The People, Respondent,v.Darrion B. Freeman, Appellant.BriefN.Y.March 21, 2017 To Be Argued By: JAMES A. HOBBS Assistant Public Defender Estimated Time: 5 Minutes Supreme Court of the State of New York Appellate Division, Fourth Department ___________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- DARRION B. FREEMAN, Appellant. ___________________________________________________ BRIEF FOR APPELLANT Monroe County Indictment Number 2012-0204 Docket Number KA 13-00465 TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: JAMES A. HOBBS Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 (585) 753-4210 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i, ii QUESTIONS PRESENTED 1 STATEMENT OF FACTS 2 ARGUMENT 9 Point I: The People Failed To Establish That Mr. Freeman Voluntarily Consented To The Entry Into His Home. 9 Point II: The People Failed To Establish That Mr. Freeman Voluntarily Consented To A Search Of His Home. 19 Point III: The Search Inside Of Mr. Freeman’s Duffel Bag Exceeded The Scope Of Any Alleged Consent 23 .CONCLUSION 25 i TABLE OF AUTHORITIES Federal Cases Bumper v North Carolina, 391 US 543 [1968] ...................................................................................................... 9 Walter v United States, 447 US 649 [1980] .................................................................................................... 23 State Cases Matter of Daijah D., 86 AD3d 521 [1st Dept 2011] ................................................................................... 10 People v Bryant, 245 AD2d 1010 [3d Dept 1997] ................................................................................ 23 People v Gonzalez, 39 NY2d 122 [1976] ........................................................................................ 9, 10, 11 People v Gorsline, 47 AD2d 273 [3d Dept 1975] .................................................................................... 10 People v Green, 104 AD3d 126 [1st Dept 2013] ................................................................................. 10 People v Guzman, 153 AD2d 320 [4th Dept 1990] ............................................................... 10, 12, 13, 23 People v Knapp, 52 NY2d 689 [1981] .............................................................................................. 9, 10 People v Lebron, 184 AD2d 784 [2d Dept 1992] .................................................................................. 15 People v Lewis, 195 AD2d 523 [2d Dept 1993] ...................................................................... 15, 20, 21 People v McFarlane, 93 AD3d 467 [1st Dept 2012] ................................................................................... 23 People v McNeeley, 77 AD2d 205 [4th Dept 1980] ................................................................................... 10 ii People v Romeo, 15 AD3d 420 [2d Dept 2005] .................................................................................... 23 Constitutional Provisions NY Const art I, § 12 ........................................................................................................... 9 US Const, Amdt IV ............................................................................................................. 9 US Const, Amdt XIV........................................................................................................... 9 1 QUESTIONS PRESENTED 1. Did the People carry their burden of proving by clear and convincing evidence that Mr. Freeman voluntarily consented to have the Police enter his home and his locked, private room? Answer below: The hearing court erroneously held that Mr. Freeman had voluntarily consented. 2. Did the People carry their burden of proving by clear and convincing evidence that Mr. Freeman voluntarily consented to a search of his room? Answer below: The hearing court erroneously held that Mr. Freeman had voluntarily consented. 3. Did the police exceed the scope of consent by searching Mr. Freeman’s closed duffle bag? Answer below: The hearing court erroneously held that the search did not exceed the scope of consent. 2 STATEMENT OF FACTS Darrion Freeman was indicted on two counts of criminal possession of a weapon in the second degree (Penal Law §§ 265.03[1][b], [3]) and one count of criminal possession of marijuana in the third degree (Penal Law § 221.20). His motion to suppress physical evidence and statements was denied after a combined probable cause/Huntley hearing. Mr. Freeman then pled guilty to all charges with the court’s promise that his total sentence would be five years in custody and five years post-release supervision. He was sentenced to concurrent terms of five years’ incarceration and five years supervision on the two weapons charges and to a lesser, concurrent sentence for the marijuana charge. At the suppression hearing, the People’s primary witness was one of the arresting officers, Rochester Police Officer Nolan Wengert. He testified that while on patrol on February 24, 2012 shortly before 10 pm, he and his partner, Officer Roelle began following a red Mitsubishi Galant. (August 24, 2012 Hearing Minutes [hereinafter “H._”] at 5-7, 27-28.) They followed the car for 30 to 60 seconds through a residential neighborhood and then watched as it pulled into a driveway. (Id.) Officer Wengert had not observed any moving violation, but as the car turned into the driveway, he claimed to notice that the windows seemed to be overly tinted. (H.6-7, H.28.) Officer Wengert and his partner pulled their car alongside the curb, and Officer Wengert saw the driver, later identified as Mr. Freeman, exit the