| People v Ortiz |
| 2016 NY Slip Op 05521 [141 AD3d 872] |
| July 14, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Heriberto Ortiz Jr., Appellant. |
William E. Montgomery III, Glens Falls, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Sara E. Fischer of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered February 17, 2015, convicting defendant upon his plea ofguilty of the crime of criminal possession of a controlled substance in the third degree(two counts).
On May 21, 2014, Detective Scott Gillis and Sergeant John Kibling of the HudsonFalls Police Department went to an apartment in the Village of Hudson Falls,Washington County to investigate suspected drug activity. The apartment owneranswered the door, permitted the officers to enter, informed the officers that a guest wasin the bathroom and ultimately consented to a search of her home. Upon Gillis' direction,the guest, later identified as defendant, exited the bathroom and eventually provided histrue name and identification to the officers. The owner informed Gillis that defendanthad been selling drugs out of her home, and, after running an inquiry, the officers learnedthat defendant was wanted by the Warren County Sheriff's Department on an activebench warrant for failure to pay a fine. Defendant was thereafter arrested on that warrant.Following defendant's arrest, Gillis observed a duffel bag behind the couch and askeddefendant whether the bag belonged to him and, if so, whether he would like it broughtto the police station. Defendant acknowledged that the bag belonged to him, but did notrespond to the second question. Gillis searched defendant's person and the bag, finding,among other things, crack cocaine inside a can in the bag.
Defendant was indicted on two counts of criminal possession of a controlledsubstance in the third degree, and County Court denied his subsequent motion tosuppress the physical [*2]evidence and his statements tolaw enforcement. Defendant pleaded guilty to both counts and was sentenced, inaccordance with the plea agreement, to two concurrent prison terms of10
primarily challenging the denial of his motion to suppress.[FN1]
Initially, we reject defendant's argument that his arrest in Washington Countypursuant to the bench warrant issued in Warren County was unlawful. Inasmuch as thearresting officers relied on the information relayed to them by another police agency andWarren County adjoins Washington County, defendant was properly arrested on thatwarrant (see CPL 530.70 [1]; People v Ennis, 186 AD2d 145, 146 [1992],lv denied 81 NY2d 762 [1992]).
We also find unavailing defendant's contention that Gillis unlawfully asked for hisname and identification. We begin our analysis by noting that the analytical frameworkset forth in People v De Bour (40 NY2d 210 [1976]) does not apply to criminalinvestigations at a residence (see People v Madden, 58 AD3d 1023, 1025[2009]). "Rather, a warrant supported by probable cause . . . is requiredbefore such investigations will be permitted," in the absence of which "governmentalintrusion into the privacy of the home will not be permitted unless an exception to thewarrant requirement applies" (id.; see People v Gonzalez, 39 NY2d 122,127 [1976]). That being said, it is well settled that one of the limited exceptions to thewarrant requirement is voluntary consent (see People v Gonzalez, 39 NY2d at127; People v Madden, 58 AD3d at 1025). In this regard, Gillis testified, anddefendant concedes, that the apartment owner permitted the officers to enter and examineher home (see People vHook, 80 AD3d 881, 882 [2011], lv denied 17 NY3d 806 [2011]). Thus,our inquiry shifts to whether defendant was unlawfully detained and questioned when heexited the bathroom of the residence.
It is axiomatic that "Miranda safeguards are not triggered unless a suspect issubject to custodial interrogation" (People v Chaplin, 134 AD3d 1148, 1150 [2015] [internalquotation marks and citations omitted], lv denied 27 NY3d 1067 [2016]; see People v Mercado, 113AD3d 930, 931 [2014], lv denied 23 NY3d 1040 [2014]). Here, Gillis'questioning of defendant following his exit from the bathroom up until his arrest on theactive warrant was neither custodial nor interrogatory. Gillis testified that, whendefendant exited the bathroom, he sat on the couch on his own accord, and Gillis askedhim for his name and identification. Although defendant initially stated that his name was"Mike," upon a follow-up question, he provided his real name and identification. At thatpoint, the officers had no reason to keep defendant at the apartment, and they did not askhim any other questions prior to his arrest on the warrant. While the officers were still inpossession of defendant's driver's license, we cannot conclude, on this record, that "areasonable person innocent of any wrongdoing would have believed that he or she wasnot free to leave" (People vPaulman, 5 NY3d 122, 129 [2005]; see People v Locke, 25 AD3d 877, 878 [2006], lvdenied 6 NY3d 835 [2006]; People v Johnson, 17 AD3d 932, 933-934 [2005], lvdenied 5 NY3d 790 [2005]). In addition, because the questioning at issue waslimited to eliciting pedigree information, it did not constitute an interrogation (seePeople v Rivera, 26 NY2d 304, 309 [1970]; People v Kreydatus, 305 AD2d935, 936 [2003], lv denied 100 NY2d 595 [2003]).
