| People v Hurt |
| 2012 NY Slip Op 02408 [93 AD3d 617] |
| March 29, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v VictorHurt, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered November 10,2010, convicting defendant, upon his plea of guilty, of criminal possession of a controlledsubstance in the third degree, and sentencing him, as a second felony drug offender, to a term of2½ years, unanimously affirmed.
The court properly denied defendant's suppression motion. Defendant sought to enter ahomeless shelter that required all entrants to be searched via metal detectors, and that theirbelongings pass through X-ray machines to search for contraband, such as weapons or drugs.Defendant first set off the walk-through magnetometer, and a handheld scanner subsequentlyalerted a Department of Homeless Services officer to the presence of something in defendant'swaistband.
Defendant complied with the officer's request to lift up his shirt, which revealed a blackplastic bag tucked into defendant's waistband. At that point, defendant turned his body slightlyaway from the officer. The officer took the bag, and felt it without being able to determine itscontents. When defendant did not answer the officer's question about the contents of the bag, theofficer opened it and found a large quantity of drugs.
Defendant had lodged at the shelter on at least four other occasions, and the arresting officerhad personally observed him standing on line to be searched on at least two previous occasions.Accordingly, the evidence showed that defendant was knowledgeable of the search requirements,but he nevertheless tried to enter the facility. Persons with notice of an impending securitycheckpoint search who nonetheless seek entry relinquish any reasonable expectation of privacyand impliedly consent to the search (People v Rincon, 177 AD2d 125, [1992], lvdenied 79 NY2d 1053 [1992]).
We reject defendant's argument that his implied consent was limited to the magnetometersearch. When a person sets off a magnetometer by passing through it, the person can reasonablyexpect that security personnel will not permit entry into the restricted premises without takingwhatever measures are necessary to find out what triggered the magnetometer. Otherwise, themagnetometer would have little value.
Since defendant never abandoned his attempt to enter the shelter, he implicitly consented[*2]to an expanded search. Defendant was free to cut off thesearch by turning around and walking out. The officer did nothing to suggest otherwise, anddefendant never indicated that he no longer wished to enter.
Furthermore, defendant's attempt to avoid the X-ray machines by sneaking the bag into thefacility on his person, along with the officer's awareness that the magnetometer and handheldscanner had most likely been set off by something metallic in the bag, created a reasonablesuspicion of criminal activity. Since touching the bag was insufficient to determine if it containeda weapon, especially a small weapon such as a razor blade, it was reasonable for the officer toremove it from defendant's grabbable area and search it (see People v Brooks, 65 NY2d1021, 1023 [1985]).
Defendant's remaining suppression arguments are unpreserved and we decline to reviewthem in the interest of justice. As an alternative holding, we also reject them on the merits.
We perceive no basis for reducing the sentence. Concur—Tom, J.P., DeGrasse,Freedman, Richter and Román, JJ.