Mitsubishi. (H.30.) Officer Wengert stepped out to approach Mr. Freeman on foot. (H.8.) The car was not illegally parked, and the Mr. Freeman did not appear to be in possession of any illegal 3 items. (H.30.) However, as Officer Wengert approached, he saw Mr. Freeman remove his sweatshirt, put it in the car, and then lock the car door. (H.9.) Perhaps because it was cold and lightly raining, Officer Wengert found this to be suspicious and took it as an indication that Mr. Freeman was attempting to hide something. (H.36.) Officer Wengert introduced himself to Mr. Freeman and explained that the windows on the car appeared to be illegally tinted. He did not recall if Mr. Freeman said anything in response about the window tint (H.32), but he testified that Mr. Freeman seemed “tight” and nervous, and he claimed that Mr. Freeman smelled of fresh, unburnt marijuana (H.9, H.32, H.34). Investigator O’Shaugnessy, who met with Mr. Freeman about twenty minutes later, did not notice any smell of marijuana. (H.89-90.) When Mr. Freeman told Officer Wengert that he did not have identification, Officer Wengert immediately frisked Mr. Freeman, placed him in handcuffs, escorted him to the patrol car, and locked him in the back seat. (H.34.) Officer Wengert did not find any indications of contraband during the frisk search. (H.46.) However, during the process of the frisk, Mr. Freeman’s car keys fell on the ground. Officer Wengert seized the keys, taking them and placing them on the trunk of the Mitsubishi, out of Mr. Freeman’s reach. (H.46-47.) In the patrol car, Mr. Freeman provided his name and date of birth, and the police ran a DMV records check. (H.10, H.32, H.35.) They learned that his driver’s license had been suspended. (H.10.) Officer Wengert agreed that by this point Mr. Freeman was under arrest for unlicensed operation, and that the entire exchange, from the point of pulling over to approach Mr. Freeman through the arrest took a total of two minutes, from 9:57 pm to 9:59 pm. (H.42-44.) 4 Officer Wengert asked Mr. Freeman if there was anything illegal in the car, and Mr. Freeman told him that it was not his car and that, to his knowledge, there was not. (H.10.) Officer Wengert then claimed that he asked if he could search the car for drugs, and Mr. Freeman allegedly said: “Yes. I don’t have a problem with that.” (H.10.) Officer Wengert then unlocked and searched the Mitsubishi using the car keys that he had already taken from Mr. Freeman. (H.45-47.) He found a small bag of marijuana in Mr. Freeman’s sweatshirt pocket and two “large” bags of marijuana under the driver’s seat. (H.11.) He took these bags and stowed them inside the patrol car. (H.12.) Mr. Freeman was still handcuffed and locked in the back of the patrol car when Officer Wengert spoke with him again. At this point, Officer Wengert planned to charge Mr. Freeman with aggravated unlicensed operation and criminal possession of marijuana. (H.12-13.) Officer Wengert told Mr. Freeman “that it wasn’t that serious of a charge.” (H.12.) He told Mr. Freeman that he could issue an appearance ticket or that Mr. Freeman could bail out at jail, but only if Mr. Freeman could provide identification. (H.12, H.50-51.) Officer Wengert asked Mr. Freeman if he had identification in the house, and he then proposed that he could accompany Mr. Freeman inside to get it. Mr. Freeman allegedly agreed to this. (H.12-14.) Officer Wengert did not tell Mr. Freeman that he had a choice or that he could refuse. (H.52.) Officer Wengert did not use a consent form, although he had such forms with him. (H.46.) On cross examination, Officer Wengert refused to admit that he was aware that Mr. Freeman would likely be charged with a violation of probation, which might cause him to be taken into custody and limit his ability to get bail. (H.39.) Officer Wengert 5 admitted that Mr. Freeman had told him that he was on probation. Officer Wengert’s testimony varied about when Mr. Freeman provided this information, but after reviewing his written reports, Officer Wengert concluded that Mr. Freeman had told him this during their initial interaction outside, before he had been placed in the patrol car. (H.37-38.) Officer Wengert also admitted that he was aware that a violation of the law, including a misdemeanor, would be a violation of probation. (H.39.) But Officer Wengert claimed that he could disregard the likelihood of a probation hold because he had not actually confirmed that Mr. Freeman was on probation. (H.39-40.) He claimed that people tell him “all the time” that they are on probation even though they are not. (H.40.) After Mr. Freeman allegedly agreed to accompany the police inside, Officer Wengert opened the locked patrol car door, allowing Mr. Freeman to exit the police car. (H.53.) Officer Wengert and a third officer, Officer Prinzi, walked Mr. Freeman, who was still in handcuffs, to his house, and they used his key to open the front door. (H.52- 54.) The police then accompanied Mr. Freeman to his room, and they used his keys to open the locked door. Upon opening the door, Officer Wengert walked in with Mr. Freeman, and he testified that he immediately saw a digital scale and some unpackaged marijuana in an open cigar box in two separate locations in plain view. (H.14.) Mr. Freeman told Officer Wengert that his identification – the ostensible purpose for entering the room – was in his dresser, and he began to head toward it, but Officer Wengert stopped him. (H.56-58.) Instead, Officer Wengert directed Mr. Freeman to sit down on the bed so that they could have a talk. (H.14.) Officer Wengert took no immediate steps to obtain the identification (H.58), and he