People v. Westerman
| Citation | 474 N.Y.S.2d 914,123 Misc.2d 680 |
| Parties | The PEOPLE of the State of New York v. John WESTERMAN, Defendant. |
| Decision Date | 28 March 1984 |
| Court | United States State Supreme Court (New York) |
Dist. Atty. Robert Morgenthau by Asst. Dist. Atty. Vivian Friedman, for the People.
Edward N. Herman, Forest Hills, for defendant John Westerman.
The following constitutes the opinion, decision and order of the court.
The instant case presents the novel question of whether a police search of a car known to be rented by defendant is proper, when defendant was then a passenger in another car parked across the street. The time of the search was late at night; the place was a street in a high crime area in New York County. Defendant had just been searched incident to his arrest, and fourteen live rounds had been found on his person. In response to the question, "Where's the gun?", one of his fellow arrestees whispered to the police officer that it was in the other car.
An indictment has been filed against the defendant accusing him of criminal possession of a weapon in the third degree, in violation of Penal Law § 265.02(4). The charge is that, on September 15, 1983, defendant possessed a loaded pistol, said possession not being in defendant's home or place of business.
Defendant, claiming to be aggrieved by an unlawful search and seizure has made a motion to suppress bullets and the pistol seized from his person and automobile by a police officer on September 15, 1983.
In this case, the People assert that the seizure of the bullets and pistol from defendant's person and automobile, respectively, was incident to a lawful arrest. The People have the burden, in the first instance, of going forward to show the legality of the police conduct. Defendant, however, bears the ultimate burden of proving by a preponderance of the evidence that the physical evidence should be suppressed.
A pretrial suppression hearing was conducted before me on March 1 and March 7, 1984 at which both the People and defendant adduced testimony. Having seen and heard the witnesses at the hearing, I find the testimony offered by the People to be credible and find that what transpired is as follows.
On September 15th, 1983, at approximately 3:25 a.m., Officer Leonard Tuso and his partner while on anti-crime patrol in the area, near Houston and Chrystie Streets in Manhattan, observed a parked car with two men seated in the front seat, one of whom was defendant, the other one Barry. The area was known to the officers as a high crime area, especially with respect to narcotics and prostitution. The license plate showed the car to be rented. In view of all the above, and in view of the late hour and deserted street, the officers approached the car and requested the license and registration, which defendant produced. The officers suggested to the occupants of the car that they move along and observed, as they complied.
Approximately a half hour later, the officers, still patrolling, again drove up the same street and observed the same car, this time unoccupied and parked on the opposite side of the street. Across the street from this car, another car was parked, with the trunk lock apparently "popped out." The officers approached and observed five occupants: a woman in the driver's seat, defendant in the front middle and Barry in the front right with two other males in the back seat. The officers recognized defendant and Barry from the earlier encounter.
The officers requested the woman to produce her driver's license and the car's registration. The man seated immediately behind the woman stated that it was his car, and got out of the car to take the registration and his driver's license from his wallet. Almost simultaneously, of their own volition, the other occupants emerged from the car, and began aimlessly standing around it. The officers, one of whom had apparently recognized the woman as one who had previously been arrested in the area for prostitution, shone a flashlight into the car and observed what appeared to be a small carrying case commonly used by police officers to carry their shields, on the floor of the car. One of the officers reached into the car for the shield and a wallet which lay beside it. Both of these items were on the floor next to the front seat. The officer picked both up.
Upon inspection, the officer determined that the shield was not a police shield but rather, a novelty shop item. The wallet contained several credit cards. The officers inquired whether any of the car's occupants had the same name as appeared on the credit cards. Receiving no response to their inquiries, the officers informed all five persons that they were under arrest for possession of stolen property (the wallet and credit cards), and incident to the arrest, conducted a frisk of each. The frisk of defendant revealed fourteen bullets in his pocket. Defendant was asked "Where's the gun?", to which he replied, "At home." The woman, however, whispered to the officer that the gun was in the car across the street.
Using the keys that were found during the frisk of Barry, the officers opened the trunk of the other car (in which defendant and Barry had had their earlier encounter with the officers) and found an attache case, which they opened, discovering a loaded gun.
This case presents several questions concerning proper police conduct within the confines of the Fourth Amendment of the United States Constitution, and section 12, Article I of the New York State Constitution. Where, as here, the reasonableness of a search and seizure is at issue, the police conduct must be examined step by step, as each incremental intrusion must find legitimate justification.
The propriety of approaching the car which resulted in the officers' initial encounter with defendant and Barry is not at issue. The intrusion was minimal at most, and clearly reasonable under the circumstances.
The approach to the second car for inquiry was also clearly proper. "The police have the right to stop a citizen and inquire of him if they have reasonable suspicion that criminal activity is afoot." (People v. Landy, 59 N.Y.2d 369, 376, 465 N.Y.S.2d 857, 452 N.E.2d 1185; People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562.) "Reasonable suspicion" is the "quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand." (People v. Cantor, 36 N.Y.2d 106, 112-113, 365 N.Y.S.2d 509, 324 N.E.2d 872.) The observation of a car, with the trunk lock popped out, parked in a high crime area late at night, with five people inside, surely aroused such reasonable suspicion. (See, e.g., People v. Landy, 59 N.Y.2d 369, 465 N.Y.S.2d 857, 452 N.E.2d 1185; People v. Livigni, 58 N.Y.2d 894, 460 N.Y.S.2d 530, 447 N.E.2d 78.)
Upon inquiry by the officers, the occupants emerged. The court credits the officers' testimony that the occupants left the car voluntarily, and were not directed to do so. While one of the officers examined the proffered license and registration, the other shone his flashlight into the car. There being reasonable suspicion for the initial intrusion, this incremental intrusion was permissible and not unreasonable. Merely, shining a flashlight into a parked car and looking in from the outside of a car is not such an intrusion as is constitutionally proscribed. (People v. Miller, 52 A.D.2d 425, 428-29, 385 N.Y.S.2d 457; People v. Cruz, 34 N.Y.2d 362, 370, 357 N.Y.S.2d 709, 314 N.E.2d 39; People v. Howell, 78 Misc.2d 538, 540, 357 N.Y.S.2d 828.)
Upon looking into the car, still without entering it, the "police shield" and wallet became visible on the floor of the vehicle. This provided probable cause to believe that criminal activity was afoot and that the shield was evidence connected to that crime. The officer had the right to pick up the shield case in order to examine it. Once inside the car, the added infringement on privacy caused by taking the wallet in addition to the shield case was minimal and justifiable in view of the fact that it was in plain view and suspiciously lying on the floor next to the shield case. As a practical matter it would have been absurd for the officer not to retrieve and examine both items.
The shield case, upon closer observation, contained merely a novelty item and not a real police shield. The wallet contained only credit cards. When the officers inquired as to ownership of the cards and wallet, (by asking if anyone had the same name as appeared on the credit cards), no one claimed them, and hence probable cause arose to believe that they were stolen. This is especially so, since the name on the cards was a female name, and there was only one female among the car's occupants; this female remained discreetly quiet when the question of the name on the credit cards was raised.
The officers proceeded to arrest all five of the people who had been in the car, for possession of stolen property. It is questionable whether there was, at that time, probable cause to arrest everyone who had been in the car even though there clearly was probable cause to believe that at least one of them had committed a crime. (Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Mallory v. United...
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