The People, Appellant,v.Terrence McFarlane, Respondent.

Brief

N.Y.January 1, 2013

OFFICE OF THE DISTRICT ATTORNEY, Bronx County ROBERT T. JOHNSON 198 East 161st Street (718) 838-7111 District Attorney Bronx, New York 10451 Fax 590-6523 March 12, 2013 To the Honorable Judges Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207-1095 Re: People v. Terrence McFarlane Indictment No. 1013/2008 APL-2013-00045 Letter pursuant to Rule 500.11 Your Honors: Pursuant to the Court’s letter dated February 28, 2013, designating this appeal for examination of the merits pursuant to Rule 500.11 (“SSM” review), appellant, the People of the State of New York, submits this letter in support of our appeal. The appeal is justiciable and raises an issue of statewide importance. The Facts Defendant was charged in an indictment with committing Criminal Possession in a Weapon in the Second Degree (Penal Law § 265.03 [3]), Criminal Possession of Weapon in the Fourth Degree (Penal Law § 265.01 [1]), and Possession of 1 Ammunition. The evidence adduced at a pre-trial suppression hearing was that police officers stopped defendant’s car when they observed the car had heavily tinted windows. The police saw an unsealed liquor bottle on the back seat of the passenger compartment on the driver’s side that was about three-quarters empty , a “huge wad of money” in a plastic cup in the interior console, and another clear plastic cup that was “crunched and forced between the driver’s side and center console.” One of the officers then asked defendant’s passenger, where he and defendant were going. The passenger responded that they were going to a party but did not know the location. When the officer asked what the passenger’s relationship was to defendant, the passenger said defendant was a “friend of a friend” but did not know defendant’s name. The officer then asked who the money in the cup belonged to; the passenger responded that he did not know. The officer noticed another cup, which was on the floor of the car, beneath the passenger’s seat. The cup appeared to have a residue of liquid. After the police directed that defendant and the passenger step out of the car, the officers repeated the questions as to ownership of the money and the location of the party. No one claimed possession of the money. Defendant and the passenger responded that they were just drinking and going to a party, though they did not know where it was and did not know each other’s names. 2 One of the officers brought defendant to the front of the car and told him there were a number of unanswered questions. He asked him if he had anything in the car he “was not supposed to have.” Defendant said no. The officer then asked, “Do you mind if we check?” or “Do you mind if I take a look.” Defendant answered, “Yeah, go ahead”. The officer then checked the seats and the glove compartment. Finding the glove compartment locked, the officer took the keys from the ignition and opened the compartment. Inside the glove compartment was a silver .45 semi-automatic pistol with a clip containing eight live rounds. In post-hearing legal memoranda argument, defense counsel argued, inter alia,,” that the search exceeded the scope of any consent since the police officer asked only whether defendant minded if they “checked” his car or “took a look. Regarding the scope of consent, the prosecutor argued that, viewed objectively, it was reasonable for a person to understand the officer’s question, “Do you mind if we check?” as a request to search the car. The prosecutor noted that before asking defendant if he could check the car, the officer asked defendant if he had anything in the car he should not have. The follow-up question to check the car logically entailed a search. The prosecutor added that because the windows of the car were already down, the officer would have been able to look inside the car without making any request. Consequently, the only reasonable interpretation of the officer’s request was 3 that he was asking to search the car. The prosecutor noted that the search of the glove compartment was distinguishable from cases in which courts have found a search exceeded the scope of consent, citing as an example, People v. Gomez, 5 N.Y.3d 416 (2005), in which police opened sheet metal on the floor of the car with a knife and pried open part of the gas tank with a crowbar. The hearing court granted the defendant’s motion to suppress the gun. The court found no impropriety in the stop or the request to search. Rather, as to the search, the court noted that defendant could not give consent to the search, including the glove compartment, basing its ruling on Fourth Department appellate cases stating that consent to ‘check’ or ‘look’ inside a vehicle is not consent to search it,” citing People v. Hall, 35 A.D.3d 1171, 1172 (4 Dept. 2006), People v. Love, 273 A.D.2dth 842 (4 Dept. 2000) (request to “check” vehicle), People v. Saunders, 161 A.D.2dth 1202 (4 Dept. 1990) (defendant’s permission for officer to “look” in vehicle), andth People v. Lazarus, 159 A.D.2d 1027 (4 Dept. 1990) (request to “look” in vehicle). th The court indicated that it was constrained to follow these decisions. The court did note that in People v. Mitchell, 211 A.D.2d 553 (1 Dept. 1995), the First Departmentst reversed a suppression ruling where the hearing court, following the Fourth Department decisions in Saunders (permission to”look” in vehicle) and People v. Guzman, 153 A.D.2d 320 (4 Dept. 1990) (request to “take a look” in vehicle), ruled th 4 that the defendant’s consent to a police officer’s request to “look through” the car did not equal consent to a search of