may never have done so (see 6 H.78-80). Although he did claim to observe the identification at some point (H.64), he could not recall what happened to it (H.64), and he acknowledged that he failed to make any note of it in his reports (H.78-80). Although he had denied having sufficient confirmation of Mr. Freeman’s probation in the moments before the entered the apartment (see H.39-40), Officer Wengert now told Mr. Freeman that, in addition to drug charges, he may be facing problems with probation. (H.14.) He then told Mr. Freeman that “it doesn’t have to be a big deal” and that he “would like his cooperation” (H.14-15, H.56). Officer Wengert then read Mr. Freeman his Miranda warnings, and Mr. Freeman indicated that “yeah” he understood and that “yeah” he was willing to talk. (H.15-18.) Officer Wengert testified that he recognized the Miranda waiver card that he used with Mr. Freeman because it was his own handwriting on the card, and he also testified that there had been no additions or deletions to the card since he used it that night. (H.17.) However, Investigator O’Shaughnessy testified that he had filled out the card after the fact. (H.88- 89.) The Investigator was not present when the warnings were allegedly issued, but he relied on Officer Wengert’s representation that they had been given. (H.82, H.89.) In any case, Mr. Freeman allegedly told Officer Wengert that the remainder of his marijuana was stashed in the basement. (H.18, H.22.) Officer Wengert allegedly asked for consent to search the apartment and the basement, and he claimed that Mr. Freeman said yes. (H.18-19.) Officer Wengert claimed that he prepared a consent to search card. The card, as filled out by Officer Wengert, was admitted to evidence, and it read as follows: 7 Location: Darien Freeman I, Ofc Nolan Wengert, consent to have my premises [checked off], vehicle [not checked off], personal property [checked off], or person [not checked off] to be [sic] searched by the police. I do agree and consent to have Ofc. Nolan Wengert or any members of the Rochester Police Department, conduct a complete search of: (Appendix [“A._”] at 103.) Nothing follows the final colon except an indecipherable scribble on a signature line at the bottom of the card. The misspelling of Mr. Freeman’s name and the misplacement of both names were Officer Wengert’s mistakes. (H.20.) The mangled grammar of the first sentence is a fixed feature of the form. During cross-examination, it was brought out that Officer Wengert had given misleading testimony about this consent card to the Grand Jury. He had been asked to “read this card to the Grand Jury,” and without explaining what he was doing, he made no mention of the errors and responded: “it says that Mr. Freeman gives his consent to have his premises and personal property searched by Officers [sic] Nolan Wengert, which is me, or any members or the Rochester Police Department.” (H.62-63.) At the hearing, Officer Wengert admitted that, as with the Grand Jury, he also did not actually read this card to Mr. Freeman, but he claimed that he “explain[ed] the significance” of the card. (H.20, H.59, H.18-19.) He claimed that he placed it in front of Mr. Freeman’s chest for what he felt was an adequate opportunity for Mr. Freeman to review the card. (H.59-60.) He did not ask Mr. Freeman to read the card, and he did not know whether Mr. Freeman had done so. (H.59-61.) Officer Wengert testified that, although his hands were cuffed behind his back, Mr. Freeman signed the card. (H.21.) 8 Notably, the scribble that appears on the consent card looks nothing like Mr. Freeman’s signature at the bottom of a statement obtained by the police. (See A.103, A.105.) Officer Wengert then searched Mr. Freeman’s room, finding a black duffle bag in a closet. Inside the bag and in separate closed pockets or compartments, he found a package of marijuana, a loaded pistol, and a hospital wristband with Mr. Freeman’s name. (H.21-22.) Mr. Freeman then stated that this was all the marijuana he had, and that he had lied about having marijuana in the basement. (H.22.) Later, at police headquarters in the Public Safety Building, Mr. Freeman was interviewed without a lawyer by Investigator O’Shaughnessy. The Investigator did not read Miranda warnings. (H.82, H.88.) In the interview, Mr. Freeman admitted possession of the marijuana and the pistol and that he knew the pistol was loaded. (H.83- 84.) Mr. Freeman signed a written statement prepared by the Investigator. (H.85-86; A.105.) However, in contrast to the nonsensical consent card that Mr. Freeman allegedly signed, Mr. Freeman reviewed the written statement and requested changes for accuracy before he signed it. (H.86.) Mr. Freeman moved to suppress, challenging the legality of the arrest, the search of the car, and the entry and search of his home. Among other things, the defense argued that Mr. Freeman had not voluntarily consented to the entry into the house, the search of the house, or the search of the bag. The court denied the motion in its entirety. Thereafter, Mr. Freeman pled guilty and was sentenced as explained above. His guilty plea did not include a waiver of appeal. 