Opinion
2009CN005123.
Decided October 28, 2009.
For the Defendant: Steven Banks, Esq., The Legal Aid Society (David L. Moore III of counsel).
For the People: Robert M. Morgenthau, District Attorney, New York County (Rachel Ehrhardt of counsel).
Charged with unlicensed general vending premised on allegations that he offered for sale 10 pieces of costume jewelry displayed on a counter next to which he was standing, defendant moves to suppress the pieces of jewelry recovered from that counter.
This court previously rendered an oral decision denying defendant's motion to suppress. This opinion serves to explain the basis for the court's prior ruling.
I.
A motion to suppress physical evidence must be supported by sworn allegations of fact ( see CPL 710.60). Faced with such a motion, the court must summarily grant if the motion papers allege a legal ground warranting suppression, and the People concede the truth of all factual allegations necessary to support the motion ( see CPL 710.60 [a]), or may summarily deny if either the motion papers do not allege a legal basis for the motion, or the sworn allegations of fact do not as a matter of law support the ground alleged ( see CPL 710.60 [a], [b]). If neither of these standards is met, the court must conduct an evidentiary hearing and make findings of fact essential to the determination of the motion ( see CPL 710.60).
The motion must also be summarily granted if the People stipulate that the evidence sought to be suppressed will not be offered in evidence against the defendant ( see CPL 710.60 [2] [b]).
The People's failure to respond in writing does not entitle a defendant to summary suppression ( see People v Weaver, 49 NY2d 1012, 1013 [1980] [People need do no "more than refuse to concede the truth of facts alleged by defendant for a (suppression) hearing to be held"]; People v Brooks, 225 AD2d 1096, 1096 [4th Dept 1996] ["People are not required to submit a written answer"; motion court "erred in deeming their failure to do so a concession of defendant's factual allegations"]; CPL 710.60 [1] [motion to suppress " must be in writing," but the People " may file . . . an answer denying or admitting any or all of the allegations of the moving papers" (emphases added)]; see also People v Mendoza, 82 NY2d 415, 421 [1993] ["prosecutor may then file an answer" (emphasis added)]; Barry Kamins, New York Search and Seizure § 7.02 [4], at 7-38 [2009 ed]).
Although defendant contends that he is entitled to a hearing before his motion to suppress may be decided, hearings "are not automatic or generally available [merely] for the asking" ( Mendoza, 82 NY2d at 422). Rather, a hearing is required only when "the defendant raises a factual dispute on a material point which must be resolved before the court can decide the legal issue of whether evidence was obtained in a constitutionally permissible manner" ( People v Burton , 6 NY3d 584 , 587 [internal quotation marks and citation omitted]). Because defendant has failed to allege facts which, if true, would establish that he was "aggrieved by unlawful or improper acquisition of evidence" (CPL 710.20 [a]), his motion to suppress is summarily denied.
II.
The Fourth Amendment "protects two types of expectations, one involving searches,' the other seizures'" ( United States v Jacobsen, 466 US 109, 113). "A search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed," whereas "[a] seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property" ( Jacobsen, 466 US at 113 [citations omitted]; see also People v Ramirez-Portoreal, 88 NY2d 99, 109 [suppression court must distinguish "between the separate concepts of possession and an expectation of privacy"]). Because defendant's motion papers fail to allege an unreasonable invasion of his rights to either privacy or possession, no hearing is required.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" (US Const Amend IV; NY Const, art I, § 12). The Fourth Amendment is made applicable to the states through the Fourteenth Amendment ( see US Const, Amend XIV, § 1; Ker v California, 374 US 23, 30 [1963]).
A. Search
In order to warrant a hearing on a challenge to a search, the defendant must allege facts establishing both standing and a Fourth Amendment violation ( see Burton, 6 NY3d at 587 ["There is no legal basis for suppression and, hence, no need for a hearing, unless the accused alleges facts that, if true, demonstrate standing to challenge the search or seizure"]; Mendoza, 82 NY2d at 429 [defendant must plead facts demonstrating expectation of privacy]; People v Wesley, 73 NY2d 351, 358-359; People v Gomez, 67 NY2d 843, 844). Thus, even if an unlawful search were established by the defendant's version of the facts, suppression may nevertheless be summarily denied if the papers fail to demonstrate that the defendant has standing to contest that search.
