People v. Cabral

— Orders, Supreme Court, Bronx County (Di Fede, J.), respectively entered March 4, 1982 granting motion to suppress physical evidence, and dated March 17, 1982 granting motion to dismiss count one of the indictment are both reversed, on the law and the facts, the motion to suppress the gun and ammunition and the motion to dismiss count one of the indictment are denied, and count one of the indictment is reinstated. At about 6:00 p.m. on May 19,1981 a woman rushed into a police station screaming “[h]e’s got a gun * * * he’s going to shoot me,” and pointed to the defendant who had followed or pursued her into the police station. A police officer frisked the defendant and did not find a gun. Thereupon the woman said that if the defendant doesn’t have the gun on him, there is one in the car, saying that she had seen it. The officer searched the defendant and found $5,992 in United States currency on him and a live round from a .25 calibre automatic. The officer arrested the defendant for menacing. In the meantime the woman told another police officer in the station that she had been living with the defendant; that earlier that day she had left him; that thereafter while she was in a truck with another male and female, the defendant in his Mercedes drove alongside the truck and pointed a gun at them. The woman accompanied one of the officers to the station house vestibule where she pointed out defendant’s Mercedes car parked (somewhat illegally) directly across from the station house. The officer went over to the car and found the doors locked. He instructed another officer to try to get into the locked car, which the other officer ultimately did by using a wire hanger. Meanwhile another officer asked the defendant where the keys to the Mercedes were and the defendant said that he had thrown them away." The car having been opened by the use of the wire hanger, the police searched the car for a gun and found underneath the rubber mat under the driver’s seat a .25 calibre automatic pistol and next to it a fully loaded magazine which fit into that gun. The whole incident took less than an hour. (There were also some discussions not material to the present appeal, as a result of which defendant was arrested and ultimately indicted for bribery.) In our view, the search of the car and the recovery and seizure of the pistol and ammunition were legal and were not unreasonable. Accordingly, the gun and ammunition should not have been suppressed and the count relating to possession of the gun and ammunition should not have been dismissed. “The touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ Terry v. Ohio, 392 U. S. 1, 19 (1968).” (Pennsylvania v Mimms, 434 *945US 106,108-109.) The “single issue” is “whether the action of the police officer was reasonable”. (People vProchilo, 41 NY2d 759, 761; see People v Simmons, 83 AD2d 79, 80; People v Clements, 88 AD2d 541, 541-542; People v Clee, 89 AD2d 188.) The actions of the police officers were reasonable. The woman in the police station directly accused the defendant of menacing her with a gun and of having possession of a gun and stated that she had seen it. There was every reason to believe that there at hand in the car on the public highway a few feet from the police station was contraband, a gun, related to the crimes of which defendant was accused, namely, menacing with a gun, and possession of a gun. The police officer’s beliefs were reinforced by defendant’s bizarre story that he had thrown away keys to an expensive car. The car was perhaps available to someone associated with defendant (later defendant’s brother arrived at the police station). While, the question of reasonableness ultimately depends on the facts of each particular case, People v Orlando (56 NY2d 441), presents a very close factual situation in which the Court of Appeals sustained the search and conviction. The Court of Appeals said (pp 443-447): “When the police have probable cause to arrest a defendant with respect to three forged prescriptions presented to a pharmacy by him and in the course of questioning immediately following arrest he admits that his car is parked alongside the pharmacy and contains additional forged prescriptions as well as illegally obtained drugs, search of the vehicle by the police without a warrant is permissible * * * The Supreme Court has upheld the warrantless search of a stopped vehicle when there is probable cause to believe that contraband or evidence of a crime will be found in the vehicle (Colorado v Bannister, 449 US 1; Carroll v United States, 267 US 132), even though all of the occupants'of the vehicle have been arrested before the search is made * * * A contrary result cannot be justified simply because the vehicle in one case is parked and in the other had been moving until stopped. The same realistic evaluation of the privacy interests involved and practicalities of police investigation sustain the seizure of the drugs involved in the present case, in view of the closeness in time and space between the arrest and the search and seizure.” Also supporting our conclusion is People v Belton (55 NY2d 49, 55), where the Court of Appeals said: “[Wjhere police have validly arrested an occupant of an automobile, and they have reason to believe that the car may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered or a means of escape thwarted, they may contemporaneously search the passenger compartment, including any containers found therein.” Concur — Ross, J. P., Asch and Silverman, JJ.