Opinion
3648-2010.
Decided June 3, 2011.
Robert T. Johnson, Esq., District Attorney, Bronx County, By: Cheryl Thill, Esq., Assistant District Attorney.
Rene Medina, Esq., Attorney for Defendant, Bronx, New York.
Defendant was indicted on, inter alia, one count of Criminal Possession of a Weapon in the Third Degree, in violation of Penal Law § 265.02(5)(i). Defendant moves to suppress physical evidence, i.e., four guns obtained at the scene of the arrest. On April 5, 2011, this court conducted combined Mapp/Huntley /Dunaway and Payton hearings. Based on the findings of fact and conclusions of law set forth below, defendant's motion is granted.
Defense counsel withdrew defendant's Huntley motion at the hearing. In any event, Huntley is inapplicable here because the defendant's statement was made in response to his mother's question, not as a result of custodial interrogation.
On August 6, 2010, approximately one and one-half hours after receiving information from a confidential informant that guns were present in defendant's apartment, Detective Corey Jones, Sergeant Joaquin Morales and one or two other police officers arrived at defendant's apartment. The officers were in plain clothes and did not have a search warrant. Detective Jones testified that he could have applied for a warrant and offered no explanation for his failure to do so. Morales knocked on the door and defendant's mother, Ms. Kelly, opened the door. Morales testified that he told Ms. Kelly that he was investigating a few shootings that had happened in the area and that her son, Calvin, the defendant, was in possession of firearms in the apartment. Morales also testified that he asked Ms. Kelly if he could come in to speak more and she said "sure." Morales testified that Ms. Kelly opened the door wider and he and the other officers walked inside the apartment.
Ms. Kelly testified as follows:
Q:When you went to the door you saw police officers outside?
A:I looked and I opened the door. The police was outside.
Q:And you spoke with them while they were outside at first, right?
A:Mm-hmm.
Q:Now, you were the one standing inside your apartment at the door, right and at that point you had opened the door? Can you just answer yes for the record.
A:I'm sorry. Yes.
Q:And you opened the door when you went to the door?
A:Yes.
Q:And you were speaking with them and they told you they wanted to talk about the shootings in the area, right?
A:Yes.
Q:At that point the officers came inside your apartment, right?
A:Yes.
Q:Did you ever tell them they couldn't come in?
A:No.
Q:You never asked them to leave, right?
A:No. They came in to talk about the shootings on in the neighborhood.
Q:And you wanted to know what was going on your neighborhood, right?
A:Yeah. Basically why all of y'all is here just to talk about the shootings in the neighborhood but they came in to talk about the shootings in the neighborhood.
Q:And you want to know what's going on in your neighborhood, right?
A:Mm-hmm.
According to Ms Kelly, it was only after the police were inside the apartment that "[Morales] was telling me that Calvin got guns in my apartment and I want to know about it." Ms. Kelly testified that, after Morales told her that the defendant had guns in the apartment, she knocked on the defendant's door, yelled his name and told him that cops were in the apartment. She then returned to the living room. Soon thereafter, the defendant appeared in the living room. According to Morales, Ms. Kelly "screamed [the defendant's] name and he responded to the living room." When the defendant appeared in the living room, Ms. Kelly asked him if it was true that he had guns in the house. The defendant answered: "Yes. In the bedroom." Morales then told the defendant to show him where the guns were and the defendant led Morales to his bedroom. Nothing was said between Morales and the defendant as they walked to the bedroom or while they were inside the bedroom. According to Morales, he allowed the defendant to enter the bedroom, pick up a black bag from the side of the bed and place it on the bed. Morales testified that he was never in fear of his physical safety nor was he concerned that defendant would "go for" a gun because the bag was closed. Morales "grabbed the bag," opened it, saw the guns inside and closed the bag back up. Morales then led the defendant back into the living room where he was placed under arrest.
I. Consent to Enter the Residence
The People contend that Ms. Kelly consented to the entry of the police officers into her apartment by her verbal consent and/or her actions implying her consent to their entry.
The People concede that exigent circumstances were not present to justify the warrantless entry into the apartment.
A warrantless search of an individual's home or personal effects is per se unreasonable and, therefore, there is a presumption that such searches are unconstitutional. People v. Hodge, 44 NY2d 553; People v. Gonzalez, 39 NY2d 122. The prosecution rebuts this presumption only when it presents facts that establish an applicable exception. People v. Pettinato, 69 NY2d 653. The burden of proving the existence of an exception to the search warrant requirement is strictly on the prosecution, and that burden is even greater when there is ample opportunity, as there was here, to obtain a warrant. People v. Knapp, 52 NY2d 689; People v. Spinelli, 35 NY2d 77. One of the limited exceptions to the warrant requirement is a voluntary consent to the search. People v. Singleteary, 35 NY2d 528. When a search and seizure is based upon consent, the burden of proof is "heavily upon the People to establish the voluntariness of that waiver of a constitutional right." People v. Whitehurst, 25 NY2d 389, 391. "Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice." People v. Gonzalez, supra at 128. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle. Id. A valid consent may be established by conduct as well as words. People v. Smith, 239 AD2d 219. The voluntariness of the consent is to be evaluated by the totality of the circumstances. People v. Gonzalez, supra; People v. Kuhn, 33 NY2d 203.
