The People, Respondent,v.Darrion B. Freeman, Appellant.BriefN.Y.March 21, 2017-. STATE OF NEW YORK SUPREME COURT To Be Argued By: Scott Myles Time Requested: 5 Minutes APPELLATE DIVISION FOURTH JUDICIAL DEPARTMENT THE PEOPLE OF Tiffi STATE OF NEW YORK, -vs- DARRION B. FREEMAN, Respondent, Appellant. BRIEF FOR RESPONDENT Indictment Number 0204/2012 Docket Number KA 13-00465 SANDRA DOORLEY District Attorney of Monroe County Attorney for Respondent By: Scott Myles Assistant District Attorney Of Counsel Suite 832 Ebenezer Watts Building Rochester, New York 14614 (585) 753-4541 TABLE OF CONTENTS TABLE OF AUTHORITIES QUESTIONS PRESENTED PRELIMINARY STA TEMENI STATEMENT OF FACTS POINT I POINT II POINT ill CONCLUSION The defendant voluntarily consented to the police entry into his home. The defendant voluntarily consented to the search of his home. The defendant voluntarily consented to the search of his bag. -1- 11 1 2 3 7 10 12 14 TABLEOFAUTHORnnES CASES Florida vJimeno, 500 US 248 (1991) ................ ... ...................... 12, 13 People v Brown, 234 AD2d 211 (1st Dept 1996) ..................................... 7 People v Caldwell, 221 AD2d 972 (4th Dept 1995) ................................... 9 People v Dobson, 285 AD2d 737 (3rd Dept 2001) ...... . ............................ 11 People v Edwards, 46 AD3d 698 (2nd Dept 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v Gonzalez, 39NY2d 122 (1976) .... ... .................................... 7 People vJakubowksi, 100AD2d 112 (4thDept 1984) .... . ....................... 12, 13' People v London, 124 A.D.2d 254 (3rd Dept 1986) . . .. .. .. . . . . . .. .. . .. . .. . .. .. . . .. .. 10 People v Long, 124 AD2d 1016 (4th Dept 1986) ...... . ... .......... ................. 7 People v Malinsky, 15 NY2d 86 (1965) . .. . .. . .. . .. .. . .. .. . .. . .. .. .. . .. .. .. . . .. .. .. 7 People v Mitchell, 211 AD2d 553 (1st Dept 1995) ............................... 12, 13 People v Whilehurst, 25 NY2d 389 (1969) ............................ . ............ . 7 People v. Jakubowski, 100 AD2d 112 .................. ... .................... 12, 13 STATUTES Penal Law §221.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Penal Law §265.03(3) ................................... . .... ...... ............ 2 Penal Law §265.03(3)(b) ................................................ ....... 2 -11- Question 1: Answer Below: Question 2: Answer Below: Question 3: Answer Below? QUESTION PRESENTED Did the defendant voluntarily consent to the police entry into his home? Yes Did the defendant voluntarily consent to the search of his home? Yes Did the defendant voluntarily consent to the search of his bag? Yes 1 PRELIMINARY STATEMENT Defendant Darrion Freeman (Hereinafter "defendant") pleaded guilty to two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law §265.03[3]); §265.03[l][b]) and one count of Criminal Possession of Marihuana in the Third Degree (Penal Law §221.20) in Monroe County Court (John L. DeMarco, J.) (Plea Transcript [hereinafter "PT"] 12-13) on December 12, 2012. Defendant was sentenced to a term of five years incarceration in the Department of Correction, and five years of post- release supervision on January 16, 2013 (Sentencing Transcript [hereinafter "Sr'] 5-6). There has been no stay of the sentence. Defendant is currently incarcerated. (http://nysdocslookup.docs.state.ny.us [DIN: 13B0293]). 2 STATEMENT OF FACTS Defendant was charged by indictment with two counts of Criminal Possession of a Weapon in the Second Degree and one count of Criminal Possession of Marihuana in the Third Degree, stemming from an incident on February 24, 2012, when the defendant was found to be in possession of a loaded firearm as well as a quantity of marijuana. The defendant filed a motion to suppress the physical evidence and post-arrest statements, and a pre-trial suppression hearing was held on August 24, 2010. At the hearing, Rochester Police Officer Nolan Wengert testified that on the night ofFebruary 24, 2012, he was patrolling on Kenwood Avenue in the city of Rochester (HT 5). At approximately 9:57p.m. a vehicle that had been driving in front of the officer's vehicle made a right tum into a driveway, and Ofc. Wengert noticed that the vehicle's windows were tinted well below the level allowed by the Vehicle and Traffic Law (HT 6). Ofc. Wengert did not perform a traffic stop because the vehicle had already pulled into a driveway, but