People v. Saunders

• Decision Date: 11 July 1988
• Citation: 140 Misc.2d 544,531 N.Y.S.2d 987
• Parties: The PEOPLE of the State of New York v. Alfred SAUNDERS, Defendant.
• Court: New York Supreme Court

Page 987

531 N.Y.S.2d 987

140 Misc.2d 544

The PEOPLE of the State of New York v. Alfred SAUNDERS, Defendant.

Supreme Court, Bronx County Part 45.

July 11, 1988.

Paul Gentile, Dist. Atty. by Philip Russell, Asst. Dist. Atty., for the People.

Paul Ascher, New York City, for defendant.

DOMINIC R. MASSARO, Justice.

The principal issue to be resolved on this reconsideration is whether use of a toilet stall in a public restroom at a prison facility gives rise to a subjective expectation of privacy that society accepts as objectively reasonable. The Court holds that it does not, and that governmental intrusion in this limited context is not constitutionally prohibited by the Fourth Amendment search and seizure clause. The reported cases provide no guidance with respect to the unique fact pattern presented here.

An indictment has been filed against the defendant charging him with promoting prison contraband in the first degree (Penal Law, Sec. 205.25[1] ) and criminal possession of a controlled substance in the seventh degree (Penal Law, Sec. 220.03).

The defendant, in turn, claims to be aggrieved by an unlawful or improper acquisition of evidence. His concern is not unwarranted that such evidence may be offered against him in the pending criminal action, and he makes the instant motion for an order of suppression based upon factors precluding admissibility.

The defendant further moves to suppress certain oral and written statements made by him after being taken into the custody of the New York City Correction Department.

Following a combined Huntley-Mapp hearing granted by the Court, the People conceded that the defendant's statements should not be admitted into evidence. It is well settled that when a defendant answers "no" to the question of whether he is willing to speak to law enforcement officials without an attorney present, and, indeed, specifically requests an attorney as was done here, he thereby invokes the right of counsel ( People v. Carmine A., 53 N.Y.2d 816, 439 N.Y.S.2d 915, 422 N.E.2d 575 [1981]; People v. Dean, 47 N.Y.2d 967, 419 N.Y.S.2d 957, 393 N.E.2d 1030 [1979]; People v. Gamble, 129 A.D.2d 470, 513 N.Y.S.2d 698 [First Dept., 1987] ). In each of the cases cited, a conviction was reversed because of continued questioning after the defendant had invoked this right. Accordingly, the Huntley branch of defendant's omnibus motion, while otherwise moot, is well founded, and further discussion unnecessary.

With respect to the suppression of physical evidence, it is the accused, not the People, who must shoulder the burden of persuasion. The People have only the burden of going forward to show the legality of the police conduct in the first instance (People v. DiStefano, 38 N.Y.2d 640, 382 N.Y.S.2d 5, 345 N.E.2d 548 [1976] ).

The pretrial suppression hearing was conducted on October 30, 1987 and November 2, 1987. Three witnesses were called by the People: Correction Officer John Koval, Correction Officer Jeff Gould, and Correction Captain Russel Martin. Two witnesses testified for the defense: Correction Officer Nanette Hafeez and the defendant, Alfred Saunders. Each officer was frank, candid and trustworthy. Their testimony, marked by no serious inconsistencies or contradictions, had the tone and flavor of credibility. Saunders' testimony with respect to the purported use of the toilet stall was less so.

Findings of Fact

On March 19, 1986, Officer Koval was working a 7:30 a.m. to 4:00 p.m. tour of duty at the Adolescent Reception Center on Rikers Island. His assignment was "security and search duty." At approximately 11:40 a.m., a number of visitors arrived, and Officer Koval announced that if any were carrying contraband, "any kind of dangerous drugs, such as heroin, marijuana, cocaine," they would have an opportunity to place said contraband into a provided "amnesty box" with "no questions asked." Thereafter, Koval proceeded to search the visitors, including the defendant, as each passed into the visitor registration room.

In searching the defendant, Officer Koval discovered what appeared to be a substantial sum of cash being carried in a duffel bag; Koval testified that he neither counted nor seized the money.

