Opposition Brief — New York v. Mosley

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ORIGINAL

86-1538

IN THE

SUPREME COURT OF THE UNITED STATES

No. 86-1538

NEW YORK,

Petitioner,

-against-

ROBERT MOSLEY,

Respondent.

BRIEF IN OPPOSITION

TO PETITION FOR A

WRIT OF CERTIORARI

PHILIP L. WEINSTEIN

Attorney for Respondent

The Legal Aid Soci

st

15 Park Row - 18th Floor

New York, New York 10038

(2te). Ov 2-s420

KAREN M. KALIKOW

Of Counsel

QUESTION PRESENTED

Whether this Court lacks juris-

diction to review the New York Court

of Appeals decision, as it rested

upon the construction and appli-

cation of a state statute, and

otherwise rested on adequate and in-

dependent state grounds.

TABLE OF CONTENTS:

JURISDICTION sce ces sae Tesecre er Cee ee Le we eae wn

CONSTITUTIONAL PROVISIONS INVOLVED....... ie er a ee

SUMMARY OF ARGUMENT... .ccccccccccccsecces error ere

STATEMENT OF THE CASE... .cccccccccccsscces errr ure ye ee

ARGUMENT IN OPPOSITION TO THE PETITION... .ceeccscsces

POINT

THIS COURT LACKS JURISDICTION TO REVIEW

THE NEW YORK COURT OF APPEALS DECISION, AS

IT RESTED UPON THE CONSTRUCTION AND AP-

PLICATION OF A STATE STATUTE, AND OTHER-

WISE RESTED ON ADEQUATE AND INDEPENDENT

STATE GROUNDS 25 ics cbd ese d ects edd eteeensseseucic

CONCLUSION. ..ccccccece wre ea ai ee ee repre ie? eee ee

TABLE OF AUTHORITIES

CASES Page

Alderman v. United States, 394

Uses BGS CESOS lacs sees c bass Peer re Cree eee 5

Michigan v. Long, 463 U.S. 1032 (1983).....-++--- 10

People v. Cantor, 36 N.¥.2d 106, 324

S.2.2@ G72 (2975) 204 ss re Fe Pe eee eee ETE 4,

People v. Cefaro, 21 "N.¥.24 252, 234 N.E.24

B23 CASGT) vaca meesave EE LC TE PET CET OCC EEE 5

People v. Chapman, 95 AcB.i2d 762, 463

N.Y.S.2d 266 (1983). ..s eee eeceeccccccenes 4,

People v. DeBour, 40 N.Y¥.2d 210, 352 N.E.2d

BOD. CEO TO Ts wc 6 eS bad 06 4 Ad ARG Se Ae Af O88 OO 88 4,

People v. Diaz, 41 A.D.2d 382, 343 N.Y.S.2d

474 (1973), aff'd, 34

N.Y.2d 689, 312 N.E.2d 478 (1974)......-...4. 6

People v. Hadley, 67 A.D.2d 259, 415 N.Y.S.2d

719 (1979) 2 wccccccscscee en ere: ee Ee ee 6

People v. Johnson, 64 N.Y.2d 617, 474 N.E.2d

SE CEO) 6 ak b.cod catia tae 850s ae 6 62d wk nes o8 6 9 n.5

People v. Knapp, 52 N.¥.2d 689, 422 N.E.2d

SSt (1982). vscscies Oe rare Per ee Sree ere rer er 9 7.5

People v. Lynch, 116 A.D.2d 56, 500 N.Y.S.2d ;

236 (1986)....... Si nr eee wee bib daseweees 6

People v. Millan, __ N.Y¥.2d _, __ N-E.2d __

(NO. 76, May 7, 1987) ..cccccccescees tecesvea PASS2i6

People v. Mosley, 68 N.Y.2d 881, 501 N.E.2d 580,

reh'g denied, 69 N.Y.2d 707, __

N.E.2d _—«- (1986) ....... coccscece eeasaesovees passim

People v. Persce, 204 N.Y. 397, 97 N.E. 877

CESL2Y 5. sae s EE EC EE ET Ce TT Cee TT eee EEE Le 6

iii

People v. Reisman, 29 N.Y.2d 278, 277 N.E.2d

396 (1971), cert. denied, 405 U.S.

1041 (1972)... cere cece cece eee e er ereerenes

People v. Stith, 69 N.Y.2d 313, __ N.E.2¢d __

(1987) cc cccccccccccccescesccccccsessscces

People v. Tutt, 38 N.Y¥.2d 1011, 348 N.E.2d 920

tle ) Pere rrrrr Saha lag ite a Cah eae rere

CONSTITUTIONAL AND STATUTORY PROVISIONS

United States Constitution, Amendments IV, XIV...

New York Constitution, Article I,

SOCEIONS 65 122i ici vec sess regsrsccsesesseves

SO: WeBGc SEAS CG nsec i crea carder cn dee wansensin se

22 N.Y. Admin. Code §500.4... cece ce eereccccccees

N.Y. Crim. Proc. Law §470.05....c ccc eeecccccecce

N.Y. Penal Law §10.00(8)..... cee eeececeereseeees

W.7, BORAL LAW S265. 15s) cc cases esses cicascsizsares

iv

"0

©

ih)

uw

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

Respondent requests that this Court deny the peti-

tion for a writ of certiorari to review the judgment of

the New York Court of Appeals, entered in the instant

case on October 16, 1986. People v. Mosley, 68 N.Y.2d

881, 501 N.E.2d 580, reh'g denied, 69 N.Y.2d 707,

N.E.2d (1986).

JURISDICTION

Petitoner asserts that this Court has jurisdiction

under 28 U.S.C §1257(3). Respondent claims that this

Court lacks jurisdiction because the judgment of the New

York Court of Appeals was based upon adequate and

independent state grounds.

CONSTITUTIONAL PROVISIONS INVOLVED

The New York Constitution, article 1, section 6,

provides, in pertinent part:

No person shall be deprived of life,

liberty or property without due

process of law.

