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She did not know who owned the gun


At approximately 12:55 a.m., a police officer, in plain clothes and assigned to the street crime unit, was driving southbound in an unmarked police car with his partner when he observed an automobile that double parked the street on the northbound side. He also observed that there were no other similarly double parked cars. The officer saw a man, who was standing on the passenger side of the car by the open rear door, remove something from his waistband, lean over and place it in the rear passenger compartment. The officer could not tell what the object was but, based on his extensive experience as a police officer and member of the street crime unit and the man’s movements, he believed it to be a gun. The officer then made a U-turn and pulled up behind the car, which had two occupants, both women, seated in the front. As the police vehicle came to a stop, the man closed the door and walked away.

The officer exited his car, stopped the criminal man near the rear of the car, identified himself as a police officer and, while the other officer detained the man, approached the car. On the floor of the rear compartment, he observed an empty shoe box and a .9mm semi-automatic handgun, the barrel of which was partially covered by the shoe box. The officer recovered the gun, which had six rounds of ammunition in the magazine and one in the chamber. At that point, the man told the officer that he would take the weight for the gun. After the officer explained to the man that if the gun was not his, he should not take the responsibility for it, but, the man admitted that he owned the gun.

At trial, the man called two witnesses, first, a neighbor and a friend of his family, who testified that the man was on the sidewalk talking to his brother when two men, whom she later learned were police officers, arrived. After speaking to the occupants of the double-parked car and removing them from the vehicle, one of the officers reached into the car and removed something. The two officers then arrested the man. The man’s second witness testified and stated that she was an ice cream vendor and a friend of the man, who had occasionally worked with him on her route. She stated that she was sitting in the driver’s seat of her automobile while waiting for the man, when she saw two plainclothes officers approach him as he stood on the sidewalk talking to his brother, and, apparently believing the man to be a robbery suspect and ask him for identification. She further stated that the officers then searched the front and back of her car and recovered a gun, which the criminal man denied owning. She did not know who owned the gun or how it found its way into her car. She testified that the man had not been in the car before the police approached.

Subsequently, the court found that the man had standing to contest a search of the vehicle belonging to his partner. More specifically, the criminal court found that irrespective of whether the man had been in the car that evening he could be considered a licensee with standing to contest a search of a car to which he had access. The court also found that even if the man was on the sidewalk rather than near the car when he was first observed, the officers were not entitled to stop him as a result of seeing him reach in a waistband, bend over a car, close the door and walk away and that the officers acted on a mere intuition.

In the subsequently entered written order, the criminal court suppressed both the gun and the man’s statements. The court also modifies to deny suppression of the gun and remand the matter for further proceedings.

The court’s review of the record shows that the man failed to demonstrate that he had a legitimate expectancy of privacy in the automobile into which he placed the .9mm handgun. Sources revealed that the man did not own the car and he was never seen inside of it. The only evidence even remotely touching on the subject came from the man’s witness, who testified that she and the man were partners in the ice cream truck route and that she often saw him after work.

The court stated that assuming that to be the case, such a relationship would not, in and by itself, confer standing with respect to the witness’ car, occupied by herself and another woman. Further, there was no evidence that the man and the witness used the car for business purposes on the night of his arrest or at any time or, as found by the hearing court, that he was a licensee of the vehicle. There was also no evidence, nor did the man argue, that he had permission to use the car. As a result, the court’s finding that the man’s rather generalized business relationship with the witness, the car’s owner, gives him a legitimate expectancy of privacy in her car is unjustified on the record. Since the man failed to establish any nexus between himself and the car from which the gun was recovered, he lacks standing to challenge the gun’s seizure.

The court further stated that even without standing to contest the search of the car on the basis of a legitimate expectation of privacy as the hearing court found, to suppression of the gun on the ground that its recovery was tainted by the man’s brief detention. Even if the officer’s observations did not give rise to a reasonable suspicion that the man was engaged in criminal activity and his detention was therefore unjustified, the recovery of the gun was proper since it was derived from a source independent of the detention and was attenuated from any illegal activity. Therefore, the gun was not the fruit of the illegal detention and should not have been suppressed.

The evidence revealed that when the officer walked over to the car, he observed a gun on the floor of the rear passenger compartment. The court stated that the stop of the man in no way aided the officer either in the discovery or recovery of the weapon, which would obviously have been recovered even if the man had not been detained. In addition, no evidence was recovered from the man’s person. Nor did the man provide any information as to the gun’s whereabouts. The man’s brief detention was intended merely to hold him and not to provide the police with an opportunity to discover evidence which was not otherwise available.

Based on records, if the sight of the object provides probable cause to believe that it is the instrumentality of a crimes, a warrantless seizure is justified if the police view the object from a lawful vantage point, the police access to the object is lawful and the incriminating nature of the object is immediately apparent.

Consequently, the court ordered to modify the decision and deny the motion to suppress physical evidence and, except as thus modified, affirmed and the matter remanded for further proceedings.

It is your privilege to obtain an attorney whenever you face charges. If you need legal representation, you can ask the Queens County Criminal Lawyer and reach them at Stephen Bilkis and Associates office. You can also hire the Queens County Possession of a Weapon Attorney if you get arrested with gun crime related matter.

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