliminate cases where the search to be tested was not contemporaneous with the arrest (Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856; Preston v. U. S., 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; People v. Beaman, 44 Misc.2d 336, 254 N.Y.S.2d 674).

Investigation has failed to reveal recent judicial authority specifically on the point of the permissible extent of a search of the person of defendant under the circumstances at hand (a traffic violation arrest). The great majority of reported cases on searches contemporaneous with arrests deal with the extent to which a search of an automobile or of fixed premises is reasonable. Often courts assume without inquiry that the right to a search of the person automatically follows a valid arrest and they do not go further to consider the question of whether there is any constitutional limit to the extent of such a search of the person (United States v. Rabinowitz, 339 U.S. 56, pp. 60, 61, 70 S.Ct. 430, 94 L.Ed. 653; Preston v. U. S., 376 U.S. 364, p. 367, 84 S.Ct. 881, 11 L.Ed.2d 777).

One voice, however, has spoken out loud and bold, like Chapman's Homer. In his book, 'Current Problems in the Law of Search and Seizure', Gould Publications, 1964, Judge Sobel states categorically that no search based on an arrest for a traffic violation is reasonable, be it ever so gentle and limited. He condemns searches of the person, even as to searches for weapons, in such cases. He says, at page 119:

'Do the police have the right to search the person or automobile following a lawful arrest for a traffic violation?'

'The answer is an unequivocal 'No!' despite many cases to the contrary.'

Judge Sobel's argument is that any search without a warrant, based on a contemporaneous arrest, must be incidental to the crime for which the arrest is made. Hence the search must be for instrumentalities, fruits, evidence, or weapons incidental to the crime providing the basis for the arrest. This accords with the generally accepted doctrine as it was expressed in Agnello v. U. S., 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed 145 (as quoted hereinafter), with one important exception. The exception is that Judge Sobel contends vigorously that even as to weapons no search is permissible in the circumstances of an arrest for a traffic crime because where there is a search for weapons that too must be an incidental search and in no case will weapons have been involved in the commission of a traffic crime (Sobel, op, cit., p. 121 et seq.). For the reasons stated below, I do not subscribe to the view that a search for weapons is not reasonable and permissible as an adjunct to an arrest for a traffic crime, or indeed to any crime.

As indicated, Agnello v. U. S., 269 U.S. 20, 46 S.Ct. 4, is frequently quoted for a statement of basic principle of the problem we are considering. The pertinent passage from page 30, 46 S.Ct. at page 5, is as follows:

'The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted. See Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 69 L.Ed. 543, [553, 39 A.L.R. 790,] Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann.Cas.1915C, 1177.' (Emphasis supplied.)

The basis for the search for weapons is security of the person of the officer and prevention of escape. Danger to the officer is present if the accused possesses a weapon regardless of whether the weapon is in any way related to the crime.

In a case where the arrest was made by Immigration and Naturalization Service officers instead of police officers, the majority of the United States Supreme Court said:

'There can be no doubt that a search for weapons has as much justification here as it has in the case of an arrest for crime, where it has been recognized as proper. E. g., Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145 . It is no less important for government officers, acting under established procedure to effect a deportation arrest rather than one for crime, to protect themselves and to insure that their prisoner retains no means by which to accomplish an escape.' Abel v. U. S., 362 U.S. 217, 236, 80 S.Ct. 683, 4 L.Ed.2d 668.

This view is buttressed by the holding of the Court of Appeals in People v. Rivera, 14 N.Y.2d 441, 252...