| People v Dillon |
| 2007 NY Slip Op 08249 [44 AD3d 1068] |
| October 30, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Robert Dillon, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel; AmyRaupp on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Doyle, J.),rendered January 2, 2007, convicting him of criminal possession of marijuana in the seconddegree, upon his plea of guilty, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of the defendant's motion to suppress physical evidence and statementsmade to law enforcement officials.
Ordered that the judgment is affirmed.
On the evening of June 15, 2005 volunteer firefighters from the North Babylon FireDepartment responded to a 911 call and discovered a strong fuel odor emanating from a lockedfactory being leased by the defendant. The fire chief (hereinafter the chief) at the scene called hisdispatcher to have a building representative appear and although the chief testified he could haveforcibly entered the premises, he decided to wait for a keyholder in order to avoid unnecessarydamage to the building. Once the defendant arrived, he unlocked the door, entered the building,and quickly shut the door. When the chief opened the unlocked door and entered the vestibule ofthe building, the defendant told him to get out. The chief then instructed the defendant to leavebecause he believed there was a hazardous material spill in the building, to which the defendantreplied that he had spilled some diesel fuel and would clean it up himself. The chief continued toenter believing that the defendant wanted to prevent him from seeing how much fuel had spilled,but the defendant physically barred the way and a physical confrontation ensued. The chiefrequested that the police officers already at the scene remove the defendant and then ordered hisfirefighters to search the [*2]building to find the source andquantity of the leak. One team of firefighters discovered an electrical generator and a small spillof diesel fuel while another team entered a locked room and discovered a hydroponics growroom containing marijuana. Based on the firefighters' observations, the police obtained a searchwarrant, searched the factory, and seized the marijuana. After a suppression hearing, the CountyCourt ruled that the entry and search by the firefighters was proper under the emergencyexception to the warrant requirement, applying the three-part test required by People vMitchell (39 NY2d 173 [1976], cert denied 426 US 953 [1976]).
We find that the firefighters were presented with an emergency which permitted theirwarrantless entry and search under both the Mitchell test and the rule adopted by theUnited States Supreme Court in Brigham City v Stuart (547 US 398,—, 126 S Ct 1943, 1946 [2006]), and thus we do not reach the issue of whether the NewYork State Constitution requires retention of the "subjective motivation" prong of theMitchell test (see People v Desmarat, 38 AD3d 913, 915 [2007]; cf. People vDallas, 8 NY3d 890, 891 [2007]). Under all of the circumstances of this case, the objectivefacts observed by the firefighters provided them with reasonable grounds to believe that ahazardous materials emergency was at hand and that they had a reasonable basis, approachingproximate cause, to associate the emergency with the area that was searched (see BrighamCity, Utah v Stuart, 547 US 398, —, 126 S Ct 1943, 1946 [2006];People v Molnar, 98 NY2d 328 [2002]; People v Desmarat, 38 AD3d at 915).Moreover, the People established that the firefighters' entry and search were motivated by theneed to protect life and property rather than for the purpose of making an arrest or seizingevidence (see People v Mitchell, 39 NY2d 173 [1976], cert denied 426 US 953[1976]). Lastly, we find the scope of the search was sufficiently limited by, and reasonablyrelated to, the exigencies of the situation (see People v Rielly, 190 AD2d 695 [1993]).Schmidt, J.P., Fisher, Lifson and Carni, JJ., concur.