| People v Hill |
| 2017 NY Slip Op 05920 [153 AD3d 413] |
| August 1, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Rayheame Hill, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (David Crow of counsel), andDechert LLP, New York (Amanda Tuminelli of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Shera Knight of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered March 13, 2014,convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree,and sentencing him, as a second violent felony offender, to a term of 10 years, affirmed.
According to the investigating detective at a suppression hearing, the complainant reportedthat, while he was in an elevator, he was robbed by a man brandishing a revolver. Thecomplainant described his assailant as a black man in his twenties, just over six feet tall andwearing a mask. The robber forced the complainant to hand over two rings, a necklace, hisdriver's license, and $60 in cash. After he handed over the property, the complainant heard agunshot in the elevator fired in a downward direction. The robber told the complainant to face thewall, and then fled. Officers responding to the scene found no evidence that a bullet had beenfired. This led the detective to believe that the assailant had possibly shot himself in the foot.
Later that day, the detective heard over his police radio that a man complaining of a bulletwound to his leg had arrived at a local hospital. The detective went to the hospital with thecomplainant and found defendant, the person the radio transmission had been referring to, in theemergency room. Defendant told the detective that he was shot while walking in the street.Without first obtaining defendant's permission, the detective took possession of two paper bagslocated under defendant's hospital bed, and opened them. The bags contained defendant'sclothing. While the clothes were being removed, a ring fell out of the pocket in a pair of pants.The complainant identified the ring as one of the pieces of jewelry that had been taken from himduring the robbery. The detective also removed a driver's license from the same pocket; it toowas the complainant's.
The detective then interviewed defendant's girlfriend, who told him that she had gone withdefendant to the hospital in a car. Defendant's girlfriend gave the detective the keys to the car,which he later discovered belonged to defendant's aunt. After leaving the hospital, the detectivesecured the vehicle at the precinct, where it was inventoried.
The detective proceeded to defendant's residence, a basement apartment. He arrived ataround 1:30 a.m. with three other officers. The officers wore suits and ties and displayed theirbadges; though they were armed, no guns were drawn. Two sets of locked gates separated theapartment from street level. The detective banged on the gates until he was allowed inside. At theapartment, the police were met by defendant's uncle, who let the police inside. The uncle told thepolice that he, his wife, and their children lived in the apartment, and that defendant also stayedwith them. He told the police that defendant had been at the apartment earlier that eveningsuffering from a bullet wound.
The detective asked the uncle for consent to search the apartment, which the uncle gave bysigning a consent form that had been read to him and which gave the police permission to search"[t]he premises, [and] access . . . the apartment and accessible areas." The policerecovered a Taser and a BB gun from a pile of defendant's clothes in defendant's living space,[*2]which was in the living room. After those items wererecovered, in the area between the second locked gate leading to the apartment and the apartmentitself, the police recovered a revolver from inside an unsecured pipe. While in the apartment, thedetective also received written consent from defendant's aunt to search the vehicle in whichdefendant had arrived with his girlfriend at the hospital. Thereafter, back at the precinct, thedetective searched the vehicle. Inside its center console, he recovered another ring that thecomplainant identified as belonging to him.
Defendant's uncle also testified at the suppression hearing. Although his testimony wasconsistent with the detective's in broad terms, he stated that he consented to the police enteringthe apartment only after they forced their way in, and did not know what he was signing when hesigned the consent form, but just wanted to get the police out of the apartment as quickly aspossible because he was afraid. Further, he stated that the police had already begun to searchinside the apartment at the time he signed the consent. The uncle also testified that he neverconsented to the police search of the area where the revolver was recovered.
The court granted defendant's motion to suppress only to the extent of suppressing theevidence found in the clothing bags seized at the hospital. This was on the basis that the policedid not have probable cause at that time to arrest defendant, who had a privacy interest in thebags. The court denied, however, suppression of the ring recovered from the vehicle, finding thatdefendant did not have standing to challenge the search, because he did not own, drive or borrowthe vehicle, and because possession of the keys, alone, did not establish standing. In any event,the court observed, the aunt consented to the search. The court denied suppression of the gunfound in the alleyway because defendant did not have standing to challenge the search of theapartment. It found that the only area of the apartment where he had an expectation of privacywas the living room where he slept, which excluded the area where the gun was found. In anyevent, the search was legal because the uncle consented to it.
At trial, the court submitted four counts to the jury, two each of first-degree robbery andsecond-degree criminal possession of a weapon. The jury returned a verdict convicting defendantonly of second-degree criminal possession of a weapon.