The threshold question, though, is whether there was a search. Because searches involve invasions of privacy, not interferences with property, a person wishing to challenge the constitutionality of a search must have a reasonable expectation of privacy "in the place or item searched" ( Ramirez-Portoreal, 88 NY2d at 108), rather than a possessory interest in the item seized. Thus, where, as here, there was no container whose opening might itself have constituted a search, and no additional inspection of the jewelry beyond its mere observation, the only conceivably identifiable "place" that might have been searched was the counter on which the merchandise sat ( see Ramirez-Portoreal, 88 NY2d at 109 ["particularly in cases where the search occurred in public, the suppression court must identify the place in which defendant asserts his or her expectation of privacy"]).
Of course, the nature of the items as pieces of jewelry was readily apparent to the officer without any need to move them, touch them, or turn them over ( cf. People v Class, 63 NY2d 491 [1984] [police officer's reaching into car and moving papers on the dashboard in order to read vehicle identification number constitutes a search], revd 475 US 106 [1986], on remand 67 NY2d 431 [1986]; Arizona v Hicks, 480 US 321, 324-325 [1987] [police officer's moving of stereo equipment in order to read serial numbers constitutes a search]).
The undisputed allegations, however, are that the items at issue were displayed openly on the counter, and therefore observable by all who might pass by, including the police. The mere viewing of an object by a police officer from a location where the officer has a right to be is not a search ( see Class, 63 NY2d at 494 [officer's peering in the window of a stopped car not a search]; Texas v Brown, 460 US 730, 740 [same]).
Nevertheless, even if there had been a search — say, if the jewelry were stowed under newspaper or a sheet placed on the counter, which the police would have had to lift before the items could be seized; or if the individual pieces of jewelry were, after being displayed to passersby, placed back in jewel boxes which would have to be opened — the defendant would still need standing to challenge that search.
In order to establish standing to challenge the legality of a search, the defendant must demonstrate a reasonable expectation of privacy in the area or object searched. This requirement comprises two components: First, the defendant must, by his conduct, have exhibited a subjective expectation of privacy — "that is, did he seek to preserve something as private"; second, such expectation must be one that society would generally recognize as objectively reasonable under the circumstances ( Ramirez-Portoreal, 88 NY2d at 108).
Although the United States Supreme Court has decided to eliminate the term "standing" from its Fourth Amendment jurisprudence ( see Rakas v Illinois, 439 US 128, 138-140 [1978]; Rawlings v Kentucky, 448 US 98, 106 [1980]), preferring to conflate the questions whether there was a search that violated the rights of the defendant and whether the defendant has standing to challenge the search, into a single inquiry whether "an expectation of privacy that society is prepared to consider reasonable [was] infringed" ( Jacobsen, 466 US at 113; see also Rawlings, 448 US at 106 ["whether governmental officials violated any legitimate expectation of privacy held by" defendant]; United States v Salvucci, 448 US 83, 88 n 4 [1980] ["whether the defendant's rights were violated by the allegedly illegal search or seizure"]; Wesley, 73 NY2d at 356 [acknowledging United States Supreme Court's view that "the issue of standing' was simply an application of substantive Fourth Amendment doctrine and that the determinative question was whether the person who claims the protection of the Amendment has a legitimate expectation of privacy" (internal quotation marks and citations omitted)]), in New York the relevant analysis remains whether the defendant has standing ( see e.g. Burton, 6 NY3d at 587 ["Standing exists where a defendant was aggrieved by a search of a place or object in which he or she had a legitimate expectation of privacy"]; Ramirez-Portoreal, 88 NY2d at 108; Wesley, 73 NY2d at 355 [1989]).
Here, even if defendant somehow manifested a subjective expectation that the items he placed on a counter on a public sidewalk would remain private — perhaps by throwing a blanket over the counter and sticking the jewelry underneath — that expectation is not one which society would regard as reasonable. Simply put, there is no legitimate expectation of privacy in items laid out for display on a public street ( see Payton v New York, 445 US 573, 587; Katz v United States, 389 US 347, 351 ["What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection"]; People v Reynolds, 71 NY2d 552, 557 ["conduct and activity which is readily open to public view is not protected"]; People v Price, 54 NY2d 557, 562 ["no reasonable expectation of privacy in items left in the plain view of an officer lawfully in the position from which he observes the item" (citation omitted)]; People v George, 84 AD2d 731, 732 [1st Dept 1981]).
