The People, Respondent,v.Benjamin Jenkins, Appellant.

Brief

N.Y.September 9, 2014

To he argued by ALLEN FALLEK ( /5 Mil/li tes) COURT OF APPEALS 81'ATE OF NEW YORK TilE PEOPLE OF TilE STATEOF NEW YORK, Respondent, - against - BENJAMIN JENKINS, Defenda ll t-AppeIIaI I t. (APL-20 13-00 195 ) REVISED BRIEF FOR DEFENDANT- APPELLANT STEVEN BANKS Attorney for Defendant- Appellant THE LEGAL AID SOCIETY CRIMINALAPPEALS BUREAU 199 Watcr Street, 5TH Floor New York, New York 10038 (212) 577-3566 ALLEN FALLEK Of Counsel September 20!3 TABLE OF CONTENTS TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 QUESTION PRESENTED .....................................•.. 2 STATEMENT OF FACTS 2 Introduction 2 Hearing 3 The People 3 Defense ......................•.................... 6 Arguments 8 Hearing Court's Decision 9 Appeal to the Appellate Division 10 Appellate Decision 11 ARGUMENT CONTRARY TO THE APPELLATE DIVISION'S CONCLUSION, THE WARRANTLESS SEARCH OF A CLOSED CONTAINER WAS PER SE UNREASONABLE BECAUSE THE EXIGENCY THAT JUSTIFIED THE WARRANTLESS ENTRY HAD ABATED, AND THE HIDDEN GUN, ITSELF, WAS NOT AN EXIGENT CIRCUMSTANCE. U.S. CONST., AMENDS. IV, XIV; N. Y. CONST., ART.I, §12 12 CONCLUSION 26 TABLE OF AUTHORITIES FEDERAL CASES Coolidge v. New Hampshire, 403 U.S. 443 (1971) .... 12-13, 16 Maryland v. Buie l 494 U.S. 325 (1990) .................... 13 United States v. Ford, 56 F .3d 265 (D.C. Cir. 1995) ... 25-26 United States v. Gooch, 6 F .3d 673 (9th Cir. 1993) . ...... 15 United States v. Irizarry, 673 F.2d 554 (1st Cir. 1982) , 15-16, 21-22, 25 United States v, Johnson, 22 F.3d 674 (6th Cir. 1994) , 14, 22, 25 United States v. Lopez, 989 F.2d 24 (1st Cir. 1993) 24 United States v. Ortiz-Marquez, 29 F.3d 636 (9th Cir. 1994) 25 United States v. Satterfield, 743 F.2d 827 (11th Cir. 1984) 21, 23, 25 United States v. Simmons, 661 F.3d 151 (2d Cir. 2011) 14, 21-22 United States v. Toyer, 414 Fed. Appx. 584 (4th Cir. 2011) 24 Warden v. Hayden, 387 U.S. 294 (1967) 12, 19 STATE CASES People v. Adams, 53 N.Y.2d 1 (1981) 19 People v. Gokey, 60 N.Y.2d 309 (1983) 13 People v. Gordon, 110 A.D.2d 778 (2d Dept. 1985) 20 People v. Johnson, 181 A.D.2d 103 (3rd Dept. 1992) ... 14, 20 people v. Knapp, 52 N.Y.2d 689 (1981) Passim People v. McBride, 14 N.Y.3d 440 (2013) 12 11 people v. Mitchell, 39 N.Y.2d 173 (1976) 13, 21 People v. Molnar, 98 N.Y.2d 328 (2002) 2, 19-20 People v. Parker, 299 A.D.2d 859 (4th Dept. 2002) 14, 20 People v. Sanchez, 255 A.D.2d 614 (3rd Dept. 1998) 20 CONSTITUTIONAL N.Y. Canst., Art. I, §12 2, 12 U.S. Canst., Amend. IV 2, 12 U.S. Canst., Amend. XIV 2, 12 STATUTORY C.P.L. §450.90 (2)(a) 19 111 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- BENJAMIN JENKINS, Defendant-Appellant. ----------------~~----------------~----x PRELIMINARY STATEMENT By permission of the Honorable Robert S. Smith, granted on July 10, 2013 (A.1), appellant appeals from an order of the Appellate Division, Second Department, entered November 21, 2012, people v. Jenkins, 100 A.D.3d 924 (2d Dept. 2012) (A.2-A.3), that reversed a June 23, 2011, order of the Supreme Court, Kings County, suppressing a gun (A.4- A. 7), and remitted the matter to the Supreme Court for further proceedings. APpellant is out on bail. On September 12, 2013, this Court granted appellant's application for poor person's relief and the assignment of Steven Banks as counsel. The subj ect of the hearing court's ruling, and the issue on this appeal: whether, where the police have secured the premises, a hidden gun in an apartment with 1 only adult occupants is an exigent circumstance that justifies a warrantless search, presents a question of law for this Court's review. See, e.g., People v. Molnar, 98 N.Y.2d 328, 335 (2002) (addressing, as a question of law, whether a particular circumstance negated the existence of an emergency) . QUESTION PRESENTED Whether, contrary to the Appellate Division's conClusion, the warrantless search of a closed container was per se unreasonable because the exigency that justified the warrantless entry had abated, and the hidden gun, itself, was not an exigent circumstance. U.S. COilS t ., Amends. IV, XIV; N.Y. Cons t . , Art. I, §12. STATEMENT OF FACTS Introduction After Police Officer Brennan observed appellant in a hallway of a Brooklyn apartment building holding a gun, and appellant and a friend fled into appellant's apartment, Brennan broke open the door with a sledgehammer, found appellant in a bedroom, handcuffed appellant and his friend, and placed them, along with appellant's wheel- chair-bound mother and adult sister, in the liviIlg room in the custody of other police officers. 