People v. Millan

118 A.D.2d 236, 505 N.Y.S.2d 84, 1986 N.Y. App. Div. LEXIS 55143

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 1986
• Status: Published

Opinions

OPINION OF THE COURT

Sullivan, J.

Defendant appeals from his conviction of criminal possession of a weapon in the third degree. The following account of the incident is derived from the trial evidence.

Sometime before 11:15 p.m., on the night of June 15, 1985, Police Officers Gilligan, a 19-year veteran of the New York City Police Department, and Bowen, an 11-year veteran, assigned to a Taxi Robbery Squad, were on patrol in plain clothes in a medallion taxicab. While the officers were stopped facing north on Lenox Avenue near 112th Street, they observed a gypsy taxicab, which was proceeding easterly at a fast rate of speed on 112th Street, pass a red light at the intersection. Since the officers knew from experience that taxicab operators sometimes pass lights or drive at an excessive speed as a distress signal, they decided to follow.

The officers caught up with the taxicab at the intersection of 111th Street and Fifth Avenue, and pulled alongside the passenger side. Unable to get the driver’s attention, Officer Gilligan displayed his shield and told the passenger closest to him, Anthony Veggacada, that he wanted the driver to pull over. The driver was so notified and quickly complied.

Both officers exited their vehicle and approached the taxicab, Gilligan from the driver’s side and Bowen, possibly with gun in hand, from the passenger side. As they did so, they noticed that the taxicab’s three male passengers were moving from side to side in the rear seat and turning around to look at them. The driver, Dean St. Clare, overheard one of the passengers say "You don’t do things like that, be cool.” St. Clare had picked up the three passengers, defendant, Veggacada and Hector Colon, at Seventh Avenue and 112th Street. They had asked to be driven to Lexington Avenue and 112th Street. Defendant sat behind St. Clare. Veggacada sat on the passenger’s side and Colon in the middle.

After speaking with St. Clare, Officer Gilligan opened the rear door and told the three passengers to exit one at a time. As each got out, he was frisked by Gilligan, who then directed him to step to the rear of the taxicab, where Officer Bowen was standing. After he had patted down the third man, Gilligan looked into the passenger compartment and observed a brown zippered bag lying on the seat on the driver’s side, where defendant and Colon had been sitting. Gilligan asked whose bag it was, but none of the three men responded. The bag did not belong to St. Clare, who, as was his practice, had checked the rear seat of the taxicab after the two passengers immediately preceding defendant and his friends had exited the car. At that time, he had not seen anything lying on the rear seat. As Gilligan took the bag, he felt the weight of a weapon inside and warned his partner that he had discovered a gun. The bag was opened and a gun, later identified as a loaded and operable 9mm. semiautomatic pistol, recovered. All three passengers were charged with its possession.¹

Defendant and Colon, each a felon, both testified. Defendant variously recalled that when the officers approached the taxicab, after it had been stopped, he either was nervous, began to fidget and tried to look at Police Officer Bowen, or only turned around once to look at the officer, and otherwise sat motionless with his friends. Colon recalled that all three men turned around to look at the officers as they approached. They both testified that subsequent to the frisk, and about 1 Vi minutes after entering the rear compartment, Gilligan came partially out of the taxicab and said something to his partner. He then ordered defendant and his friends to get on their knees. They were thereafter ordered into the unmarked police car, and asked about the zippered bag. They both denied any knowledge as to its ownership. Neither defendant nor Colon had ever seen the bag until Officer Gilligan showed it to them after they had been arrested. Neither knew anything about the gun.

Although the dissent does not urge the point, defendant argues that the presumption of possession applicable to the occupants of an automobile (see, Penal Law § 265.15 [3]) should not have been charged. Since we find that "there is a 'rational connection’ between the basic facts that the prosecution proved and the ultimate fact presumed, and the latter is 'more likely than not to flow from’ the former.” (Ulster County Ct. v Allen, 442 US 140, 165, citing Tot v United States, 319 US 463, 467; Leary v United States, 395 US 6, 36), the presumption was properly charged and defendant’s guilt proven thereunder beyond a reasonable doubt.

