95 A.D.2d 155 | N.Y. App. Div. | 1983
OPINION OF THE COURT
The issue is the effect of a police ruse on the validity of a consent to search. On the facts before us, the consent was not undermined by the police conduct involved.
At about 4:15 a.m. on October 9, 1978, Police Officer Jerome Leonard peered from the window of his house and saw a man emerge from a house across the street and place
Defendant subsequently moved to suppress his identification and the property recovered from his car. After a hearing, the court found the identification at defendant’s apartment to be suggestive, but ruled that Leonard could make an in-court identification on the basis of his independent observation of the incident. On the Mapp issue, the court denied suppression of the physical evidence because the police had probable cause to search the car. Thereafter, defendant pleaded guilty to attempted burglary in the second degree and now appeals on the basis of the denial of his suppression motion.
We agree with Criminal Term that Leonard had an independent source for identifying the defendant and we affirm the denial of suppression as to the in-court identification (see Manson v Brathwaite, 432 US 98). The Mapp issue is somewhat more troublesome, however, for we must determine whether, under the totality of the circumstances, defendant’s consent to search his car was volun
Since a consent may be established by word or deed (People v Whitehurst, 25 NY2d 389), a defendant who voluntarily gives his keys to a police officer to permit his vehicle to be searched, makes a valid consent to search (see People v Neulist, 43 AD2d 150, 159; Robinson v United States, 325 F2d 880, 884; Grice v United States, 146 F2d 849; State v Theroux, 111 RI 617). The issue here, however, is whether the officers’ deception as to the true purpose of their visit undermines the voluntariness of the consent to search. In Schneckloth v Bustamonte (412 US 218, supra), the Supreme Court held that the validity of a purported consent to search is to be determined by a voluntariness test like the one used in confession cases, and that the police need not warn the consenter of the constitutional right to refuse consent. The use of deception does not destroy the voluntariness of a consent per se unless the deception is so fundamentally unfair as to deny due process (see People v Tarsia, 50 NY2d 1, 11; People v Pereira, 26 NY2d 265, 266-267; People v McQueen, 18 NY2d 337, 346; 2 LaFave, Search & Seizure, § 8.2[n], pp 687-688). Whether a police ruse amounts to a deception that undermines the validity of a consent therefore must be decided on a case-by-case basis. The Supreme Court has upheld the propriety of the use of an undercover police officer who poses as a prospective purchaser of narcotics (see Lewis v United States, 385 US 206), the planting of a government informer in a suspect’s hotel room (see Hoffa v United States, 385 US 293) or the offering of a bribe to a government official by an undercover officer (see Lopez v United States, 373 US 427). Even the governmental involvement in the recent Abscam cases was held to be within the bounds of fundamental fairness under the due process clause (see United States v Kelly, 707 F2d 1460; United States v Myers, 692 F2d 823,
Here, the police took advantage of defendant’s false report that his car had been stolen, but they did not create the situation, misstate what they were looking for, nor introduce extraneous factors calculated to make it falsely appear that surrender of defendant’s privacy was essential (see 2 LaFave, Search & Seizure, § 8.2[n], p 690; see, also, United States v Bailey, 447 F2d 735; Commonwealth v Brown, 437 Pa 1, writ of habeas corpus den sub nom. Brown v Brierley, 438 F2d 954, cert den 402 US 997; State v Fredette, 411 A2d 65 [Me]). Manifestly, defendant wanted the police to find the car and search it (see Commonwealth v Brown, supra) in an apparent effort to absolve himself of any responsibility for the contents found. Distinguishable, then, are cases where an officer falsely represents facts that normally establish the exercise of police authority to which a person would ordinarily yield, such as obtaining entry to a home by falsely stating that the investigation was based upon a nonexistent gas leak (People v Jefferson, 43 AD2d 112), by misrepresenting that a defendant’s car had been in an accident (People v Torres, 45 AD2d 185), or by the false assertion that the officer had a search warrant (Bumper v North Carolina, 391 US 543). In contrast to the cited cases, there is no evidence of any coercive tactic here, for the defendant sought the assistance of the police in finding his car even though he knew where the car was and upon request offered his keys to assist in the search. All of this occurred in the relative security of defendant’s own home where he could more easily resist the intrusion of the police (People v Gonzalez, 39 NY2d 122, 128-129, supra) whom he had invited by reporting his car was stolen. Thus, we conclude that the consent was a product of an essentially free and unconstrained choice, and not the result of a submission to authority.
Having determined that the consent was valid, we must still examine its scope. Since the consent given was general and unqualified, with no express or implied limitations placed upon the intensity of the search of the car, the police properly proceeded to search the trunk (see State v Johnson, 71 Wn 2d 239; 2 LaFave, Search & Seizure, § 8.1[c], p
Damiani, J. P., Mangano and Thompson, JJ., concur.
Judgment of the Supreme Court, Queens County, rendered December 5, 1980, affirmed.