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THE STAIRWAY TO THE ATTIC, WHERE DRUGS WERE FOUND, WAS NOT PART OF THE APARTMENT DESCRIBED IN THE SEARCH WARRANT AND THE PEOPLE DID NOT DEMONSTRATE THE STAIRWAY WAS A COMMON AREA; DEFENDANT’S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department determined defendant’s motion to suppress evidence found in a stairway leading to the attic should have been granted because the warrant did not authorize the search of that area and the People did not demonstrate the stairway was a common area:

… [T]he warrant at issue authorized a search of “865 woodlawn upper apt. buffalo, n.y. 2 ½ story wood frame house white with white trim. attached garage and common areas,” and drugs and drug packaging materials were found by the police behind a doorway on stairs leading to the attic. The doorway to the attic was in a hallway outside of the upper apartment and, as a result, the attic cannot be considered a part of the upper apartment itself … . …

The question thus becomes whether the area where the drugs and packaging materials were found constitutes a common area. Common areas of multi-unit buildings are those areas ” ‘accessible to all tenants and their invitees’ ” … . Here, the contraband was found by the police on the stairs leading to the attic, and a police officer testified at the suppression hearing that there was a closed door leading to the attic from the second floor common area. The officer in question was not present when the door was opened by other officers who executed the warrant, and he did not know whether the door had been locked. When asked whether “the door could have been locked and needed to be breached,” the officer answered, “That is entirely possible.” The People did not call any of the officers who were present when the door to the attic was opened, forcibly or otherwise, nor did they call the landlord or anyone who resided at the property.

Defendant testified that the door to the attic was closed and locked, and that, during the execution of the warrant, the door was broken down by the police. If the door was indeed locked, it cannot be said that the attic was accessible to all tenants and their invitees. People v Moore, 2021 NY Slip Op 03975, Fourth Dept 6-17-21

 

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