| Matter of Leroy M. |
| 2009 NY Slip Op 06297 [65 AD3d 500] |
| August 25, 2009 |
| Appellate Division, First Department |
| In the Matter of Leroy M., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Norman Corenthal of counsel), forpresentment agency.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or aboutJuly 7, 2008, which adjudicated appellant a juvenile delinquent, upon a fact-findingdetermination that appellant had committed an act which, if committed by an adult, wouldconstitute the crime of criminal possession of stolen property in the fifth degree, and placed himwith the Office of Children and Family Services for a period of 12 months, reversed, on the lawand the facts, without costs, the motion to suppress granted, and the petition dismissed.
Appellant was charged with criminal possession of a laptop computer that had been stolenfrom a school. At the suppression hearing, the police officers testified that as a result of trackingsoftware loaded on the laptop, they learned information suggesting that appellant possessed thecomputer. On January 30, 2008, in the middle of the afternoon, they went to appellant's home,purportedly to investigate. The officers had neither a search warrant for the residence nor awarrant for appellant's arrest.
A total of five officers, some in uniform, approached the one-family dwelling, went up thefront steps and entered the front door, which led to an inside foyer of the home. Prior to theirentry into the residence, they did not ring the doorbell, knock or otherwise announce theirpresence, nor did anyone let them into the home. Once inside the dwelling, the officer leadingthe team observed a second door ajar which led into the living room. He knocked on that doorand said "Police." A woman, later identified as appellant's sister, came down a staircase from thesecond floor and said, in substance, that she was glad they were there and to get "him" out ofthere. The officer asked "Where is he?" and the sister answered "up the stairs." The police wentup to a second floor bedroom and observed a young man with a laptop matching the descriptionof the missing computer. Appellant entered the room and stated, in substance, "That's mine, but akid gave it to me." He was subsequently placed under arrest.
There is no dispute that prior to going through the front door of the residence, the police didnot have anyone's consent or a search or arrest warrant. Furthermore, the presentment agencydoes not claim there were exigent circumstances. Moreover, the hearing evidence, including thepolice testimony and the photographs of the house, clearly established that the team of officerswent through the front door of what was obviously a private house and into the foyer [*2]of the residence. The photographs show the outside of the home,including the steps leading up to an opaque front door. That door has a single mail slot, apeephole, a deadbolt lock above the doorknob, and a single doorbell next to the door. Thephotographs also depict the area inside the front door, an enclosed foyer with a second doorleading into the living room. In the absence of a warrant, exigent circumstances, or consent priorto the entry, the officers' intrusion over the threshold of the home was unlawful (see Payton vNew York, 445 US 573, 590 [1980] ["the Fourth Amendment has drawn a firm line at theentrance to the house"]) and any evidence obtained as a result must be suppressed (seePeople v Levan, 62 NY2d 139 [1984]).
The fact that appellant's sister subsequently consented to the officers' presence is of noconsequence. Where, as here, the consent to search follows an illegal entry, the presentmentagency has the burden of showing both that the consent was voluntary and that it was acquiredby means sufficiently distinguishable from the entry to be purged of the illegality (see Peoplev Borges, 69 NY2d 1031 [1987]; People v Packer, 49 AD3d 184 [2008], affd 10 NY3d 915[2008]; United States v Snype, 441 F3d 119 [2d Cir 2006]). In determining whether thereis sufficient attenuation, a court must consider the temporal proximity between the unlawfulentry and the consent, the presence of any intervening circumstances and the purpose andflagrancy of the official misconduct (see People v Conyers, 68 NY2d 982, 983 [1986];Borges at 1033; Snype at 132).
Here, regardless of the voluntariness of the sister's consent, we find that the taint of theillegal entry was not dissipated at the time the consent was given. With regard to the factor oftemporal proximity, the sister's consent occurred virtually contemporaneously with the officers'unlawful entry into the home. In Packer, we noted that "this State's courts havecategorically rejected prosecutorial reliance on consent to validate otherwise impermissiblesearches when consent was given in consequence of improperly initiated police inquiry orintrusion" (49 AD3d at 187). Here, the sister's consent occurred only moments after the officers'unlawful entry into the residence and thus stands in stark contrast to those cases where thepassage of time led to a finding of attenuation (see e.g. People v Santos, 3 AD3d 317 [2004], lv denied 2NY3d 746 [2004]; People v Moore, 269 AD2d 409 [2000], lv denied 94 NY2d951 [2000]), or those where the attenuated act occurred outside the residence (see e.g. People v Padilla, 28 AD3d236 [2006], lv denied 7 NY3d 760 [2006]). And, because the entry and the consenthere occurred almost instantaneously, there were no intervening events that could serve to purgethe taint of the illegality.
