People v. Zimmerman

• Decision Date: 07 May 1984
• Citation: 475 N.Y.S.2d 127,101 A.D.2d 294
• Parties: The PEOPLE, etc., Respondent, v. Paul ZIMMERMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 127

475 N.Y.S.2d 127

101 A.D.2d 294

The PEOPLE, etc., Respondent, v. Paul ZIMMERMAN, Appellant.

Supreme Court, Appellate Division Second Department.

May 7, 1984.

John Joseph Sutter, Mineola (Ruth C. Balkin, Mineola, of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Mark D. Cohen, Asst. Dist. Atty., Riverhead, of counsel), for respondent.

Before TITONE, J.P., and LAZER, MANGANO and BOYERS, JJ.

MANGANO, Justice.

The question to be decided on this appeal is whether defendant consented to a search by the police of the trunk of defendant's daughter's car. In our view, the question must be decided in the affirmative. Accordingly, the judgment of conviction must be affirmed.

Defendant moved before Criminal Term to suppress, inter alia, weapons and ammunition found as a result of an alleged illegal search by the police of the trunk of defendant's daughter's car. In its decision denying that branch of defendant's motion which sought to suppress this evidence, Criminal Term initially held, in its conclusions of law, that the police had not met their heavy burden of establishing "beyond a reasonable doubt" the voluntariness of defendant's alleged consent to the otherwise illegal search, pursuant to People v. Gonzalez, 39 N.Y.2d 122, 383 N.Y.S.2d 215, 347 N.E.2d 575. 117 Misc.2d 121, 458 N.Y.S.2d 468. Although Criminal Term recognized that the failure of the police to meet their burden on the issue of consent generally requires suppression of evidence found pursuant to an illegal search, it held that suppression of the physical evidence in the case at bar was not warranted in view of the fact that (1) the police in good faith "believed the quality of the consent to be sufficient to permit them to look into the trunk" of the vehicle operated by the defendant, (2) this good faith was reasonable, based on an objective view of the circumstances, i.e., the police request to open the trunk was made "without the exercise or threat of physical or psychological pressure, or the use of the power to command", and (3) any error by the police in this regard was a mere "judgmental error".

We disagree with Criminal Term's conclusion of law regarding the issue of consent. Based on Criminal Term's findings of fact, which were amply supported by the testimony of the People's witnesses at the suppression hearing, we are of the view that the People met their burden of establishing defendant's consent to the search of the trunk.

It has been consistently held that when the People rely on consent to justify an otherwise unlawful police intrusion, they bear the "heavy burden" of establishing that such consent was freely and voluntarily given (People v. Gonzalez, 39 N.Y.2d 122, 128, 383 N.Y.S.2d 215, 347 N.E.2d 575, supra; People v. Kuhn, 33 N.Y.2d 203, 208, 351 N.Y.S.2d 649, 306 N.E.2d 777; Bumper v. North Carolina, 391 U.S. 543, 548-549, 88 S.Ct. 1788, 1791-1792, 20 L.Ed.2d 797).

However, the People's burden is not, contrary to the holding of Criminal Term, to establish consent beyond a reasonable doubt, but to prove consent by "clear and positive" evidence (see Judd v. United States, 190 F.2d 649, 651; Channel v. United States, 285 F.2d 217, 220; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed.2d 654). Moreover, the voluntariness of the consent must be evaluated from the totality of the circumstances (Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854; People v. Gonzalez, supra, 39 N.Y.2d pp. 128-130, 383 N.Y.S.2d 215, 347 N.E.2d 575).

In People v. Gonzalez (supra, pp. 128-130, 383 N.Y.S.2d 215, 347 N.E.2d 575), the Court of Appeals set forth four factors to be considered by the courts in determining the voluntariness of an apparent consent:

1. "whether the consenter is in custody or under arrest, and the circumstances surrounding the custody or arrest";

2. "the background of the consenter";

3. "whether the consenter has been, previously to the giving of the consents, or for that matter even later, evasive or un-co-operative with the law enforcement authorities"; and

4. "whether a defendant was advised of his right to refuse consent".

With respect to the first factor, the Court of Appeals noted that a resisted arrest, presence of a large number of police agents, and the fact that defendant is handcuffed, would be relevant in determining whether an "apparent consent was but a capitulation to authority" (People v. Gonzalez, supra, p. 129, 383 N.Y.S.2d 215, 347 N.E.2d 575).

With respect to the second factor, the Court of Appeals noted that a "consent to search by a case-hardened sophisticate in crime, calloused in dealing with the police, is more likely to be the product of calculation than awe" (People v. Gonzalez, supra, p. 129, 383 N.Y.S.2d 215, 347 N.E.2d 575).

The testimony of the People's witnesses, which was accepted by Criminal Term, indicates as follows: Defendant is a middle-aged businessman who has a record of eight arrests or charges of possession of burglary tools, possession of a fraudulent check and arson, and a prior conviction for arson in the fourth degree. From the moment that defendant was initially stopped in the public parking lot of a restaurant by two policemen and asked to produce his license, registration and insurance card, he was co-operative with all of the police officers' requests. The officers at no time drew their guns. Although defendant was arrested after the officers learned that there...