The People, Respondent,v.Benjamin Jenkins, Appellant.BriefN.Y.September 9, 2014 To be argued by ALLEN FALLEK ( 15 Minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - BENJAMIN JENKINS, Defendant-Appellant. (APL-2013-00195) REPLY BRIEF FOR DEFENDANT- APPELLANT STEVEN BANKS Attorney for Defendant- Appellant THE LEGAL AID SOCIETY CRIMINAL APPEALS BUREAU 199 Water Street, 5TH Floor New York, New York 10038 (212) 577-3566 ALLEN FALLEK Of Counsel January 2014 i TABLE OF CONTENTS TABLE OF AUTHORITIES...........................................ii PRELIMINARY STATEMENT ..........................................1 POINT CONTRARY TO THE PEOPLE’S ARGUMENTS, ONCE THE POLICE CONTROLLED THE APARTMENT AND ALL THE OCCUPANTS, THEY COULD NOT CONDUCT A WARRANTLESS SEARCH FOR THE HIDDEN GUN ............... 1 CONCLUSION .................................................... 9 ii TABLE OF AUTHORITIES CASES United States v. Simmons, 661 F.2d 151 (2d Cir. 2011)...........3 People v. Clements, 37 N.Y.2d 675 (1975)......................7-8 People v. Concepcion, 17 N.Y.3d 192 (2011)......................9 People v. Knapp, 52 N.Y.2d 689 (1981)........................3, 5 People v. Green, 103 A.D.2d 362(2d Dept. 1984)..................8 People v. Johnson, 64 N.Y.2d 617 (1984).........................9 People v. Molnar, 57 N.Y.2d 391 (1982)..........................5 Washington v. United States, 585 A.2d 167 (D.C. 1991).........3-4 1 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 We continue to rely on the facts and arguments in our main brief, and on the record itself, but in reply to the People’s responsive brief, we submit this brief to address some of the People’s claims. POINT CONTRARY TO THE PEOPLE’S ARGUMENTS, ONCE THE POLICE CONTROLLED THE APARTMENT AND ALL THE OCCUPANTS, THEY COULD NOT CONDUCT A WARRANTLESS SEARCH FOR THE HIDDEN GUN. No one disputes that at the time Officer Brennan began to search the apartment for the gun he knew was there, the police had already secured the premises. That is, roughly four or five other police officers were in the living room guarding the only people in the apartment -- appellant and his friend, who were in handcuffs, and appellant’s wheelchair-bound mother and adult sister. The People argue, nonetheless, that the hidden gun was 2 a continuing exigent circumstance because either appellant or his mother or sister could have gotten away, grabbed the gun, and used it against the police (People’s brief, pp. 31-32, 37- 40, 47-48). Claiming that the police could have “reasonably” anticipated such a threat (People’s brief, p. 37), and conducted the otherwise unconstitutional warrantless search to guard against it, the People argue that the likelihood that appellant, his mother or sister would have acted so was indicated by three circumstances: 1) appellant may have previously fired the gun -- either on the roof or in the hallway, 2) appellant was intoxicated, and 3) appellant’s mother initially lied to the police about appellant’s presence in the apartment (People’s brief, pp. 37-39). As we stated in our main brief, there is nothing in the record that suggests that appellant, or his mother and sister, were anything but compliant (Appellant’s main brief, p. 24). That being so, it is hardly “reasonable” to infer from appellant’s being intoxicated or his mother’s having lied that appellant, while handcuffed, or his mother, in a wheelchair, or his sister -- all of whom were guarded by four or five police officers -- would attempt to launch an attack on the police with the hidden gun. Regarding the significance of whether appellant had 3 previously fired the gun, let us assume he had. We agree the police would have had a basis to believe that appellant was potentially more violent than someone who only possessed a gun. But, appellant’s having fired the gun on the roof or in the hallway would not transform the circumstances the police confronted in the apartment to the sort of volatile and inherently dangerous situations described in the exceptional cases cited in our main brief where, even though a defendant already was in custody, the continued threat that violence would erupt justified a warrantless search for weapons (see Appellant’s main brief, pp. 24-25). In the context of the comparatively benign situation here, concern that appellant may have previously fired the gun was a matter that bore on how the police viewed appellant before they arrested him, not after they found him, placed him in handcuffs, and guarded him in the living room. As reflected in the applicable case law, the commonsense understanding is that, once the police have secured and control the premises and everyone there -- as the hearing court found and the Appellate Division did not dispute -- the police no longer face the imminent danger that the individuals under their control will launch an attack or destroy evidence. See, e.g., United States v. Simmons, 661 F.3d 151, 157-158 (2d Cir. 2011); People v. Knapp, 52 N.Y.2d 689, 696-697 (1981); see also Washington v. United States, 585 4 A.2d 167, 170 (D.C. Ct.App. 1991)(where “three officers present had taken effective control of the situation,” neither they nor anyone else could have been threatened by the possibility that the defendant would retrieve a gun and use it). The People also assert that the search was a response to an “emergency,” but they fail to explain why. Among their conclusory assertions that this was an “emergency,” the People concur with the Appellate Division’s finding that the search was justified simply “because the police knew that the gun was inside the apartment, which had other occupants other than the defendant” (p. 29). As discussed in our main brief, the appellate rationale appears to be a finding that the police acted to protect appellant’s mother and sister from the danger presented by the hidden gun, i.e., there was an “emergency” (Appellant’s main brief, pp. 20-21). Like the appellate opinion, however, the People never explain how the gun itself endangered anyone. While they claim throughout their brief that the police searched for the gun to protect the apartment’s occupants, the People’s argument always reverts to the unreasonable and unsupported claim that the hidden gun had to be found immediately because, otherwise, appellant might have used it against the police or someone else, or appellant’s mother or sister might have used it against the police or discarded it (People’s brief, pp. 38-40, 47-48). 