Opinion
513/2004.
Decided July 14, 2004.
HONORABLE ROBERT T. JOHNSON, District Attorney, By: RACHEL J. FILASTO, ESQ., Assistant District Attorney, for the People of the State of New York.
Bronx Defenders, By: JUSTINE OLDERMAN, ESQ., for Bevon Bryon.
Defendant is charged with Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02), and related offenses. At a pre-trial Mapp/Dunaway/Huntley ( see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824; People v. Huntley, 15 N.Y.2d 72) hearing, the People called three witnesses: New York City Police Officer David Radovich, New York Police Sergeant Richard Neillands, and Bronx County Assistant District Attorney Melissa Gavegnano. Defendant did not call any witnesses. The Court finds the testimony of all of the People's witnesses to be credible. The motion to suppress is denied.
Factual Setting
On January 20, 2004, at approximately 4:30 p.m., Officer Radovich and Sergeant Neillands were patrolling in plain clothes in an unmarked vehicle. At the corner of West Kingsbridge Road and Heath Avenue in Bronx County, Officer Radovich, who was driving, and Sergeant Neillands observed a Chevrolet Lumina double parked, and Defendant urinating on the adjacent street. Officer Radovich informed Sergeant Neillands that he found this to be unusual because it was extraordinarily cold outside. The officer then observed Defendant get into the driver's seat of the aforementioned vehicle and make a u-turn over a double-yellow line. As a result of this traffic infraction, as well as urinating in public, Defendant was pulled over.
Pursuant to Prince, Richardson on Evidence §§ 2-203, 2-204 (Ferrell's 11th ed. 1995), judicial notice is taken of the fact that on January 20, 2004, the maximum temperature was 28.4 degrees Fahrenheit, the minimum temperature was 17.6 degrees Fahrenheit and the snow depth was 3.1 inches. See www.almanac.com/weatherservice.
Officer Radovich approached Defendant's vehicle from the driver's side while Sergeant approached from the passenger's side. After identifying himself, Officer Radovich asked Defendant to produce his driver's license, registration and proof of insurance. Defendant handed over a driver's license from Trinidad and stated, in sum and substance, that he did not have a New York State driver's license. Defendant also informed Officer Radovich that the vehicle was rented, and, thus, he did not have the registration or proof of insurance. Thereupon, Officer Radovich asked for the rental agreement, which Defendant produced. However, Defendant was not listed on the rental agreement as the person who rented the vehicle or a person with permission to operate it.
Officer Radovich asked Defendant why he was urinating on the street in light of the freezing temperature. Defendant responded, in sum and substance, that he was either going to pick up a friend or that he had just dropped off a friend from the building that his vehicle was facing. Officer Radovich found this response nonsensical due to the fact that if, indeed, a friend of Defendant's lived at that location, it would have made sense for him to have gone to the bathroom in that person's apartment rather then outside in the bitter cold. When asked about this, Defendant merely shrugged in response. This caused Officer Radovich to believe that Defendant was urinating on the street because he may have been intoxicated. Officer Radovich therefore ordered Defendant out of the vehicle to determine if he was, in fact, intoxicated while operating the motor vehicle.
Defendant exited his vehicle and left the door opened. Officer Radovich then asked Defendant from where he was coming in order to determine if he was slurring his words or if his breath smelled from alcohol. Meanwhile, Sergeant Neillands walked from the passenger side of the vehicle, around the front, and to the driver's side directly in front of the open door. Due to Defendant's meaningless responses to Officer Radovich's questions, Sergeant Neillands shined his flashlight in the driver's area of the vehicle to look for evidence of marijuana possession or driving while intoxicated. The sergeant saw a black pistol where a driver's right leg would be, namely, in between the two metal posts that anchor the driver's seat and the hump that separates the passenger and driver's sides of the front seat. Sergeant Neillands, while outside of the vehicle, peered inside by looking over the hinge that connects the driver's side door to the vehicle proper. He told Officer Radovich to handcuff Defendant, which was done, and he then retrieved the firearm.
