| People v Ellison |
| 2007 NY Slip Op 10204 [46 AD3d 1341] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Roy Ellison,Jr., Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Jessica B. Birkahn of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.;suppression hearing Kenneth R. Fisher, J.), rendered June 14, 2004. The judgment convicteddefendant, upon a jury verdict, of criminal possession of a controlled substance in the thirddegree and criminal sale of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously reversed on the law, that part of the motion seeking to suppress physical evidence isgranted and a new trial is granted on counts one and two of the indictment.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofcriminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1])and criminal sale of a controlled substance in the third degree (§ 220.39 [1]). The facts areessentially undisputed. An undercover officer met an individual on the street outside defendant'ssmall studio apartment, and the undercover officer was taken into defendant's apartment by thatindividual and purchased four $10 bags of cocaine. While inside the apartment, the officerobserved 20 to 30 small clear plastic bags of what appeared to be cocaine on a coffee table. Afterreturning to the same street corner, approximately 60 to 80 feet from the front door of defendant'sapartment, the individual who assisted the undercover officer in the purchase of the drugs wasimmediately taken into custody by officers in a marked police vehicle. Approximately 10minutes later, the police executed a "breach and hold" operation by forcibly opening the door todefendant's apartment with a battering ram and securing the individuals inside, includingdefendant, until a search warrant could be obtained. When the undercover officer notified theother officers at defendant's apartment that a search warrant had been obtained, but before he hadreturned to defendant's apartment with the warrant, the other officers began to search defendant'sapartment. They found five small bags of cocaine, the $40 in prerecorded buy money used by theundercover officer, $110 in cash, glassine envelopes, defendant's photo identification and mailbearing defendant's name.
Defendant contends that Supreme Court erred in denying that part of his omnibus motionseeking to suppress the physical evidence seized from his apartment because the warrantlessentry was not justified by exigent circumstances. We reject that contention. After the [*2]undercover officer purchased the four bags of cocaine, the policeknew that an additional amount of cocaine was in the apartment and that the apartment wasoccupied by at least three persons. Defendant's accomplice was arrested only 60 to 80 feet fromthe front door of the apartment, which had windows facing the area where he was taken intocustody. It "is well known that persons who engage in drug trafficking will often attempt todispose of the narcotics or to escape" (People v Brown, 274 AD2d 941, 942 [2000],affd 95 NY2d 942 [2000]), and thus the police could have reasonably believed that theindividuals in the apartment would dispose of the additional cocaine and buy money followingthe accomplice's arrest unless they immediately secured the apartment (see id.; People vFoster, 245 AD2d 1074 [1997], lv denied 91 NY2d 972 [1998]; People vGates, 199 AD2d 629, 630 [1993], lv denied 83 NY2d 805 [1994]).
We agree with defendant, however, that the court should have suppressed the physicalevidence seized by the police during the search of his apartment, on the ground that the officersat the apartment began to search the premises without the requisite knowledge of the contents ofthe warrant (see People v Okun, 135 AD2d 1064, 1065-1066 [1987]; People vCarson, 99 AD2d 664, 665 [1984]). Although the officers were permitted to enterdefendant's residence once they learned that the warrant was issued and was en route (seePeople v Mahoney, 58 NY2d 475, 479 [1983], rearg denied 59 NY2d 968 [1983]),here they exceeded their authority by beginning to search defendant's apartment before theundercover officer arrived at the apartment with the search warrant (see Carson, 99 AD2dat 665). Contrary to the People's contention, there is no evidence that the supervising sergeantwas aware of the actual contents of the warrant after it was signed by the issuing judge. The factthat the judge signed the warrant as presented and placed no limitations on it cannot in hindsightbe used to support the People's contention that the officers at defendant's apartment were awareof the contents of the warrant as issued by the judge. Further, the fact that the warrant may havebeen what the People characterize as "a routine search warrant application" does not provide thepolice with the requisite knowledge of its contents in order to begin a search before having thewarrant in hand.The evidence remaining after suppression is, however, enough for the People to presenta legally sufficient case. Thus, the remedy is a new trial and not dismissal of the indictment(see CPL 470.20 [1]; People v Perkins, 189 AD2d 830, 832-833 [1993]).In light of our determination, we need not reach defendant's remaining contentions.Present—Scudder, P.J., Martoche, Smith, Lunn and Pine, JJ.