People v. Gonzalez

115 A.D.2d 73, 499 N.Y.S.2d 400, 1986 N.Y. App. Div. LEXIS 49115

Opinions

OPINION OF THE COURT

Kassal, J.

The primary issues before us are: (1) defendant’s standing; (2) was there probable cause to search the brown paper bag situated between defendant, seated in the front passenger seat of the vehicle, and Brenda Martinez, who was seated in the driver’s seat; and (3) have the People established that there was a voluntary consent to the warrantless search. In our view, defendant does have requisite standing and, at the time, there was no basis rising to the level of reasonable suspicion to search the bag and defendant’s person. The record also supports the finding by the suppression court that there was no voluntary consent to the search.

On January 20, 1984, at about 12:05 a.m., Officers Biller and O’Connor were on patrol in a marked police car, when they observed a white, two-door Pontiac LeMans stopped or standing adjacent to a fire hydrant, at the intersection of Watson and Ward Avenues, in The Bronx. Officer Biller, who had been operating the patrol car, stopped and requested Ms. Martinez to move the auto from the hydrant, whereupon she stated that she did not have a license and that it was not her car. The officer maneuvered the patrol car so that its headlights faced the front of the Pontiac and both officers exited their vehicle carrying flashlights, with Biller proceeding to the passenger side and O’Connor to the driver’s door.

O’Connor asked Ms. Martinez to produce her operator’s license, registration and insurance certificate. She responded that she did not have a license but the registration was produced from the glove compartment, although the record does not reflect whether it was retrieved by defendant or by Martinez. In any event, after Ms. Martinez was unable to state the name of the owner in response to the officer’s inquiry, O’Connor, who was shining a flashlight into the car, noticed a closed, brown paper bag, resting against the seat, between defendant and Martinez. He inquired as to the contents of the bag, whereupon Martinez picked up the bag, handed it out the window and stated: "It’s only boxes of envelopes.” According to O’Connor, "she became confused at that point, and didn’t understand me. I said: The bag right there”, whereupon she complied with the command and handed the bag out the window. Biller, who was positioned on the sidewalk behind the passenger door, only heard "highlights” of what had transpired between Officer O’Connor and Ms. Martinez. But, in response to a question on cross-examination as to at what point Officer O’Connor "ask[ed] her to give him the bag”, Biller responded, "That was after the papers, sir.”

O’Connor took the bag and placed it on the roof of the car. He then shook it and heard a metallic sound. Contrary to the fact-finding analysis by the dissent, O’Connor did not testify that he believed the bag to contain "a hidden weapon” or an object heavy enough to be a weapon. Without any further inquiry, he opened the bag to examine the contents and discovered two tan stationery-type boxes. When he opened the first, he found hundreds of glassine envelopes and yelled to Biller, "watch out, I’ve got something here.” Although Biller did not examine the contents, he saw that it contained what appeared to be glassine envelopes and believed that they had powder in them. Actually, the envelopes had no powder and were empty. In any event, according to Biller, he heard Officer O’Connor say, "Look out, Rich. They’re going.” This, according to Biller, meant that the occupants were to be arrested for possession of drugs.

After examining the bag’s contents, O’Connor directed Ms. Martinez to exit the car while Biller proceeded to search defendant. As far as Biller was concerned, at that moment, both had been arrested and he was going to make sure that they did not have any weapons. He directed defendant to place his hands on the dashboard and, noticing that defendant had only one hand, patted him down. In defendant’s left jacket pocket he found what appeared to be a tinfoil, which he felt through the material. It was soft, about an inch and a quarter wide and a half inch thick. Examination of the foil disclosed that it contained two other tinfoils, containing a white powder, later discovered to be cocaine. The two occupants were handcuffed and taken to the precinct for a further check to ascertain whether the vehicle had been stolen. During the ride to the station house, defendant told O’Connor that if anything was wrong, he would take the "heat” for the car: "If the car’s stolen, it’s my fault. I borrowed it * * * Anything that you have got here tonight, is mine * * * The stuff that was on me was a wedding present; we’re getting married, and I got it as a present.” A subsequent search of Ms. Martinez at the precinct revealed her to be in possession of marihuana but the record is unclear as to whether any formal charges were filed against her or whether she was prosecuted for possession of a controlled substance. However, she was issued summonses for being an unlicensed operator (Vehicle and Traffic Law § 509 [1]) and for parking next to a fire hydrant (Traffic Regulations of City of NY § 81 [b]).