Ofc. Wengert did pull his vehicle over to the curb in order to talk to the driver of the other vehicle (HT 7). Ofc. Wengert never activated his lights or siren (HI 7). As Of c. Wengert was pulling his vehicle to the curb, he saw the driver of the other vehicle, later identified as the defendant, exit the vehicle (HT 8). As Ofc. Wengert was exiting his vehicle, he saw the defendant take off his hooded sweatshirt and throw it back into his vehicle (HT 9). The weather at the time was very cold, with a mixture of rain and sleet (HT 9). Ofc. Wengert approached the defendant and 3 infonned him that his vehicle's windows were illegally tint~ and asked him for his license (HT 9). As he was speaking to the defendant, Ofc. Wengert noticed that he seemed vecy nervous, and there was a heavy odor of marijuana coming from his clothes (HT 9). The defendant infonned Ofc. Wengert that be did not have his driver's license (HT 10). When Ofc. Wengert took the defendant back to his patrol car, handcuffed him, and ran his name through DMV records, he found that the defendant's license was suspended (HT 1 0). When asked, the defendant told Of c. Wengert that the vehicle he had been driving was not his, but he believed there was nothing illegal in the car (HT 10). When Ofc. Wengert asked the defendant if he could search the vehicle for drugs or other illegal contraband, the defendant responded "Yes, I don't have a problem with that" (HT 1 0). Ofc. Wengert searched the vehicle and found a small bag of marijuana in the pocket of the sweatshirt the defendant had been wearing, and two large bags of marijuana under the driver's seat (HT ll). Ofc. Wengert then explained to the defendant that he was being arrested, but.the charge was not very serious, and if he could provide identification, there was a chance he could be released with an appearance ticket (HT 12). The defendant told Ofc. Wengert that he had identification inside the house (HT 13). Ofc. Wengert asked the defendant if he would have a problem accompanying him inside the house to retrieve the identification, and the defendant agreed (HT 14). The defendant showed Ofc. Wengert 4 which key would open the front door, and which key would open the door to his room (HT 14). When Ofc. Wengert and the defendant entered the defendant's room, Ofc. Wengert immediately noticed an open cigar box containing marijuana sitting on the defendant's bed, a digital scale, and drug packaging (HT 14). At that point, Ofc. Wengert asked the defendant to sit down, and he explained that the defendant was going to be arrested on drug charges, and that he would like the defendant's cooperation (HT 14). Ofc. Wengert then read the defendant his Miranda rights using a standard Rochester Police Department Miranda rights card (HT 16). Ofc. Wengert never used any threats, promises or coercion to get the defendant to speak to him (Hf 16). After the defendant agreed to waive his Miranda rights, Ofc. Wengert asked him if there was any more marijuana in the house, and the defendant told him that he kept all the rest ofhis marijuana in the basement (HT 18). Ofc. Wengert asked the defendant if he could have the defendant's permission to search the room and the house for drugs, weapons, or illegal contraband, and the defendant agreed (HT 18-19). Ofc. Wengert then had the defendant sign a consent to search card (HT 19). As Ofc. Wengert was filling out the consent to search card, he made several typographical mistakes, including putting the defendant's name in the space reserved for the location to be searched, and putting his own name in the space reserved for the defendant"s name (HT 20). Ofc. Wengert explained to the defendant that, in addition to his verbal pennission, signing the card gave 5 him written pennission to search both the room and the basement of the house (HT 19). The defendant indicated that he understood the significance of the consent to search card, and signed the card in Ofc. Wengert's presence (I-IT 21). Ofc. Wengert then began searching the defendant's room (HT 21 ). When he searched the closet directly in front of the defendant, Ofc. Wengert found a duffel bag containing a loaded handgun and a large quantity of marijuana (HT 21-22). The defendant watched Ofc. Wengert locate the handgun and the marijuana, and then told Ofc. Wengert that he had been lying, and there wasn't any additional marijuana in the basement (HT 22). Following the hearing, the defendant's motion to suppress the physical evidence and post-arrest statements was denied. The defendant subsequently pleaded guilty to all the counts of the indictment and received the agreed upon sentence of five years incarceration and five years of post-release supervision. 