People v. Sullivan

• Decision Date: 07 July 1971
• Parties: , 272 N.E.2d 464, 48 A.L.R.3d 527 The PEOPLE of the State of New York, Appellant, v. Daniel J. SULLIVAN, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 945

323 N.Y.S.2d 945

29 N.Y.2d 69, 272 N.E.2d 464, 48

A.L.R.3d 527

The PEOPLE of the State of New York, Appellant, v. Daniel J. SULLIVAN, Respondent.

Court of Appeals of New York.

July 7, 1971.

Frank S. Hogan, Dist. Atty. (David L. Levinson, Michael R. Juviler and Lewis R. Friedman, New York City, of counsel), for appellant.

Lawrence K. Feitell, New York City, for respondent.

BERGAN, Judge.

On October 24, 1967 a motor vehicle, which had been hired by defendant and had been earlier parked by him on the north side of West 45th Street between Eighth and Ninth Avenues, was found by police to be illegally parked shortly after 8:00 A.M. and a summons was attached to the windshield.

All parking was prohibited at this point between 8:00 A.M. and 9:00 A.M. Signs stating this was a 'tow-away' zone were prominently displayed. There were parking meters on the street which could be used after 9:00 A.M., but between 8:00 and 9:00 the restriction against any parking was complete.

At about 8:30 A.M. a Police Department tow truck removed the car to a Police Department storage facility. The New York statute authorizing the tow-away procedures of the city, section 1204 (subd. (b), par. 1) of the Vehicle and Traffic Law, Consol.Laws, c. 71, provides, among other things, that when a police officer finds a vehicle unattended at a place where parking is prohibited he is authorized to have it removed 'to a garage, automobile pound or other place of safety'.

At the police storage facility the policeman examined the inside of the car and observed a black plastic brief case which he found contained a loaded pistol. Defendant claimed the car and has been indicted for possessing a loaded gun as a felony. The court at Special Term suppressed the evidence and dismissed the indictment on the ground the discovery of the gun was by an unlawful search, 57 Misc.2d 208, 292 N.Y.S.2d 37. The Appellate Division affirmed, 35 A.D.2d 690, 315 N.Y.S.2d 274, and the People appeal.

The Police Department regulations governing tow-away procedures required that the officer removing a vehicle make an adequate record in his official memorandum book of valuable property in the car. The officer receiving the vehicle in the storage area is required to 'check same to see if there is any valuable property in said vehicle' and to verify and sign the towing officer's memorandum book.

Valuable property that is found must be delivered to the patrol precinct (Police Operating Procedure No. 20). There are additional procedures relating to filing of claims by owners 'arising from the Tow-Away Program' (Id., No. 20--2).

It is manifest that in inspecting vehicles they take into their custody, in the absence of drivers, the police are not seeking evidence of crime but are pursuing precautions which any bailees of personal property would be expected to take as a matter of reasonable care for the benefit of the absent owner of the vehicle and as a safeguard against claims of loss or damage which could be alleged against the city (Simon v. City of New York, 53 Misc.2d 622, 279 N.Y.S.2d 223; New York City Charter, § 435, subd. a).

That the tow-away program is based on a need to keep open the flow of traffic in the streets of central Manhattan, and not on discovery of evidence of crime, is suggested by the massive volume of vehicles removed from the streets.

In 1969 alone 108,332 cars were towed away at the rate of 2,000 a week. This statistical material based on published compilations and Police Department reports is brought together in the People's brief and is not disputed. The number of tow trucks in use grew from 17 in 1967 to 80 in 1969 (1967 Annual Report of N.Y. City Police Dept. 26; 1969 Report 23).

If evidence of crime is discovered, it is the merest peripheral incident to custody in such a vast program; and assuming the custody itself to be lawful, as it is by both sides in this case, then thorough examination of the car in such custody for the protection of both owner and custodial bailee is not an 'unreasonable' search but by any standard reasonable within the Fourth Amendment.

A motor vehicle has been afforded some of the protections against 'unreasonable' searches that traditionally were allowed to a man's home. Yet the vehicle is still a chattel. Given its high mobility it may be left by the owner in places where its presence conflicts with public and private rights of others; and what may be done with it by public authority depends ultimately on a balancing of conflicting community and personal interests.

