People v. Caputo , 41 A.D.2d 165 ( 1973 )

Staley, Jr., J.

These are appeals from an order of the County Court of Washington County, entered August 3, 1972, which granted a motion by defendants to suppress evidence.

The facts are not in dispute. On March 26,1972, in the late afternoon, Trooper Werthmuller received a telephone call at the New York State Police substation at South Glens Falls from á confidential informer, conceded by defendants to be reliable, who advised him that defendants were on their way to Fort Edward with a supply of drugs; that they were driving a blue Riviera car with Florida registration plates, and should be arriving there shortly. Trooper Werthmuller advised the deskman of the telephone call and, while proceeding to Fort Edward, radioed Trooper Kelleher advising him of -the call. As he was proceeding west on Route 197, Trooper Werthmuller observed defendant, Joseph Caputo, driving a blue Riviera with Florida registration in an easterly direction towards Fort Edward and with a passenger in the front seat. He turned his troop car around, alerted Trooper Kelleher, and followed defendants into Fort Edward where he stopped defendant’s car on Broadway near the school, about 15 minutes after the informant’s telephone call. Trooper Werthmuller then proceeded to- defendant’s car and asked Joseph Caputo to produce his license and registration, which was done. After checking the license plates, Trooper Werthmuller retained the license and registration and went to the passenger side of the car where defendant, Jambs Caputo, identified himself. James Caputo was then directed to get out of the car. As he did so, Trooper Werthniuller observed a set of scales in the back seat, a can of mace on the floor and a box of .25 calibre pistol ammunition on the console. Joseph Caputo was then asked for the keys to the trunk of the car. A search of the trunk produced green plastic bags containing marijuana, and James Caputo was placed under arrest for possession of a dangerous drug. A suitcase in the trunk was then opened and found to contain more bags of marijuana. In the meantime, Troopers Kelleher and Alden had arrived, and a .25 calibre pistol with a clip containing six rounds of ammunition was found on defendant Joseph Caputo. He was also placed under arrest. It is conceded that the car was not stopped because of a violation of any vehicle and traffic law or regulation; that the operator’s license and the registration were in order; that Trooper Werthmuller observed nothing suspicious or illegal prior to asking James Caputo to get out of the car; and that the only basis for a belief that there were drugs in the car was the informant’s telephone call.

Joseph Caputo and James Caputo have each 'been indicted for the crimes of criminal possession of a dangerous drug in the third degree (Penal Law, § 220.20), and unlawfully possessing noxious material (Penal Law, § 270.05). In addition, Joseph Caputo was indicted for the crime of possession of a dangerous weapon as a felony. (Penal Law, § 265.05, subd. 2.)

The informant here was well known to the police and during the prior year, as a result of his information, 20 arrests had been made, and approximately 15 convictions had been obtained. In addition, the trooper observed the can of mace in open view on the floor of the car, the possession of which constituted a crime.

By reason of its mobility, the search of a car without a warrant might be reasonable (Cooper v. California, 386 U. S. 58), and whether such search is reasonable depends upon whether probable cause existed to sustain the arrest and search. (McCray v. Illinois, 386 U. S. 300.)

A search of a car may at times be justified by the belief ‘ ‘ reasonably arising out of the circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure or destruction ”. (Carroll v. United States, 267 U. S. 132, 149.)

“ In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” (Brinegar v. United States, 338 U. S. 160, 175.)

The totality of the circumstances herein completely justified the search and seizure, and the arrests of the defendants. (People v. Rowell, 27 N Y 2d 691.) The motions to suppress should have been denied.

The order should be reversed, on the law and the facts, and the motions to suppress the evidence seized from the automobile, should be denied.