2 Brennan then searched the apartment for the gun. In a separate bedroom from the one where he found appellant, Brennan noticed a closed metal box that mayor may not have been locked, but that Brennan, after lifting and shaking it, opened to find the gun. Following a hearing, the court suppressed the gun, finding that, while Brennan's warrantless entry into the apartment was justified by exigent circumstances, once Brenhan handcuffed and arrested appellant, the exigencies abated, so the search of a closed container in another room required a warraht. On the People's appeal, the Appellate Division reversed the suppression ruling. Disagreeing with the hearing court, the appellate court concluded that, even though the police had already arrested appellant, exigent circumstances still existed because "the police knew that the gun was inside the apartmeht, which had occupants other than [appellant]." Hearing The People Around midnight on December 31, 2009 -- New Year's Eve Police Officer Kevin Brehhan, and two other officers, were parked in the vicinity of story Brooklyn apartment building, 3 a nine- when Brennan heard "thousands" of celebratory gunshots, and saw a number of people and the sparks from gun muzzles on the roof of the building (Brennan: 4-7, 18-19; A.ll-A.14, A.25-A.26) . Without radioing for backup or even reporting the gunfire, the officers drove closer to the building. Brennan and one of the other officers entered and proceeded to walk upstairs (Brennan: 5, 7, 19; A.12, A.14, A. 26) . When they were at about the fifth floor, Brennan heard another shot from the stairwell above, and, when he neared the eighth floor, he heard voices in that hallway (Brennan: 7-8, 20-21; A.14-A.15, A.27~A.28). Walking out from the stairway, Brennan saw appellant with a gun in his hand talking to two other young men (Brennan: 8-9, 21-22; A.15-A.16, A.28-A.29). At the sight of Brennan, appellant and one of the other men, later learned to be Michael Jordan, ran into • which was about five feet away (Brennan: 9, 21-23, 29-30; A.16, A.28-A.30, A.36- A. 37) Brennan ran after them, tried to open the door, which was locked, and then knocked on the door and announced that he was a police officer (Brennan: 23; A.30). After a minute or so, while the second officer remained in the hallway, Brennan ran downs tairs and returned wi th a sledgehammer. By that time, several other officers had 4 arrived, and when further knocking on the door still elicited no response, Brennan broke open the door and entered the apartment with his gun drawn (Brennan: 9-10, 23-24; A.16-A.17, A.30-A.31). Inside, he saw a woman in her late teens or early twenties and an approximately fifty-year-old woman in a wheelchair, who was appellant's mother (Brennan: 10-11, 14, 24; A.17-A.18, A.21, A.31). When, in reply to Brennan's inquiry about the two young men, the women denied that they were there, Brennan looked around the apartment and found appellant, who was intoxicated, and Jordan under a bed in the mother's bedroom (Brennan: 11-12, 29; A.18-A.19, A.36). Brennan ordered the men out, frisked and handcuffed them, and brought them back to the living room where they remained, with the two women, in the company of four or five police officers (Brennan: 14-15, 26; A.21-A.22, A.33). Asked what he did next, Brennan admitted, "I searched for the firearm" (Brennan: 12; A.19). After searching without success in the bedroom where he found appellant, Brennan entered another bedroom that appeared to be a man's room (Brennan: 12, 16, 26; A.19, A.23, A.33). There, he noticed a closed metal box on the floor (Brennan: 13, 16; A.20, A.23). Although the court later noted for the record that the box had "two separate toggle locks on either side 5 of the center combination lock" (48; A.55), Brennan did not recall whether the box was locked. As an afterthought, however, he asserted, "I don't think it was" (Brennan: 27; A.34) . In any event, he lifted the box and shook it. And, believing that the box contained the gun, he opened it and recovered the gun, bullets, and the magazine (Brennan: 13; A. 20) . Brennan returned to the living and, again, arrested the already handcuffed appellant and Jordan. At that time, appellant stated, A.21-A.22, A.35) (Brennan: 