Defendant, charged with criminal possession of a controlled substance in the fourth degree, moved to suppress the physical evidence seized at the time of his arrest. Following a hearing, the suppression court granted the motion, concluding that the seizure of the paper bag, on the front seat of the car, amounted to a warrantless, nonconsensual search, in violation of defendant’s 4th Amendment rights. In so finding, the court cited the conflict in the proof as to whether the officers had requested or demanded that the bag be handed over to them and held that the People had not satisfied their burden of showing that the search was voluntarily consented to. Observing that the occupants were young and without experience in dealing with the police, it was concluded that they may have felt that they were not at liberty to challenge the authority of the officers, who had approached the vehicle on both sides, shining flashlights into the car. The court also found that no probable cause existed to search the paper bag. It held that, although the inability of the female occupant to produce a driver’s license and her unfamiliarity with the name of the owner of the vehicle may have permitted further inquiry, the officers did not have the right to seize and search the occupants at that time.

STANDING

While the suppression court did not address or resolve defendant’s standing in its written decision, albeit the issue was raised at the combined Mapp-Huntley hearing, we find the record sufficient to conclude that defendant does have requisite standing to contest the search. In concluding otherwise, the dissent overlooks that the criminal charges related to the search of defendant’s person. Clearly, he has standing to move to suppress property taken from his person (see, People v Barshai, 100 AD2d 253, 256). There were no charges associated with the search of the bag, it being undisputed that the bag contained empty glassine envelopes. The People argue, and the dissent agrees, that the search of the defendant’s person resulted from what was found inside the bag and that Gonzalez, as a passenger, lacked standing with respect to the search of the bag. We disagree.

In order to have requisite standing to challenge the validity of a warrantless search, a defendant must establish that he had a reasonable expectation of privacy in the area of the search. (Terry v Ohio, 392 US 1, 9; Rakas v Illinois, 439 US 128, 140; United States v Salvucci, 448 US 83, 95; People v Ponder, 54 NY2d 160, 166.) The ultimate burden is on the defendant but the operative facts relevant on the issue may be gleaned from the record as a whole, including the account of the events offered by the police officer (see, People v Sutton, 91 AD2d 522).

As applied here, the only proof relating to standing was furnished by Officer O’Connor that defendant told him that he had borrowed the vehicle from a friend who was now in Puerto Rico. There is nothing in the record to dispute that. Although it is not disclosed precisely when the statement was made, the dissent adopts the People’s contention and concludes that the information was imparted to the officer when the occupants were being taken to the precinct and, at the time, defendant was attempting to "protect” Martinez and persuade the officers to release her. In our view, this is unnecessarily speculative in that the only proof on the issue is that defendant stated that he had borrowed the car from a friend, which is sufficient to find that he had a legitimate expectation of privacy so as to confer requisite standing with respect to the bag.

It is irrelevant whether the statement was made at the scene or later, on the way to the precinct. The issue of standing in terms of the right of a defendant to contest the propriety of a search only arises when a motion to suppress is made, not at the time of the initial police encounter. Only where the People challenge a defendant’s standing is it necessary to establish that there was a legitimate and reasonable expectation of privacy in the area of the search.

The critical consideration is not when the defendant related to the officers that he had a sufficient privacy interest, but rather, whether he did, in fact, have a legitimate expectation of privacy. There is nothing in the record to refute the fact, as testified to by the officer, that defendant had stated that he had borrowed the car from a friend. In the absence of contradictory proof, there is no basis to conclude otherwise, particularly taking into account that the vehicle was not in fact stolen and no charges were brought for possession of a stolen vehicle. Nor may we speculate that the car may have been borrowed by Martinez. She disclosed to the officers that she was unlicensed and they never inquired of defendant whether he was the owner or was otherwise entitled to possession.

Unlike the situation in Rakas v Illinois (supra), involving the search of the interior of a vehicle in which the defendant was a passenger, in our case, Gonzalez, having borrowed the vehicle, did as a result have sufficient dominion and control over it. Bearing in mind that 4th Amendment rights are personal in nature, we conclude that, in moving to suppress, defendant was "asserting his own legal rights and interests rather than basing his claim for relief upon the rights of third parties”. (Rakas v Illinois, supra, at p 139.)

CONSENT

We also agree with the suppression court that the People did not sustain their burden of establishing that there was a voluntary consent to the search of the bag. Concededly, the burden of proof is a heavy one and the prosecution must establish the voluntariness of a defendant’s consent and that it was not the result of duress or coercion, express or implied. (Bumper v North Carolina, 391 US 543, 548-550; People v Whitehurst, 25 NY2d 389, 391; People v Gonzalez, 39 NY2d 122, 127-128; People v Springer, 92 AD2d 209, 212-213.)

