In re Gissette Angela P. , 577 N.Y.S.2d 774 ( 1991 )

OPINION OF THE COURT

Per Curiam.

On January 23, 1990, a Tuesday, at 5:00 p.m., appellant was observed through a one-way mirror by Detective Harvey Garry of the Port Authority Police for a period of about 10 minutes as she waited on line for a bus bound for Virginia. The detective testified that his attention was drawn by her youthful appearance and the fact that she was unaccompanied. He noticed that she was shifting nervously from one foot to another, looking around constantly, back and forth and over her shoulder, and glancing at her midsection, where there was a grapefruit-sized bulge under her coat.

The detective followed appellant onto the bus and sat down behind her in the sixth-row aisle seat. His partner, Detective Lasak, also boarded the bus, taking a seat directly behind the driver. Detective Garry leaned forward and asked appellant if she would speak with him. She replied that she "didn’t mind”. Garry stated, "My priorities at that point, I would say, would be possibly that she could have been a juvenile runaway; that she had a problem; something was wrong.” He asked her if she was traveling alone and how old she was. Appellant confirmed that she was alone and asserted that she was 18. Garry noted that she appeared to be only 13 or 14, and the Family Court observed that "she does not in any way resemble an 18-year-old”. (Appellant was, in fact, 14.) Garry then elicited that she was traveling to Norfolk, Virginia. When he asked if she had family there, appellant did not respond directly, but stated that he could search her bag. When Garry told her it was the bulge at her waist he was interested in and not the bag, she unzipped her coat and handed him a plastic bag containing what later proved to be cocaine. Family Court found that Garry was a credible witness, that his conduct in engaging appellant in conversation constituted a minimal intrusion which was heightened by her evasive answers to his questions, and that no search or custodial interrogation was conducted. Accordingly, her motion to suppress the evidenced was denied.

In People v De Bour (40 NY2d 210, 218), the facts of which closely resemble the facts of the case at bar, it was stated that "in the performance of their public service functions, not related to criminal law enforcement, the police should be given wide latitude to approach individuals and request information.” Section 718 of the Family Court Act, governing the return of runaway children, "requires some inquiry by a police officer prior to detaining a juvenile” (Matter of Doris A., 145 Misc 2d 222, 225, affd 163 AD2d 63, lv denied 76 NY2d 712). Detective Garry’s inquiry was appropriate in view of the purpose sought to be achieved by the statute and entirely justifiable. "The minimal intrusion of approaching to request information is permissible when there is some objective credible reason for that interference not necessarily indicative of criminality” (People v De Bour, 40 NY2d 210, 223, supra). The detective, based on his knowledge that the bus station attracts passengers carrying illegal drugs, and on his observation of the girl’s nervous behavior and the bulge in her midsection, had an "objective credible reason” to make an informational inquiry. There was no detention of appellant and not "even a hint of harassment or intimidation” (People v Hollman, 168 AD2d 259, 261). Her decision to hand over the bag containing the contraband was not the result of coercion (People v Gonzalez, 39 NY2d 122, 128).

The contention that the encounter, culminating in the surrender of contraband, was tantamount to a seizure because it took place within the close confines of a bus was rejected in Florida v Bostick (501 US —, 111 S Ct 2382 [1991]). The concerns raised by the dissent are essentially those raised by the dissenters in Bostick and do not warrant further discussion. Moreover, the instant matter is factually distinguishable in two important respects. Unlike Bostick, in which the police concededly approached the defendant "without articulable suspicion” (501 US —, —, supra, 111 S Ct 2382, 2384-2385, supra), Detective Garry had the statutory authority and even the duty to approach and question an unaccompanied child in a location known to be frequented by truants and runaways and to have a high incidence of drug activity (Family Ct Act § 718 [a]; People v De Bour, supra, at 220; Matter of Terrence G., 109 AD2d 440, 447).

