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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

 

Warrantless Arrest in Doorway of Defendant’s Apartment Did Not Violate the Payton Rule

The Second Department determined the warrantless arrest of the defendant in the doorway of his apartment did not violate the “Payton” rule which prohibits warrantless arrests in the home:

Contrary to the defendant’s contention, his arrest did not violate his rights under Payton v New York (445 US 573) and People v Levan (62 NY2d 139, 144). “The rule announced in Payton and applied in Levan is clear and easily understood: a person enjoys enhanced constitutional protection from a warrantless arrest in the interior of the home, but not on the threshold itself or the exterior” … . As pertinent to this case, where the defendant lived in the upstairs apartment of a building containing two separate apartments, there is clearly a “distinction between homes and common areas such as halls and lobbies . . . which are not within an individual tenant’s zone of privacy” … .

Here, the hearing evidence demonstrated that the police entered the building the defendant lived in through the front door. Thereafter, they passed through a vestibule before climbing the stairs to the defendant’s upstairs apartment. One of the officers knocked on the closed apartment door, the defendant opened it, and the officer effectuated the arrest in the doorway. The arresting officer did not go inside the defendant’s apartment …, or reach in to pull the defendant out … . Since the defendant was arrested at the threshold of his apartment, after he “voluntarily emerged [and thereby] surrendered the enhanced constitutional protection of the home” …, his warrantless arrest did not violate Payton and Levan … . People v Garvin, 2015 NY Slip Op 05695, 2nd Dept 7-1-15

 

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Evidence Seized In Violation of Probationer’s Constitutional Rights Should Not Have Been Used as the Basis for a Probation Revocation

The Fourth Department determined evidence which was suppressed because it was unconstitutionally seized could not be used to support a revocation of probation, noting that a probationer loses some privacy and Fourth Amendment rights, but not all of both:

The Court of Appeals has “recognized . . . that a probationer loses some privacy expectations and some part of the protections of the Fourth Amendment, but not all of both” …, and “that a person on parole, although legally in custody and subject to supervision, is nevertheless constitutionally entitled to protection against unreasonable searches and seizures. A person on probation, subject to similar restraints (see CPL 410.50, subds. 1, 2)[,] should be similarly protected” … . Furthermore, with respect to evidence that was illegally seized from a person under a revocable disposition, “the Court of Appeals has applied the New York constitution to suppress such evidence at a parole revocation hearing . . . , and it would seem to follow a fortiori that such evidence would not be admissible at a probation violation hearing, which is even closer to a criminal action than a parole violation hearing” … . Here, the court concluded that the stop and search of defendant and his home were violative of defendant’s rights under the Constitutions of New York and the United States. Consequently, the court erred in relying upon the evidence seized as a result of those improper searches to conclude that defendant violated a condition of his probation… . People v Robinson, 2015 NY Slip Op 03967, 4th Dept 5-8-15

 

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Issuance of a “No Knock” Warrant to Take a DNA Sample Was Not Justified—Sample Should Have Been Suppressed

The Third Department suppressed DNA evidence taken from the defendant pursuant to a “no knock” warrant and reversed defendant’s conviction. No exigent circumstances justified the “no knock” warrant which allowed the police to enter defendant’s home without notice and take the DNA sample:

The search warrant application to obtain DNA from defendant included the unsubstantiated and inaccurate allegations that the “search warrant cannot be executed between the hours of 6:00 A.M. and 9:00 P.M.,” “the property sought will be removed or destroyed if not seized forthwith,” and “[t]he property sought may be easily and quickly destroyed or disposed of.” There were no factual allegations reflecting exigent circumstances justifying the lack of any notice to defendant of the application to obtain a DNA sample from him. He could not destroy or dispose of his own DNA, and the People’s speculation in their brief that he might have fled was not alleged or supported by facts in the application.

