
    The People of the State of New York, Respondent, v. Leon Whitehurst, Appellant.
    Argued May 28, 1969;
    decided November 26, 1969.
    
      
      Leon B. Polsky and Milton Adler for appellant.
    I. There was no consent as a matter of law. (People v. Sibron, 18 N Y 2d 603, 392 U. S. 40.) II. The trial court erroneously placed the burden of proof upon appellant. (People v. Malinsky, 15 N Y 2d 86; United States v. Rivera, 321 F. 2d 704; United States v. Smith, 308 F. 2d 657.)
    
      Eugene Gold, District Attorney (Harry Brodbar of counsel), for respondent.
    The facts clearly indicate the voluntary surrender of contraband on the part of appellant and since there had not actually been any true request or demand for the incriminating evidence, there is no issue of the voluntariness of consent for this court to determine. Appellant, therefore, has not sustained the ultimate burden of demonstrating an unlawful search or seizure, the true issue of this appeal. (United States v. Smith, 308 F. 2d 657, 372 U. S. 906; United States v. Rundle, 274 F. Supp. 364; Harris v. United States, 370 F. 2d 477; Robbins v. MacKenzie, 364 F. 2d 45, 385 U. S. 913; People v. Conroy, 97 N. Y. 62; People v. Place, 157 N. Y. 584; People v. Verrecchio, 23 N Y 2d 489; People v. Johnson, 50 Misc 2d 1009; People v. Malinsky, 15 N Y 2d 86; People v. Entrialgo, 19 A D 2d 509, 14 N Y 2d 733.)
   Burke, J.

Defendant appeals from an order of the Appellate Term affirming the judgment of conviction of the Criminal Court of the City of New York, Kings County* convicting him, upon his plea of guilty, of unlawful possession of narcotics (Public Health Law, § 3305) and sentencing him to six months in the penitentiary.

At the suppression hearing Detective James Bryan testified that, on July 6, 1966, he placed defendant under observation for approximately 15 minutes. Then, inside a store, defendant approached the officer, whom he recognized from a previous narcotics arrest. Upon seeing the detective, Whitehurst exclaimed, “ Oh no. Not you again.” Whereupon Bryan, according to his testimony, replied, “ Yes, it’s me. What have you got this time? ” On cross-examination the officer acknowledged that this question referred to narcotics. Apparently, the defendant also understood the officer’s question, because he reached into his pocket, took out two glassine envelopes, placed them on the counter in front of Bryan and said, “ That’s all I’ve got.”

During .the course of the suppression hearing a question arose as to the burden of proof when defendant’s trial counsel asked for a stipulation from the assistant district attorney that the issue was one of consent and that, in that posture, the burden of proof was on the People. The court stated that consent was not involved, that in placing the contraband on the counter, defendant had acted voluntarily. The question thus presented is whether the hearing jurist improperly placed the burden of proof on defendant.

The trial court’s response to the request for a stipulation demonstrates the confusion which prevails generally in the lower courts as to the several procedural variants at property suppression hearings (Code Crim. Pro., § 813-c et seq.). Initially, the defendant carries the burden of proof when he challenges the legality of a search and seizure (see, e.g., Nardone v. United States, 308 U. S. 338, 342), but the People have the burden of going forward to show the legality of the police conduct in the first instance (People v. Malinsky, 15 N Y 2d 86, 91, n. 2). When a search and seizure is based upon consent, however, the burden of proof rests heavily upon the People to establish the voluntariness of that waiver of a constitutional right. In Bumper v. North Carolina (391 U. S. 543) the court stated: “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given” (p. 548).

In the context of this case, as it developed from the mouth of the People’s witness, we cannot say that the hearing court properly applied the burden of proof. When Detective Bryan stated that he asked, “What have you got this time?” he injected the issue of consent into the case. No matter the perspective from which the quoted words are viewed, they remain interrogative. They are couched in terms of a request, and an affirmative response by word or by deed would constitute a constitutional waiver.

