| Matter of Daijah D. |
| 2011 NY Slip Op 06085 [86 AD3d 521] |
| July 28, 2011 |
| Appellate Division, First Department |
| In the Matter of Daijah D., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Deborah A. Brenner of counsel), forpresentment agency.
Order of disposition, Family Court, New York County (Susan R. Larabee, J.), entered on orabout September 17, 2010, which adjudicated appellant a juvenile delinquent upon a fact-findingdetermination that she committed acts that, if committed by an adult, would constitute the crimesof criminal possession of a weapon in the second and fourth degrees and committed the act ofunlawful possession of a weapon by a person under 16 (two counts), and placed her on enhancedsupervision probation for a period of 18 months, unanimously reversed, on the law, withoutcosts, appellant's motion to suppress granted, and the petition dismissed.
We need not address the propriety of the challenged police conduct in questioning appellantafter she walked away from a group of loud and disorderly teenagers as the police approached thegroup because the People failed to sustain their heavy burden of establishing that appellant'sconsent to a search of her purse was voluntary and that she waived her constitutional rights(see Bumper v North Carolina, 391 US 543, 550 [1968]; People v Gonzalez, 39NY2d 122 [1976]).
Consent is "a true act of the will, an unequivocal product of an essentially free andunconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit,overt or subtle" (Gonzalez, 39 NY2d at 128).
In assessing the voluntariness of consent, a court should consider: (1) whether the consentwas given while the individual was in police custody, and how many officers were present; (2)the personal background of the consenter, including his or her age and prior experience with thelaw; (3) whether the consenter offered resistance; and (4) whether the police advised theconsenter of his or her right to refuse consent (id. at 128-130). Applying these factors, wefind that the People failed to prove that appellant's consent was "more likely to be the product ofcalculation than awe" (id. at 129).
Appellant is 14 years old, and no evidence was presented at the suppression hearing todemonstrate that she had prior experience with the law. Sergeant Burns testified that when hecalled to her from the unmarked car, she stopped and approached; thus she offered no resistence.He further testified that when he exited the car to question her on the city sidewalk at about 11:30[*2]p.m., the three officers with him also exited the car. WhileSergeant Burns knew Officer Merrick was located to his right, he did not see where the other twoofficers were, and thus was in no position to say exactly where they were or what they weredoing. Nor is there any evidence that appellant was told she did not have to consent whenSergeant Burns asked if he could look in her purse. Under these particular circumstances, "theineluctable inference, except to the jaded," is that appellant's consent, which in reality was herarguably equivocal act of handing her purse to Sergeant Burns, was not the product of a "free andunconstrained choice" (Gonzalez, 39 NY2d at 129; People v Barreras, 253 AD2d369 [1998]). Concur—Andrias, J.P., Friedman, Sweeny, Renwick and RomÁn, JJ.