The New York Constitution, article I, section 12,

provides, in pertinent part:

The right of the people to be

secure in their persons, houses,

papers and effects, against unrea-

sonable searches and seizures, shall

not be violated, and no warrants

shall issue, but upon_ probable

cause, supported by oath or affir-

Mation, and particularly describing

the place to be searched, and the

persons or things to be seized.

The United States Constitution, Amendment IV, pro-

vides:

The right of the people to be secure

in their persons, houses, papers,

and effects, against unreasonable

searches and seizures, shall not be

violated, and no Warrants shall is-

sue, but upon probable cause, sup-

ported by Oath or affirmation, and

particularly describing the place to

be searched, and the persons or

things to be seized.

The United States Constitution, Amendment XIV, prov-

ides, in pertinent part:

No state shall...deprive any person

of life, liberty, or property, with-

out due process of law. . .

SUMMARY OF ARGUMENT

Petitioner's claim that the New York Court of Ap-

peals decision below erroneously revived the doctrine of

automatic standing, in contravention of federal con-

stitutional principles, rests on a complete misreading of

that decision. For, rather than depart from traditional

rules granting standing to challenge a search or seizure

to one in possession of the item searched or seized, the

Mosley Court simply applied those rules to someone who,

under state law of constructive possession [N.Y. Penal

Law §10.00(8)], was in fact deemed to "possess" the item

seized. The Court's application of its own penal law de-

finition is purely a question of state law. Further, the

recent case of People v. Millan, _ N.Y.2d _, __ N.E.2d

— (No. 76, May 7, 1987), confirms both that the Mosley

decision did not concern, let alone revive, automatic

Standing, and that it rested on an adequate and in-

dependent state constitutional ground.

STATEMENT OF THE CASE

Respondent accepts the statement of facts in this

case from the decision of the New York Court of Appeals

(A. la-2a).} In addition, respondent notes that at no

point in the hearing did the prosecutor argue that

respondent did not have standing to attack the frisk of

his companion, Mackie. Fowever, the hearing court sua

Sponte ruled that whether or not the initial frisk of re-

spondent was justified was irrelevant since nothing was

~ecovered at that point and that respondent did not have

Standing to challenge the frisk of his companion which

revealed a starter's pistol (A. 7a).

Respondent pled guilty to criminal possession of a

weapon in the third degree and was sentenced to five

years’ probation and fined $500 (Minutes of Sentence,

dated September 5, 1984, p. 3).

On appeal to the New York Supreme Court, Appellate

Division, First Department, respondent's conviction was

affirmed without opinion (A. 4a). The New York Court of

. References are to the Appendix annexed to the peti-

tion for a writ of certiorari.

Appeals reversed the judgment of conviction on October

16, 1986. Citing People v. DeBour, 40 N.Y.2d 210, 352

N.F.2¢ 562 (1976); People v. Cantor, 36 N.Y.24¢ 106, 324

N.E.2¢ 872 (1975); and People v. Chapman, 95 A.D.24 782,

463 N.Y.S.2d 266 (1983), the Court held that the weapon

recovered and the statement obtained from respondent at

the stationhouse should have been suppressed since the

stop and frisk of respondent was unjustified and,

therefore, there was no probable cause to arrest and

Search him. The Court then reasoned that "[{i]nasmuch as

the People rely on the discovery of the starter pistol on

Mackie as the basis for the arrest of [respondent] --

that [respondent] constructively possessed the weapon

concealed on Mackie's person -- [respondent] has standing

to contest the frisk of Mackie" (A. 2a). In November,

1986, petitioner moved for reargument or reconsideration

of the Court's decision on the ground that the Court of

Appeals erroneously relied upon the “previously defunct

rule of automatic standing." On December 18, 1986, the

Court denied petitioner's motion (A. 3a).

2 The People did not argue in their brief in the Ap-

pellate Division or in their submission, pursuant to 22

N.Y. Admin. Code §500.4, in the Court of Appeals, that

respondent lacked standing to contest the lawfulness of

the police conduct.

ARGUMENT IN OPPOSITION TO THE PETITION

POINT

THIS COURT LACKS JURISDICTION TO

REVIEW THE NEW YORK COURT OF APPEALS

DECISION, AS IT RESTED UPON THE

CONSTRUCTION AND APPLICATION OF A

STATE STATUTE, AND OTHERWISE RESTED

ON ADEQUATE AND INDEPENDENT STATE

GROUNDS.

Petitioner seeks to have this Court review a

question of pure state law, namely, whether one who

constructively possesses property, pursuant to N.Y.

Penal Law §10.00(8) and state decisional law, possesses

that property for purposes of standing. To achieve that

end, petitioner construes the New York Court of Appeals

Gecision in People v. Mosley, 68 N.Y.2d 881, 501 N.E.2¢

580, reh'g denied, 69 N.Y.2d 707, N.E.2d (1986),

to enunciate a new rule of standing, which “resurrects

the automatic standing doctrine" and thus misinterprets

the federal constitution (Petition for Cert. at 5-6). To

the contrary, the New York Court of Appeals did not enun-

ciate a new standing rule but rather, simply applied a

well-established standing rule to the New York doctrine

of constructive possession.

It is axiomatic that, under both federal and state

authorities, one who physically possesses property has

standing to challenge the seizure of that property by the

police. Alderman v. United States, 394 U.S. 165, 171-73

(19€8); People v. Cefaro, 21 N.¥.2d 252, 257, 234 N.E.2d

423, 425-26 (1967). Under N.Y. Penal Law §10.00(8), one

possesses property when he has “physical possession or

otherwise exercise[s] dominion or control over tangible

property." New York Law thus does not differentiate

between physical possession and constructive possession

for purposes of defining criminal conduct involving

possession of contraband. E.g., People v. Diaz, 41

A.D.2d 382, 384, 343 N.Y¥.S.2d 474, 476-78 (1973), aff'd,

34 N.Y.2d 689, 312 N.E.2a 478 (1974); People v. Reisman,

29 N.Y.2d 278, 285, 277 N.E.2d 396, 400 (1971), cert.

denied, 405 U.S. 1041 (1972); People v. Persce, 204 N.Y.

397, 402, 97 N.E. 677, 878 (1912); People v. Lynch, 116

A.D.2d 56, 61, 500 N.Y¥.S.2d 236, 239 (1986); People v.