5 In short, there is neither record support nor a reasonable basis for the People’s argument that, even though the police controlled the apartment and all the occupants, the police nonetheless faced the imminent danger that either appellant, or his mother or sister, would attack them with the hidden gun. And, the only question before this Court is whether, as the hearing court found, “once the defendant was secured and handcuffed, the exigency ceased,” or whether, as the Appellate Division decided, the exigency continued because “the police knew that the gun was inside the apartment, which had occupants other than the defendant.” Hence, while the People correctly note that, generally, whether there were exigent circumstances is a mixed question of law and fact (People’s brief, p. 22), the bright line question whether the hidden gun constituted an exigency under the above- noted specific circumstances, i.e, whether the hearing court or the appellate court is correct, is a pure question of law. See, e.g., People v. Molnar, 98 N.Y.2d 328, 335 (2002)(addressing, as a matter of law, whether passage of one hour itself negated an emergency); People v. Knapp, 52 N.Y.2d 689, 696 (1981) (addressing whether, as a matter of law, hidden contraband that could easily be destroyed “in and of itself” constituted an exigency). * * * 6 Some of the People’s more peripheral claims also warrant a reply. First, several pages of the People’s brief focus on the interpretation of language in the hearing court’s decision concerning when the police “swept” the apartment in search for other people (pp. 27-29). The People ultimately conclude that, therefore, Brennan’s “entry [into the bedroom] was proper” (p. 29). Hence, to make it clear; We are not arguing that Brennan unlawfully entered the bedroom where he found and searched the closed box. In addition, the People misleadingly argue that the search was proper because it was a “limited one” (pp. 42-43). They, thereby, suggest that analysis would be different, and the search might have been improper had it been an “unlimited one” in which the police searched not just the box but the entire apartment, including all the closets and drawers. Yet, the requirement that a search be limited “in scope to the circumstances which justified the interference in the first place” simply means that a search, or other Fourth Amendment intrusion, cannot extend beyond the bounds of its predicate. We all agree, for example, that the police had probable cause to believe the gun was somewhere in the apartment. That being the case, and because, based on the People’s exigency argument, the police had to find the gun immediately no matter where it was, a 7 search of the entire apartment, not just the box, would have been “limited in scope” to the predicate that justified it. Moreover, that it is meaningless for the People to argue that the search was proper because it was “limited” to the box is illustrated by the People’s further claim that the police needed to search the box in order to know whether the gun was there, because, if the gun was not in the box, the police had to keep searching until they found it (People’s brief, pp. 45-46). In any event, inasmuch as the People rely on People v. Clements, 37 N.Y.2d 675 (1975), to argue that the “limited” aspect of this search is significant (People’s brief, p. 43), we take the opportunity to discuss Clements. There, this Court, in a 4-3 decision, upheld a warrantless search for the defendant’s stash of marijuana following the arrest of the defendant in his apartment. The police informant who had just participated in the marijuana transaction for which the defendant was arrested, and who was shown to be reliable, had also told the police precisely where the defendant kept the stash -- in a particular bedroom drawer. Id. at 677. Clements restricts its own application. “Crucial” was that the warrantless search was “specifically focused on a predetermined target, the predetermination of which was based on explicit information furnished by a known and still available individual whose reliability the police had currently 8 substantiated.” Id. at 679. The warrantless search here obviously is not lawful under Clements. But the People still describe the search as “limited” to the “target” box and, thus, they liken the search to the one in Clements in the sense that it did not involve “wide-ranging, exploratory, rummaging” (People’s brief, p. 43). Yet, the scope of the search in Clements was “limited” to the drawer because the informational predicate -– as supplied by the informant -- dictated that it not extend beyond the particular drawer. Here, assuming the warrantless search was lawful, probable cause gave Brennan the right to search the entire apartment. The box was not the “target” until Brennan lifted and shook it and guessed that it might contain the gun. So, whereas the search of the box was appropriately “limited in scope” because it did not extend beyond the apartment, the fact that it was “limited” to the box has no analytical significance whatsoever. 1 Concerning the People’s final argument that obtaining a warrant would have been a burden on appellant’s mother and sister, and a danger to the police officers who had to remain in 1 People v. Green, 103 A.D.2d 362, 366-367 (2d Dept. 1984), is yet another case the People believe supports their position inasmuch as Green notes there was no “exploratory rummaging” involved in the recovery of a gun there (People’s brief, pp. 43-44). The gun in Green was found in “plain view” in the course of a protective sweep of a room. Hence, consistent with the discussion above, the “search” in Green was properly “limited” and could not have involved “exploratory rummaging” simply because the scope of a search during a sweep is limited to evidence in “plain view.” 9 the apartment (People’ brief, pp. 51-55), if there were exigent circumstances, as the People claim, the police did not need a warrant. Hence, the argument is an alternative ground for affirmance which the People did not raise at the hearing, see People v. Johnson, 64 N.Y.2d 617, 619 (1984), and was not the subject of either the hearing court’s or the Appellate Division’s decision. See People v. Concepcion, 17 N.Y.3d 192 (2011). Accordingly, because the People’s responsive arguments are founded on utterly unreasonable and unsupported inferences, or are unfounded and wrong, the warrantless search after the police had secured the apartment and controlled everyone in it was not justified merely because “the police knew that the gun was inside the apartment, which had occupants other than the defendant.” CONCLUSION FOR THE REASONS STATED ABOVE AND IN OUR MAIN BRIEF, THE APPELLATE DIVISION ORDER SHOULD BE REVERSED. Respectfully submitted, STEVEN BANKS Attorney for Defendant-Appellant ALLEN FALLEK Of Counsel January 2014