14-15, 28; Defense Appellant's mother, Patricia Velinskie, testified that she lived in the apartment with appellant and the other woman, her daughter -- appellant's sister (Velinskie: 41, 53; A.48, A.60). velinskie was watching television in her bedroom when she heard banging on the front door and someone demand that the door be opened (Velinskie: 54; A. 61) . By the time she managed to get up and move towards the door, about six police officers broke open the door and told her to move back (Velinskie: 42, 55; A.49, A.62). While Velinskie and her daughter remained in the living room, the police searched the apartment (Velinskie: 43; A.50). They brought out appellant and Jordan, a 6 friend, and asked where the gun was, and also threatened that that they would arrest everyone unless someone admitted whose gun it was (Velinskie: 44, 52; A.5l, A.59). At some point, after "about twenty minutes," Velinskie guessed, the police allowed her to leave the living room to get her medication from her bedroom. From there, she heard police officers making a lot of noise in appellant's room as they searched (Velinskie: 46; A.53). Even in her bedroom, however, Velinskie was in the company of a police officer, who kept her there. Asked where her daughter was at the time, Velinskie guessed, "I think she was in the hallway, trying to figure out what was going on, but they wouldn't let her in" (Velinskie: 56-57; A.63~A.64). In apparent reference to the same circumstance, Velinskie acknowledged that the police were guarding her daughter at the time. And, in another response to where her daughter was "when the search was going on," Velinskie answered, "Like she was trying to get in the back room where my son was at, to go in and see what they was doing, but they wouldn't let her" (Velinskie: 63-64; A.70-A.7l). When Velinskie eventually came out of the bedroom, an officer held out "something" that was dangling from a stick or a pencil and asked "Is this yours" (Velinskie: 51; A. 58) . Velinskie maintained that the metal box belonged to 7 her son and that he generally kept it locked (Velinskie: 60;A.67). Arguments Before hearing arguments, the court asked the parties to assume that exigent circumstances permitted the police to pursue appellant into the apartment. The court then inquired, Once they had him in cus tody and had thoroughly searched that apartment so that there wouldn't be a gun accessible to others in that apartment, why didn't they just secure the box and get a warrant? The exigent circumstances had been removed by the defendant being under the arrest. They thoroughly searched the rest of the apartment so that a weapon is not somewhere in the apartment that somebody else can access it or find it, so the exigent circumstances would be eliminated. The defendant is in custody, he has no access to the box, so safety is not an issue . [U]nless there's another issue, why don't the People need a warrant -- the apartment is searched, the defendant's in cuffs, the situation as been brought back to a non-dangerous, non-exigent circumstances, isn't there a requirement that they take the box, safeguard the box, go to a magistrate, give the magistrate what they testified to here, find probable cause that there may be the weapon in the box, and then open the box? (65-66; A.72-A.73). 8 In oral and written response, defense counsel relied on People v. Knapp, 52 N.Y.2d 689 (1981), to argue that, indeed, the police needed a warrant. Once appellant was in custody and guarded by the police, the exigent circumstances had dissipated and the police needed a warrant to search the box (67, 72; A.74, A.79) The prosecutor responded, inter alia, that the arrest "did not end the exigent circumstances" since there were other people in the apartment (66-67, 77; A.73~A.74, A.84). And, arguing that concerns for everyone's safety required the police to find and remove the gun as quickly as possible, the prosecutor noted various cases where, for one reason or another, exigent circumstances justified a particular warrantless search (78-79; A.85-A.86). Hearing Court's Decision Although the court did not discredit ve1inskie's testimony, for the most part, it adopted Brennan's version of events. circumstancesIt justified first the concluded warrantless that entry exigent into the apartment. Relying on Knapp, however, the court then concluded that, "once [appellant] was secured and handcuffed, the exigency ceased to exist