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THE WARRANTLESS SEARCH OF A HOME TO RETRIEVE A HANDGUN DEFENDANT HAD THROWN UNDER A CHAIR IN THE PRESENCE OF THE POLICE WAS NOT JUSTIFIED UNDER ANY EXCEPTION TO THE WARRANT REQUIREMENT, THE PLAIN VIEW DOCTRINE DID NOT APPLY BECAUSE THE OFFICER DID NOT KNOW WHAT THE DEFENDANT HAD THROWN UNDER THE CHAIR, THE EMERGENCY EXCEPTION DID NOT APPLY BECAUSE THE DEFENDANT WAS IN CUSTODY WHEN THE OFFICER REENTERED THE HOME TO LOOK UNDER THE CHAIR (SECOND DEPT).

The Second Department determined the handgun seized in a warrantless search inside a home should have been suppressed, and subsequent statements made by the defendant should have been suppressed as the fruit of the illegal search. The defendant’s psychiatrist had called the police to tell them defendant had a gun and was paranoid. The defendant had previously threatened to shoot police officers. Officer Temple was given permission by defendant’s mother to enter the home. Then defendant ran to the back of the house and threw something under a chair. After the defendant was in custody Officer Temple went back into the house, lifted up the chair and seized a handgun from under the chair. Up until that point Officer Temple did not know what the object was, so the plain-view justification for a warrantless search was not available:

Contrary to the People’s contention, the consent of the defendant’s mother to the police to enter the home to speak with the defendant did not constitute a consent to Officer Temple’s search of the living room … . Moreover, contrary to the People’s contention, the seizure of the firearm does not fall within the plain view exception … . Officer Temple’s testimony as to what he believed the object was, based upon the 911 call, his police experience, and military training, does not meet the requirement of the plain view doctrine, since he testified that he did not know what the object was until he moved the chair … . The People do not assert on appeal that the seizure was lawful pursuant to the emergency exception and, in any event, any exigency abated once the defendant was detained … .

Under the circumstances of this case, the physical evidence that was recovered from the residence must be suppressed, as the search was illegal, and the defendant’s subsequent statements to law enforcement officials must be suppressed as fruit of the poisonous tree … . People v Hickey, 2019 NY Slip Op 03364, Second Dept 5-1-19

 

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