People v. Duncan

¶1On July 2, 1978, at approximately 3:00 a.m., Police Officers Michael Race and Louis Manzi were riding in a marked patrol car when they observed a white Oldsmobile, double parked in front of a bar at 136-11 41st Avenue in Queens County. As the officers drove alongside the car, they observed defendant, a black male, slouched down behind the steering wheel. The officers drove around the block and parked at the corner to make further observations, their suspicions aroused by the fact that there had been two previous robberies of liquor stores in the area by two males, one black and one Hispanic, using a white automobile. After a few minutes, the officers pulled the car directly behind defendant’s vehicle and Officer Race got out of the patrol car to ask defendant what he was doing. Defendant responded that he was waiting for a friend, whom he described as a male Hispanic, who had gone into the bar to buy cigarettes. Officer Race walked up to the front window of the bar and saw a male Hispanic inside by the cigarette machine. Officer Race returned to defendant’s car and waited there with Officer Manzi for defendant’s friend to return. When the person whom the officer had observed failed to come out, Officer Race entered the bar and observed that the male Hispanic was no longer inside. Upon questioning the bartender, the officer learned that defendant’s friend had begun to walk out *826the front of the bar, but apparently when he observed the patrol car, turned around and exited through the back door. Officer Race thereupon returned to defendant’s car. According to the testimony of Officer Manzi at the suppression hearing, Officer Race asked defendant for his license and registration when the officer first returned from the bar, but defendant took a long time finding the papers and did not produce them until after Officer Race had returned from the bar the second time. According to the testimony of Officer Race, he did not ask defendant for his license and registration until his second return from the bar. In any event, both officers testified that it was at this later point that defendant produced his identification. As defendant looked for his identification, Officer Race shined a flashlight into the vehicle from outside the driver’s window of the car. While so doing, the officer observed the butt of a pearl handled gun protruding from under the front seat of the car, between defendant’s legs. Defendant was arrested upon discovery of the weapon. A search of defendant’s person incident to the arrest revealed a quantity of cocaine. A subsequent inventory search of the car revealed a quantity of marihuana on the floor of the back seat. After defendant’s motion to suppress the seized contraband was denied, he entered a plea of guilty to attempted criminal possession of a controlled substance in the fifth degree. Defendant’s motion to suppress should have been granted. The officers’ initial approach of defendant’s car was justified under the common-law right of inquiry (see People v De Bour, 40 NY2d 210), since the circumstances of the case were sufficient to generate a founded suspicion that criminal activity was afoot. However, defendant’s response to the officers’ inquiries together with the officers’ own observations, were not sufficient to give rise to a reasonable suspicion that defendant was engaged in criminal activity. There was thus no basis upon which to require him to produce his license and registration, regardless of at what point he was actually asked for identification (see Brown v Texas, 443 US 47; People v Engle, 74 AD2d 583). It follows that the gun was not properly seized under the plain view doctrine because there was no justification for the intrusion with the flashlight into the car (cf. People v Smith, 42 NY2d 961). Since there was therefore no predicate for defendant’s arrest, the subsequent search of his person and inventory search of his car were also improper.