S.D.N.Y.: Whether an apt building stairwell is a “public place” is unsettled law in NYS, so def’s stop not unreasonable under Heien

Whether an open container in an apartment building stairwell was done in a “public place” is not clear and is unsettled under New York law, so the officer’s detention of defendant on this ground was not objectively unreasonable under Heien and it would be sustained. United States v. Diaz, 2015 U.S. Dist. LEXIS 107344 (S.D.N.Y. August 14, 2015):

Ultimately, however, the Court need not resolve that unsettled question of state law because, even if Officer Aybar was mistaken in her belief that the stairwell qualified as a “public place” for purposes of the open-container law, her mistake was an objectively reasonable one. See Heien v. North Carolina, 135 S. Ct. 530, 536, 190 L. Ed. 2d 475 (2014); see also Herring v. United States, 555 U.S. 135, 139, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009) (“When a probable-cause determination was based on reasonable but mistaken assumptions, the person subjected to a search or seizure has not necessarily been the victim of a constitutional violation.”). In Heien, an officer stopped a car for driving with only one functional tail light, believing that to be a violation of state traffic law, and, in a subsequent search, found a significant quantity of cocaine. See 135 S. Ct. at 534. A state court, however, later concluded that driving with a single working tail light was not in fact a violation of state law. See id. at 535. Nevertheless, the Supreme Court concluded that the warrantless search was reasonable and thus consistent with the Fourth Amendment, holding that “reasonable suspicion can rest on a mistaken understanding of the scope of a legal prohibition.” Id. at 536. “To be reasonable,” the Court reasoned, “is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community’s protection.” Id. (internal quotation marks omitted). The Court emphasized, however, that the Fourth Amendment “tolerates only reasonable mistakes, and those mistakes … must be objectively reasonable.” Id. at 539; see id. at 540-41 (Kagan, J., concurring).

Heien controls here, as even assuming arguendo that Officer Aybar’s belief that the stairwell was a “public place” within the meaning of the open-container law was mistaken, her belief was not objectively unreasonable. That conclusion is all but compelled by the decision in Medina, which held that “the phrase ‘public place’ in Section 10-125(b) can, and does, include the common areas of apartment buildings to which substantial groups of persons have access.” 842 N.Y.S.2d at 232. Indeed, the mere fact that a state court has adopted that reading of the statute — in a thorough opinion that appears, on its face at least, well reasoned (and, indeed, has been followed by at least one federal court) — makes it hard to say that the reading, even if it turns out to be mistaken, is objectively unreasonable. But Medina aside, Officer Aybar’s belief finds support not only in the breadth of the law’s core definition (any “place to which the public or a substantial group of persons has access”), but also in the fact that the exact same phrase is used elsewhere in the Administrative Code and expressly defined to include the common areas of apartment buildings. See, e.g., N.Y.C. Admin. Code § 10-136(a)(3); id. § 10-134.2(a)(3); id. § 10-134.1(b)(3); see also Riley v. Cnty. of Broome, 95 N.Y.2d 455, 466, 742 N.E.2d 98, 719 N.Y.S.2d 623 (2000) (“As a general principle of statutory construction, whenever a word is used in a statute in one sense and with one meaning, and subsequently the same word is used in a statute on the same subject matter, it is understood as having been used in the same sense.” (internal quotation marks omitted)).