Defendant also argues that the gun which he was convicted of possessing should have been suppressed or, alternatively, that he should have been granted a hearing on his suppression motion. Claiming only that he and his codefendants had been passengers in a taxicab which was stopped by police officers "despite the fact that they had no reason to believe that any of the occupants of the vehicle had committed a crime or were committing a crime at the time of the arrest”, defendant, as part of a pretrial omnibus application, had moved to suppress any property taken from his person or possession. Defendant alleged that the police ordered him and the two other passengers to leave the cab, searched them, and without a warrant or their consent, "allegedly recovered a gun from the rear passenger area of the cab”. The People opposed the motion on the ground that defendant lacked standing to contest the search.

In its decision denying the motion without a hearing, the suppression court (Berkman, J.), noted the police officers’ claim that the three passengers had made "suspicious moves” as the officers approached the taxicab, that as a result the officers had ordered them out of the taxicab, and 'that the officers thereupon recovered a gun which had been secreted in a zippered bag found in the rear seat. The court further noted that none of the occupants had asserted ownership of the bag or claimed that he had abandoned it as a result of unlawful police action. The court concluded that since the gun was found in a bag none of the passengers claimed to own, their 4th Amendment rights would not be violated by its admission in evidence, even if the initial stop of the taxicab had been illegal.

Suppression of the gun was properly denied. The rights protected by the 4th Amendment are personal rights which "may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure.” (Simmons v United States, 390 US 377, 389.) "[L]ike some other constitutional rights, [they] may not be vicariously asserted.” (Alderman v United States, 394 US 165, 174.) Thus, it has been held, "A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” (Rakas v Illinois, 439 US 128, 134, citing Alderman v United States, 394 US, at p 174.) Since the 4th Amendment protects people, not places, the right to claim its protection turns upon whether the person seeking it has a legitimate expectation of privacy in the area searched. (Katz v United States, 389 US 347, 353.)

In Rakas (supra), two passengers in an automobile challenged the seizure of a box of rifle shells from the glove compartment, which had been locked, and a sawed-off rifle from under the front passenger seat. The Supreme Court held that since the petitioners asserted neither a proprietary or possessory interest in the automobile searched, nor an interest in the property seized, and, as mere passengers in the automobile, had failed to show that they had any legitimate expectation of privacy in the searched areas, they were not entitled to challenge the search. In rejecting their claim to a legitimate expectation of privacy in the glove compartment or area under the seat, the court held, "Like the trunk of an automobile, these are areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy” (supra, at pp 148-149; see also, People v David L., 56 NY2d 698, revg 81 AD2d 893, on dissenting opn at 895-896 [the defendant, a passenger in car legally stopped, could not object to the opening of the car door since he did not have any possessory interest in the car]; People v Hunter, 55 NY2d 930, 931 [the defendant, a passenger in a car, lacked standing to challenge seizure of a weapon observed on the floor in plain view and failed to demonstrate a reasonable expectation of privacy in the area searched]).

Thus, a police officer’s intrusion into a particular area, be it an automobile or elsewhere, does not violate the 4th Amendment "unless the area is one in which there is a 'constitutionally protected reasonable expectation of privacy’ ”. (New York v Class, 475 US —, —, 106 S Ct 960, 965, citing Katz v United States, 389 US, at p 360 [Harlan, J., concurring].) It has been repeatedly held that the expectation of privacy in "an automobile * * * [is] significantly different from the traditional expectation of privacy and freedom in one’s residence.” (United States v Martinez-Fuerte, 428 US 543, 561; United States v Chadwick, 433 US 1, 12; Preston v United States, 376 US 364, 366-367; Chambers v Maroney, 399 US 42; see also, South Dakota v Opperman, 428 US 364, 367.) As the Supreme Court has noted: "One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.” (Cardwell v Lewis, 417 US 583, 590.)

