PEOPLE v. LEMMONS

JASEN, J.

Defendants Melvin Lemmons, Raymond Hardrick, Samuel Allen and Jane Doe were convicted, after a jury trial, of two counts of possession of a dangerous weapon, two loaded revolvers. The Appellate Division, with two Justices dissenting in part, affirmed the judgments of conviction, without opinion. ( 49 A.D.2d 639. ) On this appeal, all four defendants argue that their motion to suppress the weapons on constitutional grounds should have been granted. In addition, defendants Lemmons, Hardrick and Allen contest the legal sufficiency of the evidence supporting their convictions. There should be an affirmance.

On March 28, 1973, the defendants were riding in a late model passenger car on the New York State Thruway. Melvin Lemmons was at the wheel, with Jane Doe beside him in the front seat and the other two defendants seated in the back. Shortly before 1:00 P.M., while the car was passing through Ulster County, it was detected speeding and a State Trooper signaled the driver to pull the car over to the right side of the road. The patrol car stopped abreast of the Lemmons vehicle on the grassy center mall on the left side of the highway. Officer John Emsing walked over to the car, approached the driver, requested his operator's license, and advised him that the officer was going to issue him a ticket for speeding. Lemmons produced a Michigan driver's license and no vehicle registration at all. Since the vehicle had New York license plates, the officers followed normal procedure by requesting, over the police radio, that the Department of Motor Vehicles check on the operator's license and the car registration. In addition, the officers had their dispatcher submit the information to the National Crime Information Center computer. Although the State department reported that the vehicle was "clean", the computer check revealed that Lemmons was "wanted by the police department in Detroit, Michigan on a weapons violation". Upon receiving this information, Officer Askew, the second State policeman in the patrol car, crossed the highway, placed Lemmons under arrest for being "a fugitive from justice", brought him over to the patrol car and placed him in the back seat. Officer Askew then returned to the Lemmons vehicle in order to ascertain the identity of its three remaining occupants: "I had three other unknown people. Obviously, I have to get their names". He walked around the vehicle to the passenger's side and looked into the window. He spotted a woman's handbag on the floor of the car between the door and the front seat. A portion of a .45 caliber automatic pistol was protruding from the open handbag. The officer then placed the three passengers under arrest. A subsequent search of the handbag established that there were two loaded automatic pistols inside, the criminal possession of which all four defendants have been held accountable.

All defendants contend that the arrest of Melvin Lemmons was invalid and, since the "search" of the car was incident to his arrest, the evidence of handgun possession should have been suppressed. Reliance is placed on the fact that the Michigan warrant upon which Lemmons' arrest was predicated had been dismissed a few days prior to this incident. In our view, the validity of the seizure of the two weapons does not turn upon the legality of Lemmons' arrest under the dismissed Michigan warrant. We sustain the seizure upon the ground that the weapons came into the plain view of the State policeman as he was conducting a legitimate police inquiry.

The standard by which the constitutionality of seizure and search is measured is whether the actions of the police were reasonable in light of all the circumstances. (Cady v Dombrowski, 413 U.S. 433, 448; People v Kreichman 37 N.Y.2d 693, 697; see People v Moore, 32 N.Y.2d 67, 69, cert den 414 U.S. 1011.) Here, the seizure of the handguns was not the product of a search, for the only search ever conducted by the State Police officers was a frisk of Lemmons' person for weapons. The handguns, rather, came into the plain view of an officer conducting an inquiry that was reasonable under the circumstances. Lemmons, the driver of the car, had been apprehended speeding, did not possess a valid vehicle registration and was apparently wanted by the authorities of another State. Confronted with these facts, the officers were entitled, if not obligated, to ascertain the identity of his three traveling companions. (See People v De Bour, 40 N.Y.2d 210, 218-219.) This, and no more, is what the officer sought to do. In performing his duty, the officer observed a weapon in a handbag within open view. The seizure of the bag and its contents and the subsequent arrest of the three passengers were legitimate and constitutional police responses to the situation then confronted. (See People v Singleteary, 35 N.Y.2d 528; Ker v California, 374 U.S. 23, 42-43; cf. People v Brosnan, 32 N.Y.2d 254, 260.)

Turning to the second issue on this appeal, the three male defendants contend that there is insufficient evidence to establish that they were in possession of the handbag containing the weapons. The fourth defendant, Jane Doe, is precluded from raising this argument because of her voluntary admission that the handbag was hers. To support the convictions of the three men, the People rely on subdivision 3 of section 265.15 of the Penal Law which provides, insofar as it is relevant here, that the presence of a firearm in a private automobile, other than a stolen vehicle, "is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found, except * * * if such weapon, instrument or appliance is found upon the person of one of the occupants therein". Defendants argue that the handbag of Jane Doe was a part of her person and, thus, the statutory presumption is inapplicable.

