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May 10, 1990


The opinion of the court was delivered by: Korman, District Judge.


On October 1, 1981, at approximately 4:45 p.m., Andrew Kalina, the proprietor of a liquor store at 44-24 College Point Boulevard, Queens, New York, was shot to death during an armed robbery. By 6:45 p.m. that same day, the New York City Police had found petitioner, Marvin Pinkney, at Jamaica Hospital receiving medical attention for wounds he incurred while escaping, had recovered the murder weapon from petitioner's car parked a short distance from the hospital, and had brought the four persons who witnessed petitioner's escape from the scene of the crime to the hospital to identify him.

On the basis of this and other compelling evidence, petitioner was convicted of murder in the second degree by a jury sitting in the Supreme Court of the State of New York, Queens County, and he was sentenced to a term of imprisonment of twenty-five years to life. The judgment of conviction was affirmed by the Appellate Division, People v. Pinkney, 135 A.D.2d 748, 522 N.Y.S.2d 653 (2nd Dep't 1987), and a motion for leave to appeal to the Court of Appeals was denied by Judge Simons on May 17, 1988. People v. Pinkney, 71 N.Y.2d 1031, 526 N.E.2d 59, 530 N.Y.S.2d 566 (1988).

On appeal from the judgment of conviction, petitioner argued that the trial judge erroneously admitted into evidence the murder weapon that was obtained as a result of the unlawful search of his car. Petitioner also argued that the eyewitness identifications of him at Jamaica Hospital were unnecessarily suggestive and that the eyewitnesses should not have been permitted to testify at trial. Even if the eyewitness testimony was admissible, petitioner argued that the trial judge improperly refused to allow his attorney to comment in his summation on the suggestive nature of the pre-trial identifications.

The Appellate Division agreed with petitioner that the search of his automobile was invalid because it "was neither supported by probable cause nor justified by exigent circumstances or any other exception to the exclusionary rule." People v. Pinkney, 135 A.D.2d at 749, 522 N.Y.S.2d at 654 (citations omitted). Although this conclusion resulted in the reversal of petitioner's conviction for the illegal possession of two firearms found in the car, one of which was the murder weapon, the Appellate Division affirmed petitioner's murder conviction on the ground that the eyewitness identifications and other physical evidence that had been properly obtained were so compelling as to render harmless the admission of the fruits of the search of the vehicle. Id. at 749-50, 522 N.Y.S.2d at 654-55. The Appellate Division did not address petitioner's argument that the trial judge had improperly restricted the effort of his attorney to argue to the jury that the eyewitness identifications were unreliable. The Appellate Division also did not address petitioner's argument that the trial judge erroneously admitted evidence of petitioner's refusal to answer questions after he had been arrested and given his Miranda warnings.

Petitioner now seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. While the claims of error he presses, i.e., the admissibility of the eyewitness identifications, the inability of his attorney to attack the reliability of the identifications in his summation and the admissibility of evidence of his post-arrest silence, have substantial merit, there is no need to resolve them here. A careful review of the record indicates that the Appellate Division erred when it concluded that the search of petitioner's automobile was invalid. Because the evidence found in the automobile and other evidence properly admitted renders harmless the errors petitioner alleges were made at trial, the petition must be denied.


A. The Validity of the Search of Petitioner's Car

The facts leading to the discovery of the murder weapon in an open leather bag in petitioner's car are set out in the findings of fact made by the trial judge. In pertinent part, they are as follows:

    On October 1, 1981, at approximately 4:45 p.m.,
  Andrew Kalina, the proprietor of a liquor store,
  at 44-24 College Point Boulevard, Queens, was
  shot, and died shortly thereafter.
    The first police car to arrive on the scene was
  operated by Police Officer Joseph Costanza of the
  109th Precinct, who was responding to a Robbery
  in Progress at that location. Upon arriving, he
  observed that the front door was open with its
  glass broken, much of it on the outside of the
  door, and to a lesser extent, some on the inside.
  He observed that there was a trail of blood
  leading away from the door for about ten feet
  onto the street. He also saw the body of Mr.
  Kalina about twenty feet inside the store, and
  did not notice any blood in Kalina's vicinity.
    Also responding to the scene, as a result of a
  radio transmission that a man had been shot, was
  Detective Stanley Struel of the 109th Precinct
  who observed that the glass of the liquor store
  door had been shattered. He also observed blood
  where the shattered glass was. Struel also saw
  the body of Kalina inside the store. He then
  notified all hospitals in an effort to determine
  if anyone could have been seeking treatment for
  injuries. Subsequently he learned a possible
  suspect was in Jamaica Hospital and responded
  there. Detective Richard Ward of the 109th
  Precinct responded to the location of the liquor
  store where he noted blood on the sidewalk and on
  the glass. Detective Ward interviewed witnesses
  at the scene namely Maurice McFarlane, Kimberly
  Auffray, and Thierry Auffray. Detective Struel
  interviewed Leonardo Mesa.
    Another witness to testify was Stanley
  Zadwydos, who stated that shortly before 5:00
  p.m. on October 1, 1981, he was driving on the
  Interboro Parkway near Queens Boulevard when his
  car was involved in an accident with a foreign
  car driven by the defendant. The witness copied
  the defendant's license plate number. The
  defendant fled the scene in his car and the
  witness pursued him. After the defendant's car
  became stuck in traffic, the witness' car caught
  up to the defendant's car. At that point the
  defendant came face to face with the witness. The
  witness testified that the defendant stated that
  he was bleeding and was going directly to a
  hospital. The witness attempted to follow the
  defendant but lost him because the defendant was
  going at too great a speed. The witness then gave
  police officers Gerald Goodman and Donald
  Myerhoff the license number of the car and
  informed them of the accident. The police ran a
  check of the license number and stated that the
  owner was Marvin Pinkney.
    At approximately 5:15 p.m., Officers William
  Fitzpatrick and Thomas McGovern of the 102nd
  Precinct were told over the police radio to go to
  the Jamaica Hospital Emergency Room. They were
  told a description of a perpetrator of a robbery,
  namely, a male black, dark clothing, dark hat,
  glasses, and about 6' to 6'2." They were told he
  might be injured. As they entered the ramp