Preliminarily, we find that the People did not waive their argument that defendant lackedstanding to challenge the searches. "[T]he People must timely object to a defendant's failure toprove standing in order to preserve that issue for appellate review" (People v Hunter, 17 NY3d 725,726 [2011]; see People v Stith, 69 NY2d 313, 320 [1987]). Here, the People specificallyargued at the suppression hearing that defendant did not establish standing to challenge thesearches of the vehicle or apartment, and the court itself raised the issue of standing duringcounsel's argument and based its ruling on that doctrine. We reject defendant's argument that thePeople were required to raise the issue of standing before the close of evidence.
To have standing to challenge a search, a defendant must have a legitimate expectation ofprivacy in the area where the evidence was seized (see People v Ramirez-Portoreal, 88NY2d 99, 109 [1996]). Defendant has the burden of establishing standing, and is entitled to relyon evidence elicited during the People's direct case (see People v Burton, 6 NY3d 584, 587-588 [2006]; People vGonzalez, 68 NY2d 950, 951 [1986]). "The number of times a person stays in a particularplace, the length and nature of the stay, [and] indicia of connectedness and privacy, like changeof clothes or sharing expenses or household burdens, are all factors . . . [to] supporta reasonable expectation of privacy" (People v Rodriguez, 69 NY2d 159, 163 [1987]).Here, defendant's uncle told the police that defendant had stayed with his family "on and off"since he was five years old. He testified that, although defendant did not have his own room inthe apartment and slept on the couch, he stored all of his clothes in the living room, and receivedmail at the apartment. This evidence suggests that defendant had a legitimate privacy interest inthe apartment and surrounding curtilage, and we find that the court erred in finding thatdefendant lacked standing to challenge the propriety of the search of the apartment.
On the other hand, there is no dispute that defendant did not own the vehicle, and noevidence at the hearing showed that he or his girlfriend drove the vehicle to the hospital with theaunt's permission. That the keys to the vehicle were in defendant's girlfriend's possession isinsufficient to confer standing on defendant (see People v Jose, 252 AD2d 401, 403 [1stDept [*3]1998], affd 94 NY2d 844 [1999]). Defendant'saunt did not testify, so we do not know whether she gave her nephew permission; further,although defendant's uncle testified that he told defendant to go to the hospital to have his legtreated, he did not state that he told him to borrow the car to get there. Under the circumstances,it cannot be said that defendant had a reasonable expectation of privacy in the car, and,accordingly, the court was correct in denying defendant's challenge to its search.
Although we find that defendant had standing to challenge the apartment search, we rejectthat challenge on the merits. The People bear the "heavy burden of proving the voluntariness" ofa consent to search (People v Gonzalez, 39 NY2d 122, 128 [1976]), since such consent"must be a free and unconstrained choice[,] [and] [o]fficial coercion, even if deviously subtle,nullifies apparent consent" (id. at 124). Whether a defendant's consent to search wasvoluntary is determined based on the totality of the circumstances—with no one factorbeing determinative (id. at 128). Factors for the court to consider include (1) whetherconsent was given while the individual was in police custody, how many officers were present onthe scene, and whether the individual was handcuffed; (2) the personal background of theindividual, including his or her age and prior experience with the law; (3) whether the individualoffered resistance or was cooperative; and (4) whether the police advised the individual of his orher right to refuse consent (id. at 128-130; Matter of Daijah D., 86 AD3d 521, 521-522 [1st Dept 2011]). Thesuppression court's credibility determinations are entitled to great deference on the question ofvoluntariness, unless they were manifestly erroneous or plainly unjustified by the evidence(People v Vasquez, 166 AD2d 194, 195 [1st Dept 1990], lv denied 77 NY2d 845[1991]; see generally People v Prochilo, 41 NY2d 759, 761-762 [1977]).
The People met their burden of showing that the uncle's consent was voluntary. First, at notime was he ever placed in police custody or restrained in any way. The detective testified thatnone of the police officers had their weapons drawn when they approached the apartment. Theuncle immediately agreed to let the police into the apartment. Most importantly, it is uncontestedthat he signed a written form permitting the search. Defendant can point to no evidence that theuncle hesitated or initially refused to sign the consent form, and the detective denied threateningor coercing the uncle into signing. We reject defendant's argument that the consent was obtainedretroactively, since the detective testified otherwise and we perceive no reason to question thecourt's decision to credit that testimony over the uncle's.
Finally, defendant contends that the illegality of the police's search of the clothing bags at thehospital impermissibly tainted the subsequent searches of the vehicle and apartment. He arguesthat the police would not have been able to search the vehicle or apartment absent the illegalsearch of the clothing bags, which confirmed defendant's involvement in the robbery. We rejectthis argument under the independent source rule.