Moments later, an unidentified female came out of the apartment building that Defendant had previously referenced. She informed the police that she was the person who had rented the car Defendant was operating and that Defendant should not be arrested because the car was not stolen.
Later, at approximately 2:44 p.m. on the following day, at the Bronx County District Attorney's Office, Assistant District Attorney Gavegnano took a videotaped statement from Defendant. In his statement, after he indicated that he spoke and understood English, Defendant was read his Miranda warnings ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), and indicated that he understood them and still wished to make a statement. Defendant never requested an attorney, stated that he did not understand the questions, refused to answer any questions, or made any requests during the interview.
Arguments of Counsel
The defense first claims that the firearm was not seen in plain view. Rather, the defense claims Sergeant Neillands conducted an illegal search because he crossed the threshold of the vehicle's doorway when he looked over the door. The defense next contends that the search did not fall into one of the warrant requirement exceptions because the police did not have probable cause to believe that the vehicle contained a weapon, contraband or evidence of a crime. The defense further alleges that the search was not incident to a lawful arrest because it went beyond Defendant's grabbable area as he was already outside of the vehicle when it was conducted; Officer Radovich did not intend on placing Defendant under arrest when he asked him to step out of the vehicle; and prior to the discovery of the firearm, Defendant could only have been issued a summons for urinating in public because, pursuant to VTL § 250 (2), he was authorized to drive the vehicle as a non-resident with a foreign license. Moreover, the defense claims that the People waived their claim that Defendant has no standing because such an argument was never put forward in their motion papers and they have failed to raise any factual allegations that would place the matter in dispute. Furthermore, the defense claims that Defendant has automatic standing to challenge the search because the People did not state the theory of their case in their response to his demand for discovery and a bill of particulars. In any event, the Defense claims that Defendant had a reasonable expectation of privacy in the vehicle because he was given permission and authority to drive it, had its keys, was in possession of the vehicle at the time of the search, and it is irrelevant that his name was not on the rental agreement.
The People first contend that the firearm was found in plain view. The People assert that Sergeant Neillands testified that he did not lean into the vehicle or break the plane of the doorway. Rather, he saw the firearm in the driver's seating area when he peered into the vehicle by looking over the hinge that connects the open driver's side door to the vehicle. The People next claim that, in any event, the firearm was recovered in a search of the vehicle based on both probable cause and incident to a lawful arrest because the vehicle was legitimately pulled over for a traffic infraction and there was a clear and articulable basis for the officers to suspect criminal activity, namely that Defendant was driving while intoxicated and without a valid driver's license. In addition, the People claim that Defendant was not free to leave because he violated VTL § 509 by driving without a valid driver's license. Moreover, the People allege that the police had the right to conduct a safety check of the vehicle and search for contraband pursuant to the automobile exception to the search warrant requirement. Finally, the People contend that Defendant failed to establish that he had a legitimate expectation of privacy in the searched vehicle, and therefore, lacked standing. More specifically, the People claim that Defendant had no possessory interest in the car because he was not the lawful owner or an authorized operator.
Discussion
In a Dunaway ( supra) hearing, the People have the initial burden of going forward to establish the legality of the police conduct and that the arrest of a defendant is supported by probable cause. See People v. Parris, 83 N.Y.2d 342 (1994); People v. Di Stefano, 38 N.Y.2d 640 (1976). Probable cause exists where the facts and circumstances known to law enforcement would warrant a reasonable person to conclude, under all of the circumstances, that a defendant had committed or was committing a crime. See People v. Bellinger, 74 N.Y.2d 633 (1989); People v. Vasquez, 162 A.D.2d 153 (1st Dept. 1990), lv. denied, 76 N.Y.2d 867 (1990). Likewise, in a Mapp ( supra) hearing, the People have the initial burden of establishing the lawfulness of the police conduct in acquiring the evidence they seek to introduce at trial against a defendant. See People v. Berrios, 28 N.Y.2d 361 (1971); People v. Baldwin, 25 N.Y.2d 66 (1969). If the People have made such a showing, a defendant then has the ultimate burden to establish by a preponderance of the evidence that the police conduct in acquiring that evidence was illegal. See Baldwin, supra; Berrios, supra. In police-citizen encounters, a court must weigh the degree of the intrusion that the police conduct entails against the precipitating and attending circumstances. See People v. DeBour, 40 N.Y.2d 210 (1976).
