People v. Tinneny

Decision Date07 June 1979
PartiesThe PEOPLE of the State of New York v. Daniel TINNENY.
CourtNew York Supreme Court
Eugene Gold, Dist. Atty. (Susan Berger and A. David Stern, Brooklyn, of counsel), for plaintiff

Robert A. Sgarlato, Brooklyn, for defendant.

MEMORANDUM

ELLIOTT F. GOLDEN, Judge.

In this motion to suppress physical evidence, obtained from the premises of his automobile salvage business, the defendant questions the constitutionality of subdivision 5 of section 415-a of the Vehicle & Traffic Law (the Vehicle Dismantlers Law), and the manner in which the police engaged in the inspection of the defendant's junkyard under color thereof. As a consequence of such inspection and the resultant seizure of certain stolen automobile parts found therein the defendant has been indicted and charged with several counts of Grand Larceny and Criminal Possession of Stolen Property, and with Forgery of a Vehicle Identification Number.

A hearing was conducted before me on March 14, 1979. The People's case was presented through the testimony of the arresting officer, Detective Elias Slatnick of the Automobile Squad Special Investigations Division; the defendant's case consisted of the testimony of Sergeant William Shukfsky of the 76th Precinct. Each witness was frank and candid. Their testimony offered no serious inconsistencies or contradictions to each other, and was credible.

FINDINGS OF FACT

At about 9:00 o'clock A.M. on March 20, 1978, a business day, Detective Slatnick assigned to the Auto Squad Special Investigations Division and five other police officers visited defendant's premises, located at 400 Carroll Street in this county, for the announced purpose of inspecting defendant's business premises and the records which defendant, a licensed dismantler, was required to maintain pursuant to the provisions of section 415-a of the Vehicle & Traffic Law. The defendant, seeking verification of the officers' identity and authority, telephoned the 76th Precinct. Sergeant Shukofsky of that precinct responded to the defendant's premises and advised the defendant that such persons were in fact police officers; that by virtue of the fact that defendant was a second hand dealer and required to maintain a second hand book, (dismantler's book), such book was subject to verification and inspection; and that no search warrant was required.

Thereupon the police officers, without any disruption of the normal business activities, conducted an inspection of the defendant's premises and observed various automobile parts and components located therein. The police made spot checks against the defendant's dismantler's book with respect to questioned parts.

Detective Slatnick then left the premises to verify the information obtained by means of telephone calls and computer checks through the National Auto Theft Bureau, and upon his return the defendant was placed under arrest. A taillight assembly located on a shelf near where the defendant was standing at the time of his arrest was also observed by the officer who again left the premises to check it out.

In all, various parts and components from four stolen automobiles were seized. Some of the items recovered were listed in the defendant's record book. One item, a Cadillac transmission, was listed under an altered number.

CONCLUSIONS OF LAW

Defendant alleges that the warrantless search of his premises exceeds the scope of authority given the police officers within the meaning of section 415-a of the Vehicle and Traffic Law; that the statute merely authorized an inspection of defendant's record book, and hence the search without his consent was unlawful. He urges that a statute which on one hand would permit a warrantless search for incriminating evidence, and which on the other hand, subjects him to penal sanctions for refusal to permit such search, is unconstitutional.

The People argue that the inherent nature of defendant's business and the legislative authority given police officers to inspect pursuant to section 415-a of the Vehicle and Traffic Law authorizes the seizure of contraband as incident thereto and is an exception to the general rule of proscribed warrantless searches. Furthermore they contend that the defendant voluntarily consented to the search of his premises.

Defendant seeks judicial enforcement of his right against unreasonable search and seizure by means of the exclusionary rule. This rule primarily rests on the judgment that the importance of deterring police conduct that may invade constitutional rights of individuals outweighs the importance of securing the conviction of the specific defendant on trial. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; see also U. S. v. Caceres, --- U.S. ----, 99 S.Ct. 1465, 59 L.Ed.2d 733, 1979. Accordingly, if a due process violation is concluded by this Court, the fruits of that illegality must be suppressed.

