People v. Lypka

42 A.D.2d 414, 348 N.Y.S.2d 627, 1973 N.Y. App. Div. LEXIS 3259

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 1973
• Status: Published

Opinions

Simons, J.

The defendants were originally charged with several felony counts involving possession of dangerous weapons, drugs and burglary tools. After their motion to suppress certain evidence was denied, each pleaded guilty to one count of unlawful possession of a dangerous weapon (Penal Law, § 265.05) and one count of criminal trespass in the second degree (Penal Law, § 140.15). The only issue is the constitutionality of a warrantless search of defendants’ vehicles.

At about 10:30 p.m. on June 16, 1972 Undersheriff Brewer received a call in the Village of Interlaken, New York, from a detective in Lancaster, Pennsylvania, advising him that it was believed that defendants had recently left Lancaster driving towards their parents’ home in Interlaken. Brewer was told that one defendant was operating a CMC bus of camouflaged color with Alabama registration, pulling a Chevrolet panel truck of camouflaged color in tandem and the other defendant was operating a 1967 Oldsmobile, Pennsylvania registration, pulling a trailer. The Lancaster police gave the Undersheriff a detailed list of stolen motorcycles and weapons¹ believed to be in the vehicles and advised him that the defendants were considered dangerous. The Undersheriff did not have a teletype receiver but a teletype had been sent and received by the State Police and Brewer also contacted them at the Waterloo substation. He ordered one of his deputies to keep the Lypka home on Powell Road in the Town of Covert under surveillance, At about 3:00 a.m. his deputy advised him that defendants had arrived at their parents’ home. Brewer secured the assistance of other deputies and the State Police and drove to the Lypka residence at about 3:30 a.m. When they arrived there they found that the house was dark and the vehicles were parked, the CMC bus and truck on the edge of the road and the Oldsmobile and trailer in the driveway. Brewer stationed his men arouiid the farmhouse and then he and Trooper Scaglione knocked at the door. Defendant Robert Lypka came to the door and was advised that the police had information that he and his brother possessed stolen property from Pennsylvania. Brewer and Scaglione asked to look through the vehicles and Robert assented. Cilbert was not present at the time but he was awakened and subsequently helped unlock the vehicles. It was during this search that two of the guns described, together with a pipe and vegetable material appearing to be marijuana were found in the trunk of the Oldsmobile. The defendants were taken into custody and the vehicles removed to the State Police substation at Waterloo where a thorough search uncovered a stolen motorcycle, and the other weapons and drugs.

The court is in agreement that probable cause for the search at the farmhouse existed (see United States v. Ventresca, 380 U. S. 102; People v. Glen, 30 N Y 2d 252, cert. den. 409 U. S. 849 ; People v. Reisman, 29 N Y 2d 278; and see, also, People v. Horowitz, 21 N Y 2d 55, 60). We disagree as to the need for the police to obtain a warrant.

The People contend that the search was conducted with the permission of defendants in that Robert expressly consented to it and Gilbert tacitly consented to it by unlocking the cars. Defendants, on the other hand, urge that having been awakened at 3:30 a.m. and seeing a group of armed police surrounding the house, any consent given by them could hardly be considered voluntary. The trial court found as a fact that the defendants had voluntarily consented to the search (see Schneckloth v. Bustamonte, 412 U. S. 218). We prefer to base our affirmance on the ground that a warrantless search of these automobiles Was justified under the existing exigent circumstances. (Chambers v. Maroney, 399 U. S. 42; People v. Brown, 28 N Y 2d 282.)

At the time .Undersheriff Brewer received notice of defendants’ departure from Pennsylvania they were not actually in New York State or in his jurisdiction. It was then 10:30 p.m. and defendants were 300 miles away. The police could only speculate whether they might or might not be headed for their parents’ home or the rural area around the Village of Interlaken. In a super abundance of caution, the Undersheriff might have tried to obtain a prospective search warrant if he was aware of the legal possibility of obtaining one.² On the other hand he could, as he did, wait to see if defendants were coming to Interlaken or traveling somewhere else. Certainly it was not unreasonable at that hour of the night to forego obtaining a warrant until it was determined that defendants had arrived in the area. When the Sheriff was notified at 3:00 a.m. that the vehicles and the defendants were at the Lypka residence, he had a choice of moving in and searching the vehicles or posting a guard over them until a search warrant could be obtained. He could effect a warrantless search or a warrantless seizure, although either is obnoxious under the Constitution if not justified by the circumstances (see Chambers v. Maroney, supra, p. 52; People v. Brosnan, 32 N Y 2d 254, 260). Certainly, however, he could not justify ignoring the danger inherent in the situation until a warrant was obtained. It is suggested that short of posting a guard over the vehicles, the house and vehicles could be kept under surveillance without an actual seizure until a warrant was obtained. But as the Supreme Court has said, “ The fact that the protection of the public might, in the abstract, have been accomplished by ‘ less intrusive ’ means does not, by itself, render the search unreasonable.” (Cady v. Dombrowshi, 413 U. S. 433, 447.) Furthermore, the distinction between surveillance and seizure becomes narrow indeed when it is clear that in the interest of public safety any surveillance must ultimately result in restraint by the police if an attempt were made by defendants to remove the vehicles with loaded dangerous weapons.

Finally, it is contended that there was no immediacy requiring a search because these vehicles were secured for the night (see Coolidge v. New Hampshire, 403 U. S. 443). In Coolidge the Supreme Court held that the automobile exception to the Fourth Amendment was irrelevant when there is no reasonable likelihood that the automobile may be moved. But here all that was needed to “unsecure” the cars was use of the ignition keys possessed by defendants, a relatively simple act which could destroy any opportunity for police control of the situation. Furthermore the circumstances here are vastly distinguishable from the facts in Coolidge. In Coolidge police thought that they had a valid search warrant at the time they seized the car (the Supreme Court held otherwise). The car was seized while parked in the driveway of the defendant’s home some weeks after the murder, at a time when defendant was in custody, his wife was being escorted by police officers to the home of a relative in another town and two police officers had been stationed to guard the defendant’s home. There was no suspected accomplice to the crime³ and not the remotest expectation that the car would he removed or any evidence destroyed. The purpose of the search was not to find and secure dangerous weapons but to vacuum clean the car for hair and fabric samples, a procedure accomplished over a period of months.

In Cady v. Dombrowski (supra) the Supreme Court approved a warrantless search of defendant’s automobile to locate a gun after it had been removed by the police to a private garage. At the time the defendant was in jail, but the court held that the search was a necessary police procedure to protect the public from harm which might result if the weapon was found by an intruder. We think the same principle applies here. The judgments should be affirmed.

1 . On the list were a .45 automatic pistol, a .25 automatic pistol, a .32 revolver, án M-16 machine gun, and one machete. After search of the vehicles the State Police found, in addition, a pipe, a sawed off .12 gouge shotgun, marijuana, hashish, burglar’s tools, a switchblade knife and other knives together with a substantial quantity of ammunition for these guns and a stolen motorcycle. A second stolen motorcycle was found at the Lypka residence.

2 . In People v. Glen (30 NY 2d 252, cert. den. 409 U. S. 849) (decided 3 months before this incident) the Court of Appeals announced the principle that police officers could obtain a search warrant prospectively for articles expected but not yet received on the premises or by the person to be searched.

3 . The defendants’ witnesses in this ease testified at the suppression hearing that on the night of the search the police officers stated they had received word that there were 20 or 25 people involved with the defendants. The prosecution did not urge that fact as justification for the warrantless search.