[I]n the bag the officer observed the "jeans that [defendant] was wearing that night, boxers, and his sneakers," and there is no dispute that the officer seized that bag. Likewise, there is no dispute that, as he vouchered the clothing, the officer inspected each garment. Based at least in part on observations the officer made with respect to the condition of those items during the inventory process, authorities believed that defendant had accidentally shot himself with a gun he carried in his waistband.
"the clothing in [the] clear bag . . . potentially was evidence of a crime," and "there [was] no violation of any [F]ourth [A]mendment rights . . . when th[at] clothing was recovered to be examined to see if it had relevance to the investigation of a crime of someone being shot."
"[s]ince the defendant's clothing was lying on the floor of a hospital room in a clear plastic bag, the clothing was openly visible," and that "the police had probable cause to seize the . . . clothing as evidence of a crime of which they believed the defendant had been a victim" (id.) . . .
The primary issue on this appeal is whether defendant's constitutional right to be free from unreasonable searches and seizures was violated when police took defendant's clothing, which had been placed in a clear hospital bag, without either a warrant or his consent . . .
Fourth Amendment to the United States Constitution:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Under the plain view doctrine, if the sight of an object gives the police probable cause to believe that it is the instrumentality of a crime, the object may be seized without a warrant if three conditions are met: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object's incriminating nature is immediately apparent" (Diaz, 81 NY2d at 110; see People v Brown, 96 NY2d 80, 89 ).
[r]easonable expectation of privacy in the clothing that was being stored by the hospital for safekeeping on his behalf. Because appellant had a privacy interest in his clothing, the full protections of the Fourth Amendment apply to that clothing, which meant that in order for the police to search the clothing, they needed to have consent, a warrant - - -
[p]lastic bag wasn't outside in the open, so what the record shows is that appellant had been gowned because he had these injuries and was being actively treated in the emergency room. The clothing had been put into a hospital bag and placed on a shelf underneath a gurney, and so there's no indication from the record that the clothing was out in the open or was somehow available to the public.
Following Sibley's appellate presentation, ADA Branigan justified the police officer's search as soundly based upon the "plain view" doctrine and explained that:JUDGE STEIN: And he was called there to investigate this shooting, correct?MS. SIBLEY: Correct.JUDGE STEIN: And so wouldn't it make sense that he - - - I mean, why would he go in the bag if he wasn't looking for some evidence with regard to the shooting?MS. SIBLEY: Well, abso - - - absolutely not, because he did not interview my client extensively. He did not see any wounds, so he didn't know where my client was shot. He didn't - - -JUDGE STEIN: Well, he said he was shot in the leg; didn't - - - didn't he?MS. SIBLEY: No.JUDGE STEIN: No, he just said he was shot?MS. SIBLEY: No, just that he was shot, and so the officer did not know where my client had been shot. He didn't know what items of clothing were in the bag, so he didn't even know if boxer shorts would be in the bag. I mean my client could have very well been wearing his underwear under the hospital gown. And so there was no reason for the officer to believeJUDGE STEIN: So - - -MS. SIBLEY: - - - that anything in the bag would be incriminating.
[O]ne is the - - - the probable cause that there was a crime that was committed, which was the shooting of the defendant, and secondly that the - - - the evidence of the shooting was in a clear bag on the floor. So in - - - in this case, we're relying solely on plain view, not that there was consent. The defendant could have - - -JUDGE PIGOTT: Doesn't plain view imply that you have - - - it has - - - the - - - the fruits of a crime or the crime res has to be in plain view,not simply, you know, you say well, this apartment is in plain view, I can search it, or his clothing is in plain view, I can search it? In other words, it has to be the - - - you know, what you're looking for has to be in plain view, right?MR. BRANIGAN: The standard is whether it's - - - it's useful as evidence of the crime. And - --JUDGE FAHEY: I thought it was whether or not the instrumentalities of the crime, I thought. That was - - - that was it, and so is clothing an instrumentality of the crime?MS. SIBLEY: Well, it's - - - it's instrumentality of the crime or useful as - - - as evidence of - - - of the crime, Your Honor. So the -
JUDGE ABDUS-SALAAM: All he could see, though, counsel - - - what - - - what if all he could see is what I think the record suggests, is that there are clothes in the bag? He has to go inside of the bag to find out that the underwear have bullet holes but not the jeans.MR. BRANIGAN: Your Honor, ultimately - - -ultimately the - - - the clothes had to be analyzed for - - - for the ballistics evidence, but he knows the clothing - - - as a trained officer, he knows that the clothing is always going to be evidence of - - - of the shooting. He knows - - -JUDGE RIVERA: But isn't that, then, the problem? He only knows that - - - following off on what Judge Abdus-Salaam is saying - - - he only knows that because he knows there's a shooting, shot in the leg, right, supposedly. I understand your - - - the adversary disagrees, but let's just stay with this for one moment. He knows there's a shooting, he knows that he's shot in the leg, ah, so those clothes must have holes, they must have something of value, but he really doesn't know anything about that, or the officer wouldn't know anything about that until you go through a forensic analysis of this evidence. So he learns nothing - - - what I'm saying is he learns nothing from the observation, right? He only thinks there's something valuable because he knows about the shooting, he knows of the shooting in the leg, the clothes must have been affected in this shooting, but he doesn't know anything from seeing the bag, correct? He's got to go looking for something.MR. BRANIGAN: Yes, Your Honor, he has to examine the clothing to - - - to know exactly what kind of ballistics evidence they'll yield, but it's the clothes themselves that are evidence in this crime, so the standard is - - -JUDGE RIVERA: All right, so if the hospital used opaque bags and the officer knows the clothes are in there, your position is that's not plain view, the officer's going to have to ask, and if denied access, would then have to try and get a warrant; am I correct in understanding your argument?MR. BRANIGAN: That's correct, Your Honor.
Against this backdrop we conclude that the hearing court erred in denying defendant's motion to suppress the clothes seized by police. There was evidence adduced at the suppression hearing that the officer who seized the clothes knew defendant to have been shot, and that defendant awaited treatment at the hospital while dressed in clothes different from those he wore at the time of the shooting. More important, however, is what the evidence presented at the suppression hearing does not establish. That evidence does not show that, before the seizure, the testifying officer knew that entry and exit wounds were located on an area of defendant's body that would have been covered by the clothes defendant wore at the time of the shooting. Similarly, the record of that proceeding contains no other indicium that could have given rise to a reasonable belief that the shooting had affected defendant's clothes. To that end, there is no record support for the lower courts' conclusion that the investigating officer had probable cause to believe that defendant's clothes were the instrumentality of a crime (see generally People v Cook, 85 NY2d 928, 931 ; cf. generally People v Salvodon, 127 AD3d 1239, 1240-1241 [2d Dept 2015]).