77 Misc. 2d 559 | N.Y. City Crim. Ct. | 1974
Defendants move to suppress the physical evidence in these actions in which they are charged with criminal possession of stolen property. It consists of the body shell of a 1967 Oldsmobile. It was seized on October 5,1973 at about 1:30 p.m. at the junk yard of defendant Spinelli at 147-20 160th Avenue in Queens County. Defendant iSpinelli holds licenses from the City of New York Department of Consumer Affairs as second-hand dealer, automobiles, Number 628892, and as second-hand dealer, Number 628893, and as junk shop, Number 628894. The first two were issued February 7, 1973. Each bears on its face the following legend: “The issuance and
The search and arrests were without warrants. No advance written notice was given defendants that the inspection of the yard was to be made. The officers were engaged in a survey of such yards.
Was the search legal? All warrantless searches are unreasonable and constitutionally prohibited unless shown to be within one of the exceptions to the rule that a search must rest on a valid warrant. (Stoner v. California, 376 U. S. 483; United States v. Jeffers, 342 U. S. 48.) Although items in plain view of the officers may be seized (Harris v. United States, 390 U. S. 234), in this case, when the officer first saw the shell he did not know and had no reason to believe that it was contraband and therefore to be seized. At most he had only a suspicion. Only after he examined the shell, found that the YIN plate was missing, found the hidden YIN, checked it and learned that it was that of a reportedly stolen vehicle did he know he was dealing with stolen property. The search cannot, in my opinion, be justified on the theory that the article was in open view.
In United, States v. Biswell (406 U. S. 311) seizure of unlicensed firearms from premises of a licensed firearms dealer was •upheld as constitutional despite lack of a warrant after the arms were discovered in the course of a periodic inspection of the premises pursuant to subdivision (g) of section 923 of the 1968 Gun Control Act (U. S. Code, tit.-18, § 923, subd. [g]). The court held that the search was made pursuant to a valid regulatory statute and that the dealer, by agreeing to become licensed, waived his right of privacy under the Fourth Amendment. In Colonnade Corp. v. United States (397 U. S. 72) inspections of retail liquor dealers’ premises by Treasury agents were held to be constitutional. Only the agents’ act of breaking into a locked storeroom in the premises after permission to enter the storeroom was refused by the owner was held to be improper.
There is neither evidence nor claim that the officer did anything more than that which he was authorized and permitted to do by law and by express consent of defendant 'Spinelli. He entered licensed business premises at a reasonable hour of the day when they were open for business to make a lawful and expressly permitted inspection. No one objected to his entry or to his presence. He had a right to examine the automobile shell. No one objected to his doing so, nor to his looking for
Motions to suppress are denied.