People v. March , 685 N.Y.S.2d 88 ( 1999 )

Bracken, J. P.,

dissents and votes to reverse the judgment, vacate the order dated November 19, 1996, and so much of the order dated October 18, 1996, as denied that branch of the defendant’s omnibus motion which was to suppress physical evidence, grant that branch of the motion, and dismiss the indictment, with the following memorandum: I am of the opinion that the warrantless search of the defendant’s van was contrary to the Search and Seizure Clauses of the Federal and State Constitutions (US Const 4th, 14th Amends; NY Const, art I, § 12).

The facts are accurately stated in the opinion of my colleagues in the majority. One fact that bears emphasis, however, is that the officer who conducted the search admittedly entered into the van before observing the contraband which he later seized. I cannot agree with the implication of the majority opinion that the “plain view” doctrine applies under these circumstances. One condition to the application of the “plain view” doctrine is that “the police [be] lawfully in the position from which the object is viewed” (People v Diaz, 81 NY2d 106, 110; see also, People v Saurini, 201 AD2d 869). “It is * * * an essential predicate * * * that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed” (Horton v California, 496 US 128, 136). Thus, the seizure of evidence in the present case can be justified only if the officer’s warrantless entry into the van itself was legal.

The warrantless intrusion into the van carried out in this case can be justified, under State Constitutional law, only if the officer had a valid basis for concluding “that a weapon located within the vehicle present [ed] an actual and specific danger to the officers’ safety” (People v Torres, 74 NY2d 224, 231, n 4; see also, People v Snyder, 178 AD2d 757, affd 80 NY2d 815; People v Mercado, 165 AD2d 910). This is essentially in conformity with Federal law, which, under circumstances such as those presented here, permits a warrantless search of a vehicle only where police have “reasonable suspicion based on specific and articulable facts to believe that [an occupant] may be armed and dangerous” (Minnesota v Dickerson, 508 US 366, 374; Michigan v Long, 463 US 1032). According to the holding in Michigan v Long (supra) the police must also believe that the suspect or suspects “may gain immediate control of the weapons” (463 US, at 1049-1050; see also, United States v Brown, 133 F3d 993 [7th Cir], cert denied 523 US 1131; McCardle v Haddad, 131 F3d 43 [2d Cir]; United States v Hill, 114 F3d 1189 [1997 WL 289655] [6th Cir]).

The facts as recounted in the majority opinion furnish no basis upon which to conclude that the officers involved in this search had any reason to suspect that the occupants of the van were armed and dangerous which would give rise to a justifiable fear for their safety. Under these circumstances, there was no justification for conducting a warrantless search of the van in the conceded absence of probable cause. To say that the relatively innocent circumstances present in this case were sufficient to justify a warrantless search of the van seems to me to create a conflict with binding precedent which holds that such a search cannot be justified even when the officers observe a holster inside the vehicle (People v Snyder, supra) and even when one of the occupants of the vehicle is wanted for murder and reported to be armed (People v Torres, supra).

For the foregoing reasons, I dissent, and vote to reverse.