the car (Decision, at 13; A. 197). The court observed that in Mitchell, the First Department “distinguished [the Fourth Department cases] without specifically mentioning them by finding that the term ‘look through’ could ‘only be reasonably understood to request more than permission to conduct a visual inspection; it was clearly a request to search the car.’” Despite this observation, the court did not explain why Mitchell was not sufficient precedent for denying suppression. The People appealed from the hearing court’s ruling. In a decision and order dated March 13, 2012, the Appellate Division, First Department affirmed. The First Department ruled, conversely to the hearing court, that, under Florida v. Jimeno, 500 U.S. 248, 251 (1991), the officer’s request to “take a look” or “check” defendant’s vehicle “could reasonably have been understood to be a request to search the vehicle, possible to include closed containers, but it did not reasonably imply a request for permission to open the locked glove compartment,” citing People v. Gomez, 5 N.Y.3d 416, 418-19 (2005). People v. McFarlane, 93 A.D.2d 467, 468 (2012). Justice David B. Saxe dissented. He noted, inter alia, that, the record did “not support the majority’s conclusion that defendant’s consent to a search of the interior of the car did not encompass the glove compartment.” For Justice Saxe, “[t]he only 5 remaining question is whether the fact that the glove compartment was locked would, as a matter of law, alter the normal expectation that a consent to search the interior of a car would include the glove compartment.” People v. McFarlane, 93 A.D.3d at 468-70 (2012). Argument The decision of the First Department, in affirming the hearing court’s ruling to suppress the physical evidence, deprives police offices of any clear guidelines as to how to request and conduct a consent search of the interior of an automobile. An officer would have no certainty that his or her request to “check” or “take a look” inside the car would encompass the glove compartment. The decision is especially confusing since the use of “check” or “take a look” justifies the search of any closed containers in the interior, but not, apparently, if the closed container is integral to the automobile. Uncertainty for police leads to error and error has significant consequences in search and seizure. As Justice Cardozo observed in People v. Defore, 242 N.Y. 13, 21 (1926), “The criminal is to go free because the constable has blundered.” This Court should find that where the court below found that a police officer’s request to “check” or “take a look” could reasonably be construed as a request to 6 check visible but closed containers in the vehicle, there was no basis to exclude the locked glove compartment since the police did not use force to open the compartment but merely utilized a key left in the ignition. As Justice Saxe noted in his dissent, there is one essential question of law that arises from the majority’s ruling to suppress the contraband found in the locked glove compartment, viz.,”whether the fact that the glove compartment was locked would, as a matter of law, alter the normal expectation that a consent to search the interior of a car would include the glove compartment. Does merely encountering a lock negate the consent, requiring the police to seek additional permission before proceeding further with their search?” People v. McFarlane, 93 A.D.2d at 469-70. Significantly, the hearing court did not determine that a search of a locked glove compartment would necessarily be outside the scope of consent to a car search. Rather, the hearing court found that in this case defendant did not knowingly consent to a search of that compartment because the officer used the terms “check” or “look inside,” which, for the reason discussed above, the court felt constrained to find vague and indicative of a superficial examination. Ostensibly, then, if the officer had used the term “search,” the hearing court would not have considered the opening of the glove compartment outside the ambit of consent. This would have been a correct determination because, as a general matter, it is established that a search under the 7 “automobile exception” to the warrant requirement “applies to closed, and even locked, containers and compartments within a car.” People v. Michael Howard, 81 A.D.2d 404 (1 Dept. 2011), citing People v. Ellis, 62 N.Y.2d 393, 398 (1984). st The opening of the glove compartment should not reasonably affect the scope of consent. It is well established that “[t]he standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness –what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991), quoted in People v. Gomez, 5 N.Y.3d 416, 419 (2005). In Jimeno, the Supreme Court addressed the question whether it was reasonable for the “officer to consider a suspect’s general consent to a search of his car to include consent to examine a paper bag lying on the floor of the car.” Id. In analyzing the issue, the Court noted that “[t]he scope of the search is generally defined by its expressed object.” Id. The Court then focused on the exchange between the officer and defendant Jimeno. The defendant granted the officer permission to search the car without any explicit limitation on the scope. The Court observed that the officer “had informed [defendant] that he believed [defendant] was carrying narcotics, and that he would be looking for narcotics in the 8 car.” Id. From this, the Court stated, “We think it was objectively reasonable for the police to conclude that the general consent to search [defendant’s] car included consent to containers within