The defendant, together with the other visitors, took a seat in the registration room. Koval continued to observe the defendant "acting nervous," and noted that Mr. Saunders held his duffel bag "on his lap tightly secured." When Mr. Saunders' name was called by another correction officer, he proceeded to the visitor registration desk, where he identified himself. Arrangements were made to produce the inmate whom he was visiting to the appropriate area inside the prison complex. The defendant was informed of locker facilities in the registration room for the deposit of personal effects not permitted in the prison proper; he returned to his seat with all personal belongings.

At his option, the defendant was always free to leave the Reception Center and return to the street outside.

Officer Koval, meanwhile, began his security patrol. It consisted of a routine search of "the lockers, the bathrooms, the garbage cans" for items that may have been concealed by visitors. The toilet facilities are located in the same visitors' area. As Koval was about to commence his searching activity, the defendant went to the men's room. Within "five minutes" thereafter, Officer Koval opened the men's room door and observed a person standing in one of two toilet stalls; the stall door was open--although the lock was apparently broken, the defendant testified that he made no attempt to secure the stall door--and said person's back was turned toward Officer Koval. Koval heard the person make "a loud sniffing sound." Though Officer Koval was unaware of it at the time, the person standing in the stall was the defendant, Mr. Saunders.

Upon being inquired "What are you doing?," the defendant turned around and faced the officer. Koval observed a quantity of white powder on the defendant's face--more particularly, on his "nose, lip and mouth." He requested that Mr. Saunders accompany him to Captain Martin's office. The defendant complied, but while walking to the office, he dropped thirteen small packets containing a white powder retrieved by Officer Koval. Subsequent laboratory analysis established this white powder to be heroin.

Conclusions of Law

I

The threshold consideration is whether, and to what extent, the defendant had any reasonable expectation of privacy in an open toilet stall in the visitors' reception area of a correctional institution. Secondly, the Court must consider whether Officer Koval's conduct was unreasonably intrusive under the circumstances extant.

A citizen's expectation of privacy has its roots in the strictures of the Fourth Amendment to the United States Constitution which provides that

The right of the People to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

While the Fourth Amendment prohibits unreasonable intrusions only by the Federal Government, its protection is extended to unreasonable actions by the States through the Due Process Clause of the Fourteenth Amendment ( Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 [1961], rehearing denied, 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72 [1961] ). The New York citizen otherwise enjoys protection found at the search and seizure clause of the State Constitution (N.Y. Const., Art. I, Sec. 12).

The purpose of the Federal and State clauses then is to protect individuals from unreasonable government intrusion into their legitimate expectations of privacy ( United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 [1977]; People v. Mercado, 68 N.Y.2d 874, 508 N.Y.S.2d 419, 501 N.E.2d 27 [1986] ). Manifestly, persons have a reasonable expectation of privacy in their homes, and a protected privacy right is recognized in other confined areas as well (see People v. Mercado, supra, at 876, 508 N.Y.S.2d 419, 501 N.E.2d 27).

In Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 [1967], Justice Harlan, in a concurring opinion, articulated the nature of one's expectation of privacy: "[T]here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable'." The majority opinion of the Court (Stewart, J.), noted at 351-352, 88 S.Ct. at 511 that

the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection [citations omitted]. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected [citations omitted].

A citizen's right of privacy is not absolute, but it is protected against arbitrary and oppressive governmental intrusion. The determination whether police conduct is reasonable ultimately involves a balancing of the citizen's right of privacy and society's interest in the apprehension of a suspected lawbreaker ( People v. Cantor, 36 N.Y.2d 106, 111, 365 N.Y.S.2d 509, 324 N.E.2d 872 [1975] ). Thus, "[t]he Fourth Amendment protects not against all searches and seizures but only 'against unreasonable searches and seizures' " ( People v. Peters, 18 N.Y.2d 238, 247, 273 N.Y.S.2d 217, 219 N.E.2d 595 [1966] ). In weighing these interests "we must consider first whether ... the police action was justified in its inception and secondly whether ... that action was reasonably related in scope to the circumstances which rendered its initiation permissible" ( People v. De Bour, 40 N.Y.2d 210, 215, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] )....