To resolve the issue, we first look to the history underlying the statute. Since the automobile is itself of relatively recent origin, it was not until the second and third decades of this century, when popular use and ownership of motorized vehicles first became widespread, that automobiles came into vogue as an instrument for the furtherance of criminal purposes. Under traditional rules, developed in a motorless age, criminal possession of a weapon was not established unless the weapon was "within the immediate control and reach of the accused and where it is available for unlawful use if he so desires". (People v Persce, 204 N.Y. 397, 402.) Difficulties arose when a weapon was found secreted under the seat, in the glove compartment or in the trunk of an occupied automobile. Traditional analysis precluded a finding that any of several occupants of the automobile was sufficiently close to the weapon as to be in actual possession of it. For example, in one 1930 case, the police intercepted an automobile and found a revolver under the driver's seat. The court, in applying the relevant standards, was compelled to release all defendants for failure to sufficiently establish possession. (People ex rel. De Feo v Warden, 136 Misc. 836.) The court remarked, however, that the case and other similar situations "establishes the urgent need for legislation making the presence of a forbidden firearm in an automobile or other vehicle presumptive evidence of its possession by all the occupants thereof. Such an amendment would require the occupants of an automobile to explain the presence of the firearm and enable the court to fix the criminal responsibility for its possession." ( 136 Misc. 836.) In 1936, the Legislature took heed of this suggestion and enacted section 1898-a of the former Penal Law providing that all persons in an automobile at the time a weapon is found in the vehicle are presumed to be in illegal possession of the weapon. (L 1936, ch 390.) Although the statute did contain a number of exceptions, the statute did not except the situation where the weapon was found on the person of one of the vehicle's occupants. This exception made its appearance much later, in 1963, when the Legislature redrafted a number of contraband-related presumptions and placed them in a single section of the old Penal Law (§ 1899). (L 1963, ch 136, § 4.) However, it should be noted that at least one court had read such an exception into the statute prior to its 1963 amendment. (See People v Logan, 94 N.Y.S.2d 681, 684.) The "upon the person" exception was carried into the present provision of the 1967 Penal Law.

The statutory presumption establishes a prima facie case against the defendant which presumption he may, if he chooses, rebut by offering evidence. Generally, the presumption will remain in the case for the jury to weigh even if contrary proof is offered but may be nullified if the contrary evidence is strong enough to make the presumption incredible. So too, if no contrary proof is offered, the presumption is not conclusive, but may be rejected by the jury. (Cf. People v McCaleb, 25 N.Y.2d 394; see, also, People v Leyva, 38 N.Y.2d 160.)

Whether the weapons were found on the person of one of the vehicle's occupants is primarily a question of fact. Here, there was testimony that the handbag was situated on the floor of the car in the space between the front seat and the car door. The argument that the pocketbook was a part of Jane Doe's person is not an unattractive one, given the fact that women and men in our society often use handbags and purses to carry and store personal items of many kinds and are generally held directly by the hand or arm or are placed within easy reach. However, the placement of a weapon in a handbag does not necessarily indicate that the owner of a handbag is in sole and exclusive possession of the weapon. Whether the owner of the handbag is the sole possessor of the weapon depends upon the access to the bag that others may have and whether the others have knowledge of its contents. Similar reasoning might well be applied to briefcases, shopping bags with groceries, cartons, suitcases, or the myriad of other things that people frequently carry or transport. To hold that merely because the weapons were found in a briefcase, handbag, shopping bag or carton the presumption is nullified would defeat the legislative intent and render the statute nugatory. Astute illegal possessors of weapons then would only need to carry weapons in any kind of personalized containers to successfully evade joint responsibility. There would be added difficulty, not present in this case, of ascribing ownership of the container to one of the passengers, a matter that might be resistant to proof where the container itself reveals no information to identify its owner or where the owner of the container is not present in the vehicle at the time of apprehension. Surely this kind of rationale would return the law to the early days of this century when law enforcement was easily frustrated by an automobile shell game reminiscent more of vaudeville than of the courts. To be sure, there may be circumstances where the evidence is clear-cut and leads to the sole conclusion that the weapon was found upon the person. For example, the exception would have clear application where the weapon is secreted under one person's shirt or under other items of clothing or in a pocket. (See People v Garcia, 41 A.D.2d 560; People v Davis, 52 Misc.2d 184 [J. IRWIN SHAPIRO, J.].) Absent this kind of clear indication that the weapon was actually upon the person of one occupant, the question of the presumption's applicability is properly left to the trier of fact under an appropriate charge. Only the trier of fact, after hearing all the testimony and assessing the credibility of witnesses, can determine the factual issues of access and the degree to which possession is personalized. As in this case, the precise location of the container may be a critical factual issue. Although some may draw different inferences from the nature of the container and its placement, those inferences, based as they are on contested facts, are generally to be drawn by juries and and not by appellate Judges.

