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Emergency Exception to Warrant Requirement Misapplied

The police officers chased defendant when defendant ran and an officer thought he saw a handle of a gun on defendant’s person. The officers entered defendant’s house and found drugs. The Second Department determined the drugs should have been suppressed because there was no emergency justifying the warrantless entry and search of the house:

Under the emergency exception, the police may make a warrantless entry into a protected area if (1) they have reasonable grounds to believe that there was an emergency at hand and an immediate need for their assistance for the protection of life or property, (2) the search was not primarily motivated by an intent to arrest and seize evidence, and (3) there was some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched … . … There was no evidence of any circumstances which would have provided a reasonable basis for the patrol officers to believe that there was an emergency at hand and an immediate need for police assistance for the protection of life or property inside the house … .

Furthermore, even where exigent circumstances justify the warrantless entry into a protected area, the scope and duration of the warrantless search must be limited by and reasonably related to the exigencies of the situation … . Here, the subject drugs were not discovered by the ESU officers during their protective sweep. Rather, they were discovered by the patrol officers, who conducted an evidentiary search after the ESU officers had secured the house and removed the defendant, who was the only occupant. At the time of the patrol officers’ search, any purported exigency had abated, the police were in complete control of the house, and there was no danger that the defendant, who was in custody, would dispose of or destroy the weapon. Accordingly, the police were required to obtain a warrant prior to conducting the evidentiary search … . Moreover, contrary to the suppression court’s findings, it is of no avail that the contraband was found in plain view, since the patrol officers’ warrantless entry was illegal … . People v Scott, 2015 NY Slip Op 08445, 2nd Dept 11-18-15

 

Warrantless Entry Into Defendant’s Home Justified by Exigent Circumstances—Juror’s Temporary Absence from the Trial (During Which the Trial Was Adjourned) and the Juror’s Inaccurate Statement He Had Discussed His Absence with the Judge Did Not Warrant a “Buford” Hearing or Disqualification

The First Department, in a full-fledged opinion by Justice Degrasse, affirmed defendant’s conviction, finding that the warrantless entry into defendant’s home to arrest him was justified by exigent circumstances and did not, therefore, constitute a “Payton” violation. The First Department further found that a juror’s temporary absence from the trial (during which the trial was adjourned), and the juror’s inaccurate statement he had discussed his absence with the judge, did not reveal juror bias and did not therefore warrant a “Buford” hearing or disqualification of the juror:

…[T]he motion court resolved the Payton issue, finding the detectives’ entry into defendant’s home justified by exigent circumstances.

Factors to be considered in determining whether exigent circumstances are present include “(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause … to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry” … .

This list of factors is illustrative and not exhaustive … . The court’s finding of exigent circumstances is supported by evidence in the record that defendant had been identified by name and from a photograph as the assailant who shot the two men at the bar only hours before. Accordingly, there was probable cause for defendant’s arrest. Moreover, the Nissan Armada was traced to defendant’s nearby address where there was reason to believe he could be found. There was reason to believe defendant was armed inasmuch as he was said to have left the bar with his weapon. The record also supports the court’s conclusion that the circumstances of the Police Department’s entry into the apartment were peaceful. * * *

Defendant next argues that the court erred in failing to conduct an inquiry pursuant to People v Buford (69 NY2d 290 [1987]) with respect to a juror’s absence on a trial day. On February 7, 2012, during the third week of trial, juror number nine failed to appear at court and could not be reached by court personnel. With the consent of counsel, the court adjourned the trial for two days in order to enable a court officer to check on the juror at his home. On the adjourned date, the court officer reported that she met with juror number nine who told her that he wasn’t feeling well and that he had told Justice Webber that he would return to court on February 9, 2012. It was undisputed that no such conversation between the court and the juror occurred. The court decided to continue with the trial and address the juror’s conduct at its conclusion. Defense counsel stated that he was concerned about the juror’s fitness to continue with the trial. The court declined to conduct the requested inquiry and the trial continued to verdict. Defendant argues that the court erred in denying his request for a Buford inquiry. We disagree.

