Opinion
May 25, 1967
Judgment of conviction, entered upon defendant's plea of guilty, of attempted felonious possession of narcotics and unlawful possession of a dangerous weapon (misdemeanor), unanimously reversed and vacated on the law; order, entered July 28, 1965, denying pretrial motion to suppress two suitcases of marijuana and a loaded pistol, allegedly the products of unlawful searches and seizures, modified on the law and the facts, to grant the motion for suppression of the pistol and the one suitcase of marijuana found in defendant's hotel room, and order otherwise affirmed; defendant's plea of guilty to unlawful possession of a dangerous weapon vacated; the matter remanded to Trial Term of the Supreme Court, Bronx County, with permission to defendant, if he be so advised, to move to vacate his plea of guilty to attempted felonious possession of narcotics and, on withdrawal of such plea, the first count of the indictment charging defendant with possession with intent to sell of more than one ounce of cannabis and the second count of the indictment charging possession of marijuana as a misdemeanor are reinstated and the defendant shall replead thereto; and the action is in all respects remanded to Trial Term of the Supreme Court, Bronx County, for proper proceedings in light of this memorandum. The defendant, when he entered the seventh floor hotel hallway from the elevator, was carrying a suitcase or valise which was ripped across the top and bulging open so that the contents were visible to the officers who were awaiting the arrival of defendant. The officers testified that, before apprehending the defendant, they saw, exposed to view, the marijuana in the suitcase and one of them testified that he detected the odor thereof. Thus, the seizure of the suitcase and contents was proper. Consequently, the motion to suppress was properly denied as to such suitcase and the marijuana contained therein. The defendant does not contend otherwise on this appeal. The defendant was lawfully arrested by the officers in the hallway of the hotel at the time of the seizure and taking from his possession of the ripped suitcase or valise containing marijuana, but it does not follow that the entry thereafter by the officers into defendant's nearby hotel room on the same floor and the search thereof were justified. The officers testified that they were invited by the defendant into his hotel room but the trial court found such testimony to be incredible. There was testimony by one of the officers that, while the defendant was in custody and under the restraint of arrest, the officer requested him to unlock the door to his room so that the officers might enter, and that, then, the defendant did open the door. In view of this testimony and on the record, we affirm the finding of the trial court that the defendant did not voluntarily consent to the entry of the officers into defendant's room or the search thereof. We disagree, however, with the court's conclusion that, nevertheless, the officers had a right to enter the locked room and search it without the voluntary consent of defendant. We conclude that such entry and search was not justified as an incident to, and reasonably contemporaneous in time and space with the lawful arrest in the hallway. The suitcase of marijuana and the loaded pistol found in the room should be suppressed. (See Cooper v. California, 386 U.S. 58; James v. Louisiana, 382 U.S. 36; Preston v. United States, 376 U.S. 364; United States v. Rabinowitz, 339 U.S. 56; Agnello v. United States, 269 U.S. 20.) Inasmuch as the order denying the motion to suppress is not reversed and vacated in its entirety and the suitcase or valise and marijuana seized in the hallway are available for use as evidence against the defendant, he may deem it advisable to let stand his plea of attempted felonious possession of narcotics in response to the first and second counts of the indictment. In any event, we think he personally should make the decision in this connection. Therefore, we have not vacated such plea of guilty but have directed that he may move to withdraw such plea, if he be so advised. Settle order on notice.
Concur — Stevens, J.P., Eager, Capozzoli, McNally and McGivern, JJ.