City Court of Gloversville, July 10, 2019

Law Office of Robert Abdella, Gloversville (Christopher Stanyon of counsel), for defendant.

Chad W. Brown, District Attorney, Johnstown (Katherine Ehrlich of counsel), for plaintiff.

Defendant moves for an order of this court suppressing physical evidence seized from her handbag on January 25, 2019, and for an order dismissing the charges based upon a lack of probable cause.{**64 Misc 3d at 895}

After a Dunaway/Mapp hearing held on May 10, 2019, this court makes the following findings of fact and conclusions of law.

In the early morning hours of January 25, 2019, police observed a gray pickup truck parked outside a residence well known for illegal drug activity in the city. Shortly after 4:00 a.m., police spot that same vehicle, traveling away from the residence, with a malfunctioning taillight. Having directly observed the equipment violation, police initiate a traffic stop of the vehicle.

The driver, identified as Eric Klena, is immediately ordered out of the truck, to speak with police. The two remaining passengers, Matthew Wood, and the defendant, Marsha VanSlyke, are directed to produce their identification. VanSlyke complies by producing her photo ID from within a black handbag, resting on her lap.

Within a few minutes of the stop, a total of five officers have arrived on the scene. The driver, standing at the rear of the vehicle, and now under scrutiny for his early morning travels, willingly consents to a search of his vehicle. After obtaining the driver's consent, both passengers are directed out of the truck. VanSlyke complies by first placing her handbag on the dashboard, and then exiting the vehicle.

Police conduct a vigorous search of both the vehicle and VanSlyke's handbag. The search of the handbag yields the concealment of the controlled substance, Suboxone. Defendant is arrested and charged with a violation of Penal Law § 220.03, criminal possession of a controlled substance in the seventh degree.

In New York State, a traffic stop is legal when police have probable cause to believe that the driver has committed a traffic offense, or when police have a reasonable suspicion that the driver, or the occupants, have committed, are committing, or are about to commit a crime. (See Matter of Deveines v New York State Dept. of Motor Vehs. Appeals Bd., 136 AD3d 1383 [2016]; see also People v Washburn, 309 AD2d 1270 [2003]; People v Robinson, 97 NY2d 341 [2001].)

{**64 Misc 3d at 896}[2] In the case at bar, police had probable cause to initiate a stop of Klena's vehicle, and the validity of that stop is not negated even if the underlying reason for the stop was to investigate another matter unrelated to the traffic violation. (See People v Wilson, 96 AD3d 980 [2012].)

All searches conducted without a warrant are per se unreasonable under the Fourth Amendment, subject to a few, specifically established, and well delineated exceptions. (See Katz v United States, 389 US 347 [1967].)

One such exception permits the warrantless search of a vehicle, including closed containers carried within, if police have arrested one of its occupants, and there is probable cause to believe that the vehicle contains a weapon, contraband, evidence of the crime, or some means of escape. (See People v Langen, 60 NY2d 170 [1983]; People v Raghnal, 135 AD3d 1168 [3d Dept 2016]; People v Thompson, 106 AD3d 1134 [3d Dept 2013]; People v Cook, 134 AD3d 1241 [3d Dept 2015].)

While traveling at 4 o'clock in the morning does not, by itself, constitute a crime, the observation of Klena's vehicle, at a known drug location, coupled with his travel at such an unusual hour, activated a founded suspicion of criminal activity, and justified the limited intrusion, and questioning, of the driver, and the occupants. (See People v De Bour, 40 NY2d 210 [1976].)

In order to prevail on a motion to suppress physical evidence, the defendant must first establish standing by demonstrating a legitimate expectation of privacy in the premises, or the object searched. (See People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]; People v Reynolds, 71 NY2d 552, 557 [1988].) A legitimate expectation of privacy exists when a defendant manifests an expectation of privacy that society recognizes as reasonable. (See California v Greenwood, 486 US 35, 39-40 [1988]; see also Oliver v United States, 466 US 170 [1984].)

While the People readily concede that a founded suspicion of criminal activity does not authorize the warrantless search of a suspect's car, they argue that the search of both the vehicle, and the handbag, was valid, based upon the driver's consent, and the theory that defendant lacks standing to challenge the search.{**64 Misc 3d at 897}

In order to determine whether VanSlyke has standing, this court must consider the object which is the subject of the search; the manner in which the object was used; whether the defendant maintained the right to exclude others from the object; and whether the defendant took precautions to maintain privacy in the item searched. (See People v Whitfield, 81 NY2d 904 [1993].)