1. Standing
Initially, it must be noted that despite Defendant's contention to the contrary, he does not have standing merely because a Mapp ( supra) hearing was ordered. Rather, as explained by the First Department in Jose, supra, by granting such a hearing, standing itself is an issue and Defendant still has the burden of establishing a legitimate expectation of privacy in the place searched. See also Whitfield, supra; Wesley, supra; cf., People v. Cruz, 149 A.D.2d 151, 156 (1st Dept. 1989) (defendant's need to establish standing obviated where "the People unequivocally `withdrew' their objection on the standing issue").
In any event, as opined by the Court of Appeals in People v. Ramirez-Portoreal, 88 N.Y.2d 99, 108-11 (1996):
A defendant seeking suppression of evidence has the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises or object searched. . . . A legitimate expectation of privacy exists where defendant has manifested an expectation of privacy that society recognizes as reasonable. . . . Thus, the test has two components. The first is a subjective component did defendant exhibit an expectation of privacy in the place or item searched, that is, did he seek to preserve something as private. . . . The second component is objective does society generally recognize defendant's expectation of privacy as reasonable, that is, is his expectation of privacy justifiable under the circumstances. . . . The suppression court must also consider and determine the nature of the interest asserted, distinguishing between the separate concepts of possession and an expectation of privacy. . . . While defendant's exercise of dominion and control over premises searched or an item seized may establish constructive possession of it, a legitimate expectation of privacy turns on consideration of all of the surrounding circumstances, including but not limited to defendant's possessory interest. . . . In sum, standing to seek suppression of evidence requires the defendant to establish, by defendant's own evidence or by relying on the People's evidence . . . that he or she had a legitimate expectation of privacy in the place or item that was searched. The suppression court must identify the object of defendant's expectation of privacy, determine whether defendant exhibited an expectation of privacy in it, and evaluate whether the circumstances would lead society to regard defendant's expectation as reasonable.
See also People v. Whitfield, 81 N.Y.2d 904, 906 (1993) ("The court must also consider such factors as whether the defendant took precautions to maintain privacy and whether the defendant had the right to exclude other persons from access."); People v. Wesley, 73 N.Y.2d 351 (1989); People v. Ladson, 298 A.D.2d 314, 315 (1st Dept. 2002), lv. denied, 99 N.Y.2d 616 (2003); People v. Jose, 252 A.D.2d 401 (1st Dept. 1998), aff'd, 94 N.Y.2d 844 (1999).
In addition, even "where a criminal charge is predicated on ordinary constructive possession principles, . . . the defendant [must still] demonstrate a personal legitimate expectation of privacy in the searched premises." People v. Tejada, 81 N.Y.2d 861, 862 (1993). This is because there is no automatic standing for "all situations where a statutorily presumptive possessory count is included among other criminal charges emanating from ordinary constructive possession." Tejada, supra, at 862-63. Indeed, there is only "automatic standing . . . where the criminal possessory charge is rooted solely in a statutory presumption attributing possession to a defendant . . . [because such] `unfairness is not present in cases where a defendant is charged with constructive possession on the basis of evidence other than the statutory presumption.'" Tejada, supra, at 863, citing, Wesley, supra, at 361. See also People v. Millan, 69 N.Y.2d 514 (1987); People v. Gerue Sullivan, 258 A.D.2d 344, 344-45 (1st Dept. 1999) ("Defendant lacked automatic standing to challenge any aspect of the search or seizure since the People were not relying solely on the statutory presumption to establish his possession of the gun" where gun recovered from bag on floor in front of where defendant had been seated before being removed from car and where he was observed pushing said bag with his feet.), lv. denied, 93 N.Y.2d 979 (1999). Although in People v. Faulkner, 185 A.D.2d 764 (1st Dept. 1992), lv. denied, 80 N.Y.2d 929 (1992), the First Department held that the defendant in that case automatically had standing to contest the legality of the seizure because the prosecution did not rely on the room presumption in the grand jury and refused to stipulate that it would not rely on that presumption at trial, later, in People v. Freeman, 220 A.D.2d 369 (1st Dept. 1995), the First Department explained that the holding in Faulkner ( supra) was limited only to the statutory room presumption. Therefore, Defendant must still establish a subjective expectation of privacy and demonstrate that society recognizes such an expectation as objectively reasonable.