To the extent applicable, CPL 270.35(1) provides that a court must discharge a sworn juror where “the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature, but not warranting the declaration of a mistrial . . .” Defendant does not argue on appeal that the juror was grossly unqualified or that his apparent misconduct was substantial. Defendant’s only claim of error stems from the court’s refusal to conduct a Buford inquiry. Viewed in light of the request made before the trial court, defendant’s argument is based on a misconstruction of Buford. As stated by the Court of Appeals, the purpose of Buford was the creation of “a framework by which trial courts could evaluate sworn jurors who, for some reason during the trial, may possess[] a state of mind which would prevent the rendering of an impartial verdict'” … . A juror with such a state of mind would be “grossly unqualified” … . * * *

… [I]t cannot be seriously argued in this case that juror number nine’s temporary absence from the trial and his inaccurate statement to the court officer indicated bias one way or the other. People v Paulino, 2015 NY Slip Op 05898, 1st Dept 7-7-15

 

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Criteria for Emergency Exception to the Warrant Requirement (Re: Entry of an Apartment) Not Met

The Second Department determined the police should not have entered and apartment without a warrant because the emergency exception to the warrant requirement did not apply.  The landlord had simply indicated a woman was in the apartment without any indication the woman was in distress:

Under the emergency exception to the warrant requirement, the police may make a warrantless entry into a protected area if (1) they have reasonable grounds to believe that there was an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) the search was not primarily motivated by an intent to arrest and seize evidence; and (3) there was some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched … . The United States Supreme Court has determined that the second prong, regarding the subjective intent of the police, is no longer relevant under the Fourth Amendment (see Brigham City v Stuart, 547 US 398, 404-405). However, we need not decide whether the second prong of Mitchell is still viable under the New York Constitution because we conclude that the People did not satisfy the first prong of Mitchell … . The mere sound of unspecified banging and a woman’s voice coming from the upstairs apartment was insufficient to show that there was an emergency at hand requiring the immediate assistance of the police in order to protect life or property … . The owner did not say that she heard the woman screaming or crying for help, and the officers did not observe any indicia of an emergency … . People v Hammett, 2015 NY Slip Op 02498, 2nd Dept 3-25-15

 

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Criteria for a Valid Warrantless Search of a Home Pursuant to the Emergency Exception Described—The Court Noted that One of the Criteria, i.e., that the Police Not Be Primarily Motivated by Intent to Arrest and Seize Evidence, No Longer Applies to Claims Under the US Constitution and May Only Apply to Claims Under the New York Constitution

In affirming County Court’s denial of defendant’s suppression motion, the Second Department explained the application of the emergency exception to the warrant requirement.  The court noted that there is now a question whether one of the criteria for a valid warrantless search pursuant to the emergency exception, i.e., that the police are not primarily motivated by the intent to arrest and seize evidence, no longer applies under the Fourth Amendment to the US Constitution, and may only apply to claims under the New York Constitution:

“[Al]though warrantless entries into a home are presumptively unreasonable'” …, a warrantless search and seizure in a protected area may be lawful, under some circumstances, pursuant to the emergency doctrine (see People v Mitchell, 39 NY2d 173, 177-178…). The exception applies where the police (1) have “reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property,” (2) are “not . . . primarily motivated by intent to arrest and seize evidence,” and (3) have a “reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched” (People v Mitchell, 39 NY2d at 177-178…).