Hadley, 67 A.D.2d 259, 262-63, 415 N.Y.S.2d 719, 721

(1979).

Since, by operation of state law, a “constructive

possessor" has the same possessory interest in, and nexus

to, the property as one having actual possession, there

is similarly no distinction that can be made for purposes

of standing. In short, the Mosley Court simply recog-

nized that, as respondent was alleged to have been the

possessor of the seized property (Mackie'’s gun), he had

Standing, in its most traditional sense, to challenge the

seizure of the property he was deemed tc possess. Auto-

matic standing, which confers rights on someone with no

recognized possessory interest, was simply not involved

in the Court's decision.

This analysis has recently been confirmed in People

v. Millan, __ N.Y¥.2d _, __ N.E.24 __ (NO. 76, May 7,

1987). There, the defendant was charged with possession

of a weapon found in a taxicab in which he was a

passenger, under New York's presumption of possession em-

bodied in N.Y. Penal Law §265.15(3). Citing Mosley,

inter alia, in support, the Court both reaffirmed that

automatic standing is no longer the rule in New York and

that, since constructive or presumptive possession con-

stitutes possession under New York law, such possession

suffices for purposes of traditional standing. Slip op.

at 4-6. The Court explained that, unlike automatic

standing, which confers a right to contest the legality

of a search simply by virtue of a defendant being charged

with a possessory crime, in Millan, the defendant's right

to question the legality of the search arose from his

nexus to the seized property which "“rest[ed] entirely on

the circumstances giving rise to the presumption." Id.

at 3.

Petitioner's claim that the doctrine of automatic

standing is at issue is viable only if this Court were to

find that constructive possession is not the functional

equivalent of actual possession, and it is this under-

lying question that petitioner really seeks to have this

3 For the convenience of the Court, the unreported

decision in Millan and the decision in People v. Stith,

69 N.Y¥.2d 313, N.E.2d (NO. 78, March 28, 1987), are

enclosed with this brief.

Court review. However. the determination as to what con-

stitutes possession under state law, like any other de-

finition pertaining to crimes the state chooses to

penalize, is the exclusive prerogative of the state

courts and legislature. Whether "possession" includes

constructive or presumptive possession or, indeed, any

other legal fiction, is thus purely a matter of state

law, beyond the review of this Court.

Once the premise that constructive possession is the

functional equivalent of physical possession under New

York law is accepted, it becomes apparent that the doc-

trine of automatic standing was irrelevant to the deci-

sion in Mosley. And, once it is further acknowledged

that such definition is exclusively a matter of state

law, it becomes apparent that petitioner's attempt to

characterize the Mosley decision as the enunciation of a

new standing rule is an attempt to avert this Court's

attention from the adequate and independent state ground

upon which Mosley truly rested.»

‘ Petitioner seeks to federalize its claim by refer-

ring to the Mosley Court's reliance on People v. DeBour,

40 N.Y.2d 210, 352 N.E.2d 562 (1976), People v. Cantor,

36 N.Y.2d 106, 324 N.E.2d 872 (1975); and People v.

Chapman, 95 A.D.2d 782, 463 N.Y.S.2d 266 (1983), and

stating that those cases, in turn, relied on federal law.

However, the New York Court of Appeals cited those cases

for the substantive proposition that the stop and frisk

of respondent was unjustified and they are thus

completely irrelevant to the standing issue.

5 To the extent that petitioner seeks to convert the

decision in Mosley into a resuscitation of automatic

(Footnote Continued)

Furthermore, although traditional rules of standing

are based on federal and state authorities, Millan, slip

op. at 6, Mi lan expressly held that its application of

standing rules to cases involving constructive or pre-

sumptive possession independently rested on state con-

stitutional grounds. For example, it held that to allow

the “legal fiction of constructive possession" to suffice

as a basis for prosecuting a person for a crime, but not

simultaneously suffice as a basis for standing, would of-

fend "fundamental tenets of fairness inherent in New York

criminal jurisprudence,” with the Court citing expressly

and only to the state constitution and state case law.

Id. at 6. Elsewhere, the Court expressly held that its

(footnote continued)

Standing, this claim is barred on state procedural

grounds as well. Because the State did not argue at the

Suppression hearing (nor even before the Appellate Divi-

sion or Court of Appeals) that respondent lacked standing

to contest the frisk of his companion, respondent had no

opportunity to meet that claim in the fact-finding court,

and the State thereby waived that issue for appellate re-

view. N.Y. Crim. Proc. Law §470.05(2); People v. Stith,

69 N.Y.2d 313, 320, _ N.E.2d _ (1987); see People v.

Johnson, 64 N.Y.2d 617, 619 n.2, 474 N.E.2d 241, 5 42-43

n.2 (1984); People v. Knapp, 52 N.Y.2d 689, 699, 422

N.E.2d 531, 536- (1981) (Jasen, J., concurring); People

v. Tutt, 38 N.Y.2d 1011, 1012-13, 348 N.E.2d 920, 920-21

(1976). That the hearing court ruled that respondent

lacked standing did not preserve the issue as a question

of law for appellate review, despite the August 2, 1986

amendment to N.Y. Crim. Proc. Law §470.05(2). That

amendment, which has not been fully interpreted by the

New York courts, requires the court's ruling on a

question raised on appeal to have been made "in response

to a protest by a party." Since the standing issue was

not raised by either party, the court's decision was not

made in response to a protest by either party.

decision "rests equally on independent state grounds:

that defendant's rights under our State Constitution...

were violated." 1G. at 9. -ns7. Thus, given this sub-

sequent clarification of Mosley as resting as well upon

independent state constitutional grounds, any decision

by this Court as to the standing issue in Mosley would be

an advisory opinion, as the truly independent state

grounds were and will still be the mainstay of the

Court's holding below. It is precisely to avoid the ren-

dering of such an advisory opinion that this Court should

conclude that an adequate and independent state ground

supports the judgment below and that it lacks juris-

diction to review that judgment. Michigan v. Long, 463

U.S. 1032 (1983).

