People v. Zimmerman

• Decision Date: 29 December 1982
• Citation: 458 N.Y.S.2d 468,117 Misc.2d 121
• Parties: The PEOPLE of the State of New York v. Paul ZIMMERMAN, Defendant.
• Court: New York Supreme Court

Page 468

458 N.Y.S.2d 468

117 Misc.2d 121

The PEOPLE of the State of New York v. Paul ZIMMERMAN, Defendant.

Supreme Court, Criminal Term,

Suffolk County, Part II.

Dec. 29, 1982.

Patrick Henry, Dist. Atty. of Suffolk County, by Frank A. Tinari and Laurence LaPointe, Asst. Dist. Attys., Hauppauge, for the People.

John Joseph Sutter, Mineola, for defendant.

MEMORANDUM

JOSEPH JASPAN, Justice.

The primary question presented here is whether the exclusionary rule should be invoked in a case where the police acting in good faith made a judgmental error in relying on defendant's apparent consent to search the trunk of an automobile parked in a public place.

Subsidiary issues exist with respect to the interpretation of People v. Boodle, 47 N.Y.2d 398, 418 N.Y.S.2d 352, 391 N.E.2d 1329, and People v. Middleton, 54 N.Y.2d 474, 446 N.Y.S.2d 211, 430 N.E.2d 1264, and as to statements attributed to the defendant.

In denying the motion of defendant to suppress by applying a good faith rule to "judgmental errors", a distinction will be drawn between it and the good faith "technical errors" rule adopted in United States v. Williams, 622 F.2d 830 (5th Cir.1980), cert. denied 449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114, under review by the Supreme Court of the United States in the case of Illinois v. Gates, 82 Ill.App.3d 749, 38 Ill.Dec. 62, 403 N.E.2d 77, and rejected in the New York Court of Appeals in People v. Jennings, 54 N.Y.2d 518, 446 N.Y.S.2d 229, 430 N.E.2d 1282.

The terms are defined in the opinion which follows.

The defendant is charged with three counts of Criminal Possession of a Weapon in the Third Degree; two counts of Criminal Possession of a Weapon in the Fourth Degree; five counts of Criminal Possession of Stolen Property in the Third Degree and one count of Bribery in the Second Degree.

He moves to suppress physical evidence seized at the time of his arrest and any custodial statements attributed to him.

A hearing was held on October 20, 1982 and continued on October 21, 1982. It was reopened on November 3, 1982 and continued on November 16, 1982. The court makes the following findings of fact and conclusions of law.

Findings of Fact

On the morning of January 23, 1982, Police Officer Gary F. Blind received a phone call at the Fourth Precinct, Hauppauge, from an unidentified male who reported that automatic weapons could be found in the trunk of a maroon Oldsmobile, License # 1716AGB then parked on Route 25A near "Silvestri's Bar".

Officers Tim Monahan and Jeff Mahon responded and staked out the vehicle. At approximately 2:35 a.m. they observed the defendant enter the car and followed him to the parking lot of the Octagon Bar in nearby Smithtown.

When the defendant exited the vehicle the officers approached him, identified themselves and requested his driver's license and registration.

The defendant looked in his wallet but did not have either of these items but did give his name and date of birth. At the suggestion of the police officer that they might be in the glove compartment, the defendant used the keys, entered that compartment and then produced the insurance card which bore the name Bove. The defendant stated this was his daughter, and in fact she was and lived at the same address as the defendant.

A computer check actually made at that time by Officer Monahan revealed that there were then two outstanding active warrants against the defendant, a Family Court warrant for non-support and a Vehicle and Traffic warrant for driving with a suspended license.

He was not handcuffed but was placed in technical custody because of the warrants. No Miranda warnings were given at this time and in fact it is not claimed that defendant made any statements with respect to the matters for which he was then arrested.

In pursuance of their suspicions based upon the phone tip, the police asked the defendant if he would open the trunk of the car. After some initial hesitation, the defendant complied, personally using the keys in his possession.

When the trunk was opened the police observed about 50 boxes of ammunition including 125 rounds of nine millimeter ammunition, a rifle case and a military camouflage top. When asked if he would open the gun case the defendant again complied revealing a loaded AR-15 semi-automatic rifle.

Upon moving the gun case a hand grenade was seen which eventually was proved to have been hollowed out.

The defendant was then handcuffed and Officer Monahan read him his Miranda warnings.

When asked if he wished to contact an attorney, the defendant answered "yes", thereby invoking his right to counsel.