9 ARGUMENT Point I: The People Failed To Establish That Mr. Freeman Voluntarily Consented To The Entry Into His Home. The police entered Mr. Freeman’s home and private room without a warrant, and they discovered contraband and elicited admissions as a direct result. The only alleged basis for this intrusion was consent. However, the People failed to prove that Mr. Freeman voluntarily consented to the entry into his home and room. “Governmental intrusion into the privacy of the home is, with limited exceptions, prohibited by constitutional limitations in the absence of a valid search warrant” (People v Gonzalez, 39 NY2d 122, 127 [1976]). Subject to limited exceptions, “a warrantless search of an individual’s home is per se unreasonable and hence unconstitutional” (People v Knapp, 52 NY2d 689, 694 [1981]; see NY Const, art I, § 12; US Const, Amdts IV, XIV). “One of the limited exceptions to the warrant requirement and, indeed, to the requirement of probable cause, is voluntary consent to the search.” (Gonzalez, 39 NY2d at 127). However, voluntary consent must be a truly free choice and not the product of official coercion: “Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle” (Gonzalez, 39 NY2d at 128; see Bumper v North Carolina, 391 US 543, 550 [1968] [“Where there is coercion there cannot be consent”]). “Submission to authority is not consent” (Gonzalez, 39 NY2d at 129). Where the People rely on consent, they bear “the heavy burden of proving the 10 voluntariness of the purported consents” (Gonzalez, 39 NY2d at 128; see Knapp, 52 NY2d at 694). The People must prove “by clear and convincing evidence that the consent was unequivocally, voluntarily and freely given by defendant” (People v McNeeley, 77 AD2d 205, 209 [4th Dept 1980]; see People v Green, 104 AD3d 126, 132 [1st Dept 2013]). And the “courts should indulge every reasonable presumption against waiver” of constitutional protections. (People v Guzman, 153 AD2d 320, 324 [4th Dept 1990]; McNeeley, 77 AD2d at 209; People v Gorsline, 47 AD2d 273, 276 [3d Dept 1975].) The voluntariness of an alleged consent is determined by looking at the totality of the circumstances. (See Gonzalez, 39 NY2d at 128.) There are a number of relevant factors to consider, although no one factor is necessarily dispositive. (See id. at 128-30; Matter of Daijah D., 86 AD3d 521, 521-22 [1st Dept 2011].) First, the court should consider whether the defendant is under arrest or in custody, because custody may “engender an atmosphere of authority ordinarily contradictory of a capacity to exercise a free and unconstrained will.” (Gonzalez, 39 NY2d at 128.) This atmosphere of authority may be enhanced by any number of more specific details, such as whether the defendant has been placed in handcuffs, confronted by multiple officers, or removed from his vehicle and companions. (See id.; Guzman, 153 AD2d at 324.) Second, courts should consider “the background of the consenter,” because an experienced or “case-hardened” criminal may be less likely to be overwhelmed than a person who is not as used to being confronted by the police. (Gonzalez, 39 NY2d at 129.) Third, defendant’s surrounding conduct, such as whether he has been “evasive or un-co-operative with the law 11 enforcement authorities,” can help indicate whether it is likely that he would have voluntarily consented. (See id.) And fourth, “[a] final factor is whether a defendant was advised of his right to refuse to consent.” (Id. at 130.) Consideration of these factors shows that the People failed to prove that Mr. Freeman voluntarily consented to any intrusion into the privacy of his home. Officer Wengert claimed that Mr. Freeman first agreed to a search of the car he had been driving (H.10) – a search that arguably was permissible without consent under the so-called “automobile exception” – and that, after that search, Mr. Freeman gave further consent to have the police accompany him into his home and room (H.12-14). The only evidence of these alleged consents is Officer Wengert’s testimony. Assuming that there was any sort of agreement to permit the police to enter the home, Officer Wengert’s testimony fails to show that this was voluntary consent. First, there is no question that Mr. Freeman was under arrest and in police custody at the time of the alleged consent. (See H.42-43.) In fact, the circumstances of this arrest indicate that he had been subjected to an overwhelming display of police authority. Minutes before the alleged request for consent, Mr. Freeman had driven home, parked in his driveway, and stepped out of his car. Without any forewarning (H.7), he was confronted by an armed and uniformed police officer who told him that the car windows appeared to be overly tinted (H.9). In less than two minutes (H.42-43), he was handcuffed with his hands behind his back (H.34, H.21), he had been patted down (H.44- 45), his keys had been taken from him without his permission (H.47), and he was locked in the back of the patrol car (H.34). A second uniformed officer was present to assist in 12 the arrest (H.5), and backup was called (see H.31). Then, while handcuffed and locked in the police car, the police determined that Mr. Freeman’s license had been suspended, they placed him under arrest for aggravated unlicensed operation, and they searched his car. (H.42-43.) The hearing court gave little weight to any of this, noting simply that being “in custody” is not necessarily dispositive of the issue of voluntariness. (A.22.) But simply describing Mr. Freeman’s status as “in custody” ignores all of the important details of his situation. Mr. Freeman’s loss of freedom was sudden and complete, and the measures the police took, even if technically lawful, would have felt shocking and would have appeared to be an extraordinary response to a window tint violation. Having gone so suddenly from complete freedom to being handcuffed, searched, dispossessed of his keys, and locked in the back of a patrol car, Mr. Freeman undoubtedly felt overwhelmed and at the mercy of the police. The circumstances here are at least as overbearing as those in People v Guzman where the