In sum, because the Mosley Court simply applied

traditional, unexceptional rules of standing to the facts

of this particular case, because that application de-

pended on New York's statutory doctrine of constructive

possession, and because the state court has since con-

firmed that an independent state ground exists for its

holding, the question petitioner raises is neither re-

viewable nor worthy of review by this Court.

10

CONCLUSION

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED.

Respectfully submitted,

PHILIP L. WEINSTEIN

Attorney for Respondent

The Legal Aid Society

15 Park Row - 18th FLoor

New York, New York 10038

(212) 577-3420

KAREN M. KALIKOW

Of Counsel

May, 1987

in

State of Acw Work

Court of Appeals

No. 76 OPINION

The People &c.,

Respondent, This opinion is uncorrected and subject to revss.om

Ve before publication in the New York Repors

Hector Millan,

Appellant.

(76) John T. McClintock & Norman Reimer,

NY City.for appellant.

Robert Morgenthau,DA,NY County(Eleancr J

Ostrow & Norman Barclay of counsel) for re-

spondent

HANCOCK, JR., J.

The People charged defendant with criminal possession

of a weapon sclely on the basis of the statutory presumption of

possession (Penal Law § 265.1513})? arising from the fact that

the weapon was discovered in the passenger compartment of the

taxicab in which he was riding. We hold that under these

circumstances the People's imputation of constructive possession

1. Penal Law § 265.15(3) states in pertinent part:

“The presence in an automobile other than a stolen one

or a public ommibus, of any firearm *** is presumptive

evidence of its possession by all persons occupying at

the times such weapon *** is found".

of the weapon to defendant as the predicate for the crime with

which he was charged constituted a sufficient basis for defendant

to challenge the police conduct in searching the passenger

compartment of the cab. Moreover, irrespective of his right to

challenge the search, defendant, as a passenger in the cab, hac e

right to contest the legality of the stop of the cab and to seek

suppression of the weapon as the product of that allegedly

unlawful police conduct. On the moving papers presented to it,

the suppression court should not have denied suppression without

according defendant a hearing on these issues.

I

Defendant seeks a reversal of his conviction for

criminal possession of a weapon, third degree. On the evening o:

June 15, 1984, defendant and two companions, Hector Colon anc

Anthony Veggacada, were riding in a taxicab near the intersecticr

2

of 112th Street and 5th Avenue in Manhattan. Plainclothes

police officers assigned to the street crime unit and traveiline

in a yellow medallion taxi directed the driver of defendant's cab

to pull over. The three occupants were ordered out of the

passenger compartment and searched without their consent. When

the police, in searching the interior of the cab, discovered a

gun in a black leather bag resting on the back seat, they placec

the passengers under arrest and charged them with its possession.

The explanation for the arrest given by the prosecutor, as

related in the decision of the suppression court, was that "the

police saw [defendant, Colon and Veggacada] seated in the back of

a livery cab and approached. The police claimed the [three

2. The facts as related here are essentially those set forth in

the decision of the suppression court denying defendant's motion

and in the moving papers before that court. The court held no

hearing and made no findings. Our statement must be viewed as a

recitation of allegations only.

«2s

occupants] made ‘suspicious moves' and, accordingly. the Fecople

:

assert, [they] were ordered out of the cab." Defendant's motior

to suppress the weapon because of the illegality of the stop an

.

search was denied without a hearing.

In the jury trial which followed, as in the proceecinzs

before the suppression court, there was no evidence that

defendant owned the gun or knew of its presence; the only basi

Ww

for guilt was the statutory rule that the presence of a gun in ar

automobile “is presumptive evidence of its possession by all

persons occupying such automobile at the time *** [it] is found’

(Penal Law § 265.15[3]).> After defendant was convicted of the

gun possession charge, the Appellate Division affirmed with a

divided court (118 AD2¢d 236).

The contentions of defendant which we address concerr

the propriety of the court's denial without a hearing of h

motion to suppress the weapon. Noting that defendant disavowed

any intecest or claim of a privacy right in the bag and thar

“automatic standing" is no longer the rule in New York (People

Ponder, 54 NY2d 160), the suppression court held that defendan:

lacked standing to contest the search of the passenger

compartment. It concluded that -his rights as a passenger

taxicab were no greater than the rights of the passenger in the

private automobile involved in Rakas v Illinois (439 US 1

to

Oo

ety

J

reasoned that defendant could, therefore, claim no right of

privacy in the area searched. It also determined that there was

an insufficient showing that the seizure of the gun resulted

directly from the stop. Thus, his claim that the stop had beer

unlawful could provide no basis for suppression.

3. In its jury charge during the trial of defendant, Colon anc

Veggacada for weapon possession, third degree, the cour

fal

Yo

ct »

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fal

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The Appellate Division majority, in its opinion, agreec

that Rakas was controlling on the question of defendant's right

of privacy in the passenger compartment of the cab and rejectec

defendant's argument that under Rios v United States (364 US 253)

"a taxicab passenger has greater standing to object to a search

of the taxicab than the passengers in Rakas had to contest the

search of a private car" (118 AD2d 236, 242 n 3). It also agreec

that there was no ground for suppression of the gun as the

product of the allegedly unlawful stop, finding on its review of

the trial record a sufficient showing “that the taxicab in which

defendant was a passenger passed a red light and that the stop

was justified” (118 AD2d 236, 244).°

For reasons stated hereafter, there should be a

modification. Defendant should have the right to a suppression

hearing at which he may, if he chooses, contest the legality of

the conduct of the police both in making the initial stop and in

searching the interior of the cab.

II

The critical factor in our analysis of defendant's

right to challenge the search is that the charge against him was

founded only on the statutory presumption arising from the facts

that he was riding in the passenger compartment of the cab and

that the gun was subsequently found in the passenger compartment.

(Cont'd. )

“Seems to me that there's absolutely no other evidence in the

case as to Millan other than the presumption which would permit

you to find Millan guilty."

4. The Appellate Division's use of the trial testimony for the

purpose of supporting the determination of the suppression court

in denying the motion was contrary to established precedent (see,

e.g., People v James, 67 NY2d 662, 664; People v Dodt, 61 NY=c

» 41/7; People v Gonzalez, 55 NY2d 720, 721, cert denied 456 US

1010). The papers before the suppression court contain no

reference to any traffic violation or other conduct of the cab

driver which would constitute a reason for the stop.