and the subsequent search of the closed box 9 The court,required a warrant and was thus improper." therefore, ordered the gun suppressed (A.4-A.7) Appeal to th~ Appellate Division The People. argued again on appeal that, contrary to the hearing court's conclusion, the exigent circumstances continued after the police handcuffed and arrested appellant. They contended that, because the police knew the gun was in the apartment, the police had to find it for their own safety and also to protect the apartment's occupants. In support of that contention, the People relied on case law that applied to "emergencies" and to ordinary "exigent circumstances." They also argued that searching the box was an intrusion that was reasonably related in scope to the circumstances, whereas waiting to obtain a warrant would have been overly intrusive. Mr. Jenkins, as respondent , argued that the hearing court was correct in finding that no further exigencies justified the warrantless search. In that regard, appellant relied again upon Knapp. In distinguishing the case law relied upon by the People, appellant argued that the cases were inapposite 1) because his sister and wheel- chair bound mother were not a danger to the police once the police controlled the apartment, and 2) because his sister 10 and mother were adul t.s , they did not need the police to protect them from the hidden gun. Appellate Decision In reversing, on the law, the hearing court's order to suppress the gun, follows: the Appellate Division concluded as The evidence adduced at the suppression hearing established that the police saw and heard gunfire on the roof of an apartment building, heard gunfire in the stairwell of that building, and observed the defendant, holding a gun, run into the subject apartment with a second man. These facts support a determination that exigent circumstances existed which justified the entry of the police into the subject apartment and arresting the defendant there [cited cases omitted). Furthermore, these circumstances justified a warrantless search for the gun. The police knew that the gun was inside the apartment, which had occupants other than the defendant (see People v , Parker, 299 A.D.2d 859; people v. Sanchez, 255 A.D.2d 614; People v. Johnson, 181 A.D.2d 103, aff'd 81 N.Y.2d 980; People v. Gordon, 110 A.D.2d 778; cf. People v. Knapp, 52 N. Y. 2d 689). The scope of the search was sufficiently limited by, and reasonably related to, the exigencies of the situation (see People v. Dillon, 44 A.D.3d 1068, 1070) (A.2-A.3). 11 ARGUMENT CONTRARY TO THE APPELLATE DIVISION'S CONCLUSION, THE WARRANTLESS SEARCH OF A CLOSED CONTAINER WAS PER BE UNREASONABLE BECAUSE THE EXIGENCY THAT JUSTIFIED THE WARRANTLESS ENTRY HAD ABATED, AND THE HIDDEN GUN, ITSELF, WAS NOT AN EXIGENT CIRCUMSTANCE. U.S. CONST., AMENDS. IV, XIV; N. Y. CONST., ART. I, §12. Under the "exigent circumstances" doctrine, the Fourth Amendment's restriction against warrantless entries into a person's home to make an arrest gives way where "urgent events make it impossible to obtain a warrant in sufficient time to preserve evidence or contraband threatened with removal or destruction," People v. Knapp, 52 N.Y.2d 689, 694~696 (1981), or where, among other circumstances, a fleeing suspect retreats into his home from where he is likely to escape, as occurred here. See Warden v. Hayden, 387 U.S. 294, 298-299 (1967); see also People v. McBride, 14 N.Y.3d 440, 445 (2013). Assuming there is probable cause, the particular exigent circumstance allows the police to enter and arrest the person in his home without first obtaining a warrant. A warrantless search of the already-arrested person's home, however, is another matter. See People v. Knapp, supra at 696-697; see generally Coolidge v. New Hampshire, 12 403 u.s. 443, 449-455, 475-478 (1971). Because, at that point, the exigency that permitted the warrantless entry likely has abated, a warrantless search is per se unreasonable unless some other exigency compels the police to act immediately out of concern for their own safety or for the safety of others. See People v. Knapp, supra at 696-697; people v. Mitchell, 39 N.Y.2d 173, 177-178 (1976) ("imminent danger" creates an "emergency") . For example, for their own safety's sake, the police may conduct a warrantless "search incident to arrest" of personal items within the "grabbable area" of the person arrested, so long as the police reasonably suspect