B. Seizure
Although defendant thus has no standing to challenge any search that might have occurred here, he would nevertheless be entitled to a suppression hearing if he were able to allege sufficiently that the seizure of his property — the "meaningful interference with [his] possessory interests" effected when the police took the jewelry into custody ( Jacobsen, 466 US at 113) — was unlawful ( see Soldal v Cook County, Ill., 506 US 56, 68 ["seizures of property are subject to Fourth Amendment scrutiny even though no search within the meaning of the Amendment has taken place" (citations omitted)].
Although defendant does not admit that the seized jewelry was his, the People's allegations, on which defendant relies, that he "was the only person who was uninterruptedly in immediate proximity to the merchandise and did not leave the merchandise unprotected during the entire period of the [arresting] officer's observation," and was seen "showing the merchandise to numerous people" and "arranging the merchandise on the counter so that people could see it more clearly," sufficiently establish his possessory interest in the property, and therefore his standing to contest its seizure ( see Burton, 6 NY3d at 588-589 [in order to establish standing, defendant may rely on statements made by law enforcement officials in an accusatory instrument]; People v Whitfield, 81 NY2d 904, 906; People v Gonzalez, 68 NY2d 950, 951; CPL 710.60 [sworn allegations of fact in support of motion to suppress may come from "the defendant or . . . another person or persons" and may be "based . . . upon information and belief"]).
"The seizure of an individual's property without obtaining a warrant is per se unreasonable, subject to several narrow, well-defined exceptions. One such exception is the plain view doctrine" ( People v Brown, 96 NY2d 80, 88 [internal citations omitted]). Under that doctrine, the police may seize an item in plain view without a warrant if they are lawfully in a position to observe the item, to which they have lawful access — here, of course, the police were lawfully present on a public street, and the jewelry was openly displayed to all — and if the incriminating nature of the item is immediately apparent ( see id. at 89; People v Diaz, 81 NY2d 106, 110; People v Laws, 208 AD2d 317, 322-323 [1st Dept 1995]; see also Horton v California, 496 US 128, 136-137).
To satisfy the "immediately apparent" requirement, the police must have probable cause to believe that the item sought to be seized constitutes incriminating evidence ( see Arizona v Hicks, 480 US at 326-327; see also Warden, Md. Penitentiary v Hayden, 387 US 294, 307 ["There must . . .be a nexus — automatically provided in the case of fruits, instrumentalities or contraband — between the item to be seized and criminal behavior. Thus in the case of mere evidence,' probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction"]).
Accordingly, if defendant were charged with a possessory offense, or if the property at issue were contraband — for example, if the items defendant was charged with selling bore counterfeit trademarks — his motion could be easily dispatched. But here, the nature of the jewelry as evidence (or an instrumentality) of the crime of unlicensed general vending became immediately apparent only once the police had reasonable cause to believe that defendant had been offering to sell it without a license. In other words, only after the police had reasonable cause to believe that defendant was unlawfully selling jewelry did they obtain probable cause to believe that the jewelry constituted incriminating evidence subject to seizure ( see Soldal, 506 US at 69 [warrantless seizures of effects in plain view are reasonable only when "there is probable cause to associate the property with criminal activity"]; see also Minnesota v Dickerson, 508 US 366, 375 [for the incriminating character of an object in plain view to be "immediately apparent," police must have probable cause to believe that the object is contraband or evidence "without conducting some further search of the object"]). Thus, if the police did not possess reasonable cause to believe that defendant was committing this crime, they would not have been permitted to seize the items under the plain view doctrine, and defendant would be entitled to suppression.
The distinction for Fourth Amendment purposes between "mere evidence," on the one hand, and contraband, fruits or instrumentalities of crime, on the other, was eliminated in Warden ( 387 US 294).
In New York, "reasonable cause" is the statutory equivalent of probable cause ( see People v Maldonado, 86 NY2d 631, 635 [1995] [citation omitted]; Barry Kamins, New York Search and Seizure § 1.02 [1] [a], at 1-53 [2009 ed]), and both terms thus reflect the same quantum of proof. Reasonable cause to believe that a person has committed an offense "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10 [2]).
