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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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Observing a “Bulge” Did Not Justify Forcible Detention

The Second Department reversed defendant’s conviction, finding that the police officer’s observation of a bulge did not justify forcible detention:

…[T]he arresting officer did not have reasonable suspicion to believe that the defendant had committed or was about to commit a crime … . The officer briefly observed what he initially characterized only as a “bulge” on the right side of the defendant’s pants. Despite this initial characterization, the officer later testified that he thought he had observed a holster, which turned out to be a buckle attached to the right side of the defendant’s pants. This observation, without more, was not sufficient to permit the officer to forcibly detain the defendant … . Accordingly, the physical evidence recovered from the defendant as a consequence of the unlawful detention and arrest should have been suppressed… . People v Severino, 2015 NY Slip Op 02509, 2nd Dept 3-25-15

 

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Criteria for Strip and Cavity Search Met

The Third Department determined the circumstances justified a strip search and a visual cavity search of the defendant. The court explained the relevant criteria:

…[T]he principles governing strip searches and body cavity examinations are set forth in People v Hall (10 NY3d 303 [2008], cert denied 555 US 938 [2008]). Insofar as is relevant here, “a strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner. To advance to . . . a visual cavity inspection, the police must have a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee [has] secreted evidence inside a body cavity and the [ensuing] visual inspection must be conducted reasonably” … . Although the police cannot routinely subject all drug arrestees to visual cavity inspections, the police are permitted — in the context of formulating the particularized factual basis required for such inspections — “to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person”… . People v Cogdell, 2015 NY Slip Op 106031, 3rd Dept 3-12-15

 

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Search of Backpack Which Was No Longer In Defendant’s Possession, After Defendant Had Been Handcuffed, Justified by Exigent Circumstances

In finding the suppression motion was properly denied. The Second Department explained the law which justified the pre-arrest detention of the defendant and the search of defendant’s backpack after defendant was handcuffed. The officer received a report of a shooting at a residence. The officer knew the defendant lived at the residence and saw blood on defendant’s clothes.  The defendant was handcuffed and his backpack was placed on a car about three feet away.  After the defendant was handcuffed he told the officer his brother had been shot and the guns were in the backpack.  At that point the officer had probable cause to arrest for criminal possession of a weapon and could search the backpack incident to arrest due to exigent circumstances:

Supreme Court properly denied that branch of his omnibus motion which was to suppress physical evidence recovered incident to his arrest. “On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance” … . “Under the State Constitution, an individual’s right of privacy in his or her effects dictates that a warrantless search incident to arrest be deemed unreasonable unless justified by the presence of exigent circumstances” … . For “compelling reasons,” including the safety of the officers or the public, “a search not significantly divorced in time or place from the arrest’ may be conducted even though the arrested person has been subdued and his closed container is within the exclusive control of the police” … . People v Alvarado, 2015 NY Slip Op 01955, 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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Warrantless Search of Defendant’s Jacket Not Justified–Defendant Was Handcuffed Inside a Police Car and Jacket Was Outside the Car

The First Department, in a full-fledged opinion by Justice Richter, over a dissent, determined that the warrantless search of defendant's jacket could not be justified.  The defendant was handcuffed and sitting in the back of a police car when the jacket, which was on the trunk of the police car, was searched:

“[A]ll warrantless searches presumptively are unreasonable per se,” and, “[w]here a warrant has not been obtained, it is the People who have the burden of overcoming” this presumption of unreasonableness … . As the Court of Appeals recently reiterated in Jimenez (22 NY3d at 717), the People must satisfy two separate requirements to justify a warrantless search of a container incident to arrest. “The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest” (Jimenez, 22 NY3d at 721 [internal quotation marks omitted]…). The second requires the People to demonstrate the presence of exigent circumstances (Jimenez, 22 NY3d at 722). The Court of Appeals has recognized two interests underlying the exigency requirement: the safety of the public and the arresting officer, and the protection of evidence from destruction or concealment … .  * * *

Here, the jacket was unquestionably outside defendant's grabbable area at the time of the search, which even the dissent acknowledges. Defendant was sitting handcuffed inside a police car, the jacket was outside lying on the vehicle's trunk, and numerous officers were on the scene. Thus, the jacket had been reduced to the exclusive control of the police and there was no reasonable possibility that defendant could have reached it… .