the items continue to compromise their safety. People v. Gokey, 60 N.Y.2d 309, 312 (1983). And, also for their own safety, the police may conduct a security check of the premises for any hidden dangers, pursuant to which, the police may recover evidence in plain view. See Maryland v. Buie, 494 U.S. 325, 334 (1990). Once the police are "in complete control of the house," however -- i.e., where the suspect is in custody; all other occupants are "out of commission"; and "no hidden surprises" lurk -- concern for police safety manifestly is no longer an exigent circumstance that can excuse searching without a warrant. People v. Knapp, supra, 52 N.Y.2d at 13 696-697; see United States v. Simmons, 661 F.3d 151, 158 (2d Cir. 2011) (" the officers had effectively allayed the safety concerns by exercising control over a compliant occupant and the surrounding premises") . Exigent circumstances may still exist if the police must act immediately to protect others, i.e., if there is an \\ emergency. II See People v. Mitchell, supra, 39 N.Y.2d at 177-178. But, that doctrine's relevance to the facts here rests on the view that a hidden gun, itself, constitutes an "imminent danger" to the occupants of the premises. And, while a hidden gun may be like a ticking bomb where there are young children present, see, e.g., People v. Parker, 299 A.D.2d 859 (2d Dept. 2002); People v. Johnson, 181 A.D.2d 103 (3rd Dept. 1992), no case law holds that a hidden gun is such a danger where the only occupants are adults. On the contrary, cases addressing the issue have repeatedly concluded that a hidden gun, by itself, is not an exigent circumstance. See, e.g., United States v. Simmons, supra, 661 F.3d at 158 (police knowing that there was a gun in the bedroom did not justify warrantless search for it because "gun alone" is not an exigent circumstance); united States v. Johnson, 22 F.3d 674, 680 (6th Cir. 1994}) (where exigency allowing warrantless entry ceased and 14 premises secured, search for guns violated Fourth Amendment because "the mere presence of firearms does not create exigent circumstances"); United States v. Gooch, 6 F.3d 673, 680 (9th Cir. 1993) ("The presence of a firearm alone is not an exigent circumstance"). It is also worth noting United States v. Irizarry, 673 F.2d 554 (1st Cir. 1982), where, after the police arrested the defendant and his two codefendants, guarded them in their hotel room, and swept the premises, an officer conducted a warrantless search of the bathroom for a known hidden gun. Id. at 556. In finding the search unconstitutional, Irizarry elaborates, The fact that a gun was known to be hidden somewhere cannot, by itself, transform the situation into a crisis. A gun is not a bomb; it is dangerous only if a defendant is holding it. Were we to find an exigency whenever any plausible or implausible sequence of events might link a defendant with a gun's potential hiding place, we would allow warrantless searches of unlimited scope. 673 F.2d at 560, fn. Beyond the statement's relevance to the facts here, its caution that the exception to the warrant requirement not be permitted to swallow the rule is reinforced in Coolidge, where, among other eloquent admonishments to courts entrusted with preserving the warrant requirement 15 against "stealthy encroachments thereon," 403 U.S. at 454, the Court also reminded that, [The warrant requirement] is not an inconvenience to be somehow "weighed" against the claims of police efficiency. It is, or should be, an importartt workirtg part of our machinery of government, operating as a matter of course to check the "the well- irttentioned but mistakenly over- zealous, executive officers who are part of any system of law enforcement. If it is to be a true guide to constitutional police action, rather than just a pious phrase, then 'the exceptions cannot be enthroned into the rule'". 