The ensuing search warrant inconsistently stated both that it was to be executed between 6:00 a.m. and 9:00 p.m. and that it could be executed at any time day or night; and it further authorized police to enter the premises where defendant resided without giving notice of their authority or purpose. Under the authority of the warrant, police arrived unannounced at the place where defendant lived demanding his DNA. The total absence of notice to defendant of the search warrant application, which had obvious defects regarding the manner purportedly necessary to obtain defendant’s DNA, violated his constitutional rights and the DNA obtained in such search must be suppressed and the judgment reversed… . People v Walker, 2014 NY Slip Op 02975, 3rd Dept 5-1-14

 

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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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Police Were Not Justified In Entering the Curtilage of Defendant’s Home (By Climbing a Fence) After Defendant Ignored the Officers’ Command to “Stop”

The Second Department determined evidence seized after officers climbed a fence to gain access to defendant’s property was properly suppressed. The officers had enough information to approach the defendant, who was in his yard, to request information, but did not have sufficient information to justify entering defendant’s property after defendant dropped a bag and went into his house, ignoring the officers’ request to stop:

The curtilage of the home, defined as the area immediately surrounding and associated with the home or the area that is related to the intimate activities of the home—is part of the home itself … . The Supreme Court properly determined that the defendant’s driveway and front yard, which were completely fenced-in and located in close proximity to his home, were within the curtilage of his home. The defendant manifested his expectation of privacy and that expectation is one that society recognizes as reasonable … . Further, while the officers had an objective, credible reason to approach the defendant to request information … , the defendant’s conduct of dropping the bag, which produced “a heavy thud or a clank,” and ignoring the officer’s request to stop did not escalate the encounter to justify pursuit … . People v Morris, 2015 NY Slip Op 01967, 2nd Dept 3-11-15

 

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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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Police Properly Entered the Apartment (Warrantless Entry) With the Consent of a “Lease Enforcement Officer” Who Believed the Apartment Was Occupied by “Squatters”

Police Properly Entered the Apartment (Warrantless Entry) With the Consent of a “Lease Enforcement Officer” Who Believed the Apartment Was Occupied by “Squatters”

The Third Department determined the police properly made a warrantless entry of the apartment where defendant [Anderson] was staying based upon the consent of a “lease enforcement officer” who believed the apartment was occupied by “squatters.”  The motion to suppress the weapon found near the defendant was, therefore, properly denied:

…John Downey, a lease enforcement officer, informed a police detective that he believed that Anderson’s apartment was vacant and that tenants frequently abandoned their units in the apartment building without providing notice. Downey further explained that he was authorized to enter apartments in order to ensure that they are secure and not occupied by squatters. Downey averred that he provided law enforcement officers with a key to the apartment because he was concerned that someone other than Anderson may have been staying there. When law enforcement arrived at the apartment and knocked on the door, there was no response and no noise was detected from inside the residence. Although it became obvious to the officers, after having entered the apartment, that it was not vacant, inasmuch as an objective view of the evidence adequately demonstrated that the police reasonably relied in good faith upon Downey’s apparent authority to allow entry into the apartment, County Court properly found that the warrantless entry –and resulting seizure of the gun that was in plain view–was not illegal… . People v Edwards, 2015 NY Slip Op 3rd Dept 1-15-15

 

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Pulling Defendant from Inside His Home for Warrantless Arrest Violated the Fourth Amendment

The Second Department determined that a new trial was required because defendant’s statement should have been suppressed.  The police pulled the defendant from inside his home to arrest him without a warrant, a violation of the Fourth Amendment.  The Second Department noted, however, that the trial court did not err in refusing the suppress evidence of a post-arrest lineup identification:

Here, the police knocked on the defendant’s door at approximately 6:50 a.m. When the defendant answered the door he appeared to be “half asleep,” and was naked from the waist down. He only partially opened the door, was never in full view of the police, and never crossed the threshold of his apartment. When the police directed the defendant to step fully into view, the defendant instead attempted to shut the door, trapping a detective’s arm as the detective tried to keep the door from closing. After law enforcement officials successfully pushed the door open, they pulled the defendant from the area behind the door into the public hallway, where he was then arrested.

Under the discrete circumstances of this case, where the police officers crossed the threshold into the defendant’s apartment, pulled him into the hallway, and arrested him without a warrant, the defendant’s Fourth Amendment rights were violated … . People v Riffas, 2014 NY Slip Op 06333, 2nd Dept 9-24-14

 

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