Further, the People failed to establish the requisite exigent circumstances justifying a warrantless search of the jacket. Although defendant had previously struggled with police, five to six additional officers had arrived on the scene and defendant was subdued and placed in the police car. Thus, the scene at the time of the search was police-controlled … . People v Morales, 2015 NY Slip Op 01190, 1st Dept 2-10-15

 

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Even Where Probable Cause for Arrest Exists, a Search Can Not Be Justified as a Search Incident to Arrest Unless the Searching Officer(s) Intended to Arrest Based Upon the Existing Probable Cause—Here the Officers Did Not Intend to Arrest the Defendant for Littering and the Search Was Therefore Not a Valid Search Incident to Arrest

The Third Department determined the search of defendant's backpack was illegal and suppressed the weapon found. Although the defendant had discarded a cup while the officers were watching him, providing grounds for arrest for littering, the officers did not intend to arrest the defendant for littering and in fact did not charge the defendant with littering.  Therefore the search of the backpack could not be justified as a search incident to arrest:

Based on the recent Court of Appeals decision in People v Reid (__ NY3d __ 2014, 2014 NY Slip Op 08759 [2014]), which holds that there must be either an actual or intended arrest for the offense justifying the search, we now reverse.

It is well recognized that the police may search the person or area within the immediate control of any individual who is lawfully placed under arrest … . The warrantless search incident to arrest advances the twin objectives of ensuring the safety of law enforcement and the prevention of evidence tampering or destruction by a suspect. It is not particularly significant whether a search precedes an arrest or vice versa, so long as the two events occur in a nearly contemporaneous manner… . Based on Reid, however, it is now clear that the police must either make an arrest or intend to make an arrest at the time of the search in order for the search to be considered lawful … . The intent to arrest for the offense justifying the search must be present even if a defendant is ultimately arrested for a different offense … .

In Reid, the defendant was pulled over by a police officer after he was observed driving erratically. Based on the defendant's disheveled appearance and odd responses to questions, the officer ordered him out of the car, searched his person, and uncovered a knife in his pocket. Although it was undisputed that the officer's observations gave him probable cause to arrest the defendant for driving while intoxicated, the officer testified at the suppression hearing that he had no intention of arresting the defendant at the time he was initially stopped and searched. The officer also explained that it was not until discovery of the knife that he decided to arrest the defendant. In declining to uphold the search as incident to the defendant's arrest, the Court of Appeals observed that “but for the search,” the arrest “would never have taken place (2014 NY Slip Op 08759, *6),” concluding that it was irrelevant that an arrest for DWI could have been made prior to the search. The Court explained that the search must be “incident to an actual arrest, not just probable cause that might have led to an arrest, but did not” (2014 NY Slip Op 08759, *4). This necessarily requires that, at the time the search is undertaken, an arrest has either been made or the officer has already formulated the intent to effectuate an arrest.

While in this case the officers had probable cause to arrest defendant for littering (see Administrative Code of the City of New York § 16-118…]), defendant was not arrested for that offense. Nor did either of the officers testify at the suppression hearing that they harbored any intent to arrest defendant until they discovered the gun. According to officer Arslanbeck, it was only after they discovered a weapon in defendant's backpack that a decision to arrest him was made. Without an actual arrest or the formulation of an intent to arrest defendant for littering prior to frisking his bag, the search cannot be justified as having been incident to defendant's arrest … . People v Magnum, 2015 NY Slip Op 00796, 1st Dept 2-3-15


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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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Defendant’s Attorney Not Ineffective for Failing to Make a Motion to Suppress—Nature of a Motion Which, If Not Made, Would Constitute Ineffective Assistance Addressed by the Majority and the Dissent

The Fourth Department, over a two-justice dissent, determined that defendant’s attorney was not ineffective for failure to move to suppress a few of the items of stolen property seized after a traffic stop.  The majority and the dissent disagreed about whether the appeal questioned the validity of the traffic stop or the arrest after the stop.  The dissent felt that a motion to suppress all of the evidence based upon the arguable invalidity of the vehicle stop should have been made. The majority felt that the validity of the stop had not been questioned on appeal. The majority noted that, because the defendant testified, even if the evidence had been suppressed, the defendant could have been impeached with the suppressed evidence. The most useful discussion in the decision concerns the general nature of a motion which, if not made, would constitute ineffective assistance:

We respectfully disagree with our dissenting colleagues that the threshold standard to be applied in determining whether an attorney was ineffective for failing to file a particular motion is “whether the motion at issue had more than little or no chance of success.” It is true, as the dissent points out, that the Court of Appeals has repeatedly stated that “[t]here can be no denial of effective assistance of trial counsel arising from counsel’s failure to make a motion or argument that has little or no chance of success’ ” … . By so stating, however, the Court was not articulating the standard for what does constitute ineffective assistance of counsel; instead, the Court was explaining what does not constitute ineffective assistance of counsel. As noted, the Court has made clear in other cases that the standard to be applied is whether defense counsel failed to file a “colorable” motion and, if so, whether counsel had a strategic or legitimate reason for failing to do so … . Although neither the Court of Appeals nor the Appellate Division has defined “colorable” in this context, the term is elsewhere defined as “appearing to be true, valid, or right” (Black’s Law Dictionary 301 [9th ed 2009]). Federal courts have described a colorable claim as one that has ” a fair probability or a likelihood, but not a certitude, of success on the merits’ ” … . Here, for the reasons previously stated, we do not believe that a motion to suppress evidence as the product of an unlawful arrest would likely have been granted. People v Carver, 2015 NY Slip Op 00046, 4th Dept 1-2-15

 

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Defendant Invoked His Right to Counsel By Asking a Police Officer to Retrieve Defendant’s Lawyer’s Phone Number from Defendant’s Wallet—Subsequent Statements Should Have Been Suppressed/Defense Counsel’s Failure to Move to Suppress Weapon Seized from Defendant’s Person Deprived Defendant of Effective Assistance

The Fourth Department determined statements made after defendant invoked his right to counsel should have been suppressed. Defendant, after he was read the Miranda rights, asked a police officer to retrieve the defendant’s lawyer’s phone number from the defendant’s wallet.  The court further found defendant was not afforded effective assistance of counsel due to defense counsel’s failure to move to suppress the weapon seized from defendant’s person:

“Whether a particular request [for counsel] is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant’s demeanor [and] manner of expression[,] and the particular words found to have been used by the defendant” (People v Glover, 87 NY2d 838, 839). Here, the testimony at the suppression hearing established that, before defendant was informed of his Miranda rights at the police station, defendant asked a police officer to retrieve the telephone number of defendant’s attorney from defendant’s wallet. The hearing testimony further established that an investigator acknowledged defendant’s request but asked defendant to continue speaking with the police. That testimony was confirmed by a videotaped interview submitted at the hearing as an exhibit. ” [V]iewed in context of the totality of circumstances, particularly with respect to events following [defendant’s request for his attorney’s phone number]’ ” … ,we conclude that defendant unequivocally invoked his right to counsel and that his statements should have been suppressed  … .

We agree with defendant … that he was denied effective assistance of counsel based on defense counsel’s errors with respect to suppression … . We note that defense counsel moved to suppress evidence seized from defendant’s residence although there was no indication that any evidence was seized therefrom but failed to move to suppress the gun found on defendant’s person. The record establishes that defendant was arrested after a police officer observed defendant and three other individuals standing “approximately 8-10 houses away” from the location of reported gunfire. According to a police report, “[f]or officer safety purposes, [the officer] ordered [defendant and the other three individuals] to the ground and they were taken into custody,” and a police officer found defendant in possession of a loaded weapon. There is no indication in the record on appeal that the police had a founded suspicion that defendant and his companions were the source of the gunfire or were involved in any other criminal activity … . On the record before us, we conclude that there are no strategic reasons for moving to suppress evidence that did not exist while failing to move to suppress a gun that was seized from defendant’s person and that was the factual basis for the charges in the indictment … . We further conclude that defense counsel’s errors prejudiced defendant and deprived him of the right to effective assistance of counsel … . People v Barber, 2015 NY Slip Op 00058, 4th Dept 1-2-15

 

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