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POLICE ENTERED HOME ILLEGALLY AND OBTAINED CONSENT TO SEARCH BY MISLEADING THE OCCUPANT, MOTION TO SUPPRESS PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department, affirming Supreme Court’s suppression of a weapon found in a home, determined the police illegally entered the home and gained consent to search by misleading the woman in the home:

Asked by defense counsel why he entered the home, the officer testified, “An individual who’s known to carry guns entered that house running into that house actually, coming out acting nervous, there’s a baby crying in the house, who is taking care of the baby?” …

… [T]he People correctly concede that the officer entered the home illegally. An illegal entry by the police requires the suppression of the fruits of an ensuing search notwithstanding a voluntary consent, unless the consent attenuates the taint of the illegal entry … . In determining whether the illegal entry is so attenuated, a court is required to consider a variety of factors, including: (1) the temporal proximity of the consent to the illegal entry; (2) whether there were intervening circumstances; (3) whether the purpose underlying the illegal entry was to obtain the consent or the fruits of the search; (4) whether the consent was volunteered or requested; (5) whether the person who gave consent was aware that he or she could refuse consent; and, most importantly, (6) the purpose and flagrancy of the misconduct … .

… The purpose of the illegal entry was to recover a gun that the officer presumed was hidden inside. Any consent obtained thereafter was not volunteered. It was requested, and the woman was not advised that she could refuse consent. … Most importantly, the officer engaged in flagrant misconduct. Without having witnessed any illegality, the officer entered a private residence without permission, after midnight, while a woman in that residence was trying to feed her newborn child, and coerced her into consenting to a search of her home. People v Sweat, 2019 NY Slip Op 02240, Fourth Dept 3-22-19

 

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