'

in

'

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H)

yn

We hold simply that the People may not predicate defendant's

guilt solely on the constructive possession of the weapon

attributed to him as a passenger in the cab based on the

presumption (Penal Law § 265.15[3]) and simultaneously deprive

him of the right to challenge the search. In a recent decision.

People v Moslev (68 NY2d 881), we applied the same rationa‘e

where the police based their claimed probable cause for arrestir=

defendant on their discovery of a starter pistol on the persor o:

his companion, Mackie. In holding that defendant could questior

the lawfulness of his arrest by challenging the assertec basis

for it--the search of his companion--we stated that "[i]nasmuch

as the Peopie rel[ied] on the discovery of the starter pistol or

Mackie as the basis for the arrest of defendant--that defendan:

constructively possessed the weapon concealed on Mackie’'s

person--defendant ha[d] standing to sontest the frisk of Mackie”

(id.at 883; emphasis added).

The holding here is in no way inconsistent with our

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decision in People v Ponder (54 NY2d 160). In Ponder w

the Supreme Court's ruling in United States v Salvucci (448 V5

83) abrogating the so-called “automatic standing rule”

established in Jones v United States (363 US 257), under which «

defendant charged with a possessory crime was permitted to

challenge the legality of the search without regard to whether he

had an expectation of privacy in the premises searched anc

without alleging any possessory interest in the items seized.

Here defendant does not ground his right to contest the

legality of the search on any asserted right to possess the gun

or on any claim that merely because he was accused in the

indictment of a crime of possessing it he should have “automatic

standing". His asserted right to question the legality of the

search rests entirely on the circumstances giving rise to the

presumption.

o6<- No. 76

Our holding that defendant had a right to challenge the

search of the taxicab on constitutional grounds is based on our

analysis of applicable federal and state authorities (see,

United States v Salvucci, 448 US 83, 88, supra; Rios v United

States, 364 US 253, 262, n 6, supra; People vw Mosley, 68 NY2¢

881, supra; People v Ponder, 54 NY¥2d 160, supra) and on our

conclusion that to deny a defendant a hearing under these

circumstances would be repugnant to the requirements of fair play

which have “evolved through centuries of Anglo-American

constitutional history", particularly as applied to the

relationship “between the individual and government"

(Anti-Fascist Committee v McGrath, 341 US 123, 162, Frankfurter,

J., coneurring; see, Wardius v Oregon, 412 US 470, 475-476;

Malinski v New York, 324 US 401, 414-415; Lisenba v California,

314 US 219, 236; People v Isaacson, 44 NY2d 511, 520). The rule

the People would have us sanction is this: the government,

through its agents, may search a taxicab and, upon finding a gun,

use the legal fiction of constructive possession to prosecute ali

passengers, conscious or no 7f the gun's existence, and yet deny

those it accuses a right to question the actions of its agents ir

conducting the search. Such a rule offends fundamental tenets of

fairness inherent in New York criminal jurisprudence (see, NY

Const art I, § 6; People v_ Acevedo, NY2d_ [PU]; People v

Mosley, 68 NY2d 881, supra; People v Isaacson, supra; People v

5

Brown, 40 NY2d 381) and we reject it.

5. Because our decision that defendant had a right to challenge

the search of the cab depends upon the fact that he was charged

with constructive possession of a weapon under the presumption

(Penal Law §265.15[3]) and because our holding that he has a

right to contest the search of the cab is limited to that

situation, it is unnecessary to reach the issue addressed in the

briefs and at argument whether, under other circumstances,

defendant as a passenger in a cab would have had a right of

(Cont'd.)

Before the suppression court defendant urgec a separate

and independent basis for excluding the gun: that irrespective

actions in stopping it were unjustified and the gun should be

suppressed as the product of the unlawful stop. As a passenger,

defendant had standing to contest the stop of the vehicle anc he,

therefore, should have been given a hearing on this issue as

we11.®

The exclusionary rule generally bars from trial a::

“physical, tangible materials obtained either during or as 4

direct result of an unlawful invasion" (Wong Sun v_ United States,

371 US 471, 485; People v Bethea, 67 NY2d 364; People v Johnson.

66 NY2¢d 398; People v Bigelow, 66 NY2¢ 417: People v Goxev, 6C€

NY2d 309; People v Elwell, 50 NY2¢ 231; cf. People vw Arnau. 5°

NY2d 27). As notec in People v Stith and Newton (_ N¥2¢c__

[decided March 26, 1987]), there are circumstances when the

exclusionary rule will mot be applied: when, for exampie, the

evidence “is gained from an independent source” (Silvershorne

Lumber Co. v United States, 251 US 285, 392), or when "the

detrimental consequences of illegal police action [become’ sc

(Cont'd.)

privacy in the passenger compartment (see, Rakas v_ Iiil:nois,

supra). We do not decide that issue.

6. The People's arguments that defendant had no stancing to

challenge the search of the cab have no bearing on defencant's

right to contest the stop. As pointed out by Professors LaFave

and Israel, Rakas “should not be taken to mean that persons who

are ‘merely passengers’ will never have standing” anc, as two

concurring and four dissenting justices in Rakas recognizec, “a

passenger does have standing to object [to @ilegec police

misconduct{. If either the stopping of the car or the

passenger's removal from it are unreasonable in a Fourth

Amendment sense, then surely the passetiger has standing to object

to those constitutional violations and to have suppressec ary

evidence found in the car which is their fruit” (1 LaFave anc

Israel, Criminal Procedure, § 9.1, p 726; emphasis in origina:).

a§- No. 76

attenuated" that the taint cf the ‘initial sisconduct is

dissipated (Brown v Illinois, 422 US 590, 609 [Powell, J.

concurring in part])).

Here, from the information before the suppression

court, it appears that the police actions in stopping the cab,

ordering the defendant to get out, searching him without his

consent, searching the back of the cab, opening the bag and

finding the gun constituted one continuous chain of events.