Defendant's entitlement to a hearing therefore hinges on whether he has sufficiently alleged that the police lacked reasonable cause to believe that he was vending without a license. Inasmuch as an evidentiary hearing is warranted only when a disputed issue of material fact actually exists, however, the requirement of sworn allegations supporting suppression may not be satisfied by mere conclusory assertions ( see Mendoza, 82 NY2d at 426; People v Jones, 95 NY2d 721, 726). Rather, a defendant seeking a hearing must controvert the specific factual averments relied on by the People to establish the legality of the seizure ( see People v Doyle, 273 AD2d 69, 69 [1st Dept 2000]; People v Suggs, 268 AD2d 305, 305-306 [1st Dept 2000]).
Framing his argument somewhat differently, defendant contends that he was arrested without probable cause, and that the jewelry must therefore be suppressed as a fruit of his unlawful arrest. However, the discovery of the challenged evidence was in no way a consequence of the arrest of defendant. Indeed, once the police had reasonable cause to believe that defendant was selling goods without a license, they were authorized to seize the jewelry ( see Administrative Code of City of NY § 20-468 [c]), irrespective of whether they placed defendant under arrest. Simply put, defendant's jewelry was "not the fruit of an arrest, lawful or otherwise" ( Maryland v Macon, 472 US 463, 471 [1985]; see also Wong Sun v United States, 371 US 471 [1963]). Nor is the instant case properly analyzed as a search incident to arrest, which, like all searches — no matter on what substantive ground or exception to the warrant requirement they may be justified — may be challenged only if the challenger had a reasonable expectation of privacy in the area or object searched ( see People v Belton, 50 NY2d 447, 452 [1980] [noting that defendant retained an expectation of privacy in pockets of jacket on back seat of automobile whose search the People attempted to justify as incident to his arrest], revd 453 US 454 [1981], on remand 55 NY2d 49 [1982]).
The sufficiency of factual allegations made in support of a request for a hearing must be "evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant's access to information" ( Mendoza, 82 NY2d at 426). Thus, when a defendant has been arrested based on an alleged observation of criminality by a police officer, the defendant's specific denial of the wrongdoing places in issue the very facts relied on by the arresting officer to establish probable cause. For example, when a defendant is charged with criminal sale of a controlled substance arising from an alleged buy-and-bust operation, the denial that the defendant engaged in the criminal transaction allegedly witnessed by the police will place in issue the officer's basis for probable cause to arrest. A plain assertion that the defendant was arrested "without probable cause," on the other hand, will justify summary denial of the motion ( see Mendoza, 82 NY2d at 427).
Defendant's conclusory assertions that he "was not selling or offering the merchandise for sale in a public space" are insufficient to warrant a hearing. Defendant does not refute any of the specific allegations, set forth in the information, establishing reasonable cause to believe that he was offering jewelry for sale on an identified public sidewalk. Most significantly, defendant does not deny that he displayed 10 pieces of costume jewelry on a counter, arranged the items so that passersby could see them more clearly, and showed the merchandise to numerous people. These uncontroverted facts, coupled with defendant's failure to display or produce a general vendor's license, provided the officer with reasonable cause to believe that defendant was "act[ing] as a general vendor without having first obtained a license" from the New York City Department of Consumer Affairs (Administrative Code of City of NY § 20-453) (as well as probable cause to arrest him for that offense), which, in turn, established probable cause to believe that the jewelry was evidence of a crime, justifying its plain view seizure. Defendant has thus failed to "lay out a factual scenario which, if credited, would have warranted suppression" ( Mendoza, 82 NY2d at 432).
Administrative Code of City of NY § 20-474.3 (a) provides that "[i]n any civil or criminal action or proceeding, failure by a general vendor who is required to be licensed . . . to exhibit upon demand a general vendor's license . . . to any police officer or authorized officer or employee of the [D]epartment [of Consumer Affairs] or other city agency shall be presumptive evidence that such general vendor is not duly licensed" ( see also Administrative Code of City of NY § 20-461 [a] ["Each general vendor shall carry his or her license on his or her person and it shall be exhibited upon demand to any police officer, authorized officer or employee of the (D)epartment (of Consumer Affairs) or other city agency"]).
Accordingly, defendant's motion to suppress must be denied.