The hearing record reveals that from the onset of the police encounter, VanSlyke, the only female passenger in the vehicle, was in actual, physical possession of a black handbag, which she carried, closed, and on her lap. Within the handbag were various items of VanSlyke's personal property, including items of significant personal and material value. After being ordered out of the vehicle, VanSlyke is seen, on body camera footage, closing the handbag, and moving it from her lap, to the dashboard.

This court rejects the argument that the defendant waived standing because she opened her handbag in front of police, and failed to carry it with her, when she exited the vehicle. Accepting that premise would eviscerate the protections of the Fourth Amendment, and that is simply untenable.

Unlike the defendant in People v DeGuire (120 AD2d 672 [1986]), as cited by the prosecution, VanSlyke did not voluntarily open her purse, or expose contraband to police—she opened her handbag only to produce identification. Moreover, VanSlyke never denied ownership of the handbag, or offered it up to police, for their inspection. Stepping a few feet away from your luggage does not constitute a license for strangers to go rummaging through it, and this court would be hard-pressed to rule that society, at large, does not recognize the privacy interests associated with a woman's handbag.

[1] This court finds that defendant has standing to challenge the search.

While it remains undisputed that Klena consented to a search of his truck, the question remains whether the personal property of a non-consenting passenger, located within the vehicle, may also be subject to that search.

The facts of this case implicate two separate legal principles, each fairly well established: the scope of a search conducted on consent, and the validity of third-party consent.

Generally speaking, the scope of a search conducted on consent is strictly limited by the terms of its authorization.{**64 Misc 3d at 898} (See Walter v United States, 447 US 649 [1980].) With some well noted exceptions,^[FN*] the consent to search a vehicle, without any express limitation, may include the search of easily opened, closed containers. (See Florida v Jimeno, 500 US 248 [1991].)

The law of third-party consent holds that an individual who enjoys possession of a place where a third party stores property does not automatically have the authority to consent to a search of that person's private possessions. (See People v Gonzalez, 88 NY2d 289 [1996].) In order for that type of search to be valid, the People must prove that "permission to search was obtained from a third party who possessed common authority over . . . the . . . effects sought to be inspected." (See United States v Matlock, 415 US 164, 171 [1974].)

[2] In the case at bar, there are simply no facts, which would warrant a man of reasonable caution, to believe that Klena possessed common authority over VanSlyke's handbag.

The point of the Fourth Amendment is not to deprive police of their power, or authority, to investigate crime. The purpose behind the amendment is to ensure that evidentiary inferences, which lead to conclusions that necessitate a search, are drawn by neutral and detached magistrates. In no way does this court's decision represent a bright-line rule that all warrantless searches, against a non-consenting passenger's property, are automatically invalid. There are many scenarios under which such a search may be authorized. In this case, the search was unlawful because the object searched was a female's purse, containing the personal property of the only female passenger, and clearly within her exclusive possession and control. These circumstances should have alerted police to the fact that the handbag did not belong to Klena, and that his general consent to search was invalid against Ms. VanSlyke's property.{**64 Misc 3d at 899}

The prosecution's final contention is that the defendant impliedly consented to a search of her handbag, when she left the handbag, inside the truck, knowing the vehicle was about to be searched.

[3] This argument holds significant merit, but there is simply no evidence, in the record, illustrating that defendant knew, or should have known, that the driver had consented to a search of the vehicle.

A review of the hearing record reveals that the defendant was sitting inside the automobile, being questioned by police, at the same time Klena was standing at the rear of the vehicle, offering his consent. The only indication given to passengers that a search was underway was the verbal exchange between officers, who informed one another that "the RO gave consent." This terminology has little, if any meaning to individuals outside law enforcement, and without more, does not confer actual notice upon the defendant.

Regardless, even if defendant knew that Klena had consented to a search of the vehicle, there is no reason to believe that VanSlyke would interpret the plain language of Klena's consent as an invitation to search her handbag. Again, the scope of a search conducted on consent is limited to its permissions.

Based upon the foregoing, defendant's motion for suppression of physical evidence seized by police on January 25, 2019, is hereby granted, and the charges against the defendant are hereby dismissed, with prejudice, based upon a lack of probable cause.