It is axiomatic that a search warrant issued upon probable cause is not required where a search is conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. However, it is equally basic that the Court is required to indulge every reasonable presumption against the waiver of constitutional rights guaranteed by the Fourth Amendment. Green v. U. S., 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.

A prosecutor seeking to rely upon consent to justify the lawfulness of a search has the burden of proving by clear and convincing evidence that the consent was unequivocally, voluntary and freely given. Schneckloth v. Bustamonte, supra; Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; see also People v. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884, 270 N.E.2d 709; People v. Whitehurst, 25 N.Y.2d 389, 306 N.Y.S.2d 673, 254 N.E.2d 905.

While the defendant did not refuse to permit the police officers to conduct the search, nevertheless this Court agrees with the defendant that he did not voluntarily consent thereto. The record is clear that the defendant allowed Detective Slatnick and his fellow officers to search without a warrant because he was advised by Sergeant Shukofsky that one was not required. Additionally, the totality of circumstances, including the fact that defendant called for verification of the authenticity of the plain clothes police officers, and their reference to Vehicle & Traffic Law section 415-a as their authority to inspect, persuades this Court to conclude that defendant's consent to the search was merely a reluctant acquiescence and submission to authority. Accordingly, the legality of the search and seizure in the instant case must stand or fall upon statutory authorization. See Search and Seizure, La Fave, Vol. 3, section 10.2, pp. 218, 219.

The defendant having not consented to the search, the initial burden of going forward to show the legality of police conduct is upon the People; however it is the accused, not the People who must shoulder the burden of persuasion on a motion to suppress evidence. People v. Di Stefano, 38 N.Y.2d 640, 652, 382 N.Y.S.2d 5, 12, 345 N.E.2d 548, 555. To meet their initial burden the People rely upon Vehicle & Traffic Law section 415-a.

The enactment of section 415-a of the Vehicle & Traffic Law (Ch. 225, L.1973) reflects a clear legislative recognition of the necessity for a statutory procedure for the supervision and control of a type of business prone to criminal improprieties. The provisions thereof seek to insure that a person, such as the defendant, who is engaged in the business of buying motor vehicles for the purpose of dismantling them for parts or for re-selling them as scrap, be registered. The requirements for registration place heavy emphasis on the fitness of the applicant to engage in such business when measured against any prior arrests and convictions, particularly as they may relate to the illegal sale or possession of a motor vehicle or motor vehicle parts. Equal concern is given to any individual having a financial interest in such business. The statute mandates the keeping of certain records and the authority for inspection thereof by designated officials. Sanctions for violations of the statute include both civil and criminal penalties.

Subdivision 5 of Vehicle & Traffic Law section 415-a provides for record keeping and inspection as follows:

"5. Records. Any records required by this section shall apply only to vehicles or parts of vehicles for which a certificate of title has been issued by the commissioner or which would be eligible to have such a certificate of title issued. Every registrant shall maintain a record of all motor vehicles, trailers, or major component parts thereof, coming into his possession together with a record of the disposition of any such motor vehicle, trailer or parts thereof. Such record shall be maintained in manner prescribed by the commissioner. In addition, a registrant shall maintain proof of ownership for any motor vehicle, trailer or major component parts thereof while in his possession. Such records shall be made immediately available upon request during usual business hours, to any employee designated by the commissioner and to any police officer. The failure to produce such records as required by this subdivision shall be a class A misdemeanor."

It cannot seriously be doubted that this legislation is rationally related to legitimate social and law enforcement objectives. The legislative intent as enunciated through the statutory arm of the Vehicle & Traffic Law section 415-a is neither violative of the defendant's due process rights nor of his Fourth Amendment right to be free from unreasonable searches and seizures.

The State Department of Motor Vehicles in its memorandum accompanying the passage of the law, observed that its " * * * primary requirement is to provide a system of record keeping so that vehicles...

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