People v. Vasquez

—Judgment of the Supreme Court, New York County (S. Katz, J.), rendered April 26,1983, convicting defendant, upon his plea of guilty, of two counts of criminal possession of a weapon in the third degree, and sentencing him to five years’ probation, is affirmed.

On September 28,1981, police officers on radio motor patrol in upper Manhattan noticed an automobile which was being driven by defendant, with a New Jersey license plate attached only by a string. One of the police officers, Herlihy, testified that this mode of license attachment was frequently used on stolen cars. In addition to the driver, there was one passenger sharing the front seat. The police made a U-turn to follow the car.

Meanwhile, defendant had double-parked and exited the vehicle when the police approached him and asked to see his driver’s license and registration. Defendant handed Officer Herlihy a New York driver’s license in the name of Louis Vasquez, with a Manhattan address. He also gave the officer a New Jersey registration which matched the license plates, in the name of Conrad Pons, with a Union City, New Jersey, address for that individual. Officer Herlihy then asked the defendant driver who the owner of the car was. Defendant replied that he, himself, was the owner, i.e., Conrad Pons with a New Jersey address, although he was driving with an operator’s license as Louis Vasquez, with an address in New York. The officer then went over to the passenger still sitting in the car and asked him who owned the car. The passenger replied that he did not speak English. The officer leaned into the open window and asked again if the passenger knew who owned the car. As he did so, he saw a metal object which appeared to be a pistol on the floor between the passenger’s legs. Officer Herlihy opened the door, reached in and pulled out a loaded automatic pistol. After the defendant and the passenger had been arrested, an inventory search of the automobile revealed the presence of another loaded automatic pistol.

Defendant was indicted along with his passenger on two counts of criminal possession of a weapon in the third degree. After hearing, the court denied defendant’s motion to suppress the seized weapons. Defendant pleaded guilty to both counts of jthe indictment and was sentenced as noted above.

Defendant, and the dissent, contend that the hearing court should have suppressed both guns as the product of an illegal search and seizure. We disagree. We also disagree with the dissent’s conclusion that Officer Herlihy violated the rights of the owner and driver of the car by an “intrusion * * * [consisting] of a search of the interior of the vehicle, albeit visual.”

The dissent concedes that the police stop of the vehicle and the requirement that defendant produce his driver’s license and the auto registration was proper in light of the dangling New Jersey license plate. Moreover, the dissent also acknowledges that further inquiry was appropriate in view of the discrepancy between the names on the license and registration (as mentioned supra, there were also different addresses, in two separate States), including the right to make inquiry of the passenger as to his knowledge of the ownership of the vehicle.

Much of the testimony of Officer Herlihy is set out at length in the dissent and hence need not be repeated. However, examination of some of that testimony, in context, is instructive. Thus, although Officer Herlihy testified he “leaned into the car” and spoke to the passenger and again got a negative answer, he continues “and I looked around the car and I saw something on the floor of the car.” On cross-examination, Officer Herlihy gave his reason for leaning into the open car window when he questioned the passenger. Defense counsel then asked whether the officer leaned into the car and asked the passenger a second time who was the owner of the car. After the officer responded “yes” the counsel asked “What you feel he couldn’t hear you?” and was answered “Well, sometimes, yes, maybe he didn’t.” Counsel then asked in obvious sarcasm, “Maybe your English would be a little clearer if you leaned into the car?” and the officer responded “Possibly he might have picked up some omre [sic — more] words or something.” Thus, the testimony showed that the officer leaned into the car simply in an attempt to better have himself understood by the passenger. When he did so, he certainly was not obligated to place his hands over his eyes or not view what was in plain sight.

The case of People v David L. (56 NY2d 698, revg on dissent of Hopkins, J. P., and Weinstein, J., 81 AD2d 893) is directly in point. The dissent herein notes that in David L. the Appellate Division dissenters, whose opinion was adopted by the Court of Appeals, ruled that the passenger had no possessory rights in the car while in this case we deal with the rights of the owner and driver. However, in David L., the dissenters gave this lack of a possessory right by the passenger only as an additional reason for affirming the conviction (People v David L., 81 AD2d 893, 896, supra). The main thrust of their decision was that the police had the right to open the door of a car, lawfully stopped by them, to decrease the risk of injury to them.

The defendant and the dissent herein rely upon People v Vidal (71 AD2d 962) to support the conclusion that since there was no evidence of any danger to the police, the act of leaning inside and conducting a visual search was without justification.