It should be noted that defendant has never claimed any interest whatsoever in the gun or in the zippered bag in which it was found. Thus, defendant, a mere passenger in the taxicab, must, in order to invoke the 4th Amendment’s protection with respect to the seizure of the bag and consequent discovery of the gun, show a legitimate expectation of privacy in the passenger seat of the taxicab, the area from which the bag was seized. In this regard, he rests his claim solely on his status as a passenger in a livery taxicab, thus distinguishing his situation from that of the petitioners in Rakas (supra), who were passengers in a private car. Having hired the vehicle, defendant asserts, he had the right to exclude other passengers from occupying it.² Inherent in the exclusive right to occupancy, he argues, is a legitimate expectation of privacy in the taxicab.

It is, of course, axiomatic that the right to exclude, an incident of both ownership and the lawful possession of property, normally imputes to such owner or possessor a legitimate expectation of privacy. (Rakas v Illinois, 439 US, at p 144, n 12.) As the court noted in Rakas, "[B]y focusing on legitimate expectations of privacy in Fourth Amendment jurisprudence, [we have] not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment” (supra, p 144, n 12). In measuring the scope of that interest, however, “arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control” (supra, at p 143; Jones v United States, 362 US 257, 266; see, Mancusi v DeForte, 392 US 364; Warden v Hayden, 387 US 294; Silverman v United States, 365 US 505). Also, while a legitimate presence on premises is not irrelevant to one’s expectation of privacy, it is not controlling since it "creates too broad a gauge for measurement of Fourth Amendment rights.” (Rakas v Illinois, 439 US, at p 142.) Thus, proper analysis requires an examination of all of the factors tending to reflect a privacy interest and which society would be prepared to recognize as reasonable. (Katz v United States, 389 US, at p 361 [Harlan, J., concurring].)

Measured against these principles, defendant’s claim of a legitimate expectation of privacy in the rear compartment of the taxicab must fail. A passenger in a taxicab cannot rationally expect privacy in an area which, by necessity, he must share with a stranger, the driver.³ Indeed, not only is a taxicab driver not under any obligation to keep the activities of his passengers confidential, but in certain circumstances he has an affirmative duty to report these activities to the police.⁴

Defendant contends, however, that even if he lacks standing to contest the search of the taxicab on the basis of a privacy interest, he nevertheless may challenge it on the ground that it followed a stop which he does have standing to contest. In this regard, certain commentators have opined that "[i]f either the stopping of the car or the passenger’s removal from it are unreasonable in a Fourth Amendment sense, then surely the passenger has standing to object to those constitutional violations and to have suppressed any evidence found in the car which is their fruit.” (1 LaFave and Israel, Criminal Procedure § 9.1, at 726.) This argument seizes upon a comment in the concurring opinion of Justice Powell in Rakas (439 US, at pp 150-151), that "[t]he petitioners do not challenge the constitutionality of the police action in stopping the automobile in which they were riding; nor do they complain of being made to get out of the vehicle.” Justice Powell saw the question before the court as a narrow one: "Did the search of their friend’s automobile after they had left it violate any Fourth Amendment right of the petitioners?” (Supra, at p 151.) While this point of view has received limited judicial recognition (see, e.g., People v Smith, 106 AD2d 525; see also, People v Castro, 125 Misc 2d 15; People v Jones, 125 Misc 2d 91), we cannot find that it measurably advances defendant’s position, given the facts of this case.⁵