defendant was removed from his vehicle, separated from his companions, and interrogated about issues unrelated to the reason given for the stop (153 AD2d at 324). Here, Mr. Freeman was stopped for a window tint violation, and soon found himself under arrest with his car being searched for drugs, not to confirm the window tint. As in Guzman, the circumstances of the stop and arrest strongly indicate that any consent given was most likely the product of submission to police authority. As to the second factor, Mr. Freeman was not a “case-hardened criminal.” At the hearing, the People presented no evidence at all to indicate that Mr. Freeman was a sophisticated or experienced criminal. The remainder of the record does show that, at the 13 time of the arrest, he was a 26-year old, and like many people, he had a prior conviction for driving while intoxicated, for which he had been sentenced to probation. (See January 16, 2013 Minutes at 2-3.) As the court noted at sentencing, his “history is not consistent at all with this type of conduct,” i.e. the conduct charged here. (Id. at 5.) There is nothing in the record to suggest that Mr. Freeman had any prior experience that would prepare him for the sudden and aggressive steps taken by the police in this case. To the contrary, at the hearing, Officer Wengert testified that Mr. Freeman was “talking kind of quickly, stuttering” and that he “seemed very tight, as if, to me, he was nervous” (H.9). This nervousness further indicates that Mr. Freeman was likely to be overwhelmed by the police. Thus, this factor also weighs against a finding of voluntary consent. The third factor relates to the defendant’s evasiveness or cooperativeness in his surrounding conduct. The hearing court found that Mr. Freeman had been cooperative prior to his consent and had voluntarily helped the officers enter his house after giving consent, and it appears that the court found this factor particularly compelling. (A.21- 22.) But even crediting Officer Wengert’s testimony, the idea that Mr. Freeman had been cooperative depends upon a selective reading of that testimony. In fact, Mr. Freeman was evasive and tried to hide evidence of wrongdoing. First, as Officer Wengert approached, Mr. Freeman “really quickly unzipped” and “stripp[ed]” off his sweatshirt, “thr[ew] it in the car and slammed the door” (H.9) and locked it inside of his car (H.30). By Officer Wengert’s own assessment, this was a suspicious attempt to hide drugs from him. (H.36.) Next, in the questioning that followed, Mr. Freeman claimed that he could not provide the officers with the name of the registered owner of the car (H.10), and he 14 told them that he was unaware of any drugs inside of it (H.10). Officer Wengert found marijuana not only under the driver seat, but also in the pocket of the sweatshirt that Mr. Freeman had just taken off. (H.11.) Attempting to hide his sweatshirt and lying about its contents was clearly evasion, not cooperation. After the alleged consent, Mr. Freeman continued to be evasive. First, he told the police that “all his marijuana was stashed in the basement” (H.18), which was an apparent attempt to discourage the police from looking in the room where his marijuana and gun actually were. After those items were discovered, but before the basement was searched, he told the police, “I lied. That’s all the weed I have. There’s nothing in the basement.” (H.22.) This was, at the least, an admission of deception, and it may also have been another attempt to discourage further searching. These acts are not consistent with a voluntary decision to waive legal protections and consent to a search. The alleged conduct upon which the People might rely to show cooperativeness all occurred after the police arrested, handcuffed, frisked, and locked Mr. Freeman in a car, and as a result, that conduct is equally indicative of submission to authority. It is bootstrapping to count any of this conduct as indicative of a voluntary decision to cooperate and consent. Specifically, Officer Wengert testified that, after hiding the sweatshirt in the car and with other drugs located under the car seat, Mr. Freeman responded to his request to search the car by saying: “Yes. I don’t have a problem with that.” (H.10.) There is reason to be skeptical of this self-serving testimony, as it would make little sense to hide the sweatshirt in the car and then almost immediately consent to a search of that car. While normally credibility issues are for the hearing court, an 15 appellate court should not hesitate to disregard testimony that is tailored to nullify constitutional objections or that defies common sense. (See People v Lebron, 184 AD2d 784, 784-785 [2d Dept 1992]; People v Lewis, 195 AD2d 523, 523-524 [2d Dept 1993].) But even if credited, the alleged consent to search the car cannot be relied upon to prove the voluntariness of the consent to enter the house. Both happened in the same circumstances, including the fact that the police had already taken Mr. Freeman’s keys from him without his permission. As Mr. Freeman may have suspected, the police almost certainly would have searched the car regardless, relying on the “automobile exception.” In sum, the probably involuntary consent to search the car does nothing to help prove the voluntariness of the alleged consent to enter the house. Similarly, Officer Wengert testified that, after agreeing to accompany the police inside the house, Mr. Freeman pointed out which keys opened the doors. But if the consent itself was involuntary, this minor further assistance only indicates continuing submission. The act of pointing out the keys is the natural