| People v Hunter |
| 2012 NY Slip Op 01298 [92 AD3d 1277] |
| February 17, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ShawnHunter, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered July 18, 2006. The judgment convicted defendant, upon his plea of guilty, of criminalsale of a controlled substance in the third degree and criminal possession of a controlledsubstance in the third degree. The judgment was affirmed by order of this Court entered February11, 2010 in a memorandum decision (70 AD3d 1343 [2010]), and defendant on July 15, 2010was granted leave to appeal to the Court of Appeals from the order of this Court (15 NY3d 774[2010]), and the Court of Appeals on June 2, 2011 reversed the order and remitted the case tothis Court for consideration of issues raised but not determined on the appeal to this Court (17NY3d 725 [2010]).
Now, upon remittitur from the Court of Appeals and having considered the issues raised butnot determined on the appeal to this Court,
It is hereby ordered that, upon remittitur from the Court of Appeals, the judgment soappealed from is unanimously reversed on the law, the plea is vacated, that part of defendant'somnibus motion seeking to suppress evidence seized by the police from the apartment in whichdefendant was arrested is granted, and the matter is remitted to Supreme Court, Monroe County,for further proceedings on the indictment.
Memorandum: In a prior appeal, we affirmed the judgment convicting defendant upon hisplea of guilty of criminal sale of a controlled substance in the third degree (Penal Law §220.39 [1]) and criminal possession of a controlled substance in the third degree (§ 220.16[1]) on the ground that Supreme Court properly refused to suppress the evidence seized from theapartment where he was arrested (People v Hunter, 70 AD3d 1343 [2010]). Defendanthad contended that the court erred in relying upon the doctrines of hot pursuit and exigentcircumstances in refusing to suppress the evidence, but we concluded that defendant "failed toestablish that he had standing to challenge the search of the apartment in which he was arrested,and thus Supreme Court properly refused to suppress the evidence seized therefrom," i.e., the buymoney seized from defendant's person in the apartment (id. at 1344). In reversing ourorder and remitting the matter to this Court to consider defendant's contentions raised but notaddressed by us, the Court of Appeals concluded that "the People are required to alert thesuppression court if they believe that the defendant has failed to meet his burden to establishstanding" (Hunter, 17 NY3d 725, [*2]727-728).
Upon remittitur, we agree with defendant that the court erred in refusing to suppress evidenceseized by the police as a result of their entry into the apartment. The record of the suppressionhearing establishes that an undercover officer purchased narcotics from defendant in front of asmall apartment building in the City of Rochester. As the officer left that location, he signaled toa second officer who was nearby that the sale had been completed, and he provided the secondofficer with a description of the seller. Upon driving past the location where the sale took place,the second officer observed defendant, who matched the description of the seller provided by theundercover officer. The second officer then sent a radio broadcast of defendant's description andlocation to other officers. As those officers left their vehicle, defendant ran into the building,where the pursuing officers lost sight of him. The officers then set up a perimeter and begansearching the interior of the building for defendant after the perimeter officers failed to indicatethat he had exited the building. The officers were unable to find defendant upon a search of allbut one of the apartments in the building, and they concluded that he must be in that apartment,i.e., apartment No. 2. They consulted the officer in charge, who authorized an entry into thatapartment. Approximately 25 minutes after the sale, the officers forcibly entered and founddefendant in the bathroom of that apartment. The buy money was recovered from defendant afterhe was placed in custody.
The warrantless intrusion into defendant's apartment was presumptively unreasonable andunconstitutional unless it was justified by one of the " 'carefully delineated' exceptions to theFourth Amendment's Warrant Clause" (People v Molnar, 98 NY2d 328, 331 [2002];see generally People v Mitchell, 39 NY2d 173, 177-179 [1976], cert denied 426US 953 [1976]). At the suppression hearing, the prosecution contended that defendant's mother,the tenant of the apartment, consented to the police entry, and that the entry was justifiedpursuant to the doctrines of hot pursuit and exigent circumstances. The People failed to addressin their brief on appeal any issues with respect to the mother's purported consent, and thus theyare deemed to have abandoned any contentions with respect thereto (see generally People v Butler, 2 AD3d1457, 1458 [2003], lv denied 3 NY3d 637 [2004]). We agree with defendant that thedoctrines of hot pursuit and exigent circumstances do not justify the warrantless entry into theapartment.
Under the doctrine of hot pursuit, "a suspect may not defeat an arrest which has been set inmotion in a public place, and is therefore proper under [United States v Watson, 423 US411 (1976), reh denied 424 US 979 (1976)], by the expedient of escaping to a privateplace" (United States v Santana, 427 US 38, 43 [1976]; see People v Levan, 62NY2d 139, 145 [1984]). "On the facts of this case, however, the claim of hot pursuit isunconvincing because there was no immediate or continuous pursuit of [defendant] from thescene of a crime" (Welsh v Wisconsin, 466 US 740, 753 [1984]). To the contrary, thepolice did not know in which apartment, if any, defendant was located, and they forcibly enteredapartment No. 2 as a last resort in an attempt to locate him. "There was certainly no evidence thatthe police were in hot pursuit of a fleeing felon" (People v Ramos, 206 AD2d 260, 261[1994]; cf. People v Johnson, 193 AD2d 35, 36 [1993], affd 83 NY2d 831[1994]; People v Thomas, 164 AD2d 874 [1990], lv denied 77 NY2d 883[1991]).
"In determining whether exigent circumstances are present, both the federal and state courtshave applied a number of different factors. These factors include '(1) the gravity or violent natureof the offense with which the suspect is to be charged; (2) whether the suspect is reasonablybelieved to be armed; (3) a clear showing of probable cause . . . to believe that thesuspect committed the crime; (4) strong reason to believe that the suspect is in the premises beingentered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) thepeaceful circumstances of the entry' " (People v McBride, 14 NY3d 440, 446 [2010], cert denied562 US —, 131 S Ct 327 [2010]). Furthermore, "the ultimate inquiry a suppressioncourt must make is[*3]'whether in light of all the facts of theparticular case there was an urgent need that justifies a warrantless entry' " (id.). Applyingthose factors to this case, we conclude that there was no such urgent need.
Although there was strong probable cause to believe that defendant committed the seriouscrime of criminal sale of a controlled substance in the third degree, all of the other factors lead tothe conclusion that there were no exigent circumstances. No evidence was introduced at thehearing tending to establish that defendant had acted violently in this case, or that he had ahistory of violence. At least one of the perimeter officers did not take his position, which wasbehind the building, until after defendant entered the building, and thus there was no stronglikelihood that he was still inside the building when the police entered the apartment. Conversely,the perimeter was fully established when the police entered the apartment, and thus there wasvirtually no chance that he would escape after that time. Further, the entry was not peaceful, andthere was no evidence indicating that defendant was armed. Finally, "there was no testimonyindicating that it would have been especially burdensome for the officers to have obtained awarrant before effecting the arrest on this weekday afternoon" (Ramos, 206 AD2d at261-262).
Consequently, we conclude that the warrantless entry into the apartment was not justified byany exception, and thus the court erred in refusing to suppress the buy money. We thereforereverse the judgment, vacate the plea, grant the motion, and remit the matter to Supreme Courtfor further proceedings on the indictment. Present—Scudder, P.J., Smith, Centra, Faheyand Martoche, JJ.