| People v Christianson |
| 2008 NY Slip Op 10269 [57 AD3d 1385] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Douglas H.Christianson, Appellant. |
—[*1] Richard M. Healy, District Attorney, Lyons (Jacqueline McCormick of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (John B. Nesbitt, J.), rendered May 2, 2007.The judgment convicted defendant, upon his plea of guilty, of criminal possession of marihuana in thesecond degree and growing of the plant known as cannabis by unlicensed persons.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law, theplea is vacated, those parts of the motion seeking to suppress physical evidence and statements aregranted, the indictment is dismissed, and the matter is remitted to Wayne County Court for proceedingspursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminalpossession of marihuana in the second degree (Penal Law § 221.25) and growing of the plantknown as cannabis by unlicensed persons (Public Health Law § 3382). Fire officials respondedto defendant's mobile home after defendant accidentally ignited a fuel oil fire in his furnace. After the fireofficials extinguished the flames in the furnace, they encountered difficulties while attempting to ventilatethe home because there was a padlock on one of the interior doors that led to an exit door.Nevertheless, within approximately 45 minutes, the fire officials were able to extinguish the flames,ventilate the home, and conduct an investigation with respect to the cause of the fire. In addition to thelocked interior door, the Fire Chief also noticed that the windows were boarded up and that the interiorof the home was cluttered. Based on those observations, the Fire Chief requested that a member of theSheriff's office provide a "second opinion." By the time the Sheriff's Deputy arrived at his home,defendant had been allowed to re-enter and most of the fire officials were no longer there. The Sheriff'sDeputy met the Fire Chief outside the home, and then both men walked inside where defendant wassitting. At that point, all officials with the exception of the Sheriff's Deputy exited the home, anddefendant remained alone with him. The Sheriff's Deputy noticed a small piece of what he believed tobe marihuana on defendant's coffee table and, after demanding that defendant allow him access to thearea behind the locked door, defendant escorted him there. The search of that area resulted in theseizure of multiple cannabis plants, as well as equipment used to cultivate those plants. Defendant alsomade incriminating statements to the Sheriff's Deputy.
We agree with defendant that the search of his home and the subsequent seizure of [*2]equipment and cannabis plants was illegal because the emergencyexception to the warrant requirement did not apply. That exception "sanctions warrantless searches andseizures only in limited circumstances presenting an immediate danger to life or property" (People vGuins, 165 AD2d 549, 552 [1991], lv denied 78 NY2d 1076 [1991]). With respect tofire emergencies, fire officials are not only permitted to enter a building to extinguish a fire without awarrant, but they may also "remain in a building for a reasonable time to investigate the cause of a blazeafter it has been extinguished" (Michigan v Tyler, 436 US 499, 510 [1978]). Once those dutiesare completed, however, the emergency exception no longer applies and further searches are subject tothe warrant requirement (see id. at 511-512). At the time the Sheriff's Deputy arrived atdefendant's home, the fire officials had extinguished the blaze, ventilated the home, and determined theorigin of the fire. Moreover, the Fire Chief testified at the suppression hearing that he called for theSheriff's Deputy to investigate other safety concerns, such as the locked interior door and boarded-upwindows. Those concerns, however, did not pose an immediate threat to defendant and thus do not fallwithin the purview of the emergency exception to the warrant requirement (see generally People vMolnar, 98 NY2d 328, 332 [2002]; People v Mitchell, 39 NY2d 173, 177-178 [1976],cert denied 426 US 953 [1976]).
We further agree with defendant that he did not consent to the entrance into his home by theSheriff's Deputy. "At a hearing upon a motion to suppress, the People have a heavy burden ofestablishing that a suspect voluntarily consented to a search" (People v Hall, 35 AD3d 1171, 1171 [2006], lv denied 8 NY3d923 [2007]). Although consent may be inferred from specific conduct (see People v Long, 124AD2d 1016 [1986]), the record here is devoid of any conduct or words by defendant that wouldestablish consent. Instead, the evidence presented at the suppression hearing established that theSheriff's Deputy entered defendant's home without speaking with defendant and, in fact, the Sheriff'sDeputy testified at the suppression hearing that defendant did not consent to his entrance. Although thePeople contend that defendant never demanded that the Sheriff's Deputy leave, we conclude under thecircumstances of this case that, without more, the failure to demand that the Sheriff's Deputy leave didnot amount to "a true act of the will [or] an unequivocal product of an essentially free and unconstrainedchoice" (People v Gonzalez, 39 NY2d 122, 128 [1976]). We therefore conclude that thephysical evidence was illegally seized and must be suppressed, and "[d]efendant's statements must alsobe suppressed as fruit of the poisonous tree" (People v James, 27 AD3d 1089, 1091 [2006], lv denied 6NY3d 895 [2006]). Present—Smith, J.P., Centra, Lunn, Fahey and Green, JJ.