The United States Supreme Court has held that the subjective intent of the police is not relevant in determining the reasonableness of police conduct under the Fourth Amendment to the United States Constitution (see Brigham City v Stuart, 547 US 398, 403). Consequently, the second prong of Mitchell is now relevant, if at all, only to claims raised under the New York Constitution (see NY Const, art I, § 12). We need not determine in this case whether the second prong of Mitchell is still viable under the New York Constitution … , because we conclude that the actions of the police officers were permissible under both Brigham City and Mitchell … . People v Loucks, 2015 NY Slip Op 01471, 2nd Dept 2-18-15

 

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Application of the Emergency Doctrine Presented a Mixed Question of Law and Fact which Could Not Be Reviewed by the Court of Appeals

The Court of Appeals determined that the application of the “emergency doctrine” to justify the warrantless search for and seizure of a weapon was a mixed question of law and fact which was not reviewable by the Court of Appeals.  The police responded to a call indicating the defendant had shot himself in the hand.  After the defendant had been frisked and while he his wound was being treated, police officers searched the backyard and found a weapon. The appellate division held that the search was justified by the officers' concern that the children in the house might come across the weapon.  The dissenting judge granted leave to appeal.  The Court of Appeals explained when a mixed question of law and fact is beyond that court's review:

Application of the “emergency doctrine” involves a mixed question of law and fact that is beyond this Court's review so long as there is record support for the findings of the courts below … . The Appellate Division majority and dissent both applied the test set forth in People v Mitchell (39 NY2d 173, 177-178 [1976], cert denied 426 US 953 [1976]) and reached conflicting conclusions as to when the emergency ceased. Because there is record support for the majority's conclusion that the search was lawful under the emergency exception, “'any further review is beyond this Court's jurisdiction'” … . People v Rossi, 2014 NY Slip Op 07006, CtApp 10-16-14

 

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Search of Home for Weapon Not Justified by Exigent Circumstances

The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversed the appellate division, finding that exigent circumstances did not justify the search for and seizure of weapon after the suspects and all members of the household were in one room of the home under police supervision.  The police responded to gunfire, saw one of the suspects with a firearm, and used force to gain entry to the apartment into which the suspects fled:

“[S]ubject only to carefully drawn and narrow exceptions, a warrantless search of an individual's home is per se unreasonable and hence unconstitutional” … . One exception, commonly referred to as the “exigent circumstances” exception, dictates that police may act without a warrant where they possess probable cause to search but “urgent events make it impossible to obtain a warrant in sufficient time to preserve evidence or contraband threatened with removal or destruction” … . Even in such cases, however, “the scope of the conduct thus sanctioned is strictly limited by the necessities of the circumstances in which it arises” … . The People have the burden of establishing that the exigencies of the situation justified the warrantless search … .

In this instance, the People failed to meet that burden. There is no record support for the Appellate Division's conclusion that exigent circumstances justified the search of the closed box. The search was unreasonable as a matter of law because, by the time Officer Brennan opened the box, any urgency justifying the warrantless search had abated. The officers had handcuffed the men and removed them to the living room where they (and the two women) remained under police supervision. At the time Officer Brennan searched the box and discovered the gun, the police “were in complete control of the house” and “[a]ll occupants were out of commission” … . At that point, contrary to the People's contention, there was no danger that defendant would dispose of or destroy the weapon …nor was there any danger to the public or the police … .  Absent the presence of any other exception to the warrant requirement, such as a search incident to arrest or the gun being in plain view … the police were required to obtain a warrant prior to searching the box. People v Jenkins, 2014 NY Slip Op 07007, CtApp 10-16-14

 

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Court Should Have Held a Hearing to Determine Whether Exigent Circumstances Justified Warrantless Forced Entry to an Apartment

The First Department determined that the motion court should have held a hearing to determine whether the forced entry of an apartment was justified by exigent circumstances.  At the time of defendant’s motion for a hearing, the facts surrounding the incident were not available to the defendant and the People’s response to the motion was “conclusory:”

In denying defendant’s application for a hearing, the Court summarily found that exigent circumstances justified the pursuit and warrantless entry, based upon the individuals in the hallway reportedly having smoked marijuana, then racing into the apartment and locking the door, and the need to prevent destruction of evidence. Defendant argues in his brief that at most some individuals were seen smoking marijuana, a class B misdemeanor that would not present exigent circumstances sufficient for a forced entry.

