| People v McFarlane |
| 2012 NY Slip Op 01754 [93 AD3d 467] |
| March 13, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Appellant, v Terrence McFarlane, Respondent. |
—[*1] David Segal, New York, for respondent.
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 ofthe car's locked glove compartment.
After a lawful traffic stop, a police officer, having observed a large wad of rolled-up cash, apartly empty liquor bottle, and crushed papers, and having received suspicious responses to hisquestions, 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 whetherit would be okay if he "checked." Defendant replied, "[G]o ahead." After checking the seats andthe center console, the officer, without asking, took the keys from the ignition and unlocked theglove compartment, where he found a loaded gun.
"When a search and seizure is based upon consent . . . the burden of proof restsheavily 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 scopeof a suspect's consent under the Fourth Amendment is that of 'objective'reasonableness—what would the typical reasonable person have understood by theexchange 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" itfor 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 toopen the locked glove compartment (cf.People v Gomez, 5 NY3d 416, 418-419 [2005] [general consent to search car did notauthorize breaking into hidden compartment]). That the officer subjectively intended to searchthe glove compartment when he made the request is not determinative. Normally, a lockedcontainer can only be opened by breaking into it or using a key. A reasonable person indefendant's situation would have assumed that if the officer wanted to open the glovecompartment with defendant's consent he would have asked for the key or asked defendant toopen it. The officer did neither; after checking the seats and the center console, he simply tookthe keys from the ignition and opened the glove compartment.
The dissent's reliance on People v Mitchell (211 AD2d 553 [1995], lvdenied 86 NY2d [*2]738 [1995]) is misplaced. InMitchell, the officer asked a defendant if he could "look through" the car, and thedefendant responded, "[Y]ou can look through anything you want. It's not my car" (id. at553 [internal quotation marks omitted]).In view of the foregoing, we find it unnecessary to address any of the procedural orsubstantive issues presented by defendant's alternative arguments for affirmance.Concur—Andrias, J.P., Sweeny, Acosta and Manzanet-Daniels, JJ.
Saxe, J., dissents in a memorandum as follows: I respectfully disagree with the majority'sruling upholding the suppression of a gun found in the glove compartment of defendant's car.The police lawfully stopped defendant's vehicle for excessive tint on the windows, and upon theirobservations of a large wad of rolled-up cash, a partly-empty bottle of liquor, and crushed papercups inside the car, and upon receiving suspicious responses to their questions, they actedproperly in asking for consent to search the car's interior. In view of that consent, I see nothingimproper in the officer's use of the ignition key to unlock the glove compartment in order toinspect its interior.
In granting suppression, the motion court accepted the officer's testimony that he asked,"[D]o you mind if I take a look" and whether it would be okay if he "checked," and thatdefendant shrugged his shoulders and said, "[G]o ahead." It concluded that such language did notestablish consent to a search. However, the majority does not adopt that portion of the motioncourt's reasoning; it concedes that the officer's request to "take a look" into the car or "check" itfor contraband would have been reasonably understood to be a request to search the vehicle,including visible but closed containers. Yet, it then holds that the request did not reasonablyinclude searching the glove compartment, which happened to be locked. I dissent because I seeno reason to make that distinction. In my view, the record does not support the majority'sconclusion that defendant's consent to a search of the interior of the car did not encompass theglove compartment.
The applicable standard is what the typical reasonable person would have understood by theexchange (see Florida v Jimeno, 500 US 248, 251 [1991]). This Court has previouslyinterpreted a request to "look through" a car to be the equivalent of a request to search (seePeople v Mitchell, 211 AD2d 553, 554 [1995], lv denied 86 NY2d 738 [1995];see also United States v Rich, 992 F2d 502, 506 [5th Cir 1993], cert denied 510US 933 [1993]; but see People vHall, 35 AD3d 1171, 1172 [4th Dept 2006], lv denied 8 NY3d 923 [2007]), andother Fourth Department cases cited therein). Here, the officer's request to check or to take a lookinside the car, to which defendant agreed, is not logically distinguishable from the request madein Mitchell, and should be treated as the equivalent of a request to search the interior ofthe car. The nature of the answer the driver gave in Mitchell to the officer's request toconduct a search does not alter the fact that we have treated the request to "look through" the caras a viable request to search; an affirmative answer to that request constitutes a consent to search.
By the time the request to search was made, the police had already visually examinedthe interior of the car. They had already asked defendant and his passenger about the large wad of[*3]rolled-up cash in the center console and the liquor bottle andcups. They had already asked whether the car held any contraband. Under these circumstances,defendant could only understand the request to then "take a look" as a request to searchfor contraband inside closed containers in the car and places the police had not already been ableto see (see People v Mota, 2003 NY Slip Op 50017[U], *11 [Sup Ct, Bronx County2003]). In seeking consent to search, the officers, who of course had no reason to know that theglove compartment was locked, necessarily intended to look inside that glove compartment aswell as inside any other containers within the car. Indeed, it seems to me that a search of theinterior of the car would have been incomplete without a search of the glove compartment. Asone of the officers testified, "[W]henever I search a vehicle I search around . . .under the seats, inside the console, the glove compartment."
In view of these circumstances and defendant's response to the request to search, I consider itobjectively reasonable for the police to conclude that defendant's consent to a search of his carincluded a search of the locations within the car where contraband might be hidden.
The only remaining question is whether the fact that the glove compartment was lockedwould, as a matter of law, alter the normal expectation that a consent to search the interior of acar would include the glove compartment. Does merely encountering a lock negate the consent,requiring the police to seek additional permission before proceeding further with their search?
People v Gomez (5 NY3d416 [2005]) is inapposite. The Gomez Court merely held, unremarkably, that thedefendant's general consent to search his car did not authorize the police to impair the structuralintegrity of the car by breaking through the floorboard and into a hidden compartment in the gastank. Along the same lines, when the United States Supreme Court mentioned the prospect of thepolice encountering a locked briefcase in the trunk of a car during a search, in Florida vJimeno (500 US 248, 251-252 [1991], supra), it merely expressed the view that "[i]tis very likely unreasonable to think that a suspect, by consenting to the search of his trunk, hasagreed to the breaking open of a locked briefcase within the trunk" (emphasis added). Butwe are not presented here with the exceptional circumstance in which opening a container withina car requires doing physical damage to the defendant's personal property.
In my view, there is nothing unreasonable about a police officer who already had consent tosearch a car, upon finding the glove compartment locked, reaching over to the key in the ignition,removing it and using it to unlock the glove compartment. Rather, that action is exactly what isreasonably to be expected.[*4]
I would therefore reverse the order on appeal and denydefendant's suppression motion, and remit the case for further proceedings on the accusatoryinstrument.