consequence of an agreement to accompany the officers inside, and it would flow from that agreement whether it was voluntary or not. Moreover, Officer Wengert had already seized the keys from Mr. Freeman (H.54), and refusing to point out which key to use would have been a futile act of delay, leading only to more time spent in handcuffs and in police custody. Turning to the fourth factor, Officer Wengert acknowledged that he did not expressly advise Mr. Freeman that he had any choice but to consent to accompany him into the house. (H.52.) It is clear, however, that he indicated to Mr. Freeman that unless they went inside to get his identification, Mr. Freeman would be taken to jail and would 16 stay there indefinitely. Specifically, he told Mr. Freeman that he would need identification “if there was any chance for him to get an appearance ticket or bail out on the charge.” (H.12; see H.52.) Thus, to the extent that Mr. Freeman was presented with a choice, it was an inherently coercive choice. Failing to consent would result in an indefinite amount of time in jail, whereas consenting could earn him an appearance ticket and immediate release from custody. Furthermore, there are indications that the information that Officer Wengert conveyed was incomplete, misleading, and intended to gain access to Mr. Freeman’s apartment for evidence gathering purposes. For one, he told Mr. Freeman that identification would be required for him to “bail out on the charge” (H.12), a message that Mr. Freeman may have interpreted to mean that any form of pre-trial release – even post-arraignment bail set by a judge – would depend on obtaining his identification. (See H.12, H.50-52.) Second, Officer Wengert told Mr. Freeman that if he had identification, he could be given an appearance ticket, essentially indicating that he would not have to go to jail at all. (H.12-13.) But at the time, Officer Wengert had reason to believe that Mr. Freeman would be charged with a violation of probation and that he would likely be taken into custody on that charge. On cross examination, Officer Wengert claimed that he could disregard this because he had not “verified” that Mr. Freeman was on probation, and he added that people falsely claim to be on probation “all the time.” (H.39-41.) This testimony is belied by Officer Wengert’s testimony on direct, before this issue was brought out. There, he noted that after gaining access to Mr. Freeman’s room and discovering additional evidence, he warned Mr. Freeman that he could be facing 17 problems with probation. (H.14.) Thus, Officer Wengert gave credence to the information about Mr. Freeman’s probation once it was no longer useful to ignore it. It is also noteworthy that the ostensible purpose of entering the home changed immediately upon entry. Officer Wengert testified that he stopped Mr. Freeman from going to where he said his identification was and did not then pursue the identification himself (H.58). Although Officer Wengert believed that at some point during his full search of the room he did see the identification, he could not recall what happened to it (H.63-64), and he admitted that he made no note of it in his reports (H.79-80). Instead of pursuing the identification, Officer Wengert sat Mr. Freeman down and sought consent to search the apartment for drugs. He told Mr. Freeman “that he was under arrest on drug charges” (H.14), facing a likelihood of problems with probation (H.14), but that “it really wasn’t a big deal and I would like his cooperation.” (H.56; see H.14-15.) In his testimony, Officer Wengert did not specifically explain this change in purpose. He did testify that upon entering the room he saw a small amount of marijuana and a digital scale in plain view, but Officer Wengert had already discovered a “large” amount of marijuana in the car and already had plans to charge Mr. Freeman with possession. These new discoveries did not change the charges and were hardly surprising in light of what had been found outside. Based on what he had already discovered outside, Officer Wengert surely would have suspected that there would be additional evidence inside. Thus, it is more likely than not that the undisclosed purpose of gaining access to Mr. Freeman’s home was to obtain evidence, not to assist Mr. Freeman in securing an appearance ticket. In sum, to the extent that Officer Wengert may have indicated that Mr. Freeman 18 could refuse to consent, he did so in a way that only increased the pressure on Mr. Freeman to agree. He presented a stark and misleading choice between freedom and indefinite detention, such that consenting was the only way to be released. The information Officer Wengert provided about these two options was incomplete and inaccurate, and likely intentionally so, as it would allow the police get inside Mr. Freeman’s room and obtain additional evidence. Thus, the information that Mr. Freeman was presented does nothing to suggest a free and voluntary consent. Looking at all of the circumstances together, the People have failed to sustain their “heavy burden” of proving “by clear and convincing evidence” that Mr. Freeman voluntarily consented to have the police enter his home and private room. Mr. Freeman had been swept up and patted down, his keys had been taken away, and he was locked in a patrol car with his hands cuffed behind his back. His car had been searched, leading to the discovery of marijuana. Nervous and lacking any control over the situation, Mr. Freeman was offered a coercive and misleading choice: consent now or go to jail without the prospect of release. None of these circumstances indicate voluntary consent. As a result of the entry, the police saw marijuana and paraphernalia, elicited admissions, and obtained an opportunity to search Mr. Freeman’s room for the evidence supporting the indictment. There was no significant break between the unlawful entry, the admissions, and the full search that followed. Therefore, all of the evidence obtained inside Mr. Freeman’s home – including the pistol and the marijuana essential to all three charges and his admissions – should have been suppressed. The suppression of such evidence requires that the plea be vacated and the indictment dismissed. 