People v Hernandez

[*1] People v Hernandez 2005 NY Slip Op 52242(U) Decided on December 27, 2005 Just Ct, Ulster County Reichler, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 27, 2005
Just Ct, Ulster County

THE PEOPLE OF THE STATE OF NEW YORK,

against

Angel Hernandez, Defendant.



04080475



John G. Rusk, Esq.Andrew Kossover, Esq.

Assistant Ulster County District AttorneyKossover Law Offices

275 Wall StreetPO Box 399

Kingston, NY 12401New Paltz, NY 12561

Counsel for PlaintiffCounsel for Defendant

Judith M. Reichler, J.

Defendant is charged with criminal possession of stolen property fourth degree, in violation of section 165.45(1) of the Penal Law. Defendant has moved to suppress certain physical evidence, and, pursuant to order of this court, a Mapp hearing was held on November 21, 2005. Mapp v. Ohio, 367 U.S. 643 (1961). The People's case consisted of the testimony of New Paltz police officer Bunce. The Defendant testified on his own behalf. Based on the credible evidence adduced at the hearing, the court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

On July 20, 2004, while on patrol in New Paltz, Officer Bunce was approached by two people who reported that a bicycle had been stolen from a place where it had been resting. He gathered additional information in order to file a report, including a description of the color and markings of the bicycle, and the fact that the rear tire was flat.

On August 10, 2004, Officer Bunce received a call that a bicycle matching the description of the stolen bicycle had been observed on Defendant's property on South Ohioville Road in New Paltz. He proceeded to the property and parked his patrol car in the northbound lane of South Ohioville Road, near one entrance of Defendant's circular driveway. Defendant's house was approximately 100 feet from the road. While seated in his car on the road, Officer Bunce observed several cars on the driveway in front of the house and a portion of a bicycle in front of one of the cars. The bicycle was standing upside down, was missing the rear wheel, and matched the description he had been given of the stolen bicycle. Through the use of his binoculars, Officer Bunce was able to confirm his initial observation.

Officer Bunce then drove up the driveway to attempt to make contact with the resident. Finding nobody home, he called the station to ask if he needed a search warrant, and was told [*2]none was needed because the bicycle was in plain sight and might be moved by Defendant if left there. Officer Bunce then picked up the bicycle, placed it in the patrol car, and returned to the station.

Defendant, who is 54 years old, acknowledged that he had not been home at the time Officer Bunce was there. He acknowledged that the bicycle was on his property, but asserted that he had picked it up because he believed it had been abandoned. He confirmed that the bicycle was standing upside down in front of his house, and testified that it had been there for a couple of weeks. Defense exhibits I and M (taken the day of the hearing) show the circular drive and the view Officer Bunce had from the road, although not necessarily the location of the bicycle and cars on August 10, 2004..

Defendant does not have mail or newspaper delivery to his house, and he disposes of his garbage at the local dump. The photos show "no trespassing" signs affixed to several trees facing the street, although they do not show the scene exactly as Officer Bunce observed it because, several months before the photos were taken, some of the lower limbs had been removed from the trees. There are no fences along the property, or gates closing off the walkway or the two entrances to the circular driveway.

CONCLUSIONS OF LAW

The Defendant claims that the warrantless seizure of the bicycle violated his constitutional right to be free from unreasonable search and seizure. The People invoke the "plain view" doctrine to justify the warrantless seizure of the bicycle. A defendant seeking suppression of evidence has the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises or object searched. People v Wesley, 73 NY2d 351, 358-359; Katz v United States, 389 US 347. Once defendant has established standing, it becomes the People's burden to show the legality of the police conduct. People v. Ramirez-Portoreal; 88 NY2d 99 (1996).

Defendant's privacy expectation

Before we can determine whether Officer Bunce's observation of the bicycle in Defendant's driveway, and seizure of the bicycle, was permissible under the Fourth Amendment, we must first determine whether or not Defendant had a "constitutionally protected reasonable expectation of privacy" that was capable of being violated. This involves a two-part inquiry. First, did Defendant have a subjective expectation of privacy? Second, does society recognize that expectation as reasonable? Katz v. United States, 389 U.S. 347, 360 (1967); Oliver v. U.S., 466 U.S. 170 (1984).

In spite of the existence of a circular driveway, allowing the public to approach his house, Defendant does not receive mail delivery or garbage service at the house and has "no trespassing" signs posted on trees facing the street. Clearly, Defendant demonstrated his own subjective intent and desire to maintain privacy in and around his house.

We turn, then, to whether that expectation of privacy is reasonable, keeping in mind that the test is "whether the government's intrusion infringes upon the personal and society values protected by the Fourth Amendment." Oliver, supra., at 181-183. Defendant's yard and driveway [*3]are in the "curtilage," the land immediately surrounding and associated with his home. This is the area where the intimate activity associated with the "sanctity of a man's home and the privacies of life" is extended Oliver, supra, quoting Boyd v. United States, 116 U.S. 616, 630 (1886). The protection afforded the curtilage is "essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened." Oliver, supra, at 213.

It was reasonable for Defendant to have an expectation of privacy within his own yard and driveway. This would be true even if he had not posted the "no trespassing" signs.

"Search" of Defendant's property

The fact that an area outside the house is within the curtilage of the home does not, by itself, bar police observation. "The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares," or precluded an officer's observations from a public vantage point where he has a right to be. California v. Ciraolo, 476 U.S. 207, 213 (1986).