403 U.S. at 481 (quoting Frankfurter, J.). * * * In light of the principles discussed above, the Appellate Division erroneously reversed the hearing court's suppressiort ruling. No one questions the propriety of the police entry into the apartment after Officer Brennan observed appellant in the hallway with a gun. But, at the time Officer Brennan admittedly proceeded to search the apartment specifically for the gun, the police had already found and arrested appellant and his friend, and had placed them, handcuffed, along with appellant's mother and sister, in the living room, where they were watched by four or five other police officers. By that time, too, as the hearing court noted, the police had "thoroughly searched" the 16 apartment to eliminate the possibility that somebody else might be there who could threaten their safety. Hence, analytically speaking, the exigency that had permi tted the warrantless entry "hot pursuit" of the fleeing suspect -- was abated by appellant's arrest. And, as the hearing court observed, "safety [was] not an issue" because the police had secured the premises, i.e., were "in complete control" of the apartment. People v. Knapp, 52 N.Y.2d at 696-697. Under the circumstances, therefore, a warrantless search was per se unreasonable, id., unless the hidden gun, itself, was an exigency. Yet, because police safety was no longer an issue, to argue that the hidden gun, itself, was an exigent circumstance is to argue that the gun presented an "imminent danger" to appellant's mother and adult sister. And, rather than address implausible circumstances one might conjure up to support the notion that the women needed immediate police protection from the gun, it is enough now to rely on common sense and the above-mentioned case law that indicate that the gun, itself, did not present such an exigency (see also post, pp. 20-21) * * * Concerning the appellate opinion, we preface our discussion as follows. First, the previous gunfire on the 17 roof and in the hallway is analytically irrelevant to the propriety of the warrantless search. The gunfire explains the police presence in the building and provides some background,l but analysis would be exactly the same had Officer Brennan been in the building for a routine domestic dispute, or any number of other reasons, and observed appellant in the hallway holding a gun and fleeing into the apartment. Hence, to the degree that the opinion might suggest that the exigent circumstances that justified the warrantless search included the previous gunfire, 2 inasmuch as the previous gunfire was unrelated even to the "hot pursuit" that justified the warrantless entry, it had no bearing whatsoever on the subsequent search. For the same reason (see fn2), the opinion appears to suggest that the "hot pursuit" was a circumstance that justified the search. Yet, if that is what the opinion says, the opinion does not explain, nor is there a plausible explanation, why the "hot pursuit" of appellant There was no evidence that appellant fired the shot heard in the hallway or any other shot. 2 Having described the previous gunfire and the observation of appellant holding a gun and fleeing into the apartment and concluded that, therefore, exigent circumstartces justified the entry, the opinion states, ~Furthermore, these circumstances justified a warrantless search for the gun." The opinion then mentions other specific circumstances related to the hidden gun. Consequently, it is unclear whether the phrase "these circumstances" refers to already-described circumstances or to the specific circumstances related to the gun that immediately follow the phrase. 18 would not have ended once the pOlice had arrested and handcuffed him. Cf., e.g., Warden v. Hayden, supra, 387 u.s. at 298-299 (exigent circumstances justified warrantless search of sUspect's home for weapons because the search occurred "prior to or immediately contemporaneous" with the arrest and, thus, during the pursuit of the fleeing suspect); People v. Adams, 53 N.Y.2d 1, 10-11 (1981) (comparing circumstances to those in Hayden where [in Adams] the police searched closet in dangerous suspect's apartment while in pursuit of suspect, minutes after he had fired at a police officer) . In short, to the extent that the appellate opinion might be read as finding that the circumstances that preceded or justified the warrantless entry were among the exigent circumstances that justified the subsequent search for the gun, such a finding is unreasonable and unsupported. In any event, since the opinion does not expressly dispute the hearing court's factual findings, the more logical reading of the opinion is as a determination that, contrary to the hearing court's ruling, an exigency "justified a warrantless search for the gun" based on the fact that "[t]he police knew that the gun was inside the apartment, which had occupants other than the defendant." See C.P.L. §450.90 (2) (a); cf. People v. Molnar, 98 N.Y.2d 19 328, 333-335 (2002 ) (addressing, as