However, the Court of Appeals in adopting the dissent in the David L. case has, in effect, reversed the decision in Vidal (supra). True, in David L. (supra, p 893), the Appellate Division majority, expressly relying upon Vidal, held that although an officer who lawfully stops a driver for a traffic offense may order the driver to step out of the car, the officer may not, in the absence of any independent evidence of criminality or danger to himself, take the additional step of opening the doors of the vehicle to look inside. The dissent adopted by the Court of Appeals, rejecting this reasoning, stated in pertinent part (p 895): “The narrow question before us is whether a police officer may open the door to a motor vehicle during the course of an investigation following the legal stop of the vehicle for good cause — here a defective tail light and excessive noise. We think that to hold the police may not so behave, under the circumstances here, imposes an unreasonable and unduly onerous burden on the legitimate activities of law enforcement agents * * * In determining the unreasonableness of a search and seizure the total circumstances must be considered. Here the defendant was seated in an automobile lawfully stopped by the police while it was proceeding on a public highway. The United States Supreme Court has lately recognized the inordinate danger to a police officer as he approaches a person seated in an automobile (Pennsylvania v Mimms, 434 US 106, 110). The statistics of police homicides indicate, as the Supreme Court pointed out in Mimms, that (p 110) ‘“a significant percentage of murders of police officers occurs when the officers are making traffic stops” ’ (People v Troiano, 35 NY2d 476, 478, 482 [concurring opn by Rabin, J.]). The opening of the door of the car lessens to a substantial degree the risk of injury to the officer from the use of a gun by a passenger. It cannot be said, therefore, that the ‘search’, i.e., the mere opening of the door, was unreasonable.”

It is now settled New York law that a valid investigative stop of a car may be accompanied, as a protective measure, by the opening of the door and a directive from the police to the occupants to exit the car (see People v Rosario, 94 AD2d 329).

The actions of Officer Herlihy herein were much less intrusive. He did not open the door of the automobile, nor was his purpose, according to the testimony, to make a search. Even if we assume, arguendo, that he did in fac.t lean in the car window solely to make a visual search, he had every right to do so since he had the right to open the car door and order the passenger out (People v David L., supra; People v Rosario, supra). The statement in the dissent which relies on the ground that there was no evidence that the officer was in danger misses the mark. The record does not show any question put to the officer either by the People or defense counsel as to whether he “felt” himself to be in danger. The courts have held, and rightly so, that every stop of an automobile may pose potential danger, as an objective matter, to a police officer, regardless of how he may perceive the situation (see Pennsylvania v Mimms, 434 US 106, 110, supra; People v David L., supra; People v Livigni, 88 AD2d 386, affd 58 NY2d 894; People v Rosario, supra). Therefore, for Officer Herlihy to “lean” into the car window as he spoke to the passenger and more closely observe the passenger, his movements and immediate surrounding, was, even accepting the dissent’s interpretation of the officer’s actions, a reasonable precautionary step on the officer’s part. It was also much less intrusive than ordering the door opened and the passenger to step out, as the officer had every right to do, without any overt act on the part of the driver or passenger or specific fear on the part of the officer (People v David L., supra; Pennsylvania v Mimms, supra).

Commonwealth v Podgurski (386 Mass 385, 436 NE2d 150, cert den 459 US 1222), cited by defendant and the dissent, is inapposite. There, evidence was suppressed where a police officer thrust his head into the open side door of a van, enabling him to observe areas not visible from the outside. The Massachusetts court had delineated areas of a vehicle in which there is a legitimate expectation of privacy, noting those areas are free from observation except by “physical intrusion” of some sort and typically include the glove compartment, trunk, closed containers in the interior and other areas not in plain view (386 Mass, at p_, 436 NE2d, at p 153). The court included the back of a “windowless van” in this category. In the instant case, however, the firearm was observed on the front-seat floor, an area in plain view from the outside of the vehicle. In addition, in Podgurski, the court noted that the officer had not observed any improper activity until he stuck his head inside the van and made it clear that had he observed any suspicious activity, he would have been entitled to look inside the van (386 Mass, at p_, 436 NE2d, at p 152). In the instant case, Officer Herlihy observed the license plate hanging by a string and the defendant’s driver’s license and the auto registration made out to different persons at different addresses, while defendant claimed he was the owner of the vehicle. In view of this suspicious behavior, the police would have been justified in stopping the vehicle, ordering the occupants out and opening the car doors, in which case the gun on the floor of the front seat would have been in plain view. But they did not go so far. Under the circumstances here presented, leaning in an open window to speak to the passenger and observing the gun in plain view was far less intrusive and hence not violative of defendant’s rights.

As the Court of Appeals has recently stated: “One has no legitimate expectation of privacy in locations in a car which are observable by passersby. Accordingly, an officer’s simply peering inside an automobile does not constitute a search and the Fourth Amendment consequently does not limit this activity [citations omitted]” (People v Class, 63 NY2d 491, 494-495; emphasis added). Concur — Kupferman, Asch and Silverman, JJ.