There was nothing before the suppression court to show that the

taint of the allegedly improper stop had become attenuated, that

the gun would have been independently discovered or that for any

other reason the gun was not “come at by exploitation of that

illegality" (Wong Sun, supra, at 488, quoting J. Maguire,

Evidence of Guilt, 221 [1959]). Under federal and New York

constitutional law it was error to deny a hearing on the issue of

the stop.

Contrary to the People's contentions the moving papers

were minimally sufficient to warrant a hearing. In any event, as

noted by the dissent at the Appellate Division (118 AD2d 236,

247) it is clear from the suppression court's written decision

that its reason for denying the motion “had nothing to do with

the sufficiency of defendant's papers, but, rather, had to do

with defendant's alleged lack of standing to challenge the

seizure of the gun" and that “any objection to the sufficiency of

the papers [was] waived."

The order of the Appellate Division should be modified

and the case remitted to Supreme Court, New York County, for a

suppression hearing and in the event that defendant prevails

thereon, for dismissal of the indictment; in the event that the

People prevail, the judgment should be amended to reflect that

«-

-9- Ko. 76

result. As so modified, the order appealed from shoulc be

affirmed.’

7. Our decision to reverse and to require a hearing on the

legality of both the stop and the search, while based on our

analysis of federal constitutional law, rests equally or

independent state grounds: that defendant's rights under our

State Constitution (NY Const, art 1, §§ 6, 12) were violatec

(see, Michigan v Long, 463 US 1032, 1041-1042; People v Stith anc

Newton, supra, ip opn at p 2, n 1).

No. 76 - People v Millan

BELLACOSA, J. (dissenting):

My vote to affirm this gun possession conviction is

based on simply articulated differences from the majority.

I do not believe that good practice, controlling prece-

dents or sound constitutional imperatives require a suppression

hearing when a taxi cab passenger asserts an insufficient legal

and factual basis for recognized standing to challenge the stop

of the cab or to be accorded an expectation of privacy in the

contents of a zippered bag in the back passenger compartment of

‘the cab.

Defendant alleged merely that the taxicab was stopped

“despite the fact that they [the police] had no reason to believe

that any of the occupants of the vehicle had committed a crime or

were committing a crime at the time of the arrest" and that the

police “recovered a gum from the rear passenger area of the cab".

The suppression court, with only this boilerplate language before

it, denied the suppression motion without a hearing.

The specific facts and circumstances leading up to the

arrest were not developed until trial. Late one evening defen-

dant Millan and two companions were passengers in the back seat

of a livery cab traveling in an area suffering from « reputaczior

for robberies of taxicabs. Two police officers assigned to the

Taxi Robbery Squad stopped the cab because they believed that the

cab driver was signaling for help by a recognized technique of

driving at an excessive speed and passing through a red light.

As the two officers approached the cab, the passengers made

"furtive" movements and one was overheard stating, "You don't dco

things like that, be cool". The police ordered the three men cus

of the cab and patted them down. One officer then looked in the

back seat ard recovered a zippered bag. When asked who owned the

bag, none of the passengers responded. The bag was opened anc

contained a loaded semiautomatic pistol. The three men were

charged with its possession.

I agree that the court may not use post mortem facts

developed at a trial to infuse life or legitimacy into a previ-

ously decided suppression matter (People v Gonzalez, 55 NY2d 720;

see also, People v Dodt, 61 NY2d 408, 417; People v Wilkins, 65

NY2d 172, 180; People v James, 67 NY2d 662). The only relevancy

in reciting these facts of the case is to show that hac cefendent

fulfilled his pleading burden at the suppression stage, there

would have been a hearing with ample facts, in my view, to deny

suppression.

In People v Gruden (42 NY2d 214), this Court conclucec

that "[glenerally hearings are not available merely for the askirs

[and] [w]e therefore hold that the court may summarily grant é

motion to dismiss unless the papers submitted by the prosecutor

show that there is a factual dispute which must be resolvec at a

hearing" (supra, at 217). In People v Weaver (49 NY2d 1012), we

specifically applied the Gruden holding in the suppression con-

text, and in People v Lomax (50 NY¥2d 351) we applied the legal

‘reasoning behind Gruden's holding to the summary denial of a defer-

dant's motion to dismiss without an evidentiary hearing.

Even if we assume that defendant derived standing fror

his meager papers to challenge the stop of a cab within which he

was a passenger, the conclusory allegations contained in his omr:-

bus motion were insufficient at the next step of analysis to

aan

establish a factual issue requiring a herring on the merits. The

defendant's allegation that the taxicab was stopped despite the

fact that no crime was being committed overlooked the totally

legitimate possibility that the vehicle could have been stcpped

for a traffic violation based upon a very minimal factual basis

supporting reasonable suspicion (People v Ingle, 36 NY2d 413,

414-415).

It is my view that a regulated vehicle on a city street,

under the spare facts presented to the suppression court, may be

stopped within corstitutional limitations subject to standing

challenge only by the driver in this case and not by all the passer-

gers.

-

The majority goes further however, and again I respect-

fully disagree, because even if the stop were to be deemed subjec:

to challenge by this defendant he does not automatically acquire

a legitimate, recognized, reasonable expectation or entitlement

to privacy to the compartment or contents in the back of that

cab. I had thought thet was plainly decided in the People's favor

under Rakas v Illinois (439 US 128) and sundry other cases (see,

e.g., United States v Salvucci, 448 US 83; People v Rodriguez, 6°

NY2d 159; People v David L., 56 NY2d 698, cert denied 459 US 8&6;

People v Hunter, 55 NY2d 930; People v Ponder, 54 NY2d 160; People

v Osmond, 10° AD2d 896). The majority casts considerable doubt

on these cases by failing in its effort to distinguish some of

them and by ignoring others of them completely.

Finally, the majority seems to be rebelling unnecessariiv

against this cogent line of precedents that are delicately balancec

on respect for search and seizure rights, a respect which I full»

share, and on an appreciation of the reasonableness component

embedded in that right. That reasonableness aspect compels r~

a§e

conclusion on the particular facts of this case thet defendant

did not do enough at the pleading outset of this prosecution to

warrant a suppression hearing on standing as to the stop er the

search.

