People v. Smith
| Decision Date | 22 February 1988 |
| Citation | 135 A.D.2d 190,525 N.Y.S.2d 244 |
| Parties | The PEOPLE, etc., Appellant, v. Russell SMITH, Respondent. |
| Court | New York Supreme Court — Appellate Division |
John J. Santucci, Dist. Atty., Kew Gardens (Ellen Abbot, of counsel), for appellant.
Kenneth E. Bruce, Scarsdale, for respondent.
Before MOLLEN, P.J., and LAWRENCE, EIBER, SPATT and SULLIVAN, JJ.
On this appeal we are called upon to determine if the actions of a Port Authority police officer in conducting a warrantless search and seizure of a package scheduled to be sent as air freight was justified under the emergency exception. It should be noted that this was the sole basis advanced by the District Attorney at the hearing and on this appeal. The hearing court determined that the actions of the police officer were not within this limited exception and suppressed the contents of the package and all that flowed from it. Upon the record before us, we agree.
The limited privilege given to law enforcement agents to investigate emergencies threatening life or property without a search warrant is subject to judicial scrutiny to determine if the police action is reasonable. The burden of justifying a warrantless search under the emergency doctrine rests on the People.
In People v. Mitchell, 39 N.Y.2d 173, 177-178, 383 N.Y.S.2d 246, 347 N.E.2d 607, cert. denied 426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191, the basic elements of the emergency doctrine were set forth as follows:
In this case, a small package was delivered by the defendant to the air freight desk of Eastern Airlines at LaGuardia Airport. The airway bill of lading indicated that the package contained surgical instruments. At that time the baggage service agent at the air freight desk did not consider it suspicious. After a period of time, as she took the package to be put on the flight, she shook it and heard nothing. Earlier that day the agent was advised that the Federal Aviation Administration had issued a terrorist alert and that she should check any package that did not come from a regular shipper. At that point she became suspicious of the package and advised her supervisor. Following her supervisor's direction, the baggage service agent put the package through an X-ray machine, but saw nothing. She informed her supervisor who conferred with the shift manager who in turn called for a Port Authority police officer to inspect the package.
When the officer arrived at the office, he spoke to the baggage service agent and again X-rayed the package. He observed two opaque cylinders that could have been glass or plastic, but nothing metallic. He saw nothing that appeared to be a detonator. If he had seen anything that appeared to be a detonating device, the officer would have notified the New York City Police Department Bomb Squad pursuant to an established procedure. The officer, however, merely called his supervisor who advised him to open the package. The officer then opened the box in the backroom in the presence of Eastern Airlines employees. This occurred about one and one-half hours after the package was received by the baggage service agent. Inside he found two candles wrapped in newspaper, and between them a plastic bag containing a white powder later found to be cocaine.
It is the first prong of the Mitchell test that is at issue in this appeal. This in turn consists of two parts: the police must have reasonable grounds to believe that there is (1) an emergency at hand, and (2) an immediate need for police assistance for the protection of life or property. The People failed to establish either of these factors.
The officer acted initially upon the suspicions of the Eastern Airlines' baggage service agent who had received a package from a nonregular courier that was supposed to contain surgical instruments, but did not appear to contain such instruments. She suspected that it might contain explosives. The record before us does not suggest any further basis for this suspicion. The so-called terrorist alert, upon which our dissenting colleagues place great reliance, was an oral, nonspecific, warning concerning packages sent by nonregular companies or couriers. No effort was made by Eastern Airlines to verify either the consignor or the consignee. There was no evidence adduced at the hearing that Eastern Airlines had any established internal procedure for the treatment of suspicious packages or that the employees had even the most rudimentary knowledge of explosives or explosive devices. In short, no reasonable basis was established in the record for the suspicion of the Eastern Airlines' personnel that this package contained explosives, which it did not, rather than contraband, which it did.
X-ray examination did not reveal any detonator, wiring or timing device, or blasting cap. It appears that there were in fact two separate X-ray examinations of this package: the first by Eastern Airlines personnel and a second by the police officer. Neither examination revealed anything of a suspicious nature. The dissenters argue that the absence of an identifiable object would render the package a danger that required immediate police intervention. Such a view would stand the reasonableness standard of the Fourth Amendment on its head. Every package that did not reveal an ascertainable object upon X-ray examination would, under the dissenters' view, be subject to a warrantless search by law enforcement officers under the emergency doctrine. * It is significant to note that, according to the officer's own testimony, if there had been a serious threat that the package had been an explosive device, he would have been required, by an established procedure, to call the bomb squad. Most telling is the testimony of the officer that he informed his supervisor that he could not identify the items inside the box and that he had to open it to check it out further.
This does not establish probable cause to believe that there is an emergency. Here there were no articulable facts leading to the conclusion that there was a danger to life or property. All that the officer knew was that the package contained an unknown substance and there was no apparent means or device for detonating or igniting it. This is in sharp contrast to the facts in People v. Calhoun, 49 N.Y.2d 398, 426 N.Y.S.2d 243, 402 N.E.2d 1145, where there had been a fire of unknown origin that required emergency action to extinguish it. Entry onto the property four hours later was justified under the emergency exception to determine the cause of the fire and to ascertain if the obvious emergency still continued.
Contrary to the view taken by the dissenters, the testimony at the hearing indicated that the police officer did not comply with established procedures which provided that "[s]hould a suspicious object be found, it will be examined by the New York City Police Department's Bomb Squad personnel".
The court at the hearing asked the Port Authority police officer under what circumstances he would call the bomb squad to investigate a suspicious package. His response was, "When we have established that there's a serious threat of a potential device". It is obvious from the officer's failure to call the bomb squad in this instance that he did not consider that this package posed a serious threat.
The case of United States v. Sullivan, 1st Cir., 711 F.2d 1, is not factually analogous to the case at bar in several key elements. In Sullivan, the testimony before the hearing court ( United States v. Sullivan, 544 F.Supp. 701) established: (1) that the Delta Airlines airfreight supervisor had made an independent determination to open the package, (2) that Lieutenant Seabrease, who was specifically trained in the field, articulated reasons for his belief that the package contained an explosive, (3) that the local bomb squad was not available and there was no suitable bomb storage or transportation equipment, and (4) that Lieutenant Seabrease acted with the express permission and assistance of the Delta Airlines airfreight supervisor. None of these factors, which weighed significantly in the decision in Sullivan, are to be found in the record in this case. In fact, the police officer in this case was quite explicit in stating that he did not open the package at the request of Eastern Airlines' personnel, but at the directions of his sergeant. Thus, unlike Lieutenant Seabrease in Sullivan, the officer was not simply rendering technical assistance to the civilian employees.
Furthermore, the Federal courts in the Sullivan decisions placed emphasis on the fact that the airline employees had made independent decisions to open the package and that the police officer acted with them and simply rendered technical assistance. We do not find those circumstances in the record before us. On direct examination of the Port Authority Police Officer, the following testimony was elicited:
Based upon this testimony, we cannot agree with our dissenting colleagues' conclusion...
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