"[W]here the evidence sought to be suppressed is the product of an independent sourceentirely free and distinct from proscribed police activity, it should be admissible and not subjectto a per se rule of exclusion based solely on the unlawful conduct" (People v Arnau, 58NY2d 27, 35 [1982], cert denied 468 US 1217 [1984]). "[T]he independent source rule isapplicable [where] there is no causal connection, direct or indirect, proximate or attenuated,between the illegality and the subsequent seizure. In cases where this causal nexus is lacking, theexclusionary rule simply does not apply" (id. at 34). A key consideration in determiningwhether this rule applies is whether "the prosecution has somehow exploited or benefited fromits illegal conduct, [whether] there is a connection between the violation of a constitutional rightand the derivative evidence" (People v Burr, 70 NY2d 354, 362 [1987], cert denied485 US 989 [1988]).
Here, the challenged searches were attenuated from the illegal search of defendant's clothingbags. When the detective entered the hospital room, his theory of the crime was that it had beencommitted by a black male who had a gunshot wound to the leg. Defendant fit that description.Thus, we disagree with the dissent's statement that, even if the search of the clothing bags turnedup no evidence, the police "would have had little cause to pursue the investigation, let alone. . . search defendant's vehicle and home." To the contrary, regardless of what thedetective were to find in defendant's possession, he was likely to continue investigating [*4]defendant as a possible suspect. Such investigation would haveincluded the routine and natural investigatory step of interviewing defendant and his girlfriend,which is what led him to learn about the car and the apartment. Further, none of the itemsrecovered during the illegal search was used to procure defendant's uncle's consent to search theapartment, so the police did not engage in "exploitation of [the] illegality" as charged by thedefense. Concur—Tom, J.P., Mazzarelli, Andrias and Webber, JJ.
Manzanet-Daniels, J., dissents in a memorandum as follows: The primary illegality of thepolice conduct in searching defendant's belongings while he was hospitalized at Jacobi Hospitalis undisputed. The physical evidence subsequently discovered by the police—a ring indefendant's vehicle and a gun in the curtilage of his home—was obtained as the result ofthe earlier, impermissible search of defendant's belongings. I would accordingly grant the motionto suppress the physical evidence subsequently recovered as the fruit of the poisonoustree.[FN*]
As an initial matter, defendant's argument was preserved. Defense counsel argued thatbecause the seizure of defendant's belongings was illegal, the property of the complainingwitness subsequently recovered was the product of not only the illegal arrest but of the illegalseizure.
The complainant testified that he was riding in the elevator when a masked man, described asa male black in his twenties, confronted him and took his money and jewelry. The victim heard agunshot, but was not injured during the encounter.
After speaking with the complainant, the investigating detective heard a radio report of a manat Jacobi Hospital with a bullet wound to the leg. No description of the man was given over theradio. After interviewing defendant, the detective searched the bags under his bed, withoutobtaining permission to do so. The complainant identified the ID and the ring recovered from thebags as his property. It was only after showing the illegally-seized evidence to the complainantthat the detective questioned defendant's girlfriend and obtained the keys to defendant's home andvehicle. This evidence, seized moments after the unlawful search and without any attenuatingevents, was the direct result of and not sufficiently attenuated from the illegality itself (see People v McCree, 113 AD3d557, 558 [1st Dept 2014]).
There was no exigency. Defendant was confined to a hospital bed and unable to leave letalone access the areas the police searched. If the police intended to continue their investigationregardless of what was found among his personal belongings at the hospital, they could haveapplied for a warrant to search his vehicle and his home.
This is not a case where the exclusionary rule has no application because the connectionbetween the illegal conduct of the police and the discovery of the challenged evidence has"become so attenuated as to dissipate the taint" or the People learned of the evidence from anindependent source (Wong Sun v United States, 371 US 471, 487 [1963] [internalquotation marks omitted]). I disagree with the majority that regardless of what the police found indefendant's possession, they were likely to pursue defendant as a possible suspect. If the policediscovered nothing in the illegal search of defendant's belongings, they would have had littlecause to pursue the investigation, let alone to question defendant's girlfriend, from whom theyobtained the keys to defendant's vehicle, and to thereafter search defendant's vehicle and home.The necessary links between defendant and the robbery were the illegally seized identificationand ring, the second ring found in the vehicle, and the gun found in the curtilage of defendant'shome. The police were led to the challenged evidence by "exploitation of that illegality"(Wong Sun, 371 US at 488). The physical evidence recovered should have beensuppressed as the fruit of the illegal search.
[*5] Admitting the ring and gun into evidence cannot be said to be harmless error under thecircumstances (see People v Crimmins, 36 NY2d 230, 237 [1975]). The People's casedepended on circumstantial evidence that the illegally-obtained ring found in the vehicle hadbeen taken from the victim during the alleged robbery and served as the only identification ofdefendant during the trial.
Footnote *:Because I would suppress thechallenged evidence on this ground, I do not address the alternate arguments raised by defendantand addressed by the majority.