Under the circumstances presented here, where the information proffered by the People to support the forcible entry was conclusory and defendant did not have access to available information, we find that it was incumbent upon the motion court to conduct a hearing to determine whether there were sufficient exigent circumstances to justify the forced warrantless entry… . People v Chamlee, 2014 NY Slip Op 05921, 1st Dept 8-21-14

 

Warrantless Entry Justified by Exigent Circumstances

The Third Department, over a dissent, affirmed County Court’s finding that the warrantless entry of a building was justified by exigent circumstances:

“Appraising a particular situation to determine whether exigent circumstances justified a warrantless intrusion into a protected area presents difficult problems of evaluation and judgment. This difficulty is highlighted by the fact that Judges, detached from the tension and drama of the moment, must engage in reflection and hindsight in balancing the exigencies of the situation against the rights of the accused” … . Pursuant to the emergency exception to the warrant requirement, the police may make a warrantless entry into a protected area if three prerequisites are met: “(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched” … . The requisite reasonable grounds for the belief that an emergency exists must be based upon objective facts, rather than the subjective feelings of the police … . * * *

In our view, the information known to law enforcement rendered it objectively reasonable for the officers to believe that the armed perpetrator could still be inside the building. Although the dissent stresses the fact that the subject building was a multi-family house, thus discounting the officer’s observation of people on the second floor, the evidence adduced at the suppression hearing does not establish that the responding officers had any knowledge of the building’s configuration. To the contrary, both the arresting officer and one of the officers who ultimately entered the apartment testified that, at that point in time, they were unaware of the layout of the building. While further investigation and consideration removed from the exigencies of the situation may have uncovered this fact, “the requirement of reasonable grounds to believe that an emergency existed must be applied by reference to the circumstances then confronting the officer, including the need for a prompt assessment of sometimes ambiguous information concerning potentially serious consequences” … . People v Gibson, 2014 NY Slip Op 03877, 3rd Dept 5-29-14

 

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Emergency Doctrine Applied—Statements Made to Police and Overheard by Police Not Suppressible

In a full-fledged opinion by Judge Graffeo, the Court of Appeals affirmed the denial of motions to suppress certain statements made by the defendant to the police and to a friend in the presence of the police under the emergency doctrine. [The concurring judge felt the emergency was over when defendant spoke to his friend and his prior request for counsel rendered those statements suppressible. The majority held that the conversation with the friend was not police interrogation because there was no police involvement and the conversation was not a ploy by the police to elicit information from the defendant.] When the police encountered the defendant his clothes had wet blood on them and blood was found in defendant’s vehicle. The emergency doctrine applied because the police were justified in questioning the defendant to determine if someone was injured and needed help:

As a general rule, a person who is in custody cannot be questioned without first receiving Miranda warnings or after the right to counsel attaches … .  There are exceptions to these principles, one of which is referred to as the “emergency doctrine” … . It recognizes that the Constitution “is not a barrier to a police officer seeking to help someone in immediate danger” …, thereby excusing or justifying otherwise impermissible police conduct that is an objectively reasonable response to an apparently exigent situation … .  We have explained that the exception is comprised of three elements: (1) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property and this belief must be grounded in empirical facts; (2) the search must not be primarily motivated by an intent to arrest and seize evidence; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched … .  People v Doll, 141, CtApp 10-17-13

 

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“Exigent Circumstances” Exception to Search Warrant Requirement Applied

In finding the “exigent circumstances” exception to the search warrant requirement for entry into a private residence applied to the facts, the Third Department explained the criteria as follows:

The Court of Appeals has outlined three elements to determine whether exigent circumstances exist to justify entry without a warrant: “(1) The police must have reasonable grounds to believe that there is an emergency at hand  and an immediate  need  for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched” … .  The United States Supreme Court has since eliminated the intent element for 4th Amendment purposes … .  People v Musto, 105008, 3rd Dept, 5-30-13

 

 

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