When a man willfully leaves a car unattended under a 'tow-away' sign through a time and at a place where all parking is prohibited, and in a city where removal of vehicles for the safety of streets is so widespread and so thoroughly publicized as in New York City, he is not far from risking its abandonment to removal, or indeed from an open invitation to authorities to remove it.

He could not reasonably expect the police to leave a brief case in open sight in the storage facility or expect that they would not make sure when they took control of the brief case what it contained and record its contents.

All the cases dealing with this subject allow the opening of the vehicle and inspecting of the interior. The inspection of its contents is a matter of close degree and not a matter of constitutional differentiation as to what is reasonable. The 'reason for and nature of the custody may constitutionally justify the search' (Cooper v. California, 386 U.S. 58, 61, 87 S.Ct. 788, 791, 17 L.Ed.2d 730).

Neither the Supreme Court nor this court has held that properly discovered evidence is to be excluded where the process of examination and disclosure falls short of a constitutionally prohibited search. Much of the discussion in Federal and State courts on the use of evidence uncovered in the course of an inventory listing and inspection of things found in a vehicle of which the police have taken lawful custody has been addressed to analysis of three cases in the Supreme Court: Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788 (1967) Supra, and Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964).

Not any of these cases is concerned with quite the same kind of custody which the New York police undertook of defendant's car in this present case as implementing a general municipal policy to make possible the movement of traffic and entirely remote from the prosecution of defendant or anyone for any criminal offense or for the search for evidence of a criminal offense; but the cases throw light on the unlawful search and seizure argument which defendant makes.

In Harris defendant's car had been seen leaving the scene of a robbery in the District of Columbia. He was traced through identity of the car and when he was arrested the car was impounded as evidence. The regulations of the Metropolitan Police Department required, that when a car was impounded it must be searched 'thoroughly' and 'all valuables' must be removed 'from it' (390 U.S., p. 235, 88 S.Ct. 992).

Opening a door of the car after it was impounded and looking inside a policeman found a registration card on the metal stripping over which the door closed. The card was found admissible. 'The sole question * * * is whether the officer discovered the registration card by means of an illegal search. We hold that he did not' (Per Curiam, p. 236, 88 S.Ct., p. 993).

The court's statement which immediately follows, summarizing the constitutional question, seems of large significance in inventory searches of the kind considered in this present case; it having been found by the District Court that the discovery of this evidence 'was not the result of a search of the car, but of a measure taken to protect the car while it was in police custody', a warrant for the search of the vehicle was not necessary under the Fourth Amendment (p. 236, 88 S.Ct., p. 993). Justice Douglas, concurring (pp. 236--237, 88 S.Ct., pp. 993--994), felt the decision was consistent with Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, Supra.

In Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, Supra, the accused had been arrested and charged with a narcotics violation. A car which he had used for narcotics was seized 'as evidence' by police under California law which permitted such a car to be 'held as evidence' until forfeiture had been declared or the car ordered released. A week after the arrest of the accused and seizure of the car, police made a thorough search of it and, opening up a glove compartment, took out evidence (of drugs) which was used against the accused.

Justice Black here noted that it would be unreasonable to hold that the police, having to retain the custody of the car for a considerable timbe before forfeiture under the statute, 'had no right, even for their own protection, to search it' (386 U.S., [29 N.Y.2d 74] pp. 61--62, 87 S.Ct., p. 791). The search occurred a week after the arrest. The court concluded that it could not 'hold unreasonable under the Fourth Amendment' the 'examination' or 'search' of a car 'validly held by officers' for use as evidence (p. 62, 87 S.Ct., p. 791).

In Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, Supra, petitioner and two others were arrested for vagrancy while sitting in a car. Police had the car towed to a garage and there searched it, turning over evidence discovered through this search to Federal authorities. The evidence was used by the Government. The search was held unlawful, primarily over the argument of the Government that it was an incident to a lawful arrest (p. 367, 84 S.Ct. 881).

It was concluded that this search at another place was not an 'incident' to arrest (p. 367, 84 S.Ct. 881). Of course, the Preston problem if far different from the question in the present case, and the court was later careful to distinguish it from the...