People v. Springer

92 A.D.2d 209, 460 N.Y.S.2d 86, 1983 N.Y. App. Div. LEXIS 16608
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 14, 1983
StatusPublished
Cited by12 cases

This text of 92 A.D.2d 209 (People v. Springer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Springer, 92 A.D.2d 209, 460 N.Y.S.2d 86, 1983 N.Y. App. Div. LEXIS 16608 (N.Y. Ct. App. 1983).

Opinions

OPINION OF THE COURT

Brown, J.

The primary issue on this appeal is whether the People have sustained their burden of demonstrating that the defendant freely and voluntarily consented to the warrant-less search of his vehicle by the police. In our view that burden has not been met and, accordingly, the County Court should have granted defendant’s motion to suppress and dismissed the indictment.

At about 8:40 p.m. on the evening of December 5, 1980, Police Officer Marc Needleman of the Nassau County [210]*210Police Department received a radio transmission declaring that a “stickup” had occurred at a Key Food supermarket in North Valley Stream. One or two minutes thereafter a second transmission described the suspect as a black male with a moustache wearing a long trench coat and a brown ski cap. The radio call gave no information about the suspect’s method of escape, nor did it identify the weapon, if any, which was used in the course of the “stickup”.

Approaching the supermarket some two to four minutes after the first radio message, Officer Needleman noticed a small red MG, later identified as defendant’s car, making a wide turn without slowing down as it exited from the store’s parking lot. As Officer Needleman passed by the car which was traveling in the opposite direction, he noticed that the driver was a black male with a moustache and a small goatee. The officer did not observe defendant wearing a hat, nor, from his vantage point, was he able to see the type of coat he was wearing. Recognizing some of the features of the suspect described in the radio transmission, Officer Needleman turned his patrol car around and pulled up behind defendant’s car, directing him to stop. After sending a message to other patrol cars for assistance, Officer Needleman approached defendant’s car. Defendant willingly exited from his car and obeyed the police officer’s direction to remove his hands from his coat pockets. Officer Needleman recalled that defendant was wearing a long brown trench coat. He patted down defendant’s coat pockets prior to making any inquiry of defendant and found no weapon or other evidence of criminal activity. Defendant verbally protested the frisk and told Needleman, after the officer mentioned the “stickup” at the Key Food store, that he had been in the supermarket that evening to buy groceries and had not noticed anything unusual. As Officer Needleman and defendant continued their conversation, other police cars arrived at the scene. Needleman estimated that defendant and his car were surrounded by as many as five or six patrol cars containing up to seven or eight officers. Defendant testified that the emergency overhead lights on the patrol cars were flashing.

One of the police officers who arrived to assist Officer Needleman.was Officer Stephen King. He parked his pa[211]*211trol car directly in front of defendant’s car. Officer King had heard the radio transmission describing the suspect in the “stickup” at the Key Food store but he testified that defendant may have been wearing a plaid jacket that evening, rather than the trench coat mentioned in the description. What transpired between defendant and Officer King is in dispute. Officer King stated that he asked for defendant’s permission to search the car and that defendant gave him his verbal assent. Defendant, on the other hand, testified that the officer told him to open the door of his car so that he could search it and that he acquiesced to the search on account of fear, as he was alone and surrounded by many police officers. In any event, Officer King searched defendant’s car and found a paper bag containing a loaded revolver beside the driver’s seat. Defendant testified that he later voluntarily went to the back of his car to assist other officers in finding the right key to open the trunk of his car.

After being placed under arrest, defendant voluntarily made the statement that he had purchased the gun over 10 years earlier after being the victim of a robbery. Defendant was arraigned and indicted on the weapons charge alone, having been exonerated from any connection with the robbery.

The County Court denied defendant’s motion to suppress on the grounds that Officer Needleman had sufficient reasonable suspicion to stop and frisk the defendant and that defendant voluntarily consented to the search of his automobile.

While we agree with the determination that the stop of defendant’s automobile and the frisk of the exterior of defendant’s coat pockets for weapons constituted reasonable police conduct under the circumstances, we conclude that the revolver found in the car must be suppressed since the prosecution did not sustain its burden of proving that defendant’s consent to the search of his automobile was given voluntarily.

Although the description of the suspect which Officer Needleman received over the police radio was somewhat general, the fact that he noticed that defendant resembled [212]*212the description in some respects, coupled with the other attendant circumstances, notably the fact that defendant’s car was the only vehicle sighted exiting from a parking lot belonging to a supermarket where a “stickup” had recently occurred, provided a sufficient basis for the reasonable suspicion required for an investigatory stop (see CPL 140.50, subd 1; Terry v Ohio, 392 US 1; People v Cantor, 36 NY2d 106). Officer Needleman’s exterior “pat-down” of defendant’s coat pockets to discover whether he was armed was a reasonable self-protective measure under the circumstances. The officer was alone on the street at night with an individual who fit some aspects of the description of a suspect in a “stickup”, a crime which presumptively involved the use of a dangerous weapon (see CPL 140.50, subd 3; Terry v Ohio, supra, p 30; People v Finlayson, 76 AD2d 670, 679-680, cert den 450 US 931). Officer Needle-man’s frisk and subsequent questioning of defendant, however, only served to reduce, rather than increase his level of suspicion. No weapon was discovered during the frisk and defendant gave the officer a completely innocent explanation for his presence at the supermarket, namely that he went there to purchase groceries. Consequently, at that point Officer Needleman did not possess the probable cause to believe that defendant’s automobile contained contraband necessary to conduct a warrantless search of that vehicle (see United States v Ross, 456 US 798; Carroll v United States, 267 US 132). Accordingly, the only legal basis for the search of the defendant’s automobile under the circumstances would have been the voluntary consent of the defendant himself (see Schneckloth v Bustamonte, 412 US 218, 219; People v Gonzalez, 39 NY2d 122, 127).

It is well settled that the People have the heavy burden of proving the voluntariness of a defendant’s consent to a search (see People v Gonzalez, supra, p 128; People v Whitehurst, 25 NY2d 389, 391). In order to sustain this burden, the prosecution must “demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied” (Schneckloth v Bustamonte, supra, p 248). This standard for voluntariness was further amplified in People v Gonzalez (supra, p 124), where the Court of Appeals observed: “[official coercion, even if [213]*213deviously subtle, nullifies apparent consent.” The voluntariness of a defendant’s consent is a question of fact which must be determined from the totality of the circumstances

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Bluebook (online)
92 A.D.2d 209, 460 N.Y.S.2d 86, 1983 N.Y. App. Div. LEXIS 16608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-springer-nyappdiv-1983.