It is, of course, a well-established principle of constitutional law that "[a]n individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation.” (Delaware v Prouse, 440 US 648, 662.) The stop of an automobile and detention of its occupants constitutes a "seizure” within the meaning of the 4th and 14th Amendments, even though the purpose of the stop is limited and the detention brief (supra, at p 653; United States v MartinezFuerte, 428 US, at pp 556-558; United States v Brignoni-Ponce, 422 US 873, 878; cf. Terry v Ohio, 392 US 1, 16; People v John BB., 56 NY2d 482, 487; People v Sobotker, 43 NY2d 559; People v Ingle, 36 NY2d 413). Any assessment of the reasonableness of such a seizure "requires a balancing of the State’s interest in the inquiry at issue against the individual’s interest in being free from [arbitrary] governmental interference”. (People v John BB., 56 NY2d, at p 487; United States v Brignoni-Ponce, 422 US 873, supra.) Thus, the stop of an automobile on the public highway "is justified only when conducted pursuant to 'nonarbitrary, nondiscriminatory, uniform’ highway traffic procedures, or when there is specific cause or, at least, reasonable suspicion that a motorist is about to violate a law.” (People v Sobotker, 43 NY2d, at p 563, citing People v Ingle, 36 NY2d 413, supra.) Reasonable suspicion, defined as "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand.” (People v Cantor, 36 NY2d 106, 112-113), requires more than mere " 'hunch’ ” or " 'gut reaction’ ”. (People v Sobotker, 43 NY2d, at p 564.) Driving through a red light, however, justifies the stop of an automobile. (People v Erwin, 42 NY2d 1064, 1065.)

Both Officer Gilligan and Officer Bowen testified at trial that the taxicab drove through a red light. This testimony was challenged by both defendant and Colon in their version of the incident, as well as by St. Clare, who did not believe that he had been speeding or had passed a light at the intersection. While acceptance of the officers’ testimony on this point was not essential to its verdict, it is obvious that the jury found the officers to be generally credible in accepting their version of the incident as against the conflicting account offered by defendant and Colon. Thus, sufficient is shown in this record to support the finding that the taxicab in which defendant was a passenger passed a red light and that the stop was justified.

In any event, defendant’s motion was properly denied without a hearing because he failed to allege facts in his moving papers which, if true, would have established that the taxicab was stopped illegally. On a suppression motion, the moving party has the burden of establishing that his own 4th Amendment rights have been violated by the challenged search or seizure. (See, Simmons v United States, 390 US, at pp 389-390; Jones v United States, 362 US, at p 261.) "[A] defendant is required to set forth in his papers circumstances which, if admitted, would require suppression of the physical evidence.” (People v Taylor, 97 AD2d 381; accord, People v Sutton, 91 AD2d 522; see, CPL 710.20, 710.60.) As already noted, in his moving papers, defendant alleged only that a taxicab in which he was a passenger was stopped despite the absence of any "reason to believe that any of the occupants of the vehicle had committed a crime or were committing a crime at the time of the arrest.” Even if true, these allegations do not establish a violation of defendant’s 4th Amendment right to be free of unreasonable searches and seizures.

Defendant’s allegations ignore the fact that police officers may stop an automobile on much less than a reasonable belief that the occupants had committed or were committing a crime. They may, for instance, stop an automobile for a traffic violation. Indeed, as the Court of Appeals has noted, "[T]he factual basis required to support a stop for a 'routine traffic check’ is minimal. An actual violation of the Vehicle and Traffic Law need not be detectable * * * All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity. It is enough if the stop is based upon 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion’ ”. (People v Ingle, 36 NY2d, at p 420, quoting in part from Terry v Ohio, 392 US 1, 21.) Since defendant did not allege facts demonstrating that the officers stopped the taxicab without reasonable grounds or as a result of "whim, caprice, or idle curiosity”, he failed to assert a 4th Amendment violation. His pretrial motion to suppress the gun was thus properly denied. (See, CPL 710.20, 710.60.)