The irony for the People is that had defendant done so

he would surely have lost on the merits, but by holding back he

successfully finesses that into an unreasonable victory at the

appellate stage.

* * * * * * * * * * + * * * * * *

Order modified and case remitted to Supreme Court, New York

County, for further proceedings in accordance with the opinion

herein and, as so modified, affirmed. Opinion by Judge Hancock

in which Chief Judge Wachtler and Judges Simons, Kaye and Titone

concur. Judge Bellacosa dissents and votes to affirm in an

opinion. Judge Alexander took no part.

Decided May 7, 1987

-ke-

Srate of Acw Work

Court of Appeals

yeaa OPINION

The People &c.,

Respondent

P . This opinion is uacorrected and subiect to ress

he before publication in the New York Repers

Otis Stith and Card

ell Newton,

Appellants

(poraSesteas€ Aawess ; Soule CG2cRoste,. ooh

S>vecéass BStAtn.

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oveven 5, KRAaC2; ni delts, TOY A2fPecazant hewe

%

HANCOCK, JR., J.

Defendants were arrested and charged with criminal

possession of a weapon when police officers discovered a loadec

gun in a concededly unlawful search of the cab of a truck tractor

following a traffic stop. Later, after it was discovered that the

tractor was stolen, defendants were also charged with criminal

possession of stolen property. In defendants' appeals fror.

convictions on both charges, tney argue that it was error to deny

their motions to suppress the gun. The suppression court and the

Appeliate Division agreed that the search and seizure were in

violation of defendants' constitutional rights. Nevertheless,

both courts, applying the inevitable discovery rule, held thar

the evidence should not be excluded, reasoning that the gun woulc

po

inevitably have been discoverec during the inventory search

following defendants’ arrest when, as would shortly have beer

revealed in a routine registration check, the police learnec che:

the truck was stolen. The sole issue is whether the inevitetle

discovery exception to the exclusionary rule was properly invokec

in these circumstances. Because we conclude that it was not, the

order of the Appellate Division should be modified.?

convictions for criminal possession of a weapon in the thire

degree should be reversed, the motions to suppress granted, arc

the weapon possession count in the indictment should te

dismissed. The convictions for criminal possession of stcler

property in the first degree shouid, however, be affirmec.

T

State Troopers Cliffore and Figueroa, patrolling New

York State Route 17 near Liberty, stopped defendants’ truck

tractor for speeding. Clifford asked the driver, defendan:

Newton, for a driver's license and registration. Newton proéucec

a Connecticut driver's license, but was uneble to locate a

1. The conclusions that the evidence should have been suppressec

under the application of the exclusionary rule and that the

inevitable discovery exception does not apply rest on our

analysis of applicable federal decisions (see, Nix v Williams.

467 US 531; Brown v Illinois, 422 US 590; Wong Sun v Unitec

States, 371 US 471; Silverthorne Lumber Co. v United States, 251

We reach the same conclusions by applying the

exclusionary rule established under our State law (see, People v

Bethea, 67 NY2d 364; People v Johnson, 66 NY2d 39&; People v

Bigelow, 66 NY2d 417; People v Gokey, 60 NYZd 309; People wv

Elwell, 50 NY¥2d 231; cf. People v Arnau, 58 NY2d 27), our hew

ork cases enunciating the inevitab.e discovery doctrine (see,

People v Payton, 45 NY2d 300; People v Fitzpatrick, 32 NY2d acc;

cr. Feopie v Knapp, 52 NY2d 689), and non-federal decisions anc

other authorities which we find persuasive (see, State v Crosser,

536 P2d 1263 [Ore. App.]; see also 3 W. LaFave, Search anc

Seizure § 5 ey et 620-628). Our cecision to reverse, there-ore.

while based on our analysis of federal law rests equaily on ar

“adequate and independent” state ground (Michigan v Long, 462 US

1032, 1041-1042): that defendants' rights under our State

Constitution (NY Const, art 1, § 12) were violated.

or the truck in the piles of papers strewn about

Dissatisfied with Newton’s attempts tc find the

registration, Clifford ordered Newton out of the truck anc

climbed in the driver's side to conduct his own search. Clifiorc

saw a brown vinyl bag on the console between the seats. A

logbook portfolio stuck out from an unzippered side pocket of the

bag. On removing the portfolio, Cliffore noticed the butt of «

revolver inside the pocket. The troopers errested both

defendants for criminal possession of a weapon, handcuffec ther-,

put them in the back of the police car, and took them to the

Ferndale State Police barracks. On the trip to Ferndale, é racic

check showed Newton's license to have expired arc the truck tc te

stolen. Defendants were then charged with criminal possession cz

stolen property.

ana

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13)

ree

The exclusionary rule generally bars "s

physical, tangible materials obtained either curing or es é

i=

direct result of an unlawful invasion" (Wong Sun v United Stetes,

371 US 471, 485; see, People v Bethea, 67 NY2d 364; People v

Johnson, 66 NY¥2d 398; People v Bigelow, 66 NY2d 417; People v

Gokey, 60 NY¥2d 309; People v Elwell, 50 NY2d 231; cf. People v

Arnau, 58 NY2d 27). A prime purpose of the rule is to dete-

police misconduct (see, Nix v Williams, 467 US 431, 442-443;

People v Bigelow, 66 NY2d 417, 427). It has been recognizec,

however, “that in some circumstances strict adherence to the

Fourth Amendment exclusionary rule imposes greater cost on the

legitimate demands of law enforcement than can be

justified bv

s

~

the rule's deterrent purposes” (Brown v Illinois, 422 US 5,

608-609 [Poweil, J., concurring in part]). Thus, courts have

held that evidence should not be suppressec if knowledge of it

“is gained from an independent source" (Silverthorne Lurber Co. v

Petteq States. 251 US -385, 392: People v Arnau, Se NY¥Ze 27).

