People v. McFarlane , 939 N.Y.S.2d 460 ( 2012 )

Order, Supreme Court, Bronx County (Nicholas Iacovetta, J.), entered August 23, 2010, which granted defendant’s suppression motion, affirmed.

The record supports the hearing court’s finding that defendant did not consent to a search of the car’s locked glove compartment.

After a lawful traffic stop, a police officer, having observed a large wad of rolled-up cash, a partly empty liquor bottle, and crushed papers, and having received suspicious responses to his questions, asked defendant if there was anything in the vehicle that he should know about. Defendant answered, “[N]o.” The officer then asked, “[D]o you mind if I take a look,” or whether it would be okay if he “checked.” Defendant replied, “[G]o ahead.” After checking the seats and the center console, the officer, without asking, took the keys from the ignition and unlocked the glove compartment, where he found a loaded gun.

“When a search and seizure is based upon consent . . . the burden of proof rests heavily upon the People to establish the voluntariness of that waiver of a constitutional right” (People v Whitehurst, 25 NY2d 389, 391 [1969]). “The 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 US 248, 251 [1991] [citations omitted]). Here, the officer’s request to “take a look” into the car or “check” it for contraband could reasonably have been understood to be a request to search the vehicle, possibly to include closed containers, but it did not reasonably imply a request for permission to open the locked glove compartment (cf. People v Gomez, 5 NY3d 416, 418-419 [2005] [general consent to search car did not authorize breaking into hidden compartment]). That the officer subjectively intended to search the glove compartment when he made the request is not determinative. Normally, a locked container can only be opened by breaking into it or using a key. A reasonable person in defendant’s situation would have assumed that if the officer wanted to open the glove compartment with defendant’s consent he would have asked for the key or asked defendant to open it. The officer did neither; after checking the seats and the center console, he simply took the keys from the ignition and opened the glove compartment.

The dissent’s reliance on People v Mitchell (211 AD2d 553 [1995], lv denied 86 NY2d 738 [1995]) is misplaced. In Mitchell, the officer asked a defendant if he could “look through” the car, and the defendant responded, “[Y]ou can look through anything you want. It’s not my car” (id. at 553 [internal quotation marks omitted]).

In view of the foregoing, we find it unnecessary to address any of the procedural or substantive issues presented by defendant’s alternative arguments for affirmance. Concur — Andrias, J.P., Sweeny, Acosta and Manzanet-Daniels, JJ.