Opinion
D-15646/04.
Decided November 4, 2004.
By petition filed on September 17, 2004 respondent, Nevin W., is alleged to have committed an act which, were he an adult, would constitute the crime of Criminal Possession of a Weapon in the Fourth Degree. Respondent is also alleged to be a juvenile delinquent by reason of his alleged violation of Penal Law § 265.05 which prohibits the possession of weapons by persons under sixteen years of age.
Claiming to be aggrieved by an unlawful search of his person, respondent has moved to suppress the introduction of tangible property recovered by police officers on the date of his arrest.
With respect to tangible evidence, the Presentment Agency has the initial burden of going forward to show the legality of the police conduct, while respondent bears the ultimate burden of proving that the evidence should be suppressed ( People v. DeStefano, 38 NY2d 640, 652; People v. Pettinato, 69 NY2d 653, 654).
In order to determine whether evidence should be suppressed this Court conducted a hearing on October 13, 2004 at which the sole witness was New York City Police Sergeant Vincent Collins. Based upon the credible testimony of Sergeant Collins, this Court makes the following findings of fact and conclusions of law.
Sergeant Vincent Collins has been a police officer for 9½ years and he is presently assigned to the 103rd Precinct in Queens County where he is responsible for supervising school safety officers assigned to New York City public schools located within the precinct. At approximately 12:25 P.M. on May 21, 2004 Collins received a radio run which reported that a student had been observed with a gun inside of "Intermediate School ("I.S.") 8" which is located at 108-35 167th Street in Jamaica, Queens County. Collins and Police Officer Rodriguez who is the "Youth Officer" at the 103rd Precinct proceeded to JHS 8. When Sergeant Collins arrived at JHS 8 he spoke to school safety officers assigned to the school and "possibly the principal" of the school. Collins was informed that the school safety officers "had Tyquan [F.]" in custody "and he was a student that [they] said he pointed a gun at the classroom, but they did not have the firearm". Sergeant Collins testified that when he arrived at JHS 8 "the school was in some kind of lock down" because he did not observe students to be moving about the hallways which added to the sense of urgency concerning the presence of a gun in the school.
The school is actually known as Junior High School 8, the Richard S. Grossley Junior High School.
During his conversations with the school safety officers, Collins learned that an individual "had pointed a — what they believed to be a gun into a classroom", and that "a teacher had observed this". Collins stated that "someone described that the alleged firearm has a [slide lock] to the rear" of the gun which indicated that the weapon was a semi-automatic pistol. While Collins was at the school he was approached by a teacher who was with an individual who Collins subsequently learned was the respondent, Nevin W. According to Collins, respondent told him that "some girls took the gun". Collins testified that he was "suspicious" because respondent had approached him with this information and because the information was not consistent with other information he had acquired during his investigation at the school. Collins then asked respondent "to look in his bag on his back and as I asked him, I tapped his bag [which] was on his back." When Collins "tapped" respondent's knapsack he "felt what I believed was a firearm [and it] felt like the gun that I have on me, a nine millimeter." Sergeant Collins then proceeded to open and search respondent's knapsack and recovered what appeared to be a handgun but, upon inspection, proved to be an air pistol that resembled a semi-automatic pistol. Respondent was then arrested for the offenses charged in the petition.
II
In deciding whether the police acted properly in this case, the "inquiry into the propriety of police conduct must weigh the degree of intrusion it entails against the precipitating and attending circumstances" ( People v. Salaman, 71 NY2d 869, 870; see, People v. DeBour, 40 NY2d 210, 223). "The touchstone of any analysis of a governmental invasion of a citizen's person under the Fourth Amendment and the constitutional analogue of New York is reasonableness" ( People v. Batista, 88 NY2d 650, 653; see, People v. Herold, 282 AD2d 1, 4, lv. denied 97 NY2d 682).
