| People v Mormon |
| 2012 NY Slip Op 07698 [100 AD3d 782] |
| November 14, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v MichaelMormon, Respondent. |
—[*1] Lynn W. L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for respondent.
Appeal by the People, as limited by their brief, from so much of an order of the SupremeCourt, Queens County (Grosso, J.), dated April 27, 2011, as, after a hearing, granted that branchof the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the order is affirmed insofar as appealed from.
At a suppression hearing, a detective testified that on the morning of November 27, 2010, heresponded to investigate the report of a shooting. Upon arrival, the detective spoke with thedefendant's downstairs neighbor outside the building where the defendant lived, and the neighborindicated that at approximately 8:00 a.m., she had heard a "loud bang" come from the defendant'supstairs residence, which sounded like someone had "dropped a broom." However, when shelater went outside and saw the police and an ambulance, she concluded that the sound had been agunshot. She indicated that the defendant lived with his girlfriend and their children. While stilloutside the defendant's building, the detective then spoke with the defendant, who indicated thathe had been shot on the street about one block from his home. Thereafter, the detective spokewith the defendant's girlfriend, who said that she did not want to get involved. The detective didnot recall her answer to his question regarding the whereabouts of the children. After performinga cursory search of the area outside of the defendant's building, the detective and other policeofficers entered the defendant's residence. Following a search of the home, the police recoveredcertain physical evidence. The Supreme Court granted that branch of the defendant's omnibusmotion which was to suppress that physical evidence, and the People appeal.
The People contend that the warrantless entry by the police into the defendant's residence andthe ensuing search were justified under the emergency exception to the warrant requirementbecause the police had been told that children were residing in the subject apartment. Wedisagree. The emergency exception "sanctions warrantless searches and seizures in circumstancespresenting immediate danger to life or property" (People v Calhoun, 49 NY2d 398, 403[1980]; see People v Mitchell, 39 NY2d 173 [1976], cert denied 426 US 953[1976]; People v Guins, 165 AD2d 549, 552 [1991]). "This exception must be narrowlyconstrued because it is susceptible of abuse and may be used to validate an otherwise unlawfularrest or seizure" (People v Guins, 165 AD2d at 552). The [*2]People have the burden of justifying the warrantless search (seePeople v Hodge, 44 NY2d 553, 557 [1978]; People v Liggins, 64 AD3d 1213, 1215 [2009]; People v Fravel, 35 AD3d 1148,1150 [2006]).
Here, the warrantless entry and ensuing search, which occurred at least 45 minutes after thepolice arrived on the scene and almost two hours after the time of the alleged shooting, wereconducted after a minimal police investigation which failed to establish that any children were inimminent danger (see People v Garrett, 256 AD2d 588, 589 [1998]). Under thesecircumstances, the People failed to meet their burden of justifying the warrantless search andseizure under the emergency exception to the warrant requirement (see People v Liggins, 64 AD3d1213 [2009]; People v Fravel, 35 AD3d at 1150; People v Garrett, 256AD2d at 589). Accordingly, the Supreme Court properly granted that branch of the defendant'somnibus motion which was to suppress physical evidence. Skelos, J.P., Dickerson, Hall andRoman, JJ., concur.