Any expectation by the Defendant that his driveway or porch, both clearly visible from the road, were protected from observation is unreasonable. Thus, the observation, or "search," during which Officer Bunch observed the bicycle, was lawful and permissible under the Fourth Amendment, without the need for a search warrant.

Seizure of the bicycle

We turn now to Officer Bunce's entry on Defendant's property and seizure of the bicycle. The People contend that Officer Bunce had probable cause to believe that the bicycle he saw on Defendant's property was the bicycle previously reported as stolen and that the seizure of the bicycle was justified under the "plain view" exception to warrantless seizure

A basic constitutional rule in this area is that searches or seizures conducted without prior approval by a judge or magistrate are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well delineated exceptions. The burden is on those seeking an exemption to show the need for it. Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971). To establish that the entry upon defendant's property was proper, the People are required to show either that the entry did not offend the Fourth Amendment of the U.S. Constitution or New York's analogous provision (NY Const., art. I, § 12), or that probable cause existed for the entry and that one of the recognized exceptions to the warrant requirement applied.

The court in Coolidge held that the condition precedent for all situations involving the warrantless seizure of evidence in "plain view" is the requirement that there has been a justifiable prior valid intrusion. Four suggested examples, although not exhaustive, were set forth: a search of a given area for specified objects, pursuant to a warrant, during which the searcher comes across some other article of contraband;[*4]exigent circumstances, such as "hot pursuit" of a fleeing suspect, during which the police come across evidence;seizure of an object which comes into view during a search incident to a lawful arrest; and.the valid presence of a police officer in a constitutionally protected area during which he inadvertently comes across an incriminating object.

It is important to distinguish "plain view," as used in Coolidge to justify seizure of an object, from an officer's mere observation of an item left in plain view. The right to security in person and property protected by the Fourth Amendment may be invaded in quite different ways by searches and seizures. A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property. United States v. Jacobsen, 466 U.S. 109, 113 (1984). As the Supreme Court put it, in Horton v. California, 496 U.S. 128 (1990) : The "plain-view" doctrine is often considered an exception to the general rule that warrantless searches are presumptively unreasonable, but this characterization overlooks the important difference between searches and seizures. If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. A seizure of the article, however, would obviously invade the owner's possessory interest. If "plain view" justifies an exception from an otherwise applicable warrant requirement, therefore, it must be an exception that is addressed to the concerns that are implicated by seizures rather than by searches [citations omitted and emphasis added]. 496 U.S. at 133 & 134.

One must, therefore, avoid the casual use of the term "in plain view" to describe any visual sighting other than the legal concept enunciated by the court in Coolidge. Instead, terms such as "open view," "clearly visible," and "readily observable" are better descriptors when speaking of something that can be clearly seen. There is no dispute that Officer Bunce was able to clearly see the bicycle in Defendant's driveway from his car on a public road. Simply seeing evidence in "open view" from a legitimate viewing point, however, does not mean it is lawful to seize it under the "plain view" doctrine. The fact that something is "clearly visible," or "readily observable," may provide the basis for a lawful search, but it is not sufficient to support a constitutional basis for a seizure.

In articulating the "plain view" doctrine, Coolidge emphasized that "in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The "plain view" doctrine, however, identifies the circumstances in which plain view has legal significance, rather than being simply the normal occurrence in any search, legal or illegal. (Coolidge v New Hampshire, supra, at 465). [*5]

Having lawfully observed the bicycle on Defendant's property, Officer Bunce then had the requisite probable cause to obtain a search warrant. Probable cause alone, however, cannot support a warrantless seizure. Horton v. California, 496 U.S. 128, 134 (1990). New York's Court of Appeals has made clear that testimony that an incriminating object is on premises belonging to a criminal suspect may establish probable cause for the issuance of a warrant to seize an object, but plain view alone is never enough to justify the warrantless seizure of evidence. Payton v. New York, 445 U.S. 573 (1980).

The People do not contend that the entry onto Defendant's property was justified by exigent circumstances that would justify a warrantless entry onto the property, nor is there evidence in the record to support such a contention. Rather, they urge an exception to the requirement of a warrant, based on the often misinterpreted doctrine of "plain view," which resulted in the officer's mistaken impression that so long as evidence is clearly visible from a public area, it is subject to warrantless seizure. People v. Saurini, 201 AD2d 869 (4th Dept 1994).

The record in this case indicates that Officer Bunce was careful. He called in to his sergeant to see if he needed a warrant and was told he did not. He then walked up the driveway and took only the bicycle he reasonably believed had been stolen. Officer Bunce's failure to secure a warrant before seizing the bicycle was by no means a sinister attempt to deprive Defendant of his constitutional rights. Nevertheless, I find that no circumstances exist that would justify the failure to obtain a warrant before seizing the bicycle. The application of the basic rule of Fourth Amendment law, therefore, requires that physical evidence taken from Defendant's property be suppressed, as it is the fruits of impermissible conduct by law enforcement personnel. Wong Sun v. United States, 371 U.S. 471; People v. Martinez, 37 NY2d 662.

In accordance with CPL §170.60(6), this shall constitute the findings of fact, conclusions of law, and reasons for the Court's determination. For the reasons stated herein, it is

ORDERED, that Defendant's motion to suppress is GRANTED, and evidence of the bicycle seized from Defendant's property is suppressed. Parties are directed to appear before the court at 5:00 p.m. on Tuesday, January 17, 2006, for further proceedings.

Date: December 27, 2005ENTER

________________________________

Hon. Judith M. Reichler

New Paltz Town Justice