In People v. Banks, 85 N.Y.2d 558, 561-62 (1995), cert. denied, sub nom., New York v. Banks, 516 U.S. 868, 116 S.Ct. 187, 133 L.Ed.2d 124 (1995), the Court of Appeals, in reversing a decision by the Third Department ( see People v. Banks, 202 A.D.2d 902 [3rd Dept. 1994]), held that a passenger in a rental car who is listed on the rental agreement as the lessee has "a possessory interest in, dominion and control over and the right to exclude others from the vehicle . . . [and thus] had a legitimate expectation of privacy with respect to the interior of the vehicle and its contents sufficient to give him standing to challenge the search and seizure." Similarly, in People v. Gonzalez, 115 A.D.2d 73 (1st Dept. 1986), aff'd, 68 N.Y.2d 950 (1986), both the First Department and Court of Appeals held that a defendant has standing to contest a search of a bag resting next to him in plain view where he was a passenger in a vehicle, produced the registration, claimed that he had borrowed the vehicle from a friend who was in Puerto Rico, and there were no indications that the vehicle was stolen. See also People v. Matos, Misc.2d, N.Y.L.J. July 5, 1990, p. 28, col. 1 (Sup.Ct. Bronx Cty. July 5, 1990) (a defendant has a legitimate expectation of privacy in a rental vehicle he is operating where he has the rental agreement, the vehicle has not been reported stolen, and an authorized operator gave him permission to operate the vehicle even though he was not an authorized operator); People v. Johnson, 71 Misc.2d 423, 425 (Sup.Ct. Queens Cty. 1972) ("To hold that one using a rented car in excess of authority given is subject to prosecution under the criminal laws, in the absence of adequate notice and attempts to recover possession of the car by civil process, would be tantamount to making a person criminally liable for a simple breach of contract."), citing, United States v. McLaughlin, 278 F.Supp. 320, 321 (D.D.C. 1967), By way of contrast, in People v. Miller, 298 A.D.2d 467 (2nd Dept. 2002), lv. denied, 99 N.Y.2d 561 (2002), the Second Department held that a defendant had no standing to contest the search of a rental car parked in front of the residence he was burglarizing even though he had keys to the car since that alone did not establish the right to drive or possess the car or that he had a legitimate expectation of privacy in it. Similarly, in People v. Cacioppo, 104 A.D.2d 559 (2nd Dept. 1984), lv. denied, 67 N.Y.2d 881 (1986), the Second Department held that the defendant in that case had no standing to contest the search of a neighbor's unlocked vehicle that was parked on the street because not only did he not possess the keys, but he also did not have the right nor did he ever attempt to exclude others from the vehicle. This was despite the fact that the defendant paid the neighbor for the vehicle's occasional use, sometimes parked it on his property and sometimes kept a bag in it. See also People v. Di Lucchio 115 A.D.2d 555 (2nd Dept. 1985) (defendant lacked standing to challenge search of vehicle parked on public street that belonged to his father because although defendant drove the vehicle days earlier when the crime occurred and used it to go to work, there was no testimony as to how often defendant worked), lv. denied, 67 N.Y.2d 942 (1986); People v. Mercado, 114 A.D.2d 377, 379 (2nd Dept. 1985) ("[D]efendant lacks standing to challenge the search of [a] stolen automobile.").
Here, Defendant has clearly established a legitimate expectation of privacy in the vehicle. Although it was rented to another person, it was established that he had her permission to operate the vehicle due to the testimony that a person came out of the building and specifically informed Sergeant Neillands of that fact. Moreover, Defendant was driving the vehicle, had keys to it, and it was never reported stolen.
