Mitchell D. Schweitzer, J.
Defendant, Daniel J. Sullivan, has been indicted for the unlawful possession of a loaded pistol. Defendant moves to suppress the introduction of the pistol into evidence and for the dismissal of the indictment which was obtained on the basis of the introduction of the pistol into evidence before the Grand Jury, contending that the pistol is the fruit of an unconstitutional search and seizure.
The State claims that the pistol was discovered as a result of a "custodial measure to protect the owner's property and to protect the impounding agency from false claims." For this reason, the State argues, an otherwise impermissible search and seizure may be sustained.
The essential facts are not in dispute. On October 22, 1967, defendant rented a 1968 Chevrolet automobile from a rental agency located in New York City. Sometime during the night of October 23, or during the early morning hours of October 24, 1967, defendant lawfully parked this vehicle on West 45th Street, between 8th and 9th Avenues. Between 8:15 a.m. and 8:30 a.m., on the morning of October 24, defendant's vehicle was ticketed for being illegally parked (parking was forbidden between 8:00 a.m. and 9:00 a.m. in a Tow-Away Zone).
Very shortly thereafter, a Police Department tow truck arrived; a police officer entered the locked car with a tool, released the brake, and towed the vehicle to a storage facility. The automobile storage facility involved here is a large closed area, maintained by the police, located at 56th Street and the Hudson River. Access to the facility, and all vehicular traffic in and out, is monitored by uniformed patrolmen.
After parking the automobile at the storage facility, the officer began to "inventory" the contents of the car. It is undisputed that in the process of making this "inventory", the officer found a closed black plastic briefcase located on the floor of the car and, upon opening the briefcase, he found a loaded pistol which is the subject of the indictment and the motion now before this court. The defendant's main contention is that the seizure of the pistol from the closed briefcase in his vehicle was the direct by-product of an illegal search.
The Fourth Amendment of the United States Constitution provides: "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."
It is well settled that a search of an automobile must meet the test of reasonableness under the Fourth Amendment before evidence obtained as a result of such a search is admissible. (See, e.g., Preston v. United States, 376 U.S. 364, 366 ; Brinegar v. United States, 338 U.S. 160 ; Carroll v. United States, 267 U.S. 132 .) "The fact that exceptions to the requirement that searches and seizures be undertaken only after obtaining a warrant are limited" has clearly and repeatedly been articulated by the Supreme Court. (United States v. Ventresca, 380 U.S. 102, 106-107 .) Those exceptions recognized in Ventresca are limited to situations where procuring a warrant is "impracticable" or where the search is incident to a lawful arrest. A further exception to the requirement for the procurement of a warrant exists where an unequivocal consent has first been freely given to the search (Amos v. United States, 255 U.S. 313; and, see, People v. Gonzalez, 50 Misc. 2d 508).
Here, no serious argument is made that defendant's pistol was obtained as a result of any of these recognized exceptions to the requirement that searches and seizures may be undertaken only after a search warrant has been obtained. Since the car had already been seized, procuring a warrant (had probable cause existed) would surely have been practical. Manifestly, no consent was given to the search, and it is likewise clear that this search was not incidental to a lawful arrest. (See United States v. Ventresca, supra, p. 107, n.2 .) Even if defendant had been in his car when the traffic infraction occurred, no search of the car incidental to an arrest could properly have been made. Recently, in People v. Marsh (20 N.Y.2d 98, 100-101 ), the Court of Appeals specifically forbade searches made in connection with traffic violations even though the search in question was actually pursuant to an arrest: "There is no question, and the entire court agrees, that a police officer is not authorized to conduct a search every time he stops a motorist for speeding or some other ordinary traffic infraction * * *
"Although, as a general rule, when an individual is lawfully arrested, the police officer may conduct a contemporaneous search of his person 'for weapons or for the fruits of or implements used to commit the crime' (Preston v. United States, 376 U.S. 364, 367), we do not believe that the Legislature intended the rule to cover arrests for traffic violations." (Emphasis supplied.)
(See People v. James, 46 Misc. 2d 138 [Sup. Ct., 1965]; People v. Jordan, 37 Misc. 2d 33 [Orleans County Ct., 1962].)
The District Attorney takes the only position available to him on the present facts and claims that the pervasive examination of the contents of defendant's automobile was not a "search" but, rather, an "inventory." It is argued that the police are empowered by departmental regulation to check the contents of a vehicle towed away for a traffic infraction in order to make a record of valuables contained therein, with a view to their proper preservation (Temporary Operating Procedure 20, N. Y. City Police Dept., Jan. 18, 1967).
The issue posed for this court is whether the police may lawfully carry out a warrantless intrusion into an automobile and into a closed briefcase contained therein -- by reason of the impounding of such an automobile for a minor parking infraction. In the court's considered view, such a practice constitutes a grievous breach of those protections guaranteed by the Fourth Amendment.
Judicial approval, if given to such a search, would justify a comprehensive intrusion into every area of an individual's car including packages, briefcases, suitcases and perhaps trunks found in an impounded car. Such a concept of law would create a new and vast exception to the explicit ...