Lead Opinion
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be reversed, without costs, respondent’s motion to suppress granted and the petition dismissed.
On April 5, 1990, Port Authority Police Officer Joseph DeFelice observed respondent standing alone in the Port Authority Bus Terminal for several hours with a large knapsack-type bag. DeFelice approached and questioned respondent, and, for several reasons, concluded that she could be a runaway. Respondent was traveling alone, had initially lied about her age, had no identification with her and appeared to be nervous. Moreover, respondent said that her mother could not be contacted and, while indicating that she was waiting for a relative, she could not give a local address or telephone number for that person.
DeFelice took respondent to the Port Authority Youth Services Unit office — a facility for investigating suspected runaways. Upon entering the office, respondent put her bag down on the floor and sat in a chair about 15 feet away from the bag. A few minutes later, another officer picked up respondent’s bag from the floor in order to move it out of the way. While holding the bag, the officer felt what he believed to be the butt and trigger guard of a gun. DeFelice also handled the bag and was able to feel what he believed to be the impression of a gun inside the bag. The officers then opened the bag and found four weapons and ammunition.
Family Court denied respondent’s motion to suppress the weapons seized from the bag, holding that the respondent’s detention was proper since DeFelice had probable cause to believe that respondent was a runaway and that the search of the bag was justified under a "plain-touch” exception to the warrant requirement. After a fact-finding hearing, Family Court determined that respondent had committed acts, which if committed by an adult, would constitute the crimes of criminal possession of a weapon in the third and fourth degrees.
The Appellate Division affirmed, holding that respondent had been properly detained under Family Court Act § 718 and
We agree with the courts below that the detention of respondent was proper. Under Family Court Act § 718, the police may detain and return any juvenile to his or her parents "who, in the reasonable opinion of the officer, appears to have run away from home without just cause”. An officer’s reasonable opinion justifies detention of a juvenile under section 718 if it is supported by probable cause to believe that the juvenile may be a runaway (see, Matter of Mark Anthony G.,
We disagree with the conclusion of the courts below, however, that the warrantless search of respondent’s bag was justified under a so-called "plain-touch” exception to the warrant requirement. We have rejected that exception this session in People v Diaz (
Dissenting Opinion
(dissenting). Appellant, 13 years of age, was detained at the Port Authority Bus Terminal at approximately 9:00 p.m. on a week night, on suspicion of being a runaway. We are unanimous that the detention of this teenager was justified and lawfully conducted under Family Court Act § 718. A few minutes after she was escorted by a Port Authority police officer to the Youth Services Unit at the Terminal, she set down her large, black, canvas, knapsack-type bag in the walkway in the specially designated room. She took a seat some 15 feet away. A second officer picked up the
The Family Court and the Appellate Division denied suppression of the seized miniarsenal. This Court granted leave to appeal. I agree with the result of the two courts below and therefore respectfully dissent and vote to affirm the order of the Appellate Division for essentially the same rationale applied by the Appellate Division.
That Court plainly did not adopt or rely on the so-called "plain touch” doctrine in this case. Thus, the forced application of this doctrine here, as the decisive template, is puzzling. That semantical phrase should be just a shorthand for one of the factors that contribute to any probable cause determination. If the factor is derived from a lawful and justified action, as here, it ought to be considered with all the rest of the probable cause features. It should not be discarded on a per se semantical analysis.
In upholding the seizure and the resulting juvenile delinquency determination of the Family Court, the Appellate Division used a traditional analysis. The officer in this case, after routinely and legally touching the juvenile’s bag, inadvertently became aware that it contained dangerous contraband. He verified his acquired knowledge by having another officer check the outside of the bag, also by lawful actions. Their reasonable and lawful activity, along with the entire assembly of surrounding circumstances in this situation, provided a probable cause basis to take further reasonable actions, including in these circumstances opening to check that bag in that public place. Ultimately, the safety of the officers and the public was at stake there, and to propound a protocol that requires making a formal arrest in order to qualify for an incident search (compare, People v Diaz,
The net practical effect of this and like cases requires officers and lower courts empowered with fact-finding authority to jettison their sound appraisal of the entire collection of data and developments of the varied and dangerous encounters involved. That is not warranted under sensible, settled, constitutional law principles.
Basically, the Court seems to be erecting a set of rigid regimes. Presumably, the officers could have held, examined or seized the juvenile’s knapsack and its contents in any number of other lawful ways, e.g., if they arrested her and did an incident search; if the bag were in her proximate "grabbable” area within the youth facility; if a fear for safety was reasonably perceived (an explosive potential, for example); if a regulation or magnetometer were in place to check all bags in the secure unit, as is done at airports and some courthouses and schools; if a proper inventory of held property procedure were in place; if the teenager were held for a longer period, perhaps overnight, while the police secured a warrant; if the police got consent or information by lawfully questioning her; if other exigent circumstances were present; or if several other categorical exceptions were evoked. I do not see why the police actions taken here must fit rigidly into one of the litany of authorized exceptions, so long as they reasonably approximate one or more of the traditional allowances for nonwarrant searches and seizures — as they did in this case.
In sum, the reversal approach taken by the Court in this juvenile delinquency case is not only analytically infirm but precedentially dangerous, since it compels the police to perform their job duties with timidity when confronted with situations reasonably affecting the public’s and their own personal safety. The police in such circumstances should not be left with no realistic alternative except to return an arsenal of dangerous and illegal weapons and ammunition to a child courier.
Chief Judge Kaye and Judges Simons, Titone and Hancock, Jr., concur in memorandum; Judge Bellacosa dissents and votes to affirm in an opinion; Judge Smith taking no part.
Order reversed, etc.