People v Gonzalez (supra) is instructive. In that case, Chief Judge Breitel observed (at p 128):

"Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle (see People v Kuhn, 33 NY2d 203, 208, supra; Schneckloth v Bustamonte, 412 US 218, 225-228, supra). As the Supreme Court stated in Bumper v North Carolina (391 US 543, 550, supra), 'Where there is coercion there cannot be consent’.

"No one circumstance is determinative of the voluntariness of consent. Whether consent has been voluntarily given or is only a yielding to overbearing official pressure must be determined from the circumstances”.

In Bumper v North Carolina (supra, at pp 548-549), the Supreme Court observed in relation to the burden imposed upon the prosecution: "When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority” (emphasis added).

In People v Gonzalez (supra, at pp 128-130), the Court of Appeals discussed the various factors to be considered in deciding whether the consent to a search was freely and voluntarily given, namely: (1) whether, at the time of the search, the individual was in police custody and the circumstances surrounding the custody or arrest, including the number of officers present at the time and the extent to which the individual was restrained; (2) the personal background of the defendant, including his age and prior experience with law enforcement officers; (3) whether the individual was evasive or uncooperative with law enforcement authorities; and (4) whether the defendant was advised by the police of his right to refuse to consent.

In our case, the People contend that the search was consented to in that Ms. Martinez freely handed the paper bag to the officer after an inquiry as to its contents and without any coercion on his part. However, taking into account the nature of the burden imposed upon the People, the relinquishment of the bag here amounted to an "acquiescence” to the authority of the officers, positioned on both sides and shining flashlights into the car. Both occupants were young and inexperienced in law enforcement matters. Under the circumstances, the nature of the encounter was sufficiently intimidating to convey the impression that both occupants were neither free to leave nor to refuse the officer’s command with respect to the paper bag. Although the People argue that the bag was surrendered without any demand to turn it over, the record does not support the claim that Martinez did so voluntarily. According to O’Connor, after his initial inquiry, Martinez became confused and the police officer repeated "The bag right there”. Considering all of the circumstances, the quoted words amounted to an official demand that the bag be tendered to the officer. (Cf. People v Whitehurst, supra.)

While there was testimony that the officer feared for his own safety and that of his partner, the record does not support the claim that he was apprehensive. There was nothing to give rise to any suspicion of wrongdoing by the occupants—no furtive movements nor any attempt to conceal anything. Thus, there was a basis for the suppression court to conclude, in passing upon credibility, that the testimony was " 'patently tailored to nullify constitutional objections.’ ” (People v Parmiter, 55 AD2d 938, quoting People v Garafolo, 44 AD2d 86, 88; People v Smith, 77 AD2d 544; see also, People v Quinones, 61 AD2d 765.) The same holds true with respect to the statement by O’Connor that he was surprised and "jumped back” when Martinez handed the bag out the window, especially considering our finding that the request with respect to the bag could be reasonably interpreted as a demand, requiring compliance.

Under all the circumstances, and applying the various factors enumerated in People v Gonzalez (supra), we agree that the People did not satisfy their burden on the issue. The surrender of the bag here was a "capitulation to authority” (People v Gonzalez, supra, at p 129), or "no more than acquiescence to a claim of lawful authority” (Bumper v North Carolina, supra, at p 549). To the extent that the occupants of the vehicle did cooperate, it has not been shown that they did so freely and voluntarily and that the action amounted to "an unequivocal product of an essentially free and unconstrained choice” (People v Gonzalez, supra, at p 128).

PROBABLE CAUSE

Equally without merit is the People’s argument that there was probable cause for the search. As observed in Terry v Ohio (supra, at pp 21-22), the applicable standard requires that "the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief that the action taken was appropriate? Cf. Carroll v. United States, 267 U.S. 132 (1925); Beck v. Ohio, 379 U.S. 89, 96-97 (1964).” In order to justify a stop, there must be an articulable basis, either initially or during the encounter, to establish reasonable suspicion that the individual was involved in the commission of a crime. As observed in People v De Bour (40 NY2d 210, 215), there must be "a founded suspicion predicated on specific articulable facts that criminal activity is afoot.” In passing upon the propriety of a stop, it is necessary to consider all of the surrounding facts with respect to the central inquiry under the 4th Amendment—"the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” (Terry v Ohio, supra, at p 19; see also, Pennsylvania v Mimms, 434 US 106, 108-109.)