6 POINT I The defendant voluntarily consented to the police entry into his home Initially, the defendant carries the burden of proof when he challenges the legality of a search and seizure, 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 NY2d 86 [1965]). When a search and seizure is based upon consent, however, the burden of proof rests upon the People to establish the voluntariness of that waiver of a constitutional right (People v Whitehurst, 25 NY2d 389 [1969]). Whether consent is given voluntarily or is the product of police coercion is a question of fact to be detennined from the totality of the circumstances (People v Long, 124 AD2d 1016 [4th Dept 1986]). While no single circumstance is detenninative of the voluntariness of consent, some of the factors to consider include whether the defendant is in custody, the number of police officers present, the background of the defendant, and the level of cooperation the defendant had shown prior to, and even subsequent to, giving consent to search (People v Gonzalez, 39 NY2d 122 [1976]). In addition, consent to enter a home can be established by conduct, as well as words (People v Brown, 234 AD2d 211 [1st Dept 1996]). In this case, the defendant's consented to numerous searches at different times. The defendant first consented to the search of his vehicle (HT 10). Although that search is not at issue in this appeal, it is an additional indication of how cooperative the defendant 7 was with police throughout the encounter. After the search of the vehicle revealed a large amount of marijuana, Ofc. Wengert asked the defendant if he would have a problem accompanying the officer into the house to retrieve the defendant's identification (HT 14 ). Although the defendant was in handcuffs and under arrest at that point, that single factor does not render his consent involuntary (People v Edwards, 46 AD 3d 698 [2nd Dept 2007]). In fact, the record reflects overwhelming evidence that the defendant's consent was voluntary. The defendant had at least a passing familiarity with the criminal justice system, as the record reflects that the defendant was on probation at the time of his arrest, and he was sentenced as a second felony offender (HT 14, ST 3). At the time he gave his consent for the officers to enter his home, there were two or three officers present, however there is no indication in the record that any officers other than Ofc. Wengert had any interactions with the defendant (HT 14). When Ofc. Wengert asked the defendant if he would have a problem accompanying the officer into the house to retrieve the defendant's identification, be not only agreed to go into the house with Ofc. Wengert, he further cooperated by showing the officer which keys would open the front door and the door to his specific room (HT 14). There is nothing in the record to indicate that Ofc. Wengert's request was in any way misleading, or an attempt to gain access to the defendant's home for evidence gathering purposes. The defendant was completely cooperative with the officers throughout the entire encounter, both before, during, and after his arrest. Prior to giving consent to enter his 8 home, he gave officers pennission to search his vehicle, and volunteered the fact that he was on probation (HT 10, 14). After his arrest, the defendant continued to cooperate by giving a written statement where he admitted to possessing the gun and marijuana (HT 85-86). The totality of the circumstances reflected in the record demonstrate that the defendant voluntarily consented to the entry into his home, and the subsequent search (People v Caldwell, 221 AD2d 972 [4th Dept 1995]). 