2. The Initial Stop
Although Defendant has standing to challenge the seizure of the firearm, it is nevertheless well settled that an "automobile traveling on a public highway may be stopped . . . when a police officer reasonably suspects a violation of the Vehicle and Traffic Law. . . . It should be emphasized that, in the context of a motor vehicle inspection stop, the degree of suspicion required to justify the stop is minimal. Nothing like probable cause as that term is used in the criminal law is required." People v. Ingle, 36 N.Y.2d 413, 414-15 (1975). See also People v. Guzman, 116 A.D.2d 528, 530 (1st Dept. 1986) ("[A]s a protective measure, an officer who lawfully stops a vehicle for a traffic offense may order the driver to step out of the car.").
In People v. Ellis, 62 N.Y.2d 393 (1984), the Court of Appeals held that the police properly removed the defendant from the rental vehicle he was driving after they observed him commit a traffic infraction and he then could not produce any identification when asked for his license and rental agreement. Likewise, in People v. Grear, 232 A.D.2d 578 (2nd Dept. 1996), lv. denied, 89 N.Y.2d 923 (1996), after the police stopped the defendant for speeding in a rental car, he was unable to produce a license or registration, and although a passenger produced the rental agreement indicating that the vehicle had been rented to a women he identified as a friend, he was unable to provide her address or telephone number. Under these circumstances, the Second Department held that "[s]ince neither the driver nor the passenger was listed on the rental agreement, it was reasonable for the arresting officer to make further inquiry into the status of the rental car." Grear, supra, at 579.
Similarly here, Officer Radovich and Sergeant Neillands were clearly entitled to pull Defendant over after observing him commit offenses for which summons could be issued, namely urinating in public and making a u-turn over a double yellow line. They were further entitled to instruct Defendant to exit the vehicle after his actions gave them reasonable suspicion to believe that he might be intoxicated, namely the combination of his traffic infraction, urinating in the freezing cold despite coming from his friend's home in the adjacent building, and his providing non-responsive answers to Officer Radovich's questions.
3. The Plain View Doctrine
It is well settled that "[a] police officer's entry into a citizen's automobile . . . [is a] significant encroachment upon that citizen's privacy interest." People v. Torres, 74 N.Y.2d 224, 229-30 (1989). See also People v. Acquino, 119 A.D.2d 464, 465 (1st Dept. 1986) ("An ordinary traffic infraction . . . standing alone will not justify a search of the vehicle."); Guzman, supra, at 530 ("In the absence of a prior indication of criminality or an articulable basis for fearing danger, an officer is not entitled to take the additional step of searching the interior of the car."). However, in People v. Belton, 55 N.Y.2d 49, 54 note 2 (1982), and People v. Brown, 96 N.Y.2d 80, 88 (2001), the Court of Appeals noted that this privacy interest is outweighed by the plain view doctrine, which "rests on the premise that police should be able to seize incriminating evidence in plain view if they had the right to be where they were when they saw it." In Brown, supra, the High Court adopted the three factors utilized by the Supreme Court in Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), in determining whether a search under the plain view doctrine is valid: (1) the officer does not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed; (2) the seized item's incriminating character must be immediately apparent; and (3) the officer must also have a lawful right of access to the object itself. As further explained in Brown, supra at 89-90:
The constitutionality of a plain view seizure "must turn on the legality of the intrusion that enables [police] to perceive and physically seize the property in question" ( Texas v. Brown, 460 U.S. 730, 737, 103 S.Ct. 1535, 1540-41, 75 L.Ed.2d 502, 510-11). . . . This is largely a factual determination involving the size and character of the enumerated object and where one would reasonably look for it.