According to Ms. Kelly, she did not invite the officers inside the apartment. Assuming
arguendo that Ms. Kelly did not explicitly consent to the officers' entry, by not objecting to their entry, asking them to leave or in any other manner indicating that they did not have her permission to remain, she implicitly consented to their entry into the apartment. See People v. Gonzalez, 222 AD2d 453; People v. Schof, 136 AD2d 578. Indeed, Ms. Kelly's own testimony was that she was interested in hearing what Morales had to say about the shootings in the neighborhood and that she wanted to know whether her son had guns in the apartment. At the hearing, Ms. Kelly gave no indication that she was at all intimidated or coerced by the officers. On the contrary, according to Ms. Kelly, because she was so upset that there might be guns in her apartment, she "yelled" the defendant's name and asked him herself whether he had guns in the apartment.
Defendant's argument that consent was not obtained because the officers used a ruse to gain entry into the home lacks merit. In the first instance, the court does not consider the officers' conduct a ruse. No false statements were made to gain entry into the apartment. Although Ms. Kelly testified that prior to the police entering the apartment she was told only that the officers wanted to come inside to talk to her about shootings in the neighborhood, there is a sufficient nexus between the shootings in the neighborhood and the possibility that the defendant was hiding guns related to these shootings so as not to render Morales' representation a ruse. However, even if Morales' representation could be construed as a ruse, Ms. Kelly's consent would still be valid. The use of deception does not destroy the voluntariness of a consent per se unless the deception is so fundamentally unfair as to deny due process. See People v. Abrams, 95 AD2d 155. Here, the alleged failure of Morales to state to Ms. Kelly prior to entering the apartment his belief that the defendant had guns in the apartment is not so fundamentally unfair as to deny due process.II. Search of Defendant's Bag
While the people have met their burden to establish that the officers had consent to enter and remain in the apartment, they have not met their burden to establish a legal basis for the warrantless search of the defendant's bag.
It is undisputed that the defendant did not expressly consent to the search of the bag. Nor did the defendant, by his conduct, implicitly consent to the search of the bag.
The People contend that Morales had a reasonable belief that the bag contained firearms and posed a risk to the officers or civilians in the apartment which justified his opening the bag. However, this claim is not supported by Morales' testimony, set forth, in relevant part, below.
Q:Sir, were you in fear for your physical safety or the safety of your brother officers upon entering that apartment knowing that there was a bag full of guns?
A:I was not in fear.
. . . . .
Q:And then it's your testimony, sir, that you allowed my client to go back into his bedroom and get the guns himself?
A:I accompanied him to the bedroom, he picked up the bag from the side of the bed.
. . . . .
Q:You allow him to get access to these guns?
A:Yea. Pick up the bag. I gave him access to pick up the bag and put it on the bed.
Q:Did you have your weapon drawn at that time, sir?
A:No, I did not.
Q:Were you at all concerned that he was going to go for one of these guns and start shooting in the middle of this apartment?
A:No. It was closed.
In the absence of an arrest, a warrantless search of a container can be valid so long as it meets two criteria. First, the search must be based on probable cause to believe the property contains evidence of a crime. People v. Morales, 198 AD2d 129. Second, it must be demonstrated that it would not have been practicable to obtain a search warrant because of certain exigent circumstances. United States v. Chadwick, 433 U.S. 1. While the People have established that probable cause existed that would have supported the issuance of a search warrant had it been applied for, they have not demonstrated that it would not have been practicable to obtain a search warrant because of exigent circumstances.
Even assuming the search was incident to arrest, to justify the presumptively unreasonable warrantless search of the defendant's closed bag incident to his arrest, the People are still required to establish the presence of exigent circumstances. People v. Gokey, 60 NY2d 309. Exigent circumstances that may justify the warrantless search of property within a suspect's immediate control or "grabbable area" are limited to two situations: when there is a threat to the general public and/or to the arresting officer, or when there is reason to protect evidence from concealment or destruction. Id at 312. In Gokey, as in the recent First Department decision People v. Evans, AD3d, the Court suppressed evidence obtained from the warrantless search of a bag incident to an arrest in the absence of exigent circumstances. In those cases, there was no testimony that the police officers were in fear for their safety. Here, there was testimony from Morales affirmatively stating that he was not in fear for the safety of himself or others. Furthermore, before Morales opened the bag it was within his complete control and he could have protected the evidence from concealment or destruction by impounding the bag while a search warrant was obtained. See People v. Gokey, supra; People v. Evans, supra.
Alternatively, the People argue that the evidence obtained as a result of the search is admissible under the inevitable discovery doctrine. More specifically, the People argue that the inevitable discovery doctrine applies here because: (1) the challenged police conduct did not lead directly to the recovery of the guns and (2) the police could have secured the apartment and obtained a search warrant if they had not received consent. The court finds these arguments to be unpersuasive.
The People's contentions are nothing more than a post hoc rationalization of the initial wrong. See People v. Turriago, 219 AD2d 383. The doctrine of inevitable discovery may not be used to excuse unlawful police actions by admitting what was obtained as a direct result of the misconduct. See People v. Stith, 69 NY2d 313. Moreover, the Court of Appeals has never applied the rule where, as here, the evidence sought to be suppressed is the very evidence obtained in the illegal search. See People v. Turriago, supra; People v. Stith, supra. Here, the officers went to the defendant's apartment because they received what they believed to be reliable information that a bag of guns was in the apartment. The evidence obtained as a result of the search was a bag of guns. The People's attempt to characterize the bag of guns as "secondary" evidence "indirectly" obtained as a result of the unlawful police conduct distorts the facts and strains logic.
The police in this case had two opportunities to obtain a search warrant but inexplicably failed to do so.
Based on the foregoing, defendant's motion seeking to suppress the physical evidence obtained as a result of the unlawful search is granted.