a matter of law, whether particular circumstance negated an "emergency") * * * Ordinarily, the fact that "the police knew that the gun was inside the apartment" would only provide probable cause for the police to obtain a warrant, without which, a search for the gun would be per se unreasonable. The question, therefore, is whether, because the apartment also "had occupants other than the defendant," it was reasonable for the police not to obtain a warrant. Here, too, the opinion is ambiguous. For, while it says that the hidden gun in an apartment with occupants appellant's mother and adult sister -- was an exigency that justified the search, the opinion does not specify whether the police needed to search to protect the occupants or because of the danger posed by the occupants. Appellant's Mother And Sister Did Not Need To Be Protected From the Hidden Gun Given the opinion's reliance on cases involving "emergencies,"3 the Appellate Division presumably believed The opinion relies on People v. Parker, 299 A.D.2d 859 14th Dept. 2002), People v. Sanchez, 255 A.D.2d 614 13rd Dept. 1998}, People v. Johnson, 181 A.D.2d 103 13rd Dept. 1992), and People v. Gordon, 110 A.D.2d 778 12d Dept. 1985}. The exigent circumstances justifying the gun searches in Parker, Sanchez, and Johnson, are ~ernergencies" -- each case cites Mitchell -- albeit Sanchez concerns police action on behalf of the general public. Gordon is inapposite since, while it describes 20 that, because of the presence in the apartment of appellant's mother and sister, the hidden gun was an "imminent danger" to them. See people v. ~itchell, supra, 39 N.Y.2d at 177-178. TO uphold such a finding, therefore, this Court would have to agree that the gun was like a ticking bomb that the police had to locate immediately to protect the women. Yet, to agree that the gun constituted such a threat ignores common sense. The gun unquestionably wou l d have been an "imminent danger" to a child who might have found it. But it is uncommon, at best, for an adult who finds a gun to pick it up, and then accidentally shoot herself or someone else. See Uni ted States v. Satterfield, 743 F. 2d 827, 845 (lIth Cir. 1984) ("protection against remote eventuality is not the type of circumstance that creates an urgent need for immediate action") . Furthermore, to agree with the appellate finding that the hidden gun was an exigency, this Court would have to disregard Irizzary's understanding that "a gun .. known to be hidden somewhere cannot, by itself, transform the situation into a crisis," 673 F.2d at 560; and the understanding in Simmons that a "gun alone" is not an a few facts related to a search, it only addresses the legality of a warrantless entry. 21 exigent circumstance, 661 F.3d at 158, as well as the conclusion in Johnson that "the mere presence of firearms does not create exigent circumstances." 22 F.3d at 680. Hence, because the hidden gun was not an "imminent danger" to appellant's mother and adult sister, the Appellate Division erred if it, indeed, decided that the warrantless search was justified under the "emergency" doctrine. Nor Did The Police, In Light Of The Hidden Gun, Need Protection From Appellant's Mother And Sister If the appellate opinion is interpreted to mean, instead, that the police had to search for the gun to protect themselves from the "occupants," there is no record support for such a finding. NO testimony remotely suggests a scenario other than one where, prior to the search, the police had secured, and were in control of, the apartment and its occupants as the hearing court found, and the Appellate Division did not and could not dispute. Nonetheless, the People had argued that appellant's wheel-chair-bound mother or his sister posed a danger to the police (people's Appellate Division brief, pp. 30-31). Based on the mother's testimony that she went to her bedroom to retrieve her medication and that her daughter was in the hallway, the People claimed that, 22 unlike appellant and his companion who were under guard in the living room, "the two women were not," and they could have retrieved the gun and used it against the police or to help appellant escape (People's Appellate Division brief, pp. 31-32) . It understates the obvious that such speculation falls squarely within the category of a "remote eventuality" that "is not the type of circumstance that creates an urgent need for immediate action." united States