In the present case, the only factor at issue is whether Sergeant Neillands violated Defendant's Fourth Amendment rights by being in a location from which the firearm could be plainly viewed. This is because the incriminating characteristics of a firearm is readily identifiable, and, upon so observing, the officer would have the right to retrieve it. Several cases are instructive in determining if Sergeant Neillands standing outside of the vehicle and peering in by looking over the connecting hinge of the open driver's side door was lawful. First, in People v. Blasich, 73 N.Y.2d 673, 677 (1989), the Court of Appeals held that where the police stopped a vehicle for leaving a parking lot without paying, and, upon approaching said vehicle, saw a number of tools on the floor commonly used to break into cars, there was no "serious dispute that the officer was entitled to approach the car . . . or that, from this vantage point, the tools on the floor of the vehicle were in plain view." Likewise, in People v. Daniel Sullivan, 29 N.Y.2d 69 (1971), the Court of Appeals relied, in part, on Mozzetti v. Superior Court, 4 Cal.3d 699, 484 P.2d 84 (Cal. 1971) which held that when taking a car that was blocking traffic to a garage, "[t]he opening of the door of the car and the examination of anything that was visible were . . . lawful." Daniel Sullivan, supra, at 74. See also Gerue Sullivan, supra, (gun protruding from an unzipped bag on the floor of the front passenger seat, which defendant had occupied prior to being removed, was properly seized while in open view); People v. Sidhom, 204 A.D.2d 150 (1st Dept. 1994) ("defendant failed to meet his burden of proving that the officer impermissibly leaned into the car's interior . . . [where he] observed the firearm from a lawful vantage point outside the car"), lv. denied, 84 N.Y.2d 832 (1994).
Similarly, in People v. March, 257 A.D.2d 631 (2nd Dept. 1999), lv. denied, 93 N.Y.2d 973 (1999), during a lawful traffic stop where the defendant and a passenger were ordered out of their van and frisked, the officer "stepped into the van and scanned the interior for about 10 seconds with the aid of a flashlight. He observed the butt of a gun leaning up against the side of the van on the driver's side. Nothing obstructed his view of the gun." March, supra, at 632. In upholding this seizure as lawful, the Second Department held:
[T]he facts do not present a situation where the officer entered the vehicle in order to illuminate with his flashlight those portions of the interior which could not have been seen from outside the vehicle and which the defendant legitimately expected to remain private. . . . The officer did nothing more intrusive than step into the van, which was high off the ground, in order to more readily observe its interior, and the court accepted as credible his testimony that the butt of the gun was in plain view.
March, supra, at 632-33.
By way of contrast, in People v. Hernandez, 238 A.D.2d 131 (1st Dept. 1997), app. withdrawn, 90 N.Y.2d 931 (1997), after the defendant's vehicle was stopped and the occupants had been removed and patted down, an officer permissibly "looked into the car through the driver's side door, which had been left open, [and] saw nothing in plain view." However, after seeing nothing through the open car door, the following conduct was found to amount to a search and seizure without probable cause and did not fall within the plain view exception:
[The officer] proceeded to place his right hand on the driver's side floorboard for support and shined his flashlight up behind the dashboard where he found the revolver. Questioned further on this issue, the officer then testified that he placed his right hand on the driver's side rocker panel to support himself as he shined the flashlight and leaned so that he could peer up behind the dashboard. In either case, the officer's right hand, at the very least, impermissibly breached the plane of the car doorway, i.e., the interior of the car, in order for him to be able to peer deeply enough inside to observe an item concealed up under or behind the dashboard.
Hernandez, supra, at 131-32.