In People v De Bour, the Court of Appeals considered the various levels of permissible police intrusion which must be "reasonably related in scope to the circumstances which rendered its initiation permissible” (40 NY2d, at p 215). The first level of justifiable police intrusion authorizes an officer to approach to request information where there is "some objective credible reason * * * [although] not necessarily indicative of criminality” (supra, p 223). The second level, the common-law right to inquire, "is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure” (supra, p 223). The third level permits the police officer to forcibly stop and detain for questioning where there is reasonable suspicion that a person has committed, is committing, or is about to commit, a felony or misdemeanor and includes the statutory right to frisk if the officer reasonably suspects himself to be in danger of physical injury by virtue of the detainee being armed (CPL 140.50 [3]). The fourth and final step permits a police officer to arrest and take the person into custody when there is probable cause to believe that he has committed a crime or offense in the officer’s presence (CPL 140.10).

As applied here, the officers were justified in approaching to request information since the vehicle was stopped or standing at a fire hydrant, concededly a traffic infraction. The responses furnished by Ms. Martinez, that she did not have a license and did not know who the owner was, clearly served to heighten the suspicions of the officer. While the circumstances justified the initial stop and the inquiry, there was nothing to render permissible any greater level of intrusion (see, People v McNatt, 65 NY2d 1046, 1048; see also, People v Howard, 50 NY2d 583, 590, cert denied 449 US 1023). There were no furtive movements indicating that either occupant was secreting anything; the officers noticed no bulges in their clothing; nor was there anything to suggest that there were weapons inside the car. To the extent that O’Connor was at all apprehensive, this was alleviated when he took possession of the bag. As noted, the suppression court did not credit the officer’s "tailored” testimony that he feared for his safety. In any event, we find that he acted prematurely and without justification in examining the contents of the bag without conducting any further inquiry of the occupants.

In People v Vidal (71 AD2d 962), a plain-clothes detective observed a vehicle stopped at a bus stop in Jamaica, Queens. Defendant was sitting in the driver’s seat and there were two other males seated in the rear. Complying with the request by the officer, defendant exited the car and produced a registration, which revealed that the owner was a female, but he could not produce a driver’s license. The officer’s partner opened the door on the driver’s side and, leaning into the car, allegedly to question the passengers, observed a plastic envelope containing marihuana on the front seat. Lifting the armrest, he found two bags of white powder which was later determined to be cocaine. The Appellate Division, Second Department, finding an articulable basis to approach the vehicle to inquire, nevertheless, held that the opening of the door amounted to a search and was not supported by probable cause since there was no basis to conclude that the officer reasonably believed that he was in physical danger.

Similarly, in our case, and consistent with the holding of the Court of Appeals in People v McNatt (supra) while the facts disclosed in the record support the existence of a right to inquire, there was no probable cause to search the bag. Mere hunch or suspicion on the part of the officer is insufficient for that purpose (see, People v Battaglia, 56 NY2d 558, revg on dissenting opn of Hancock, Jr., J., 82 AD2d 389, 395; see also, People v Davis, 36 NY2d 280; People v Russell, 34 NY2d 261). While it is argued that the search may be sustained on the basis of the fact that the encounter took place in a high crime, "drug-infested neighborhood,” a similar claim could be advanced as to countless other communities in our city where there are diverse criminal elements and activities. The existence of crime on our streets, however, does not alone furnish a basis to disregard fundamental constitutional rights and liberties.

However, even if we were to assume that the officer was justified in examining the contents of the bag, it is conceded that it contained empty glassine envelopes, the possession of which is susceptible to a variety of innocent interpretations and is not necessarily indicative of criminal activity. Officer Biller admitted on cross-examination that such envelopes could be used for several lawful purposes, namely, stamp and coin collecting. Where, as here, behavior is equivocal and susceptible to an innocent explanation, it may not furnish probable cause for a warrantless search.

Aside from the foregoing, it is undisputed that the frisk did not disclose any weapon. Officer Biller felt what he referred to as something "soft * * * about an inch, an inch and a quarter wide; and maybe * * * a half inch thick.” When this pat down revealed defendant to be unarmed, there was no justification for the officer to proceed to a further invasion of defendant’s rights by a searching examination of the inside of his jacket pocket (cf. People v Battaglia, supra). Surely, what Officer Biller "squeezed” through the material of defendant’s jacket was not and could not be considered by him to be a weapon. In our view, there were no exigent circumstances here to justify the level of intrusive conduct by the officers.

Accordingly, the order, Supreme Court, Bronx County (Jerome Hornblass, J.), entered June 4, 1984, which granted defendant’s motion to suppress, should be affirmed.