19 Point II: The People Failed To Establish That Mr. Freeman Voluntarily Consented To A Search Of His Home. The People next contend that Mr. Freeman consented verbally and in writing to a search of his room, where they discovered a duffle bag containing the pistol and marijuana. The standards under which this alleged consent must be evaluated are the same as those set forth in Point One. The background and circumstances described above – including the circumstances of Mr. Freeman’s arrest, his evasiveness, his nervousness, and limited prior record – also continue to weigh against a finding of voluntary consent. In addition, the circumstances particular to this consent present further problems and cast substantial doubt on the existence and voluntariness of this alleged consent. To the extent there were any changes to the circumstances of Mr. Freeman’s custody, they were likely to produce a worsening impression that he was at the mercy of the police. After being led to believe that he was going to his room so that he could get his identification and be released, the police quickly took this hope away. When he was led inside, Mr. Freeman’s hands were still cuffed behind his back, and he was accompanied by Officer Wengert and Officer Prinzi. (H.14.) Whether Mr. Freeman expected it or not, Officer Wengert walked into the room with him and took a look around. Officer Wengert then stopped Mr. Freeman from trying to get his identification and directed him to sit down. (H.57-58.) He told Mr. Freeman about the charges he was facing, read him his Miranda warnings, told him that he wanted cooperation, and asked him to consent to a search of the room for drugs. (H.14-16, H.18-19.) The purpose of the trip had just changed dramatically, and it was surely apparent to Mr. Freeman that he 20 was not going to be released anytime soon. Regarding the third factor, it is particularly notable that Mr. Freeman continued to be evasive. He told the police that all of his drugs were stashed in the basement, thus encouraging them to look in the wrong place. (See H.18, H.22.) This lie clearly shows that Mr. Freeman did not want the police to search his room and find the gun and drugs stashed in the room. This suggests that if he had believed he could refuse consent – safely, effectively, and without retribution – he would have done so. Turning to the fourth factor, there is no evidence that Mr. Freeman was advised that he had any right not to consent, and instead, it was suggested that it would be better for him if he did consent. First, after telling him about the charges he would be facing, Officer Wengert told him that “[i]t doesn’t have to be a big deal” and that he “would like his cooperation.” (H.14-15.) Officer Wengert would not admit that this was a suggestion that it would be beneficial for him to cooperate (H.66), but the message conveyed is clear: things could become “a big deal” if he did not cooperate. Officer Wengert then asked him to consent to a search of the room for drugs (H.57), but there was no testimony at all that Officer Wengert ever advised him of the right not to consent to this search. Notably, each of Officer Wengert’s phrasings indicates that he was not asking Mr. Freeman whether or not he would consent, but instead that he was making an affirmative request for consent and cooperation, that is, a demand in the form of a question. (See H.16 [“I asked him to cooperate with me.” ]; H.55 [“I verbally asked him for the consent to search.”]; id. [agreeing that he “asked him to sign the consent card”]; H.56 [“I explained to him . . . I would like his cooperation.”]; H.57 [“I asked him to sign the 21 consent to search form, yes.”] H.66 [“I recall asking him that I would like his cooperation.”].) Given that Mr. Freeman was already under arrest and that he had already let the police into his room, it is not all clear that Mr. Freeman would have understood that he had any right not to consent to the search, or that exercising that right would not have been either futile, dangerous, or both. Finally, the consent card strengthens the case that any consent was involuntary. First, the card is no proof at all of any sort of consent. There are reasons to doubt that Mr. Freeman ever saw or signed the card. His hands were cuffed behind his back (H.21), and the illegible scrawl on the card looks nothing like Mr. Freeman’s signature (see A.103; A.105). But even crediting Officer Wengert’s testimony that Mr. Freeman signed it, the form does not state that Mr. Freeman consents to anything at all. As filled out by Officer Wengert, the card is just nonsense. It states that Officer Wengert consents to a search to be conducted by Officer Wengert. (A.103.) While it does contain what was presumably intended to be Mr. Freeman’s name, that name is clearly misspelled and it is written in the space for the “location.” (Id.) Thus, even if Mr. Freeman scribbled on it, it is not proof of his consent. All that the card and related testimony does show is that the steps followed here were not aimed at producing a voluntary