Similarly, in Acquino, supra, at 465, after the defendant's vehicle was pulled over for speeding and he exited it but left the door opened, the officer, "[w]hile standing outside, . . . stuck his head into the car to peer inside, at which point he observed two. 38 caliber bullets on the floor, under the steering column, midway between the pedals and the driver's seat." The First Department held that the ammunition was not found in plain view because the officer "did not see them until after he bent over and stuck his head into the car, to look at the floor, under the steering column [and] . . . stepped up a few feet and stuck his head into the car. . . . [The officer] did not merely look into the vehicle from outside. He bent his head into the car to conduct a visual inspection of what would otherwise be hidden from plain view." Acquino, supra, at 465-66. See also People v. Chapman, 211 A.D.2d 544 (1st Dept. 1995) ("The officer was not merely peering, but instead conducted an unlawful search when he `leaned into' the car and angled his head in order to look down at the floor at the base of the driver's seat."), lv. denied, 85 N.Y.2d 970 (1995); Guzman, supra, at 529-30 (officer made improper observation from "within the vehicle . . . [when he] leaned into the car through the open door, over the front passenger area, and saw the . . . revolver"); People v. Young, 207 A.D.2d 465, 465-66 (2nd Dept. 1994) ("the officer's action of placing his flashlight-laden hand inside the vehicle in order to better observe the floor of the car constituted a search"); People v. Pagliarulo, 41 A.D.2d 563 (2nd Dept. 1973) (firearm not found in plain view where an officer opened the vehicle's door and entered, and after examining the interior by flashlight and seeing nothing, then put his hand under the driver's seat where he felt a metal object which turned out to be a revolver); Matos, supra, N.Y.L.J. July 5, 1990, p. 28, col. 1 (contraband not found in plain view where defendant left his door opened after exiting the vehicle and the officer, in looking through the open car door to see what defendant placed under the seat, partially leaned into the car and shined his flashlight under the front seat where he saw an oil can which contained cocaine).
The present case is far more analogous to those in which an item was considered to be in plain view. Here, Sergeant Neillands never entered Defendant's vehicle. Rather, he was outside and merely leaned over the opened door of the vehicle whereupon he saw the firearm; he did not have to lean into the vehicle proper to view the driver's seating area. Sergeant Niellands did not step into the vehicle, move anything that would have obstructed his view of the firearm, or stick his head or any part of his body inside the vehicle. Indeed, Sergeant Neillands actions in this case are similar to those of the officer in Hernandez ( supra), the case primarily relied upon by Defendant, prior to the conduct that did not fall within the plain view exception. In both cases, the officer looked into the vehicle through the driver's side door which had been left open. However, rather than seeing nothing and conducting a more intrusive search as in Hernandez, ( supra), Sergeant Neillands saw a firearm. As Sergeant Neillands had a right to be where he was when he observed the firearm, its seizure clearly falls within the plain view exception to the search warrant requirement.
4. Warrantless Search
It is noted that if Sergeant Neillands conduct was considered a search, none of the warrant exceptions proffered by the People apply. First, in Belton, supra, at 53, the Court of Appeals, relying on Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), described the search incident to arrest exception, which "is grounded in protecting the safety of the arresting officer by permitting him to search for and seize weapons where there is reason to fear for his safety and in preventing the person arrested from destroying evidence of criminal involvement by permitting the arresting officer to search for and seize such evidence." As further explained in Torres, supra, at 227 and 231, where there is no arrest, although the forcible stop of a defendant in a vehicle and subsequent frisk is "reasonably related to the need to protect the officers' safety," removing and searching a bag on the front seat is not when the defendant has already been removed from the vehicle because the bag presents "no immediate threat to the officer's safety."
Moreover, the automobile exception to the search warrant requirement was recently explained by the First Department in People v. Cruz, A.D.3d, 777 N.Y.S.2d 66 (1st Dept. May 13, 2004), which, in relying on Blasich, supra, and Belton, supra, stated that when there is probable cause to arrest a defendant, "[w]here the police have reason to believe that a car may contain further evidence relating to a crime, they need not stop with the initial recovery of . . . contraband, but may search the entire vehicle, including closed containers . . . for additional contraband." In Belton, supra, at 53-55, the Court of Appeals further explained that:
[A] motorist stopped for a traffic infraction may not be searched unless when the vehicle is stopped there are reasonable grounds for believing the driver guilty of a crime, as distinct from a traffic offense. . . . However, a valid arrest for a crime authorizes a warrantless search for a reasonable time and to a reasonable extent of a vehicle . . . which the arrested person is driving or in which he is a passenger when the circumstances give reason to believe that the vehicle or its visible contents may be related to the crime for which the arrest is being made (as possibly containing contraband or as having been used in the commission of the crime) or there is reason to believe that a weapon may be discovered or access to means of escape thwarted.