It should be noted that defendants did seek to have the case dismissed, after the close of the People's case, on the ground that the presumption did not apply. The trial court denied the motion, apparently accepting the prosecutor's argument that the applicability of the presumption was a question of fact for the jury. However, the trial court never charged the jury with respect to the "on the person" exception. Nevertheless, the defense did not except to the absence of this language in the court's charge. As a result, what we view as a jury question was never presented to the jury and for the reasons stated we cannot conclude in this case that as a matter of law the presumption was inapplicable.

The order of the Appellate Division should be affirmed.

JONES, J. (concurring).

I agree that the order of the Appellate Division should be affirmed and the convictions of all four defendants sustained.

At the close of the People's case defense counsel moved for dismissal on the ground that the presumption of subdivision 3 of section 265.15 of the Penal Law was not applicable because the case fell within the express exception of the statute, and that in its absence there was insufficient evidence to support a conviction. The trial court denied this motion. Although the point is not pressed on the appeal to us, in my view the denial was not erroneous; whether in consequence of the exception the presumption was not available was a question later to be left to jury determination. To this extent I agree with the views expressed in the majority opinion.

At the conclusion of the entire case, however, the Trial Judge charged the jury that "upon proof of the presence [in the automobile of] the hand weapons, you may infer and draw a conclusion that such prohibited weapons were possessed by each of the defendants who occupied the automobile at the time when such instruments were found". But no reference was made in the charge to the statutory provision that the presumption would not apply "if such weapon * * * is found upon the person of one of the occupants". No exception was taken to this charge and no request was made that the charge be accurately completed. Thus, the jury was never advised of the exception and the case was submitted to and resolved by it on the basis of a blanket presumption which had become the law of the case.

Accordingly, in the procedural posture in which these verdicts of guilty were returned there can only be an affirmance.

WACHTLER, J. (concurring in part and dissenting in part).

I concur with the majority in concluding that defendant Lemmons' motion to suppress the two handguns should have been denied on the ground that the trial court found that these weapons were in "plain view". However I cannot agree that the convictions of Lemmons, Hardrick and Allen, for possession of the weapons found in defendant Doe's handbag should be affirmed.

Initially, I would note that the applicability of the presumption was put squarely in issue by the defendants. At the close of the People's case defendants, Lemmons, Hardrick and Allen, moved to dismiss the indictments on the ground that the statutory presumption of possession was negated by the uncontradicted proof that the weapons were at all times on the person of defendant Doe. Defendants strenuously contended that the handbag was her exclusive personal property and she alone exercised dominion and control over it. The record reveals that the court and the parties engaged in a lengthy colloquy on this specific point. In light of this pointed, thorough challenge to the operation of the presumption I believe that the issue was properly preserved and that the failure to object to the charge to the jury had no effect whatsoever with respect to preservation.

In my view the application of the presumption (Penal Law, § 265.15, subd 3) arising from presence in an automobile in which a firearm is found was erroneous. The statute provides that the presence of a firearm in an automobile is presumptive evidence of its possession by all persons occupying the automobile, "except * * * if [it] is found upon the person of one of the occupants". I would conclude that, as a matter of law, the handguns in this instance were found "upon the person" of Jane Doe within the contemplation of the statute.

In order to be convicted of the crime of possession of a firearm, the People must establish beyond a reasonable doubt that the defendant had physical or constructive possession of a firearm (Penal Law, § 265.15, subd 1; § 10.00, subd 8). In instances where several individuals are involved, none of whom has clear-cut dominion over the contraband, the task of the People is particularly difficult. Nowhere is this more difficult than where the individuals are situated in a motor vehicle (People ex rel. De Feo v Warden, 136 Misc. 836). In response to this problem the Legislature in 1936 enacted a presumption of possession applicable to all persons present in an automobile at the time a weapon is found in the vehicle (L 1936, ch 390). The purpose of this presumption was articulated in People v Logan (94 N.Y.S.2d 681, 683-684): "As with other presumptions, however, the presumption here being considered is a rule of necessity. It is to be invoked only if, under the circumstances involved, there is an absence of satisfactory evidence of the ultimate fact to be established, to wit: To which of the occupants is `possession' attributable? Obviously, therefore, if the undisputed facts of any given situation establish that the gun is actually possessed by any particular individual or individuals occupying the automobile, there is then no burden under section 1898-a imposed upon the remaining occupants of such car to go forward with proof tending to refute the presumption which would otherwise attach by virtue of occupancy. The positive evidence of actual possession in such case would wholly dissipate the necessity for the invocation of the statutory presumption."

