People v. Smith

• Decision Date: 23 March 1970
• Citation: 62 Misc.2d 473,308 N.Y.S.2d 909
• Parties: The PEOPLE of the State of New York v. Tony SMITH, Defendant.
• Court: New York Supreme Court

Page 909

308 N.Y.S.2d 909

62 Misc.2d 473

The PEOPLE of the State of New York v. Tony SMITH, Defendant.

Supreme Court, Criminal Term, Queens County, Part I.

March 23, 1970.

Thomas J. Mackell, Dist. Atty., Queens County, by Ronald Aiges, Asst. Dist. Atty., for the People.

Leonard Rubin, New York City, for defendant.

MEMORANDUM

J. IRWIN SHAPIRO, Justice.

In a hearing on a motion by defendant to suppress as evidence a quantity of heroin and a counterfeit United States twenty-dollar bill, I find the following facts to have been established:

On September 16, 1969, at about 3:15 a.m., Patrolman Bauer and a fellow officer, in a patrol car, pursued and stopped defendant, who was driving a 1969 blue Chrysler Imperial on Grand Central Parkway at 65 miles per hour in a 50-mile zone. Defendant and Bauer got out of their respective cars and Bauer informed defendant that he had been speeding and requested his operator's license and registration. Defendant produced a New York State chauffeur's license issued to Ellington F. Taylor. After some conversation, Bauer again requested that defendant give him the certificate of registration, and defendant motioned to Bauer to follow him to the rear of the Chrysler, where defendant opened the trunk. At that time, Bauer noticed that the chauffeur's license defendant had given him did not have attached a photograph (as required by section 501, subdivision 1, par. c, of the Vehicle and Traffic Law) and he asked defendant what his name was. Defendant replied that his name was Taylor, but he was unable to give his first name. Bauer then questioned defendant as to his address and the other information contained on the license, but defendant was unable to answer any of the questions. Asked by Bauer to sign his name on a piece of paper, defendant wrote the signature 'Robert Taylor' in a handwriting different from that on the chauffeur's license.

Bauer then again asked the defendant for the certificate of registration, and defendant reached under some clothing in the trunk of the car and produced some papers which he laid on the shelf of the trunk. Among those papers was a New York State certificate dated May 1969 for the sale of a 1969 Chrysler Imperial to an Edward Godfrey. Defendant, asked who Godfrey was, stated that he was his cousin. Bauer again asked defendant for the registration, and defendant told him to look through the papers in the trunk. As Bauer was examining the papers, defendant moved towards the front of the car. Finding no registration among the papers, Bauer followed defendant and found that defendant had entered the car. As Bauer came to the door on the driver's side, which was open, defendant, who had his hand across the car to the right side where the glove compartment was open and his left hand hanging below the seat directly underneath the wheel, 'abruptly pulled back his hand from the right and from below the seat * * * grabbing some papers that were on his lap and stepped out of the car.'

Defendant pushed a piece of paper into Bauer's hand and moved quickly past him. Bauer peered into the car to see what it was that defendant had moved away from so abruptly and he observed a brown paper bag lying on the floor partially under the driver's seat. The piece of paper that defendant had put into Bauer's hand was a New Jersey certificate of registration for the license plates which were on the 1969 blue Imperial. The registration, however, was issued to a Tony Smith for a 1966 bronze Plymouth. Bauer then went 'after' the defendant, who by this time was with the other officer. Bauer told his brother officer to watch defendant and he went to his radio car and called over the air for a check on the license plates. In a few seconds the report came back that there was no record on those license plates.

Bauer then had a conversation with his brother officer in which he detailed all the 'discrepancies' that he had come upon, and his brother officer then went to defendant's car and got the brown paper bag which was in open view. No general search was made of the Chrysler. The only search made was in opening the brown paper bag, in which were found 705 glassine envelopes containing heroin, and the only articles taken from defendant were this brown paper bag and the license. Thereupon defendant was taken to the police station. There, according to the sworn complaint in the Criminal Court, defendant was searched and a counterfeit United States twenty-dollar bill was found in his wallet.

As a result of the foregoing, the indictment in this case was returned charging defendant with the commission of five crimes. They are (1) criminal possession of a dangerous drug in the third degree, (2) criminal possession of a forged instrument in the first degree--a counterfeit United States twenty-dollar bill, (3) using an operator's license belonging to another person or the use of a forged or fictitious operator's license, in violation of section 501, subdivision 3, of the Vehicle and Traffic Law, (4) operating a motor vehicle without being licensed to do so, in violation of section 501, subdivision 4, par. a, of the Vehicle and Traffic Law, and (5) operating and driving an unregistered motor vehicle in violation of section 401, subdivision 1, par. a, of the Vehicle and Traffic law.