choice. Officer Wengert admitted that he did not read the card to Mr. Freeman (H.59), he did not ask or direct Mr. Freeman to read the card (H.60), and he did not confirm that Mr. Freeman had in fact read the card (H.60). In response to the question about whether he “offer[ed] [Mr. Freeman] a chance to read the card,” Officer Wengert carefully phrased his response: “I would say that I presented it to 22 him before he signed it in front of him.” (H.59.) He then added that he “would think that would be ample time to read the card,” although he did not ever say how much time “that” was. (H.59.) Officer Wengert then “asked” Mr. Freeman to sign the card. (H.57.) The mistakes on the form show that Mr. Freeman did not have a real opportunity to read the card. If he had, Mr. Freeman clearly would have noticed the misspelling of his own name and presumably would have noticed the fact that the card was nonsense. In contrast, when Mr. Freeman was later interviewed by Investigator O’Shaughnessy, the Investigator took steps to make sure Mr. Freeman read his own statement, and Mr. Freeman, in fact, read it carefully and crossed out a line that he did not agree with. (H.85-86, A.105.) Officer Wengert made no such attempt to ensure that Mr. Freeman understood what he was signing. There is no reason to believe that Officer Wengert did any better of a job at explaining his request orally or explaining that Mr. Freeman could refuse to consent. Taking all of the circumstances together, the People have not carried their heavy burden of demonstrating by clear and convincing evidence that Mr. Freeman voluntarily consented to a search of his room. This search led to the discovery of the pistol that is the basis for the charge in counts one and two and the marijuana that is essential to count three, and this in turn led to Mr. Freeman’s admissions to Investigator O’Shaughnessy. All of that evidence must be suppressed. The guilty plea should be vacated, and the indictment should be dismissed. 23 Point III: The Search Inside Of Mr. Freeman’s Duffel Bag Exceeded The Scope Of Any Alleged Consent. Even if the People could show that Mr. Freeman had consented to some sort of search, they have failed to demonstrate that that consent extended to searching inside of the closed duffle bag where they found the pistol and the marijuana. This search was beyond the scope of the purported consent, and the evidence must be suppressed. “The scope of a search must be limited strictly to the terms of the consent” (People v Guzman, 153 AD2d 320, 324 [4th Dept 1990].) “When an official search is properly authorized – whether by consent or by the issuance of a valid warrant – the scope of the search is limited by the terms of its authorization.” (Walter v United States, 447 US 649, 656 [1980].) The Fourth Amendment “requires that the scope of every authorized search be particularly described.” (Id. at 657; see People v McFarlane, 93 AD3d 467, 467 [1st Dept 2012] [consent to have a look in the car did not include consent to seize the keys and look in the locked glove compartment]; People v Romeo, 15 AD3d 420, 420-421 [2d Dept 2005] [“there is no evidence that the defendant’s consent, assuming arguendo that it was voluntary and properly obtained, extended to the trunk of the vehicle, much less to the contents of a closed container [i.e., a closed duffel bag] located therein”]; People v Bryant, 245 AD2d 1010, 1013 [3d Dept 1997] [consent to open car trunk to confirm that there was no luggage did not include consent to search pockets of clothing found in that trunk].) Officer Wengert admitted that he did not tell Mr. Freeman that he was seeking consent to search within the bags in the room. (T.66-67.) He merely told Mr. Freeman 24 that he wanted to search the room and the basement for drugs. (H.18-19.) On the consent card, Officer Wengert checked off two separate boxes indicating that he was seeking consent to search the “premises” and “personal property.” (A.103.) The use of two separate boxes indicates that Officer Wengert understood that consent to a search of the premises did not necessarily include consent to search within closed personal property. However, for the reasons explained above in Point Two, checking off these boxes on the consent card did not inform Mr. Freeman about the scope of the search. Officer Wengert did nothing at all to ensure that Mr. Freeman read and understood the terms of the card, and the uncorrected, glaring errors on the card strongly indicate that Mr. Freeman did not read the card. Thus, Officer Wengert did not effectively inform Mr. Freeman that he was seeking consent to search inside of closed personal property. There is no evidence that Mr. Freeman understood this or that he intended to give such consent. The essential evidence in this case was found within various closed compartments of the duffle bag found in Mr. Freeman’s closet, and this discovery led directly to Mr. Freeman’s subsequent admissions. Because this search into Mr. Freeman’s closed bag exceeded the scope of any consent, the resulting evidence should all be suppressed, the guilty pleas should be vacated, and the indictment should be dismissed. 25 CONCLUSION The hearing court’s order denying Appellant’s motion to suppress physical evidence and statements should be reversed. Based on the suppression of the evidence supporting Mr. Freeman’s indictment and conviction, the convictions must be vacated, and the indictment must be dismissed. Dated: September 2015 Respectfully submitted, TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: JAMES A. HOBBS Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 (585) 753-4210