NY4: No REP in a handgun placed under car bumper in driveway at sidewalk visible from off the property

When defendant saw the police car at night, he crouched down behind the rear bumper of his minivan and stood up. The officers could see a gun there, and it was approximately at where the sidewalk and the driveway met. There was no reasonable expectation of privacy where the gun was placed. Also, the gun was in plain view. People v. Griffin, 2020 NY Slip Op 06882, 2020 N.Y. App. Div. LEXIS 7130 (4th Dept. Nov. 20, 2020):

When the officers arrived at the scene shortly after 11:30 p.m., they observed defendant standing behind a minivan that was parked in the driveway. Initially, defendant was visible to the responding officers from about the waist up. Upon seeing the officers, however, defendant crouched behind the minivan out of the officers’ sight for a few seconds before standing up again. Based on the totality of the circumstances—including the short period of time between the 911 call, the dispatch for a “violent domestic,” and the arrival of the police officers at the reported location; the presence of defendant and his girlfriend in the driveway at that location; the responding officers’ knowledge of and familiarity with defendant and his girlfriend and the fact that the officers had responded to the same location earlier that night; and defendant’s act of crouching behind the minivan when he saw the officers arriving—the officer’s verbal command for defendant to emerge from behind the vehicle and place his hands on the side of a house was a reasonably tailored intrusion on defendant’s freedom of movement consistent with a level three encounter (see People v Camber, 167 AD3d 1558, 1558-1559 [4th Dept 2018], lv denied 33 NY3d 946 [2019]; see generally De Bour, 40 NY2d at 223).

Contrary to defendant’s further contention, he was not subjected to an unlawful arrest when he was handcuffed, pat frisked, and placed in the back of a patrol vehicle. …

Defendant also contends that the court erred in refusing to suppress the handgun on the ground that the officer’s discovery of it was the result of an unlawful warrantless search of the curtilage of his home. We reject that contention. “Although a private driveway leading to a home is not outside the area entitled to protection against unreasonable search and seizure …, the key inquiry … is whether defendant had a reasonable expectation of privacy in this area” (People v Smith, 109 AD2d 1096, 1098 [4th Dept 1985]). Here, the record establishes that an officer standing “a couple feet” away from the minivan parked in defendant’s driveway observed the handgun on the surface of the driveway below the front bumper of the minivan, which was “the same location” where defendant had crouched when he first saw the officers arriving. The driveway was adjacent to defendant’s property on the right and the neighboring house on the left, and it was connected to the public sidewalk in the front. The rear of the parked minivan was approximately at the sidewalk, and the front bumper was approximately “halfway up the driveway” between the two houses. The handgun, therefore, was approximately a minivan’s length away from the sidewalk, between defendant’s house and the house next door. The area was used for vehicle parking, it was not fenced or gated, and there were no signs or notices evidencing any intent to exclude the public from the area. The area was illuminated by the light from the streetlights. Thus, we conclude that the record supports the court’s determination that defendant lacked a reasonable expectation of privacy in the area where the handgun was observed by the officer (see People v Reed, 115 AD3d 1334, 1337 [4th Dept 2014], lv denied 23 NY3d 1024 [2014]; People v Versaggi, 296 AD2d 429, 429 [2d Dept 2002], lv denied 98 NY2d 714 [2002]; People v Warmuth, 187 AD2d 473, 474 [2d Dept 1992], lv denied 81 NY2d 894 [1993]; cf. Collins v Virginia, _ U.S. _, 138 S Ct 1663, 1670-1671 [2018]; United States v Alexander, 888 F3d 628, 633-634 [2d Cir 2018]).