88 A.D.2d 879 | N.Y. App. Div. | 1982
Lead Opinion
— Judgment, Supreme Court, New York County (Myers, J. on suppression hearing; Denzer, J., at trial, sentence and resentence), rendered
Dissenting Opinion
dissents in a memorandum as follows: “Reasonableness” is a conclusion of law totally separate from the lower court findings of fact to which I, as well as the majority, give “appropriate deference.” An officer testified that 10 or more policemen, after gunshots had been heard, entered the bar looking for the gun wielder and/or weapon. The officer further testified that in looking around he found a pocketbook lying in a corner behind the counter, with the closest person to it 8 to 10 feet away. Since the pocketbook was neither hard nor heavy the officer knew as soon as he picked it up that there was no gun hidden in it. He should have put it down at that point. “It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is ‘per se unreasonable * * * subject only to a few specifically established and well-delineated exceptions.’ Katz v United States, 389 U.S. 347, 357” (Schneckloth v Bustamonte, 412 US 218, 219). “Application of sound Fourth Amendment principles to the facts of this case produces a clear result. The search here went far beyond the [defendant’s] person and the area from within which [she] might have obtained either a weapon or something that could have been used as evidence against [her]. There was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area. The scope of the search was, therefore, ‘unreasonable’ under the Fourth and Fourteenth Amendments, and the [defendant’s] conviction cannot stand.” (Chimel v California, 395 US 752, [per Stewart, J.].) As the First Circuit observed in United States v Micheli (487 F2d 429, 431), “A focus on actual physical possession is too narrow * * * in that it would leave vulnerable many personal effects, such as wallets, purses, cases, or overcoats, which are often set down upon chairs or counters, hung on racks, or checked for convenient storage. The Fourth Amendment’s basic interest in protecting privacy * * * and avoiding unreasonable governmental intrusions * * * is hardly furthered by making its applicability hinge upon whether the individual happens to be holding or wearing his personal belongings after he chances into a place where a search is underway. The rudest governmental intrusions into someone’s private domain may occur by way of a