137 Misc. 2d 694 | N.Y. Sup. Ct. | 1987
OPINION OF THE COURT
Defendants have been accused of the crimes of criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the third degree. They are charged with possessing substances of an aggregate weight of four ounces or more containing cocaine and with possessing a .357 Magnum not in their homes or places of business.
Defendants have moved for suppression of tangible property.
FACTS
Sergeant Delgado is an officer of 14 years’ experience in narcotics enforcement. At about 4:00 p.m. on October 14, 1986, a member of the team he headed told him that a registered informant had phoned and said that he had been negotiating for a kilogram of cocaine with a female Hispanic who would arrive with it from Miami on Eastern Flight 414 at La Guardia at 11:30 p.m. The informant had not given Delgado information previously. He and his wife had been arrested on a narcotics charge. She was still incarcerated. His productive cooperation was to benefit him and her. Delgado, his undercover officer, and the informant drove out to La Guardia at 10:00 p.m. and coordinated his plans with the airline and the Port Authority police; it was arranged that a drug-sniffing dog and its handler would be available. When Hernandez left the plane with Castro, the informant pointed her out. Delgado observed Castro twice run halfway up a flight of stairs, stop suddenly, turn around, and look back and forth. Hernandez also looked "all around” and went into the ladies room, where another officer observed her vomiting. Each was carrying a piece of hand luggage. Hernandez pointed out a black and tan suitbag on the luggage conveyor, which Castro took. When the pair reached the sidewalk, Delgado identified himself, asked Castro his name, and took the bags Castro was carrying. Police took the bag Hernandez was carrying. Other police were standing around defendants and they were not free to leave. Delgado asked them to come back to the luggage area, and they did so. The luggage area is part of the public area,
CONCLUSIONS OF LAW
Defendants argue from Arkansas v Sanders (442 US 753) and United States v Chadwick (433 US 1) that luggage may be searched only (1) pursuant to a warrant or (2) where there is probable cause coupled with exigent circumstances. There is, however, nothing in those cases which prohibits a search of luggage by consent, for instance, or a search of luggage that has been abandoned. Abandoned property is not protected by the Constitution from search and seizure. (Abel v United States, 362 US 217; Hester v United States, 265 US 57.) The issues presented here are: (1) was the black and tan suitbag abandoned by defendants; and, since abandonment must be voluntary and not coerced by unlawful police action, (2) were the initial stop of defendants by Delgado and the subsequent conduct of the police up to the time of such abandonment proper.
Abandonment "Abandonment does not require performing a ritual; rather it is a question of intent.” (United States v Cowan, 396 F2d 83, 87 [2d Cir].) That intent "may be inferred from words spoken, acts done, and other objective facts.” (United States v Colbert, 474 F2d 174, 176 [5th Cir].) Most
That distinction is implicitly recognized in People v D’Ambrosio (28 AD2d 1130), where the Second Department said: "Defendant’s denial of ownership of the suitcase can only be construed as an intention not to claim possession and was an effective abandonment of the suitcase.” People v Chitty (40 Misc 2d 580 [Sup Ct, NY County]), cited in D’Ambrosio involved an attaché case which defendant had brought into a restaurant and set on the floor next to him in a booth with others. The police asked him whether the case belonged to him and he denied any knowledge of or connection with it. The court noted that while defendant had not physically discarded the case, the requisite intent was shown; it held that "his verbal discarding of the attache case leaves him without an interest or right in its contents, as well as depriving him from successfully maintaining this motion” (40 Misc 2d, supra, at 582; accord, People v Patino, 97 AD2d 552 [2d Dept 1983]; United States v Kendall, 655 F2d 199 [9th Cir]; United States
The issue here is one of intent. The act of physically discarding an object may show an intent to abandon it in the Fourth Amendment sense even though the circumstances indicate a hope or even an expectation of returning to recover the object and asserting one’s rights therein against the world. (United States v Williams, 569 F2d 823, 826, supra; see also, People v Fraumeni, 108 AD2d 756 [2d Dept] [package of narcotics dropped to the ground between two trees as defendant walked rapidly away].) But we have the faculty of speech and can express our intent verbally very well. In the instant case we are concerned with the effect of verbal communication: the request by Delgado for permission from Castro to search the black and tan suitbag and Castro’s repeated assertions that it was not his. If Castro’s reply had any meaning in that context it was that he had no expectation of privacy therein which he was capable of waiving. He had abandoned even any hope akin to that which Fraumeni (supra) may have retained of returning, if his drop had not been noticed, and recovering the dropped package scot-free.
Hernandez too had said the bag was not hers. But she clearly had no rights of privacy therein (or in Castro’s small bag) even before any abandonment. The placing of property in the bag of another cannot give one a reasonable expectation of privacy in such bag. (Rawlings v Kentucky, 448 US 98; People v Buckley, 81 AD2d 511 [1st Dept].)
Propriety of Police Conduct. An unverified tip by a known informant on the scene who had once before provided information to a police officer (though that previous tip could not be verified and did not result in any police action) may carry enough indicia of reliability to justify a forcible stop even though it might be insufficient for an arrest or a search warrant. (Adams v Williams, 407 US 143.) Even in the absence of an informant’s tip, certain constraints on personal liberty constituting seizures under the Fourth Amendment may be justified without probable cause to arrest; and in the case of an airport detention the reasonableness of such detention will be judged in the light of the public interest involved in the suppression of illegal transactions in drugs or of other serious crime. (Florida v Rodriguez, 469 US 1, 5; Florida v Royer, 460 US 491, 498-499; see, United States v Place, 462 US
The conduct of the police was based on reasonable and articulable suspicion and was proper. The ensuing abandonment was in no way tainted.
DECISION
Defendants’ motions are in all respects denied.