Nor is there merit to the argument that even if defendant’s pretrial motion to suppress was properly denied, the trial court should have conducted a hearing to determine the legality of the stop. Defendant never renewed his motion to suppress.⁶ Nor did he ever request a hearing. The record indicates that he asked only that the indictment be dismissed. Furthermore, as already noted, the evidence introduced at trial harmed, rather than helped, defendant’s suppression motion. That evidence indicated that the police officers had, in fact, acted reasonably in stopping the car. Besides testifying that they followed the taxicab only after its driver drove through a red light,⁷ Officers Gilligan and Bowen both further testified that the taxicab driver, while not exceeding the speed limit, was driving at a fast rate of speed. Officer Bowen explained that speeding and passing lights are ways in which taxicab drivers signal that they are in distress. Thus, had defendant sought to renew his motion to suppress the gun, the trial court would have acted properly in denying it, since the officers had an articulable basis for the stop.

Finally, we note the dissent’s concern about a certain modus operandi, characterized by aggressive action often taken at the expense of the constitutional rights of, for the most part, members of minority communities, which is allegedly employed by the Police Department’s Taxi Robbery Squads. We share that concern if, in fact, such a policy exists. Our function, however, is to decide each case on its own merits. The evidence speaks for itself as to the officers’ reason for following the taxicab in which defendant and his companions were passengers. Whatever view one takes of the evidence on that issue, however, nothing in the record supports the conclusion that the decision to follow the taxicab was based on the racial or ethnic background of its occupants.

Accordingly, the judgment of the Supreme Court, New York County (Carol Berkman, J., on the suppression motion; Herman Cahn, J., at trial), rendered April 5, 1985, convicting defendant of criminal possession of a weapon in the third degree and sentencing him to an indeterminate term of imprisonment of from 2V2 to 5 years, should be affirmed.

1 . After a joint trial Colon was found guilty with defendant, as charged. Veggacada was acquitted.

2 . See, Rules Governing Limousine Drivers, Owners and Base Operators, New York City Taxi and Limousine Commission, rule 29, Rules Governing Drivers of Limousines.

3 . Defendant contends that a footnote in the majority opinion in Rakas v Illinois (439 US 128, 149, n 16) lends support to his claim that a taxicab passenger has greater standing to object to a search of the taxicab than the passengers in Rakas had to contest the search of a private car. The footnote distinguished Rios v United States (364 US 253) in which a taxicab passenger successfully moved to suppress evidence seized during a search of the taxicab. The footnote is of no help to defendant, however, since, as it pointed out, the "question of Rios’ right to contest the search was not presented to or addressed by the Court” (439 US, at p 149, n 16). Moreover, Rios is distinguishable from Rakas since in Rios "the property seized appears to have belonged to [the defendant].” When the police officers stopped the taxicab, Rios placed a package he had been holding on the floor. The officers saw the package and seized it (439 US, at p 149, n 16).

4 . Rules Governing Drivers of Public Taxicabs and Public Coaches, rule 14, and Rules Governing Drivers of Limousines, rule 13, provide, "A driver * * * shall report immediately to the police any attempt to use his vehicle to commit a crime or escape from the scene of a crime.”

5 . Of course, while defendant did have standing to contest the frisk, the frisk did not lead to the discovery of the gun, and thus, could not provide defendant with standing to challenge its seizure.

6 . In any event, even had such a motion been made, the trial court would have acted properly in denying it. Pursuant to CPL 710.40 (4), a motion to suppress may be renewed at trial only if it is shown "that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion”. Even now defendant does not point to any such facts.

7 . Defendant argues that Officer Bowen testified that he and Officer Gilligan may have been stopped at a traffic light when they first saw the taxicab and thus concludes, "[i]f the light was red for the officers, it certainly was a green or yellow light that the cab went through.” The conclusion is not justified. Officer Bowen made it clear that he and Officer Gilligan may have been parked when they saw the taxicab. He testified, "We were double-parked — I don’t know whether we were waiting for the light or just stopped there observing traffic going through the intersection.” Moreover, had the officers been stopped on Lenox Avenue for a red light, as defendant claims, if Officer Gilligan hesitated at all before accelerating after the light facing them turned green, the taxicab could have crossed in front of them on 112th Street against the red light before their vehicle moved.