The events in this case indisputably involved an emergency situation inside of a public school and Sergeant Collins and Officer Rodriguez were responding to a report of a gun in a crowded public school. After Sergeant Collins arrived at JHS 8 his investigation revealed that a teacher observed someone point a gun into or towards a classroom which led credibility to his belief that an emergency existed. Additionally, upon arriving at the school, Collins observed that the school was in a "lock down" and no students were in the hallways. While school safety officers had taken a student, Tyquan F., into custody, they had not recovered any gun from any student. While Collins was in the school conducting his investigation, the respondent approached him on his own initiative without any prompting by the officers and in the company of an unnamed teacher. Respondent volunteered that "some girls took the gun" which was contrary to information then known to Collins. According to Collins, he believed that the information conveyed by the respondent was inconsistent with other information he had obtained, including that a teacher had observed a student with a gun, that the school safety officers had taken a male student into custody, and no one had told him anything about female students with a gun in the school. Based upon the information then known to the Sergeant, he had a reasonable basis to conclude that the respondent had not told him everything that he knew about the gun or its whereabouts. Collins than asked respondent whether he could look inside of his knapsack and as he did so he simultaneously "tapped the bag" and felt the outline of what he believed was a firearm.
The issue here is whether Sergeant Collins acted reasonably when he "tapped" the outside of respondent's knapsack. In the case of Matter of Gregory M., ( 82 NY2d 588), the Court of Appeals held that an investigative touching of the outer surface of a book bag fell within a class of searches which are "far less intrusive" than searches which would require the application of the reasonable suspicion standard. The Court applied the balancing process set forth in People v. Scott D. ( 34 NY2d 483) and New Jersey v. T.L.O., ( 469 US 325), and held that the respondent "had only a minimal expectation of privacy regarding the outer touching of his school bag by school security personnel, even for the purposes of learning something about its contents" ( Id., at 592-593). In addition, the Court stated that "in the balancing process, prevention of the introduction of hand guns and other lethal weapons into New York City public schools such as this high school is a governmental interest of the highest urgency. The extreme exigency of barring the introduction of weapons into the schools by students is no longer a matter of debate" ( Id., at 593).
While Sergeant Collins cannot be said to have had reasonable suspicion as to the respondent at the time that he tapped the outside of the knapsack, "[t]here may be circumstances in which, because the privacy interests involved in the case are minimal and are overborne by the governmental interests in jeopardy if a higher standard were enforced, a search may be reasonable despite the absence of such [reasonable] suspicion" ( Matter of Gregory M., at 593).
This facts here establish that this is such a case. Respondent clearly had a diminished expectation of privacy in the contents of his book bag which were undoubtedly subject to a search by school officials upon his entry to the building. Balancing that expectation of privacy against the information known to Collins, including a report of a gun inside of a crowded public school and respondent's seemingly incredible story concerning a gun ( e.g., Matter of Trevor C., 227 AD2d 282), and the risk that a gun in the school posed to the life and safety of students and staff, the facts in this case presented truly exigent circumstances which were not present in Matter of Gregory M., and this Court concludes that Sergeant Collins had sufficient justification for the investigative touching of the outside of respondent's knapsack. Once Collins felt the outline of what he believed to be a gun in the knapsack he had a reasonable suspicion that respondent possessed a weapon which justified the search of the knapsack ( Matter of Gregory M., at 593-594; see, Matter of Juan C. v. Cortines, 223 AD2d 126, 129, rev'd on other grounds 89 NY2d 659; Matter of Richard A., 215 AD2d 475; Matter of Maria H., 228 AD2d 597, 597-598; Matter of Haseen N., 251 AD2d 505, 506; Matter of Hector R., 265 AD2d 160, 161; Matter of Steven A., 308 AD2d 359).
The decisions in Matter of Marrhonda G. ( 81 NY2d 942) and People v. Diaz ( 81 NY2d 106), in which the Court of Appeals rejected the adoption of the so-called "plain touch" exception to the warrant requirement, are not dispositive in this case given the decision in Matter of Gregory M., supra. Indeed, Matter of Marrhonda G., is factually distinguishable from this case in that the officers in that case did not intentionally touch respondent's bag to uncover evidence of criminal activity and Marrhonda G. did not involve a search of a student in a school under exigent circumstances. Notably, the Court stated in People v. Diaz that "exigent circumstances" may justify certain types of warrantless searches ( 81 NY2d, at 109), which was the issue decided by the Court in Matter of Gregory M.
Accordingly, the actions of Sergeant Collins did not violate respondent's rights and the motion to suppress the air gun is denied.
This constitutes the decision and order of the Court.