Similarly, "the detrimental consequences of iliegel pelice actior

[may] become so attenuated" that the taint of the initial

misconduct is dissipeted (Brown, supra, p 609). Sufticiensc

attenuation to avoid application of the exclusionary rule has

been found when the linkage between the police misconcuct anc

that evidence is interrupted by =ntervening events (see e.g.,

Wong Sun v United States, supra, p 491; People vw Grahar, 96 A

198, 200-203, cert denied 464 US 896) or becomes overly extencec

and weakened by passage of time (see e.g., People v Minlev, 1:2

AD2d 712, affd 68 NY2¢d 952; People v Miller, 105 AD2d 1127, 1.28&:

7:

see generally, 3 W. LaFave, Search and Seizure § 11.4, é¢t

614-621). The question is "whether, granting the establishment

of the primary illegality, the evidence to which instant

objection is made has been come at by exploitation of that

m

illegality or instead by means sufficiently cistinguishabie to t

purged of the primary taint" (Wong Sun, supra, p 488, quoting -.

lal

faguire, Evidence of Guilt, 221 [1959]).

Applying this same rationale courts have refused tc

suppress evidence if it can be shown by "a very high degree of

probability" (People v Payton, 45 NY2¢ 300, 313, revd 445 US 573,

on remand 51 NY2d 169) that the evidence sought to be suppressec

would inevitably have been discovered irrespective of the initie:

wrong. Like the independent source and attenuated connection

exceptions to the exclusionary rule, the inevitwrie discover:

exception is based on the perception that in certain

circumstances the interest of society is better served by having

relevant and material evidence admitted in criminal cases than b~

deterring police misconduct through the exclusion of evidence

unlawfuliy acquired (see, Nix v Williams, 467 US 431, 4472-423,

suprée).

Although the inevitable discovery rule has for severé-

years been estabiished law in this state (see, People wv Pavtor.

supra; People v Fitzpatrick, 32 NY¥2d 499; cf., Peopie v Knapp,

52 NY2d 685), our court has never applied the rule where, as

here, the evidence sought to be suppressed is the very evidence

obtained in the illegal search. In People v Fitzpatrick, supra,

and People v Pavton, supra, as in Nix v Williams, supra, the

evidence saved from suppression by the inevitable discovery ru-c

was not evidence illegaliy obtained during or as the immeciate

consequence of the challenged police conduct. It was evidence

obtained indirectly as a result of leads or information geinec

from that primary evidence. In Fitzpatrick, for example, the

evidence the court declined to exclude was a gun found in a

closet as a result of information obtaiued in an iilegally

acquired statement. In Payton we applied the rule to informaticr

linking the defendant to the murder weapon which was discoverec

by tracing a sales slip found in the initial illegal search.

Similarly, in Nix vw Williams the Supreme Court, in acopting che

inevitable discovery rule, held that evidence obtainec through

defendant's illegally elicited statements (the location of the

body -of the victim) shoule not have been suppressed because it

would inevitably have been discovered in a search which was

already in progress. ;

When the inevitable discovery rule is applied to

secondary evidence, as in Payton, Fitzpatrick, and Nix, the

effect is not to excuse the unlawful police actions by admitting

what was obtained as a direct result of the initial misconduct.

It is not the tainted evidence that is admitted, but only wher

was found as a result of information or leads gleaned from that

evidence. The rationaie is that when the secondary evidence weulc

have been found independently in any event, "the prosecuticr.

(should not be] put in a worse position simply beceuse of some

«$a

+

earlier police error or misconduct" (Nix, supra, p 443; emphasis

in original). In contrast, when the inevitable discovery rule is

applied to primary evidence, as was done here, the result is

quite different. It is the tainted evidence itsel=i anc not the

product of that evidence which is saved from exclusion.

Permitting its admission in evidence effects what amounts to ar.

after-the-fact purging of the initial wrongful concuct, anc it

can never be claimed that a lapse of time or the occurrence of

intervening events has attenuated the connection between the

evidence ultimately acquired and the initial misconduct. The

illegal conduct and the seizure of the evidence are cne anc the

same.

In the case before us, the suppression court anc the

Appellate Division, in holding that the illegally seizec weapcr.

should not be suppressed, hypothesized that the gun woulc

inevitably have been discovered through a source that was

independent of the initial taint. Viewing the situation at the

moment of the illegal seizure, the courts velow simply assumec

the chain of events which would customarily have been set in

motion following defendant Newton's failure to produce a

registration certificate: that a radio check would have revealec

that the truck was stolen, defendants would have been arrestec,

the truck would have been impounded and the gun would have beer

found in an inventory search.

We hold that applying the inevitable discovery rule ir

these circumstances, and effecting what would amount to a post

hoc rationalization of the initial wrong (see, Nix, supra, at

448), would be an unacceptable dilution of the exclusionary rule.

It would defeat a primary purpose of that rule, deterrence of

‘police misconduct (see, People v Bigelow, 66 NY2c 417, 427,

supra). As noted by the Oregon Court of Appeals in State v

Crossen (536 P2d 1263, 1264), in declining to appliv the

a ee

inevitable discovery rule to primary as distinguished fro

seconcary evidence, failing to exclude wrongfully obtaine

primary evidence "would encourage unlawful searches in the hepe

that probable cause would be developed after the fact" (see,

Unitec States v Massev, 473 F Supp 843, 852-854; Stokes v Stace,

2

423 A2d 552 [Md Ct App]; State v Williams, 285 NW2d 248, 256-257

{lowa]; contra, Clough v State, 555 P2d 840 ‘[Nev]; for a

discussion of the distinction between primary and secondary

.

evidence, see 3 W. LaFave, Search and Seizure § 11.4, at

620-628).

The People's argument that defendants lacked stancine

to contest the lawfulness of the seizure was raised for the firs:

time at the Appellate Division and thus is not preserved for our

review. We have examined defendant Newton's other argument anc

found it to be without merit.

Accordingly, the order of the Appellate Divisior shoulé

be modifiec by granting defendants’ motions to suppress the gun,

vacating the convictions anc sentences for criminal possessior. ci

a weapon in the third degree and dismissing that count of the

indictment and, as so modified, affirmed.

* *. * * * - . * * . * * * * *

Order modified in accordance with the opinion herein and, as so

mot. 'iec, affirmed. Opinion by Judge Hancock. Chief Judge Wach-.

and Judges Simons, Kaye, Titone and Bellacosa concur. Judge

Alexander took no part.

Decided March 26, 1987

ate