Opinion
July 2, 1970
Appeal from an order of the Supreme Court, Kings County, dated July 22, 1969, which granted defendant's motion to suppress evidence, after a hearing. Order reversed, on the law and the facts, and motion denied. In our opinion, the uncontradicted testimony of Detective Gottlieb established the existence of a free and voluntary consent by defendant's wife to Gottlieb's entry into the store at 542 Graham Avenue. There was no evidence to indicate coercion, lawful or unlawful, by the police (cf. Bumper v. North Carolina, 391 U.S. 543, 550; People v. Overton, 24 N.Y.2d 522) and there was nothing inherently coercive about the circumstances surrounding the request to look into the store. As defendant's wife and the person in charge of the store in his absence, armed with the means of access to the locked store, she was in immediate control of the premises. Reasonably incident to that status and authority was the right to enter herself and to permit others to enter with her (cf. United States v. Alloway, 397 F.2d 105, 110; Maxwell v. Stephens, 348 F.2d 325, 336-337, cert. den. 382 U.S. 944; Roberts v. United States, 332 F.2d 892, 896, cert. den. 380 U.S. 980; United States v. Antonelli Fireworks Co., 155 F.2d 631, 636, cert. den. 329 U.S. 742; United States v. Heine, 149 F.2d 485, 488, cert. den. 325 U.S. 885; Reszutek v. United States, 147 F.2d 142). The officers did not conduct a search inside the locked store, since the stolen merchandise was in open view and they were entitled to seize it at that point ( Harris v. United States, 390 U.S. 234, 236; People v. Merola, 30 A.D.2d 963; People v. Hoffman, 24 A.D.2d 497, 498; People v. Swanberg, 22 A.D.2d 902, mod. in other respects 16 N.Y.2d 649) or subsequent to defendant's arrest a short time later ( People v. Brosnan, 31 A.D.2d 975). Having lawfully discovered that the stolen goods were in fact where a generally reliable informer had said they would be, the officers clearly had reasonable cause to arrest defendant (cf. People v. Cerrato, 24 N.Y.2d 1, 5). Christ, P.J., Rabin, Hopkins and Munder, JJ., concur; Martuscello, J., dissents and votes to modify the order so as to deny the motion to suppress only as to the sleepwear and to grant the motion as to the bathing suits, with the following memorandum: Clearly the police officer had probable cause to arrest defendant for the criminal possession of the stolen "Stu-Ardt" sleepwear on the basis of the informer's information that defendant possessed the sleepwear and the prior report to the police that the sleepwear had been stolen. However, as to the bathing suits, the facts are somewhat different. The informer had also indicated that defendant possessed "Colony" bathing suits which had been stolen. When the officer seized the bathing suits they were marked "Capri". He did not learn from whom the bathing suits had been stolen until after the arrest and thus he had no basis for seizing them.