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Defendant Moves to Supress Physical Evidence

On January 20, 1984, two police officers were on patrol in a marked police car, when they observed a white, 2-door Pontiac stopped or standing adjacent to a fire hydrant, at the intersection in the Bronx. he police officer who had been operating the patrol car stopped and requested the woman to move the auto from the hydrant, whereupon she stated that she did not have a license and that it was not her car. A New York DWI Lawyer said the officer maneuvered the patrol car so that its headlights faced the front of the Pontiac and both officers exited their vehicle carrying flashlights, with the patrol car driver proceeding to the passenger side and his fellow officer to the driver’s door.

One of the officers asked the woman to produce her operator’s license, registration and insurance certificate. She responded that she did not have a license but the registration was produced from the glove compartment, although the record does not reflect whether it was retrieved by the car owner or by the woman. In any event, after the woman was unable to state the name of the owner in response to the officer’s inquiry, the police officer, who was shining a flashlight into the car, noticed a closed, brown paper bag, resting against the seat, between the car owner and the woman. He inquired as to the contents of the bag, whereupon the woman picked up the bag, handed it out the window and stated that it’s only boxes of envelopes.

According to the police officer, she became confused at that point, and didn’t understand him. She complied with the command and handed the bag out the window. The other officer, who was positioned on the sidewalk behind the passenger door, only heard highlights of what had transpired between his fellow officer and the woman.

The officer took the bag and placed it on the roof of the car. He then shook it and heard a metallic sound. Contrary to the fact-finding analysis, the police officer did not testify that he believed the bag to contain a hidden weapon or an object heavy enough to be a weapon. Without any further inquiry, he opened the bag to examine the contents and discovered two tan stationery-type boxes. When he opened the first, he found hundreds of glassine envelopes and yelled to his fellow officer to watch out because he got something. Although the officer did not examine the contents, he saw that it contained what appeared to be glassine envelopes and believed that they had powder in them. Actually, New York DWI Lawyer said the envelopes had no powder and were empty. In any event, according to the officer, he heard his fellow officer tell him to look out because the two are going. According to the police officer, it meant that the occupants of the car were to be arrested for drug possession.

After examining the bag’s contents, the officer directed the woman to exit the car while he proceeded to search the car owner. As far as the officer was concerned, at that moment, both had been arrested and he was going to make sure that they did not have any weapons. He directed the car owner to place his hands on the dashboard and patted him down upon noticing that the car owner had only one hand. In the car owner’s left jacket pocket he found what appeared to be a tin foil, which he felt through the material. It was soft, about an inch and a quarter wide and a half inch thick. Examination of the foil disclosed that it contained two other tin foils, containing a white powder, later discovered to be cocaine. The two occupants were handcuffed and taken to the precinct for a further check to ascertain whether the vehicle had been stolen. During the ride to the stationhouse, the car owner told the officer that if anything was wrong, he would take the heat for the car. A subsequent search of the woman at the precinct revealed her to be in marijuana possession but the record is unclear as to whether any formal charges were filed against her or whether she was prosecuted for crack possession. However, she was issued summonses for being an unlicensed operator (Vehicle and Traffic Law) and for parking next to a fire hydrant (Traffic Regulations of the City of New York).

The car owner, charged with marijuana possession, moved to suppress the physical evidence seized at the time of his arrest. Following a hearing, a Nassau County DWI Lawyer said the suppression court granted the motion, concluding that the seizure of the paper bag, on the front seat of the car, amounted to a warrantless, non-consensual search, in violation of the car owner’s Fourth Amendment rights. In so finding, the court cited the conflict in the proof as to whether the officers had requested or demanded that the bag be handed over to them and held that the City of New York had not satisfied their burden of showing that the search was voluntarily consented to. Observing that the occupants were young and without experience in dealing with the police, it was concluded that they may have felt that they were not at liberty to challenge the authority of the officers, who had approached the vehicle on both sides, shining flashlights into the car.

The court also found that no probable cause existed to search the paper bag. It held that, although the inability of the female occupant to produce a driver’s license and her unfamiliarity with the name of the owner of the vehicle may have permitted further inquiry, the officers did not have the right to seize and search the occupants at that time.

The officers were justified in approaching to request information since the vehicle was stopped or standing at a fire hydrant, concededly a traffic infraction. The responses furnished by the woman, that she did not have a license and did not know who the owner was, clearly served to heighten the suspicions of the officer. While the circumstances justified the initial stop and the inquiry, there was nothing to render permissible any greater level of intrusion. There were no furtive movements indicating that either occupant was secreting anything. The officers noticed no bulges in their clothing nor was there anything to suggest that there were weapons inside the car. To the extent that the other officer was at all apprehensive, this was alleviated when he took possession of the bag. As noted, the suppression court did not credit the officer’s tailored testimony that he feared for his safety. In any event, he acted prematurely and without justification in examining the contents of the bag without conducting any further inquiry of the occupants.

While the facts disclosed in the record support the existence of a right to inquire, there was no probable cause to search the bag. Mere hunch or suspicion on the part of the officer is insufficient for that purpose. While it is argued that the search may be sustained on the basis of the fact that the encounter took place in a high crime, drug-infested neighborhood, a similar claim could be advanced as to countless other communities in our City where there are diverse criminal elements and activities. The existence of crime on our streets, however, does not alone furnish a basis to disregard fundamental constitutional rights and liberties.

However, even if the officer was justified in examining the contents of the bag, it is conceded that it contained empty glassine envelopes, the possession of which is susceptible to a variety of innocent interpretations and is not necessarily indicative of criminal activity. The officer admitted on cross-examination that such envelopes could be used for several lawful purposes, namely, stamp and coin collecting. Where, as here, behavior is equivocal and susceptible to an innocent explanation, it may not furnish probable cause for a warrantless search.

Accordingly, the order which granted the car owner’s motion to suppress should be affirmed.
Selling of drugs is punished more severely than drug use in our society. Some people use drugs to alleviate pain from their sickness while others use drugs to harm their mind and body. If you know people who should be apprehended and you want to be a part of the team that helps in eliminating the streets with drug traffickers, call the office of Stephen Bilkis and Associates and consult the Bronx Drug Attorneys and the Bronx Criminal Lawyers.

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