The Officer nevertheless continued to read the last question on the plastic card uniformally used by the police and asked if "Having these rights in mind, do you wish to talk to [me] now without a lawyer" to which he responded "The grenades are not mine. They were put in my trunk. Somebody's got a contract on me" and he continued to make non-inculpatory statements regarding an alleged attempt on his life. He then indicated that there was something else in the vehicle and that if Officer Monahan would make it disappear, it would be "worth his while". When the Officer responded "What are you talking about", defendant stated that there was a loaded .45 caliber handgun in a gym bag in the passenger compartment of the car.

Officer Monahan retrieved the gun and turned it over to Detective Foulke who had just arrived.

In the meantime, a friend of the defendant was permitted to call an attorney on the defendant's behalf.

After receiving the handgun from Officer Monahan, Detective Foulke asked the defendant if he owned it and whether he had a permit. When told by the defendant that it was owned by him without a permit, he was again given his Miranda warnings. Immediately thereafter he again permitted a search of his trunk and warned the Detective to be careful because somebody had tried to kill him.

This second search of the trunk revealed another gun case containing an Uzzi weapon and a box containing a grenade.

The parties have stipulated that the items which form the basis of the five counts of Criminal Possession of Stolen Property in the Third Degree were then also found in the trunk.

Conclusions of Law

The court notes at the outset that the defendant possessed standing to challenge the search of his daughter's car which he had been driving with her consent (People v. Regnet, 111 Misc.2d 105, 443 N.Y.S.2d 642; see Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387).

"[A] policeman's right to request information while discharging his law enforcement duties will hinge on the manner and intensity of the interference, the gravity of the crime involved and the circumstances attending the encounter" (People v. DeBour, 40 N.Y.2d 210, 219, 386 N.Y.S.2d 375, 382, 352 N.E.2d 562).

In the absence of information as to the source of the tip the police officers could initially exercise the common law right to ask the driver to identify himself. The information available at that time did not give evidence of probable cause to believe a crime had been committed (People v. Elwell, 50 N.Y.2d 231, 428 N.Y.S.2d 655, 406 N.E.2d 471; People v. Dinkins, 76 A.D.2d 655, 431 N.Y.S.2d 535).

The initial encounter was however within the permissible limits based upon a reasonable suspicion that defendant was engaged in criminal activity (People v. Scruggs, App.Div., 455 N.Y.S.2d 22; People v. Harrison, 57 N.Y.2d 470, 457 N.Y.S.2d 199, 443 N.E.2d 447, 1982). When the defendant could not produce a driver's license or registration for the car, the police could make further inquiry (People v. Wilson, 57 N.Y.2d 786, 455 N.Y.S.2d 585, 441 N.E.2d 1103) and upon learning of the outstanding warrants, the defendant was properly arrested.

Since the arrest on outstanding warrants was lawful, the defendant was subject to a search and items within the "grabbable area" were subject to seizure (Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685). The search and seizure are prohibited only where, as in traffic violation cases, an arrest was not necessary because an alternative summons could be issued or because the arrest was a suspect pretext (People v. Troiano, 35 N.Y.2d 476, 478, 363 N.Y.S.2d 943, 323 N.E.2d 183). Neither condition prevailed here.

The defendant's vehicle was parked in a public place, a lot adjacent to a bar (People v. Orlando, 56 N.Y.2d 441, 445, 452 N.Y.S.2d 559, 438 N.E.2d 92) and consequently a search of the passenger compartment would have been justified as an incident to the arrest under the automobile exception if there was reason to believe that a weapon would be discovered (People v. Belton, 55 N.Y.2d 49, 54, 447 N.Y.S.2d 873, 432 N.E.2d 745).

A search of the passenger compartment was not then undertaken as an incident to the defendant's arrest and the facts belie any police intention to do so. The attention of the police was directed first to the locked trunk of the vehicle without any demonstration of exigent circumstances (People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607) or of probable cause to believe the vehicle was transporting contraband (People v. Orlando, supra).

In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 and People v. Orlando, supra, decided shortly thereafter, the Courts concluded that "if an individual gives the police probable cause to believe that a vehicle is transporting contraband, he loses the right to proceed on his way without official interference" and that since under those circumstances a vehicle may be searched, it justifies the search of every part of the vehicle and its contents.

Thus in the absence of probable cause at that time, there was no legal right to search that trunk at the time the police asked the defendant if he would permit them to view its contents.

The People acknowledge the technical difficulties resulting from the search of the trunk before the search of the...