
    In the Matter of Marrhonda G., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued February 12, 1993;
    decided April 8, 1993
    
      APPEARANCES OF COUNSEL
    
      Kenneth Rabb, New York City, and Lenore Gittis for appellant.
    
      O. Peter Sherwood, Corporation Counsel of New York City 
      (Margaret G. King and Ellen B. Fishman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, respondent’s motion to suppress granted and the petition dismissed.

On April 5, 1990, Port Authority Police Officer Joseph DeFelice observed respondent standing alone in the Port Authority Bus Terminal for several hours with a large knapsack-type bag. DeFelice approached and questioned respondent, and, for several reasons, concluded that she could be a runaway. Respondent was traveling alone, had initially lied about her age, had no identification with her and appeared to be nervous. Moreover, respondent said that her mother could not be contacted and, while indicating that she was waiting for a relative, she could not give a local address or telephone number for that person.

DeFelice took respondent to the Port Authority Youth Services Unit office — a facility for investigating suspected runaways. Upon entering the office, respondent put her bag down on the floor and sat in a chair about 15 feet away from the bag. A few minutes later, another officer picked up respondent’s bag from the floor in order to move it out of the way. While holding the bag, the officer felt what he believed to be the butt and trigger guard of a gun. DeFelice also handled the bag and was able to feel what he believed to be the impression of a gun inside the bag. The officers then opened the bag and found four weapons and ammunition.

Family Court denied respondent’s motion to suppress the weapons seized from the bag, holding that the respondent’s detention was proper since DeFelice had probable cause to believe that respondent was a runaway and that the search of the bag was justified under a "plain-touch” exception to the warrant requirement. After a fact-finding hearing, Family Court determined that respondent had committed acts, which if committed by an adult, would constitute the crimes of criminal possession of a weapon in the third and fourth degrees.

The Appellate Division affirmed, holding that respondent had been properly detained under Family Court Act § 718 and that the search of the bag was permissible since "the discovery of the weapon[s] was inadvertent.” (184 AD2d 338, 339.)

We agree with the courts below that the detention of respondent was proper. Under Family Court Act § 718, the police may detain and return any juvenile to his or her parents "who, in the reasonable opinion of the officer, appears to have run away from home without just cause”. An officer’s reasonable opinion justifies detention of a juvenile under section 718 if it is supported by probable cause to believe that the juvenile may be a runaway (see, Matter of Mark Anthony G., 169 AD2d 89, 91; Matter of Terrence G, 109 AD2d 440, 444; see also, Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 718, at 39). The circumstances here are sufficient to support a finding of probable cause.

We disagree with the conclusion of the courts below, however, that the warrantless search of respondent’s bag was justified under a so-called "plain-touch” exception to the warrant requirement. We have rejected that exception this session in People v Diaz (81 NY2d 106 [decided today]). In the absence of some other applicable exception to the warrant requirement, the warrantless search of respondent’s bag was unjustified. As noted by the dissent (dissenting opn, at 947), our rejection of the plain-touch exception does not bar the application of some other exception to the warrant requirement. The officers could have justifiably searched the bag if it had been within respondent’s "grabbable area”, if respondent had consented to the search, or if respondent had been placed under arrest and the bag then searched as an incident thereto. Indeed, the police may have simply detained the bag while they obtained a warrant to search it (see, Arkansas v Sanders, 442 US 753, 766). Additionally, of course, the police could have asked respondent about the contents of the bag.

Bellacosa, J.

(dissenting). Appellant, 13 years of age, was detained at the Port Authority Bus Terminal at approximately 9:00 p.m. on a week night, on suspicion of being a runaway. We are unanimous that the detention of this teenager was justified and lawfully conducted under Family Court Act § 718. A few minutes after she was escorted by a Port Authority police officer to the Youth Services Unit at the Terminal, she set down her large, black, canvas, knapsack-type bag in the walkway in the specially designated room. She took a seat some 15 feet away. A second officer picked up the bag to move it out of the way. He felt the unmistakable outline of the butt and trigger guard of a gun. His concerns were then also confirmed by the detaining officer. We are also unanimous that up to that point the officers’ actions were lawful. However, the legal characterization and consequences of what occurred next divides us. When the officers then opened the bag, they saw four handguns (two 9mm semiautomatic; one .38 caliber semiautomatic; and one .44 caliber revolver) and 150 rounds of ammunition. The majority holds that opening the bag violated the juvenile’s Fourth Amendment rights.

The Family Court and the Appellate Division denied suppression of the seized miniarsenal. This Court granted leave to appeal. I agree with the result of the two courts below and therefore respectfully dissent and vote to affirm the order of the Appellate Division for essentially the same rationale applied by the Appellate Division.

That Court plainly did not adopt or rely on the so-called "plain touch” doctrine in this case. Thus, the forced application of this doctrine here, as the decisive template, is puzzling. That semantical phrase should be just a shorthand for one of the factors that contribute to any probable cause determination. If the factor is derived from a lawful and justified action, as here, it ought to be considered with all the rest of the probable cause features. It should not be discarded on a per se semantical analysis.

In upholding the seizure and the resulting juvenile delinquency determination of the Family Court, the Appellate Division used a traditional analysis. The officer in this case, after routinely and legally touching the juvenile’s bag, inadvertently became aware that it contained dangerous contraband. He verified his acquired knowledge by having another officer check the outside of the bag, also by lawful actions. Their reasonable and lawful activity, along with the entire assembly of surrounding circumstances in this situation, provided a probable cause basis to take further reasonable actions, including in these circumstances opening to check that bag in that public place. Ultimately, the safety of the officers and the public was at stake there, and to propound a protocol that requires making a formal arrest in order to qualify for an incident search (compare, People v Diaz, 81 NY2d 106 [decided today]) or suspending all action to secure a warrant in these circumstances is unnecessarily restrictive. That approach elevates form over substance in the typically active setting of the Port Authority Youth Services Unit.

The net practical effect of this and like cases requires officers and lower courts empowered with fact-finding authority to jettison their sound appraisal of the entire collection of data and developments of the varied and dangerous encounters involved. That is not warranted under sensible, settled, constitutional law principles.

Basically, the Court seems to be erecting a set of rigid regimes. Presumably, the officers could have held, examined or seized the juvenile’s knapsack and its contents in any number of other lawful ways, e.g., if they arrested her and did an incident search; if the bag were in her proximate "grabbable” area within the youth facility; if a fear for safety was reasonably perceived (an explosive potential, for example); if a regulation or magnetometer were in place to check all bags in the secure unit, as is done at airports and some courthouses and schools; if a proper inventory of held property procedure were in place; if the teenager were held for a longer period, perhaps overnight, while the police secured a warrant; if the police got consent or information by lawfully questioning her; if other exigent circumstances were present; or if several other categorical exceptions were evoked. I do not see why the police actions taken here must fit rigidly into one of the litany of authorized exceptions, so long as they reasonably approximate one or more of the traditional allowances for nonwarrant searches and seizures — as they did in this case.

In sum, the reversal approach taken by the Court in this juvenile delinquency case is not only analytically infirm but precedentially dangerous, since it compels the police to perform their job duties with timidity when confronted with situations reasonably affecting the public’s and their own personal safety. The police in such circumstances should not be left with no realistic alternative except to return an arsenal of dangerous and illegal weapons and ammunition to a child courier.

Chief Judge Kaye and Judges Simons, Titone and Hancock, Jr., concur in memorandum; Judge Bellacosa dissents and votes to affirm in an opinion; Judge Smith taking no part.

Order reversed, etc.  