You are here: / / Defendant Did Not Consent to Entry of Police Into His Home—the Police...
,

Defendant Did Not Consent to Entry of Police Into His Home—the Police Accompanied a Parole Officer for the Express Purpose of Investigating a Burglary—Motion to Suppress Should Have Been Granted

The Second Department determined evidence seized from defendant’s home and statements made by the defendant should have been suppressed.  Using the authority to visit parolees, the police accompanied the parole officer to defendant’s home as part of a burglary investigation. The defendant was arrested after stolen property was noticed by the police in the home.  In determining the trial court erred when it found defendant had consented to the entry of the police into his home, the court wrote:

When the People rely on consent to justify an otherwise unlawful police intrusion, they bear the “heavy burden” of establishing that such consent was freely and voluntarily given … . “Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle” … . The People’s burden of proving voluntariness “cannot be discharged by showing no more than acquiescence to a claim of lawful authority” … .

We agree with the defendant that the People failed to prove that his consent to the entry into his home was voluntary. Consent is not voluntary where an officer falsely represents facts that normally establish the exercise of police authority to which a person would ordinarily yield … . Here, pursuant to the conditions of the defendant’s release to parole supervision, he was obligated to allow his parole officer to enter his home to conduct a home visit and conduct a related search of his residence. The People showed no more than the defendant’s acquiescence to this authority, which does not sustain their burden of proving that he freely and voluntarily consented to the entry by the detectives and the sergeant for the purpose of investigating the subject burglaries. People v Marcial, 2013 NY Slip Op 05920, 2nd Dept 9-18-13

 

You might also like
THE COVID-19 TOLLS AND THE COURT’S DELAY IN SIGNING THE ORDER TO SHOW CAUSE PROVIDED A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE A NOTICE OF CLAIM IN THIS BUS ACCIDENT CASE; THE POLICE REPORT TIMELY NOTIFIED THE CITY OF THE RELEVANT FACTS; THE MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​
PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT).
contract for the sale of busiwas not intertwined with the promissory note and personal guaranty
Hearing Required to Determine Whether Plaintiff Bank Negotiated in Good Faith During the Settlement Conference
AWARDING WIFE A DISTRIBUTIVE SHARE OF HUSBAND’S MEDICAL PRACTICE AND DETERMINING HUSBAND’S MAINTENANCE OBLIGATION BASED UPON INCOME FROM THE PRACTICE DID NOT CONSTITUTE DOUBLE-COUNTING.
THE POLICE ACTED ILLEGALLY IN DIRECTING DEFENDANT TO GET OUT OF HIS VEHICLE; HOWEVER THE DEFENDANT’S SUBSEQUENT INDEPENDENT ACT OF RUNNING OVER THE POLICE OFFICER DISSIPATED THE ILLEGALITY OF THE POLICE CONDUCT; THEREFORE DEFENDANT’S MOTION TO SUPPRESS CERTAIN TESTIMONY ABOUT THE ENCOUNTER WITH THE POLICE WAS PROPERLY DENIED (SECOND DEPT).
Management Agreement Did Not Give Rise to Tort Liability for Slip and Fall
ALTHOUGH THE COURT HAS THE DISCRETION TO ALLOW AMENDMENT OF A NOTICE OF CLAIM BASED UPON EVIDENCE GIVEN AT THE 50-H HEARING, THE AMENDMENT CANNOT SUBSTANTIALLY CHANGE THE FACTS AND ADD A NEW THEORY OF LIABILITY (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Agents of Property Owner Can Be Liable Under Labor Law 240(1) Denial of Parole Supported by Evidence