It is our understanding that the dissent advocates a per se rule, similar to the one rejected in Bostick (supra), that the questioning of a minor on a bus constitutes a seizure within the meaning of the Fourth Amendment. Significantly, the dissent relies on People v Gonzalez (supra), which established the rule that, with narrow exceptions, "a warrantless search of an individual’s home is per se unreasonable and hence unconstitutional” (People v Knapp, 52 NY2d 689, 694 [emphasis added]). The dissent incorrectly concludes that it is the People who face a heavy burden to establish consent to a search rather than the appellant who, upon a motion to suppress evidence, bears the burden of persuasion (People v Di Stefano, 38 NY2d 640, 652; People v Rockwell, 137 AD2d 874, 875; see, People v Love, 57 NY2d 998). While this matter is clearly governed by People v De Bour (supra), which the dissent does not attempt to distinguish, even if it were conceded, arguendo, that appellant was detained, her detention would be authorized under the circumstances of this case by section 718 of the Family Court Act. Moreover, as the dissenter has previously observed, there is no theoretical distinction to be drawn between criminal and noncriminal detention since "it is the fact of the lawful arrest which establishes the authority to search” (Matter of Terrence G, supra, at 445). Therefore, even assuming that appellant had been seized by Detective Garry, a full search of her person was justified as incident to a lawful custodial arrest (supra).

Furthermore, unlike Bostick (supra), there is no dispute that appellant voluntarily opened her coat and surrendered the contraband to Detective Garry, and Family Court so found. In this respect, the encounter is remarkably similar to the one in People v De Bour (supra), in which the defendant was approached by two patrolmen in a drug-prone location and a bulge noted at his waist. Seizure of a .38 caliber Smith and Wesson revolver, observed when De Bour unzipped his jacket in response to the officers’ request, was held justified. As in the matter before us, "the crime sought to be prevented involved narcotics and the Legislature has declared that to be a serious crime” (40 NY2d 210, 220, supra). Unlike the matter before us, the patrolmen in that case could not invoke any statutory authority to authorize detention of the suspect.

The dissent, judging Family Court’s "view of what transpired to be utterly fantastic”, takes exception to the factual findings made at the Mapp hearing. As we have previously noted, " 'where different inferences may be drawn from the proof, the choice of inferences rests with the trier of fact and should not be rejected by an appellate court unless unsupported as a matter of law’ ” (Matter of Robert S., 159 AD2d 358, 359, appeal dismissed 76 NY2d 770, quoting People v Hartley, 103 AD2d 935, affd 65 NY2d 703). What’s more, the circumstances surrounding the child’s imminent departure, late on a Tuesday afternoon, on a bus bound for Virginia, admit of only two possible inferences. First, the child might spend some time in Virginia—in which case she would not be back in New York in time to attend class at the beginning of the school day on the following morning—raising a question of truancy. Second, she might make the return trip from Norfolk to New York City in the dead of night, to arrive in time for the start of classes—in which case the officer’s concern about the purpose of her journey would hardly be allayed. We cannot understand the dissent’s suggestion that a police officer may approach a minor to protect the child from the consequences of truancy but may not so inquire if, in addition, circumstances suggest that the child may be employed in the interstate transportation of dangerous narcotics as a courier or "mule”. This suggestion takes an artificially narrow view of the role of State authorities to act in loco parentis for the protection of the welfare of minors.

Family Court’s characterization of appellant’s questioning by Detective Garry as noncustodial was entirely correct. However, under the circumstances presented by this case, custodial detention and a search conducted incident thereto would have been justified pursuant to the provisions of section 718 of the Family Court Act in furtherance of its stated purpose of returning runaway children to their parents or others responsible for their care.

Accordingly, the final order of the Family Court, New York County (Judith Sheindlin, J.), entered June 25, 1990, which adjudicated appellant a juvenile delinquent and placed her with the New York State Division for Youth, Title III, for a period of 18 months after finding that she committed acts which, if committed by an adult, would constitute the crime of criminal possession of a controlled substance in the first degree, should be affirmed, without costs.