This provision was carried forward when the Penal Code was revised (L 1965, ch 1030) and was amended to provide an exception for weapons "found upon the person of one of the occupants" (Penal Law, § 265.15, subd 3, par [a]). Constitutional challenges claiming that this presumption amounts to a denial of due process have been rejected (People v Terra, 303 N.Y. 332; People v Russo, 278 App. Div. 98, affd 303 N.Y. 673). In general, presumptions of this type are constitutional provided "based on life and life's experiences, a rational connection between the fact proved and the ultimate fact presumed may be said to exist" (People v Terra, supra, at p 335; Tot v United States, 319 U.S. 463; Leary v United States, 395 U.S. 6; People v McCaleb, 25 N.Y.2d 394; People v Leyva, 38 N.Y.2d 160; see, generally, McCormick, Evidence, § 313). Certainly it is rational to infer from a person's presence in an automobile that he has actual or constructive possession over a weapon found in that vehicle. However, this statement is not true when the proof at trial establishes that the weapon is in the exclusive possession of one of the occupants. So, where a weapon is discovered in a passenger's vest pocket there will flow no rational belief that the driver is in possession of that weapon.

The same analysis applies where the weapon is found in a place which is but an extension of a particular individual. Here the weapon was found in a woman's handbag which was located within her natural and easy reach and defendant Doe, who was the only woman in the vehicle, expressly admitted that it was her possession. An inference that all the occupants possessed these weapons hardly follows, naturally and rationally, from these circumstances. Common experience teaches that a woman's pocketbook is but an extension of her pockets; intended to hold items which she cannot or prefers not to keep in her clothing. As such, a woman's handbag generally contains highly personalized items exclusively controlled by the owner and is markedly different from other receptacles, like shopping bags or cartons, which in common experience do not communicate the same exclusivity as a woman's handbag. In addition, this situation is clearly analogous to those cases where a search of the defendant's attache case or similar item within his exclusive control is sustained as incident to a valid arrest (e.g., People v Weintraub, 35 N.Y.2d 351; People v Pugach, 15 N.Y.2d 65).

Equally important is the accompanying fact that this pocketbook was positioned within the easy and natural reach of its owner; it was also literally only within her easy reach and not that of any of the other passengers. Thus it was on the floor, a not unnatural placement, and between her legs and the right-hand passenger door. It was not, for instance, between Jane Doe and one of the other occupants, either on the seat or on the floor. In this combination of critical circumstances, when there was but one woman's pocketbook and but one woman in the car, who readily acknowledged that the pocketbook was hers, I would find the statutory presumption inapplicable. Indeed, this conclusion is inescapable in light of the historical origin of this statute as formulated within due process requirements. Convictions for possession of weapons simply cannot stand solely on the strength of a presumption where the fact presumed, i.e., physical or constructive possession, does not flow rationally from the evidence presented.

Although the inapplicability of the presumption here mandates reversal, that does not end the matter. Wholly apart from the presumption the People may establish that these defendants did actually exercise dominion and control over the handguns. The presence of the weapons in the vehicle coupled with other evidence presently in this record might well furnish a basis for a jury to infer logically that these defendants constructively possessed the weapons found in her handbag. Accordingly, the orders should be modified by reversing and granting a new trial as to all defendants except Jane Doe and otherwise affirmed.

FUCHSBERG, J. (concurring in part and dissenting in part).

For the reasons stated in Judge WACHTLER'S concurring opinion, my vote is also for modification. However, in view of the fact that, despite a full trial, there appears to have been no evidence of control of the guns developed other than that set forth in the several opinions on this appeal, the appropriate corrective action should be dismissal for legal insufficiency of trial evidence (CPL 470.40, subd 1; 470.20, subd 2; cf. Stubbs v Smith, 533 F.2d 64 [OAKES, J.]).

Chief Judge BREITEL and Judges GABRIELLI and COOKE concur with Judge JASEN; Judge JONES concurs in result in a separate opinion; Judge WACHTLER concurs in part and dissents in part and votes to modify and order a new trial as to all defendants except Jane Doe in a separate opinion; Judge FUCHSBERG concurs in part and dissents in part and votes to modify and dismiss the indictment as to all defendants except Jane Doe, in another separate opinion.

Order affirmed.