Next, although the search of defendant's person was incident to his lawful arrest (see [*3]People v Cruz, 131 AD3d 724, 726 [2015], lvdenied 26 NY3d 1087 [2015]), we agree with defendant that his duffel bag wasillegally searched and seized. To justify a warrantless search of a closed containerincident to arrest, the People must satisfy two requirements: "The first imposes spatialand temporal limitations to ensure that the search is not significantly divorced in time orplace from the arrest. The second, and equally important, predicate requires the People todemonstrate the presence of exigent circumstances" (People v Jimenez, 22 NY3d 717, 721-722 [2014] [internalquotation marks and citations omitted]; see People v Morales, 126 AD3d 43, 45 [2015]). Twointerests underlie the exigency requirement: " 'the safety of the public and thearresting officer; and the protection of evidence from destruction orconcealment' " (People v Jimenez, 22 NY3d at 722, quoting People vGokey, 60 NY2d 309, 312 [1983]).
The People failed to establish the existence of exigent circumstances justifying thesearch of defendant's duffel bag. Gillis testified that the bag was still against the wallwhen defendant was handcuffed and personally searched pursuant to the outstandingwarrant, and Gillis had to physically retrieve the bag from behind the couch in order tosearch it. In addition, the officers had searched the residence prior to arresting defendantand did not find any evidence of drug activity or paraphernalia, the owner told Gillis thatthere was nothing illegal in the apartment and defendant denied that there wascontraband in the bag when questioned about its contents. Thus, the search of the subjectbag was improper and its contents—namely, crack cocaine, cell phones and traintickets—should have been suppressed (see People v Jimenez, 22 NY3d at723-724; People v Wilcox,134 AD3d 1397, 1399 [2015]; People v Morales, 126 AD3d at 46-48; People v Boler, 106 AD3d1119, 1123 [2013]).
We likewise agree with defendant that his postarrest, pre-Miranda statementsconcerning the ownership and contents of the duffel bag must be suppressed. Whenmaking those statements, defendant had already been arrested on the active warrant. Inthe absence of any other circumstance justifying police inquiry, the subject questioningconstituted a custodial interrogation, requiring suppression of the resulting statements(see People v Soto, 183 AD2d 926, 927 [1992]; compare People v Jemmott,116 AD3d 1244, 1245 [2014]; People v Coffey, 107 AD3d 1047, 1050 [2013], lvdenied 21 NY3d 1041 [2013]).
We reach a different conclusion, however, with respect to defendant's postarreststatements made at the police station. Although Gillis did not recall whether defendantindicated that he understood his Miranda rights, and there were no notesconfirming that defendant had been advised of such rights, Gillis testified that headministered Miranda warnings to defendant prior to questioning him and thatdefendant expressed a willingness to speak with him without an attorney. According"great weight" to County Court's determination that defendant implicitly waived hisMiranda rights (People v Cipriani, 267 AD2d 595, 597 [1999], lvdenied 95 NY2d 833 [2000], cert denied 531 US 1092 [2001]), the courtproperly denied that portion of defendant's motion seeking to suppress his postarreststatements (see People v Goncalves, 288 AD2d 883, 884 [2001], lvdenied 97 NY2d 729 [2002]; People v Carrion, 277 AD2d 480, 481 [2000],lv denied 96 NY2d 757 [2001]).[FN2] Defendant's remaining argument isunpreserved and, in [*4]any event, lacks merit.
Peters, P.J., Lahtinen, Egan Jr. and Rose, JJ., concur. Ordered that the judgment isreversed, on the law, defendant's motion to suppress granted to the extent of suppressingthe contents of the duffel bag and certain pre-Miranda statements as morespecifically set forth herein; matter remitted to the County Court of Washington Countyfor further proceedings not inconsistent with this Court's decision; and, as so modified,affirmed.
Footnote 1:Defendant's challenge toCounty Court's denial of his motion to suppress survived his guilty plea (see CPL710.70 [2]; People vCogdell, 126 AD3d 1136, 1138 [2015], lv denied 25 NY3d 1200[2015]).
Footnote 2:We note that defendantdid not argue, either before County Court or on appeal, that the postarrest statements hemade at the police station should have been suppressed as the product of a continuouscustodial interrogation (see People v Tutt, 38 NY2d 1011, 1013 [1976]; People v Rodriguez, 55 AD3d351, 352 [2008], lv denied 12 NY3d 762 [2009]; People v Rogers, 34 AD3d504, 504-505 [2006], lv denied 8 NY3d 849 [2007]).