  to the emergency room of the hospital, they
  noticed footprints of blood. The officers
  followed the prints into the emergency room to
  where a man was being treated for a leg injury.
  In response to a question by McGovern, he stated
  he had been mugged by two white men, and had
  walked to the hospital. McGovern stayed with the
  defendant who identified himself to McGovern as
  Marvin Pinkney, while Fitzpatrick followed the
  trail of blood. While tracing the blood,
  Fitzpatrick met Officers Goodman and Myerhoff,
  who informed him that they were looking for a
  Marvin Pinkney who had left the scene of an
  accident. Fitzpatrick said he did not know the
  name Marvin Pinkney. Fitzpatrick traced the trail
  of blood for about 1 1/2 blocks to a yellow
  Toyota that had damage to its front and rear. He
  found the Toyota on a public street with keys
  laying on the hood of the car. He took the keys.
  Fitzpatrick noticed that the doors were unlocked.
  He opened the car door and saw a pool of blood
  inside the car on the driver's side. He then
  exited the car and looked in the passenger side
  window. He then noticed an open bag with the
  handle of a gun protruding out of it. He then
  opened the car door and seized the bag which he
  then saw had two guns in it.

Memorandum and Order Denying Defendant's Motion to Suppress Evidence, People v. Pinkney, No. 2614/81 (N.Y. Supreme Court October 25, 1982) (Zelman, J.).

Petitioner acknowledges that these findings, "as far as they go, are presumed to be correct." Post-Argument Memorandum of Law, People v. Pinkney, No. 89-734 (E.D.N.Y. June 23, 1989) (hereinafter "Post-Argument Memorandum") at 10 (citing 28 U.S.C. § 2254(d)). The one fact that is conceded to have been omitted by the trial judge in her findings of fact is that Officer Fitzpatrick first observed the bag containing the guns while he was inside the car. Specifically, Officer Fitzpatrick testified that he observed a brown leather bag "on the passenger side of the rear on the floor" as he "was starting to back out of the car." Transcript of Mapp Hearing, People v. Pinkney, No. 2614/81 (N.Y. Supreme Court, April 14, 1982 and October 12, 1982) (hereinafter "Tr.") at 61. Officer Fitzpatrick then got out of the car and "went around to the passenger side and looked through the window." Id. At that point, he "could see the handle of a gun protruding from the bag." Id. Although Officer Fitzpatrick's initial entry into the automobile enabled him to see no more than was visible through the window of the unlocked automobile, petitioner alleges that his entry into the vehicle was a "search" within the meaning of the Fourth Amendment. Petitioner argues that, in the absence of a warrant or probable cause, Officer Fitzpatrick's observation of the leather bag was the fruit of an impermissible search.

While petitioner's characterization of the entry into the vehicle as a search may be correct, New York v. Class, 475 U.S. 106, 114-15, 106 S.Ct. 960, 966, 89 L.Ed.2d 81 (1986), this alone does not entitle petitioner to prevail. It is well-established that a warrantless search of an automobile is permissible if based on probable cause. See e.g. Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079, 3080, 73 L.Ed.2d 750 (1982) ("[T]he justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court's assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant.") (footnote and citation omitted); see also California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985); Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).

Petitioner's reliance upon the Supreme Court's holding in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), is misplaced. In Coolidge, a warrantless search of a vehicle was invalidated because the police entered "private property to seize and search an unoccupied, parked vehicle not then being used for an illegal purpose." Id. at 463 n. 20, 91 S.Ct. at 2036 n. 20. The Supreme Court has never applied the holding in Coolidge beyond its facts and, if it survives today at all, it stands as authority for the narrow proposition that a warrant is required to search an automobile only where entry on to private property is necessary to effectuate the search. See Cardwell v. Lewis, 417 U.S. at 593, 94 S.Ct. at 2470; United States v. Bagley, 772 F.2d 482 (9th Cir. 1985), cert. denied, 475 U.S. 1023, 106 S.Ct. 1215, 89 L.Ed.2d 326 (1986); United States v. McBee, 659 F.2d 1302, 1305 n. 5 (5th Cir. 1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2020, 72 L.Ed.2d 474 (1982); 3 LaFave, Search and Seizure § 7.2(b), at 39 (1987).

Accordingly, the threshold issue in assessing the reasonableness of Officer Fitzpatrick's "search" of petitioner's car is whether there was probable cause to believe that petitioner had committed an armed robbery and that weapons or the proceeds of the robbery would be found in a vehicle that petitioner had hastily abandoned in order to seek medical care for wounds incurred during the commission of the offense.

Probable cause is not the equivalent of a prima facie case. Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983). Rather, it requires only facts sufficient to "`warrant a man of reasonable caution in the belief'" that evidence of a crime will be found in the place to be searched; "it does not demand any showing that such a belief be correct or more likely true than false." Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983) ...

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