Here, neither the search incident to a lawful arrest or automobile exception to the search warrant requirement apply because, prior to the discovery of the firearm, Defendant could have only been issued a summons and not placed under arrest for urinating in public and/or making a u-turn over a double yellow line. Although, according to the People, Defendant could have theoretically been placed under arrest for not having a valid New York State driver's license, there is no evidence adduced at the hearing that such an arrest was going to, in fact, take place, and it is doubtful, in light of VTL § 250 (2), that such an arrest would have been authorized. Moreover, as Defendant was already out of the car, there was no need to conduct a protective search of the inside of the vehicle and there was no reason to believe that the car may have contained a weapon or evidence of a crime.
VTL § 250 (2) provides, in pertinent part, that "[a] person . . . who shall be a nonresident of this state, and a resident of a . . . foreign country having laws, with which such person has complied, which require such person, in order to operate a motor vehicle . . . therein, to be licensed, may operate or drive a motor vehicle . . . on the public highways of this state without being so licensed under this chapter."
5. Defendant's Statements
In the Huntley ( supra) portion of the hearing, the People have the burden of establishing that the defendant voluntarily waived his privilege against self-incrimination. As explained in People v. Williams, 62 N.Y.2d 285, 288-89 (1984):
To be valid, an accused's waiver of his or her rights must be knowingly and intelligently made . . . [and] [a] court must always ascertain whether the defendant understood how the Miranda rights affected the custodial interrogation. . . . An individual may validly waive Miranda rights so long as the immediate import of those warnings is comprehended, regardless of his or her ignorance of the mechanics by which the fruits of that waiver may be used later in the criminal process.
As explained by our Court of Appeals in People v. Sirno, 76 N.Y.2d 967 (1990), where a defendant indicates he understands his Miranda rights and "promptly after having been administered those rights willingly proceeds to make a statement or answer questions during interrogation, no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant . . . waived those rights." Sirno, supra at 968. See generally North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 288 (1979); People v. Davis, 55 N.Y.2d 731 (1981).
Relying on Sirno ( supra), the First Department has repeatedly held that a statement is admissible where a defendant waives his Miranda warnings in situations similar to this case. See People v. Diaz, 238 A.D.2d 214 (1st Dept. 1997) ("The record establishes that Miranda warnings read to defendant conveyed the requisite information . . . [and] defendant understood the immediate import of [them]."), lv. denied, 90 N.Y.2d 857 (1997); People v. Hayes, 213 A.D.2d 193, 194 (1st Dept. 1995) ("[D]efendant received full Miranda warnings prior to the detective's questioning . . . [and] the record reveals that defendant was not impaired by any medication when he voluntarily waived his rights"), lv. denied, 86 N.Y.2d 781 (1995); People v. Guillen, 177 A.D.2d 391, 391-92 (1st Dept. 1991) ("The evidence adduced at the hearing clearly established that defendant was aware of and understood the ramifications of his admissions . . . [where] after waiving his Miranda warnings . . . [he] gave a detailed statement."), lv. denied, 79 N.Y.2d 857 (1992).
Similarly here, in the beginning of his videotaped statement, Defendant was read his Miranda, ( supra) warnings and he indicated that he understood all of them and agreed to make a statement. Indeed, at the conclusion of the hearing, the defense did not challenge the propriety of this procedure in either its oral arguments or accompanying motion papers.
As per Defendant's statements during the initial stop of the vehicle, it is well settled that " Miranda [ supra], warnings were not required because defendant was not in custody at the time . . . [his] statements [were] made to the police during a traffic stop . . . and also because the limited questioning did not constitute interrogation, but rather an opportunity for defendant to clarify the situation." People v. Weston, 234 A.D.2d 90 (1st Dept. 1996), lv. denied, 89 N.Y.2d 989 (1997). See also People v. Velasquez, 267 A.D.2d 64 (1st Dept. 1999), lv. denied, 94 N.Y.2d 886 (2000).
ORDERED, that Defendant's motion to suppress is in all respects denied.
The foregoing opinion constitutes the decision and opinion of the Court.