I

This case presents for determination a question of first impression: If there is probable cause to believe that a person driving an automobile committed or was simultaneously committing a felony, traffic misdemeanors and traffic infractions, and he is taken into custody by an officer without articulation of the fact that he was being arrested and without specification of the ground of the arrest, is a subsequent search of the automobile warranted solely on probable cause to believe, on the facts, that the felony had been or was being committed?

The Fourth Amendment of the United States Constitution does not forbid all searches and seizures; it forbids only unreasonable searches and seizures. (Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669.) A search and seizure is unreasonable and invalid unless made pursuant to a warrant issued upon a showing of probable cause to believe that a crime has been or is being committed or unless it is incident to, and contemporaneous with, a lawful arrest. (Ker v. California, 374 U.S. 23, 34--35, 83 S.Ct. 1623, 10 L.Ed.2d 726; Agnello v. United States,269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145; cf. Camara v. Municipal Court,387 U.S. 523, 534, 87 S.Ct. 1727, 18 L.Ed.2d 930; Preston v. United States,376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777.) A lawful arrest, like a warrant, must also be based upon probable cause to believe that a crime has been or is being committed. (Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327; Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879; People v. Brady, 16 N.Y.2d 186, 189, 264 N.Y.S.2d 361, 362, 211 N.E.2d 815; People v. Coffey, 12 N.Y.2d 443, 451, 240 N.Y.S.2d 721, 725, 191 N.E.2d 263, 266, cert. den. 376 U.S. 916, 84 S.Ct. 671, 11 L.Ed.2d 612.)

What constitutes probable cause 'is not a matter for technical rules or tight and exact definition' (People v. Marshall, 13 N.Y.2d 28, 34, 241 N.Y.S.2d 417, 422, 191 N.E.2d 798, 801; also see, People v. Coffey, Supra,12 N.Y.2d at 451, 240 N.Y.S.2d at 725, 191 N.E.2d at 266). Probable cause requires no more than 'a reasonable ground for belief of guilt' (Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 288, 69 L.Ed. 543). 'In dealing with probable cause * * * as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act' (Brinegar v. United States, Supra, 338 U.S. at 175, 69 S.Ct. at 1310; also see, Husty v. United States, 282 U.S. 694, 700--701, 51 S.Ct. 240, 75 L.Ed. 629; Carroll v. United States, Supra, 267 U.S. at 162, 45 S.Ct. 280). Therefore, it is not required that evidence to sustain an arrest without a warrant should 'suffice to convict' (Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441; also see United States v. Ventresca, 380 U.S. 102, 107, 85 S.Ct. 741, 13 L.Ed.2d 684), nor even to make a Prima facie showing of criminal activity (Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637). Even if a police officer does not know at the time of arrest of any specific crime which the defendant had committed or was committing, probable cause can nevertheless exist, and a determination that the arrest and search and seizure were lawful is not precluded. (People v. Merola, 30 A.D.2d963 294 N.Y.S.2d 301; People v. Messina, 21 A.D.2d 821, 251 N.Y.S.2d 592; People v. Cassone, 20 A.D.2d 118, 245 N.Y.S.2d 843, affd. 14 N.Y.2d 798, 251 N.Y.S.2d 33, 200 N.E.2d 214, cert. den. 379 U.S. 892, 85 S.Ct. 167, 13 L.Ed.2d 95.)

A reasonable ground for belief that a crime has been or is being committed to constitute probable cause does not rest upon the subjective reaction of the police officer making the arrest. It depends, rather, upon an objective appraisal of the facts and circumstances to determine the existence or nonexistence of probable cause. (Terry v. Ohio, 392 U.S. 1, 21--22, 88 S.Ct. 1868, 20 L.Ed.2d 889.) The oft-given test for probable cause to support a lawful arrest is whether an officer in good faith believes that a person is guilty of an offense and his belief rests on such grounds as would induce an ordinarily prudent and cautious man, under the circumstances, to believe likewise. (Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142; Ker v. California, 374 U.S. 23, at 34--35, 83 S.Ct. 1623, 10 L.Ed.2d 726, supra; Husty v. United States, 282 U.S. 694, at 700--701, 51 S.Ct. 240, 75 L.Ed. 629, supra; People v. Coffey, 12 N.Y.2d 443, at 451, 240 N.Y.S.2d 721, at 725, 191 N.E.2d 263, at 266, supra.)

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