that car which might bear drugs. A reasonable person may be expected to know that narcotics are generally carried in some form of a container. ‘Contraband goods rarely are strewn across the trunk or floor of a car,’ [quoting United States v. Ross, 456 U.S. 798, 820 (1982].” Jimeno, 500 U.S. at 251. Consequently, where an officer has indicated to a suspect that he seeks to determine if contraband is present in a vehicle, a reasonable person in the suspect’s place would or should understand that the search of that vehicle will involve an examination of containers in the interior of that vehicle. See United States v. Snow, 44 F.3d 133, 135-36 (2d Cir. 1995) (“an individual who consents to a search of his car should reasonably expect that readily-opened containers discovered inside the car will be opened and examined,”) quoted in Gomez, 5 N.Y.3d at 419. As the Seventh Circuit observed in United States v. Holifield, 956 F.2d 665, 669 (7 Cir. 1992), “The glove compartment is generally considered a container inth search and seizure contexts,” citing Belton, 453 U.S. at 461 n.4, which noted that the glove compartment, opened or closed, is part of the interior of the car. See also Espinosa, 782 F.2d at 892 (in searching the interior of the car, the officer looked in the “glove box”). Thus, a reasonable person would clearly expect Officer Roda to 9 search an unlocked glove compartment. Further, the search of a locked glove compartment is not in and of itself improper. See, e.g., Holifield, 956 F.2d 665 (recovering gun from glove compartment); United States v. Palmer, 360 F.3d 1243 (10 Cir. 2004) (same). th Where a person has not expressed a limit on a search, an officer would not be expected to know that a readily opened container, such as glove compartment easily opened by keys left in the ignition, is automatically outside the scope of that search. See, e.g., State v. Odom, 722 N.W.2d 370 (N.D. 2006) (officer reasonably understood defendant’s general consent to search his hotel room to encompass a search of the locked safe). The only distinction made by the Court in Jimeno concerns items in the vehicle that could not readily be opened but would require force: “It is very likely unreasonable that a suspect, by consent to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk... .” 500 U.S. at 251-52. Consequently, the important question is whether the item in the interior of the car could be readily opened or required force. What should be determinative here is that the officer did not use force to unlock the glove compartment or otherwise impair the structural integrity of the car. See, e.g., United States v. Gutierrez-Mederos, 965 F.2d 800 (9 Cir. 1992) (search of locked side panel in automobile not outside theth 10 scope of consent where the officer did not force open the panel but used a key); State v. Odom, 722 N.W. 370 (N.D. 2006) (officer did not damage or destroy safe but opened it with a master key); cf. Gomez, 5 N.Y.3d 420-21 (search exceeded scope of consent where police used knife to remove sheet metal in the car and a crowbar to pry open the gas tank). While the defendant here could not have legitimately consented to the use of force to break open the glove compartment, there is no basis, as a matter of law, to conclude that scope of his consent could not encompass the use of a readily available key to open that compartment. The People, therefore, object to alternative SSM review. Given the importance of correcting the Appellate Division’s ruling in this case, the People submit, pursuant to Rule 500.11(c)(2), that this appeal should be designated for full briefing and argument. Rule 500.11(b) states that cases may be designated sua sponte for SSM review on the basis of “(1) questions of discretion, mixed questions of law and fact or affirmed findings of fact, which are subject to a limited scope of review; (2) recent, controlling precedent; (3) narrow issues of law not of statewide importance; (4) nonpreserved issues of law; (5) a party’s request for such review; or (6) other appropriate factors.” An examination of the factors here reveals that this case is not a good candidate for alternative SSM review. First, this case does not involve discretionary questions, a mixed question of 11 law, or affirmed findings of fact. Rather, the legal question, as posed by Justice Saxe is “whether the fact that the glove compartment was locked would, as a matter of law, alter the normal expectation that a consent to search the interior of a car would include the glove compartment.” McFarlane, 93 A.D.3d at 469-70. Second, this legal question is not narrow but has statewide importance. Given the myriad requests for consent to search an automobile suspect of containing contraband and the likelihood that McFarlane will now be cited by defendants in suppression motions to argue that search of a locked glove compartment, however easily opened, was outside the scope of their consent, there must be clarity on this issue. Third, the issue of the propriety of opening the glove compartment as outside the scope of consent is fully preserved in the motion papers before the hearing court (Defendant’s Memorandum of Law, Point II, at 7-10; A.162-65; People’s Memorandum of Law, at 15-16; A.181-82). * Moreover, defendant, as respondent, has not, as yet, requested SSM review. Accordingly, the People respectfully request full briefing and oral argument before this Court. Respectfully submitted, Stanley R. Kaplan cc: David Segal, Esq. Assistant District Attorney Numerals preceded by “A.” refer to the pages of appellant’s appendix in the People’s appeal to* the Appellate Division, First Department. 12