Finally, the flagrancy of the police misconduct here must be considered. In response to asimple allegation that a school-aged child possessed a stolen laptop, five police officers, lackingany warrant or exigency, entered a private home without knocking, ringing a bell or otherwiseannouncing themselves. Although one of the officers gave sparse testimony suggesting that hebelieved it was difficult to determine if appellant's house was a one or three family home, noneof the officers testified that they took any steps to determine the true nature of the dwellingbefore they entered. And, as noted earlier, the photographs undeniably show a private one-familyhouse. Of greater significance, neither of the two officers who testified at the hearing couldexplain exactly how they got from the bottom of the steps outside the residence and into thefoyer of the home. One merely stated that after arriving at the residence, he "found" himselfinside. The other claimed not to know precisely how he got in because another officer was infront of him. Their lack of recollection on this issue raises further questions about the flagrancyof their conduct.[*3]
Under these specific circumstances, we conclude that theconsent given by the sister was not acquired by means sufficiently distinguishable from theunlawful entry to be purged of the illegality (see Borges, 69 NY2d 1031 [1987];Conyers, 68 NY2d 982 [1986]), and appellant was entitled to suppression of the laptopand the statement (see United States v Lakoskey, 462 F3d 965, 975 [8th Cir 2006],cert denied 549 US 1259 [2007]; United States v Heath, 259 F3d 522, 534 [6thCir 2001]). Concur—Tom, J.P., Catterson, Renwick and Richter, JJ.
Nardelli, J., dissents in a memorandum as follows: Regardless of whether the initial policeentry into the dwelling was illegal, the ultimate determination of this appeal turns solely onwhether the actions of the police in going up the stairs to appellant's room were attenuated byvirtue of the unequivocally voluntary invitation by appellant's sister welcoming the policepresence. Since I believe that the record fully supports a finding that these subsequent policeactions were justified, I would affirm the order of disposition.
Appellant's sister, who was 23 years old, had every right to expect privacy in the house inwhich she lived, and certainly had the right to assert her expectations of privacy to an uninvitedindividual such as a uniformed police officer, who was the first person that she saw entering theliving room as she came down the stairs.
Instead of saying "Stay out," or "What are you doing here?" she said, without hesitation,"Thank God you're all here." Equally revealing, she further testified: "Me and [the officer]started talking . . . And then he was, like . . . all right what's thematter, why did I say thank God that they're here. I was like me and my brother was arguing, hewas disrespecting my mother and like eventually I was going to call them anyway, if he keptit up so I was like thank God you're all here." (Emphasis supplied.)
This testimony came in a courtroom, two months after the incident, at a time when herbrother was facing delinquency charges. Notwithstanding the serious consequences for herbrother, she did not attempt to dilute the circumstances surrounding her initial encounter with thepolice, by, for instance, intimating that she was intimidated by the police presence into invitingthem upstairs. Indeed, even on cross examination, she acknowledged that she had been happy thepolice "were there."
There is no doubt that when law enforcement officials seek to justify a warrantless search,they are "not limited to proof that consent was given by the defendant, but may show thatpermission to search was obtained from a third party who possessed common authority over. . . the premises or effects sought to be inspected" (United States vMatlock, 415 US 164, 171 [1974]). Since the police were invited into the house by one of itsoccupants, a person who had reached the age of majority, the ensuing search was proper.[*4]
The majority concludes that the search was notattenuated by the sister's consent. The two cases it cites where the court found that attenuationdid not exist, however, involved circumstances where the defendant himself gave the consent topolice intrusion after initial illegal police conduct. For instance, in People v Borges (69NY2d 1031 [1987]), the defendant was concededly arrested illegally, and the court directed asuppression hearing to ascertain whether the consent he gave to a subsequent search of hisapartment "was sufficiently an act of free will to purge the primary taint of the illegal arrest"(id. at 1033). Likewise, in People v Packer (49 AD3d 184 [2008], affd 10 NY3d 915[2008]), the court granted suppression of a knife after a defendant had given consent to a searchof his bag, after he himself had been the subject of an initial illegal frisk. In this case the consent was given not by the subject of the police action, but by a party whoclearly acted voluntarily and without intimidation. It is evident that there was no "officialcoercion, actual or implicit, overt or subtle" (see People v Gonzalez, 39 NY2d 122, 128[1976]). Indeed, in this case, appellant's sister freely welcomed the police presence, and stated inher testimony that she was going to call the police anyway. I see no reason not to take her at herword, at least for purposes of ascertaining whether attenuation has been established.