| People v John |
| 2014 NY Slip Op 05653 [120 AD3d 511] |
| August 6, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Sean John, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Dina Zloczower of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and
Sholom J. Twersky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Parker, J.), rendered December 16, 2011, convicting him of criminal possession of aweapon in the second degree and menacing in the second degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing (Gary,J.), of that branch of the defendant's omnibus motion which was to suppress physicalevidence.
Ordered that the judgment is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motionwhich was to suppress physical evidence based on the plain view doctrine. That doctrine"rests on the premise that police should be able to seize incriminating evidence in plainview if they had the right to be where they were when they saw it" (People vBrown, 96 NY2d 80, 88 [2001]; see People v Diaz, 81 NY2d 106, 111[1993]; People v Velasquez,110 AD3d 835 [2013]). "[L]aw enforcement officers may properly seize an item in'plain view' without a warrant if (i) they are lawfully in a position to observe the item; (ii)they have lawful access to the item itself when they seize it; and (iii) the incriminatingcharacter of the item is immediately apparent" (People v Brown, 96 NY2d 80, 89[2001]; see Horton v California, 496 US 128, 136-137 [1990]; People v Velasquez, 110 AD3d835 [2013]).
Here, the evidence at the suppression hearing established that a police officer waslawfully present in the apartment building where the defendant resided (see People vChurch, 217 AD2d 444 [1995]). The officer discovered the challenged physicalevidence, a handgun and ammunition, in a gun box located in a common storage areaaccessible to anyone in the building. The box was not locked, and there was noindication that the defendant's name or other personal identification, such as hisapartment number, was on the box which would lead one who observed it to understandthat it belonged to the defendant or a person living in his apartment (see People vFunches, 89 NY2d 1005, 1007 [1997]). The box was clearly marked "Smith andWesson." Under these circumstances, the distinctive label on the outside of the box"proclaim[ed] its contents" and, as such, made it immediately apparent to the officer thatthe box contained a firearm (Robbins v California, 453 US 420, 427 [1981]), thusauthorizing the officer to seize the box without a warrant (see People vVelasquez, 110 AD3d at 836; People v Batista, 261 AD2d 218 [1999];People v Aqudelo, 150 AD2d 284 [1989]; cf. People v Dobson, 41 AD3d 496, 496-497 [2007]).Furthermore, since the gun box, "by its very nature, could not [*2]support any reasonable expectation of privacy because itscontent could be inferred from its outward appearance" (People v Dobson, 41AD3d at 497; see Arkansas v Sanders, 442 US 753, 764-765 [1979],overruled in part by California v Acevedo, 500 US 565 [1991]), the officerlawfully opened the box, and discovered the handgun and ammunition inside.
The defendant's contention that certain summation remarks made by the prosecutordeprived him of due process is unpreserved for appellate review (see CPL 470.05[2]), and, in any event, without merit.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80,83 [1982]).
The defendant's remaining contentions are without merit. Skelos, J.P., Dillon andRoman, JJ., concur.
Hall, J., concurs in the result, with the following memorandum: I concur with mycolleagues that the hearing court properly denied that branch of the defendant's omnibusmotion which was to suppress physical evidence, but only on constraint of this Court'sprecedent in People vVelasquez (110 AD3d 835 [2013]). I write separately to express my view thatthe police should have obtained a search warrant prior to seizing and searching the gunbox located in the common area of the subject building.
The Fourth Amendment to the United States Constitution, applicable to the statesthrough the Fourteenth Amendment, provides: "The right of the people to be secure intheir persons, houses, papers, and effects, against unreasonable searches and seizures,shall not be violated, and no Warrants shall issue, but upon probable cause, supported byOath or affirmation, and particularly describing the place to be searched, and the personsor things to be seized."
Although the text of the Fourth Amendment does not specify when a search warrantmust be obtained, the United States Supreme Court has inferred that a warrant mustgenerally be secured (see Kentucky v King, 563 US &mdash, &mdash, 131 S Ct1849, 1856 [2011]; Mincey v Arizona, 437 US 385, 390 [1978]). While Irecognize the several exceptions to the warrant requirement, such as "[when] theexigencies of the situation" render a warrantless search objectively reasonable(Mincey v Arizona, 437 US at 394 [internal quotation marks omitted]), I fear thatthe exceptions to the warrant requirement have swallowed the rule.
In my view, the police should have obtained a warrant prior to seizing and openingthe gun box in the common area of the subject building (see People v McLawrence, 114AD3d 964 [2014]). There was no emergency or exigent circumstances to justify thesearch and seizure of the gun box without first obtaining a warrant. The defendant wasalready under arrest at the time the gun box was searched, and no clear threat to publicsafety was present. If the police perceived any danger by leaving the gun box in thecommon area of the building, the police could have secured the area while obtaining aproperly executed search warrant. Thus, while I concur in the result reached herein withrespect to the suppression of physical evidence, I do so only on constraint of this Court'sprecedent.
I agree with all other determinations made by the majority.