v. Satterfield, supra, 743 F.2d at 845. But, in any case, the most salient aspect of appellant's mother's testimony relevant to whether she posed a danger is that the police permitted her to leave the living room and go to her bedroom, and that a police officer then remained with her and prevented her from leaving the bedroom. And, assuming that appellant's mother, while in her bedroom, could have known where her daughter was at the time, her testimony was that the police were guarding and restricting her daughter's movements too. To reiterate, there is no record support for a finding that the police had to find the gun immediately to protect themselves from the "occupants." * * * Finally, regarding the overall nature of the circumstances, we add this. 23 While appellant possessed a gun, there was no evidence that he had fired it. Nor was there evidence that anyone had been injured by the "thousands of shots" -- fired in celebration of New Year's Eve -- that had brought Officer Brennan into the building. And, while appellant may have been intoxicated, nothing in the record suggests that, once he and his friend were arrested and handcuffed, they were anything but co- operative. Similarly, despite the People's speculations in the Appellate Division about the potential criminality of appellant's mother and sister, the record indicates only that they, too, were fully compliant and co-operative. 4 The circumstances here, therefore, stand in sharp contrast to the sort of volatile and inherently dangerous circumstances where, although a suspect is in custody, safety concerns might still justify a warrantless search. See, e.g., United States v. Toyer, 414 Fed. Appx. 584, 586, 591 (4th Cir. 2011) (domestic dispute where defendant threatened gun violence, so "urgency existed in not only finding and physically securing [the defendant], but also in securing the handgun used in the threat"); United States v. Lopez, 989 F.2d 24, 25-27 (1st Cir. 1993) (where drug seller had threatened buyer with sawed-off shotgun, and the 4 By any obj ective view I that I after the police down with a sledge hammer and asked where her son mother said he was not there, is understandable. 24 knocked her door was I appellant' s apartment, with more than one entrance, was in a dilapidated building that justified officer's concern that the hidden shotgun might be recovered and used again by others); United States v. Ortiz~Marquez, 29 F.3d 636 (9th Cir. 1994) ("previously violent suspects" outnumbered the police, so possibility that one could break away and obtain the hidden firearm presented "significant safety risk"). Yet, even where, in comparison to the instant case, underlying circumstances are more like the sort in the cases above, other courts have upheld the warrant requirement and have been unwilling to accept government claims of potential danger that is highly unlikely given that the police control the premises. See United States v. Johnson, supra, 22 F.3d 674; United States v. Satterfield, supra, 743 F.2d 827; United States v. Irizzary, supra, 673 F.2d 554; see also United States v. Ford, 56 F.3d 265 (D.C. Cir. 1995). In this vein, we include a relevant observation in Ford: [T] he Government assumes that the law enforcement officers here had only two options: either the police search the house until they found the suspected gun or they back out of the apartment with guns poised drawn, attempting to protect themselves against an individual who might use the hidden gun. This misstates the situation, for 25 the police had reasonable alternatives to these two extremes. First, the police could have telephoned a magistrate for a search warrant. or, they could have asked the owner of the apartment, appellant's mother, whether she would consent to a search of the apartment in lieu of waiting for a magistrate to issue a search warrant. 56 F.3d at 272. Accordingly, because the hidden gun was neither a danger to appellant's mother and sister nor to the police officers who were in complete control of the apartment, the warrantless search for the gun was per se unreasonable under the Fourth Amendment, and the Appellate Division order reversing the hearing court's ruling suppressing the gun should be reversed. CONCLUSION FOR THE REASONS STATED, THE APPELLATE DIVISION ORDER SHOULD BE REVERSED. Respectfully submitted, O?:::: ~I( ALLEN FALLEK Of Counsel September 2013 STEVEN BANKS Attorney for Defendant-Appellant 26