9 POINT II The defendant voluntarily consented to tbe search of his home After the defendant accompanied the officers into his room, Ofc. Wengert immediately noticed further evidence of criminal activity in plain view (HT 14 ). Ofc. Wengert then sat the defendant down and explained that he would like the defendant to cooperate further, and he proceeded to read the defendant his Miranda rights (HT 15-16). After the defendant waived those rights, Ofc. Wengert asked him if he had any more marijuana in the house, and he responded that all his marijuana was in the basement (HT 18). Ofc. Wengert then asked the defendant if he would give Ofc. Wengert his permission to search the room and the basement for the marijuana, and he responded yes (HT 18). Ofc. Wengert asked the defendant a second time if he could have permission to search the room and the house for drugs or other contraband, and the defendant agreed (HT 19). Ofc. Wengert then explained to the defendant the significance of the consent to search card, and the defendant indicated he understood, and signed the card (HT 19-21). The defendant's oral consent by itself would have been sufficient for the officers to search the premises (People v London, 124 A.D.2d 254 [3rd Dept 1986]). The fact that the defendant signed a written consent card is further evidence that his consent was voluntary, typographical errors notwithstanding. The defendant's contention that the card, as written, was nonsense, is belied by the card itself. The card contained the defendant's name under the space reserved for location, foiJowed by "I" and Ofc. Wengert's name where the defendant's name should have been (Appendix [hereinafter "A"]103). The 10 remainder of the pre-printed card stated "consent to have my premises and personal property to be 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 or', followed by a blank, and the defendant's signature on the line which stated "signature of person giving consent" (A 103). Even with the typographical errors, a reasonable person would have little difficulty understanding the consent to search card. This is especially true since Ofc. Wengert verbally explained the card and the defendant indicated he understood the significance before he signed it (HT 20-21). Ofc. Wengert never explicitly told the defendant that he could refuse to consent to the search. However, police are not required to inform defendants that they can refuse, and the lack of such a warning does not render their consent involuntary, especially where, as here, all the other circumstances surrounding the consent indicate that it was voluntary (People v Dobson, 285 AD2d 737 [3rd Dept 2001]). 11 • POINT III The defendant voluntarily consented to the search of his bag The evidence at the hearing, as argued above, established that the defendant voluntarily consented to the search of his home. The only remaining question is whether the search of the bag in the defendant's closet exceeded the scope of that consent. The scope of a search must be limited to the terms of the consent, and when the consent is given in written form, the wording of the form must be considered in determhting the terms of consent (People v. Jakubowski, 100 AD2d 112 [4th Dept 1984]). The consent to search card indicated that the defendant was giving his permission for the police to conduct a complete search of his premises and personal property (A I 03). The phrase "complete search" by itself should have alerted the defendant to the fact that he was consenting to a search of unlimited scope (Jakubowski, 100 AD2d at 117). However, the written consent to search card also explicitly stated that the defendant was consenting to a complete search of his premises and personal property, which would have reasonably included the duffel bag in the closet (A 103). The scope of a search can also be defmed by its expressed object (Florida v Jimeno, 500 US 248 [1991]; People v Mitchell, 211 AD2d 553 [1st Dept 1995]). Here, Ofc. Wengert told the defendant that he wanted to search the defendant's home for drugs, or any other weapons or illegal contraband (HT 18-19). Under those circumstances it was objectively reasonable for Ofc. Wengert to conclude that the general consent to search defendant's home included consent to search containers within the home which might 12 contain drugs or weapons (Jimeno, 500 US at 251). In addition, the defendant was sitting right in front of Ofc. Wengert when he searched the closet and located the bag (HT 22). The fact that the defendant watched Ofc. Wengert search the bag and locate the gun and drugs without ever voicing an objection is further evidence that the search of the bag was within the scope of the voluntary consent (Mitchell, 211 AD2d at 554; Jakubowski, 100 AD2d at 117). 13 • Scott Myles, of Counsel October, 2015 CONCLUSION The judgment of conviction should be affirmed. 14 Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney Ebenezer Watts Building Suite 832 Rochester, NY 14614