The People argue that defendant surrendered the contraband without the prompting of the request, but the record before us does not support that conclusion. Detective Bryan stated that he asked the question and admitted as well that he, Bryan, was referring to narcotics. Moreover, he testified that he knew defendant from a previous narcotics arrest. Finally; and perhaps most significantly, he testified that defendant did not place the glassine envelopes on the counter until after the question was asked.

Under the circumstances the burden of proof was on the People. Therefore, the defendant ought to have the factual issue determined in accordance with constitutional standards, and a new suppression hearing should be held (People v. Malinsky, 15 N Y 2d 86, supra).

Accordingly, the judgment of conviction should be reversed, and the case remanded to the Criminal Court for a new hearing.

Scileppi, J. (dissenting).

In our opinion there was no unlawful search and seizure in this case. We conclude that the Hearing Judge was correct in holding that there was no issue of consent.

The purpose of a suppression hearing is to determine whether proposed evidence was obtained by the prosecution by means of an unlawful search and seizure (Code Crim. Pro., § 813-c et seq.). The Hearing Judge must make two determinations: (1) whether or not there was a search and seizure and (2) if so, whether the search and seizure was reasonable. Common sense tells us that the Hearing Judge must first find, expressly or implicitly, that there was a search and seizure before he can ascertain whether it was reasonable.

In the instant case the Hearing Judge found, as a fact, that the officer did not search the defendant since the defendant had, of his own volition, turned the contraband over to him. The issue of consent was not reached since it was never established that there was ever a search. The only reviewable question is whether the Judge’s factual determination that there was no search was proper. In our opinion it was (cf. People v. Leonti, 18 N Y 2d 384).

Although it may be true that a search no longer necessitates a physical examination of a person or his property (Berger v. New York, 388 U. S. 41), it has never been held, at least in this jurisdiction, that a statement made by a police officer as innocuous as “ What have you got this time ” constitutes a search. We have held that a frisk is not a search even though it actually involves a physical intrusion (People v. Rivera, 14 N Y 2d 441). Moreover, in the “ abandonment ” cases, this court has declared that there is no search and seizure where an officer retrieves contraband that is abandoned by the defendant since possession has voluntarily been relinquished (People v. Pittman, 14 N Y 2d 885). It is our opinion that it cannot reasonably be held that an unsolicited relinquishment of possession of contraband is any more of a search than in an abandonment situation.

In a recent case involving the constitutional right of counsel and the right against self incrimination we held that a suspect’s confession which he blurted out on a street in response to an accusation by a police officer was voluntary and admissible even though the officer was aware that the suspect’s attorney had demanded that the police no longer question his client (People v. McKie, 25 N Y 2d 19). Although it is true that McKie involved different constitutional safeguards, the reasoning in that case is applicable here. The voluntary act of the defendant in response to the officer’s question, in the instant case, is quite similar to McKie’s blurted out confession in response to the detective’s accusation.

The Hearing Judge, in the instant case, chose to believe the testimony of the arresting officer as to the circumstances surrounding the arrest and found that there had been no search. In onr opinion that testimony could be found to be credible by the trial court in its determination that there was no search.

The judgment of conviction should be affirmed.

Chief Judge Fuld and Judges Breitel and Gibson concur with Judge Burke; Judge Scileppi dissents and votes to affirm in a separate opinion in which Judges Bergan and Jasen concur.

Judgment reversed and case remitted to the Criminal Court of the City of New York for further proceedings in accordance with the opinion herein. 
      
       In People v. McKie (25 N Y 2d 19) the defendant, murder suspect, who had been under surveillance, approached the detective watching him and asked “When are you guys going to stop bugging me?” One of the officers replied “You weren’t so brave when you killed that little old lady”, whereupon the suspect said, “ Sure I did it, but you guys can’t prove it”.
     