| People v Watson |
| 2012 NY Slip Op 08562 [101 AD3d 913] |
| December 12, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v ChartiseWatson, Respondent. |
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Appeal by the People from an order of the Supreme Court, Kings County (Gary, J.), enteredJune 23, 2011, which, after a hearing, granted the defendant's motion to suppress physicalevidence and a written statement to law enforcement officials.
Ordered that the order is reversed, on the law, the defendant's motion is denied, and thematter is remitted to the Supreme Court, Kings County, for further proceedings on theindictment.
At approximately 8:50 p.m. on October 23, 2009, two police officers responded to adomestic dispute call at an apartment at which the defendant and his girlfriend resided. Afterdetermining that the girlfriend had made the 911 emergency telephone call, the officers separatedthe parties for interviews. While one officer remained just outside of the apartment door with thedefendant, the second officer accompanied the girlfriend into the apartment. During this officer'sinterview of the girlfriend, she led him to a closet and opened a drawer, revealing three guns andammunition. The defendant was arrested, and the girlfriend signed a statement memorializing herconsent to the search. Subsequently, the defendant waived his Miranda rights (seeMiranda v Arizona, 384 US 436 [1966]) and wrote out a statement.
The defendant moved to suppress the physical evidence and the written statement. Thehearing court granted the motion, and the People appeal.
Warrantless searches are "per se unreasonable under the Fourth Amendment subject only to afew specifically established and well-delineated exceptions" (Katz v United States, 389US 347, 357 [1967]). One exception is that "the police may lawfully conduct a warrantless searchwhen they have obtained the voluntary consent of a party who possesses the requisite degree ofauthority and control over the premises or personal property in question" (People vCosme, 48 NY2d 286, 290 [1979]; see People v Kelly, 58 AD3d 868, 869 [2009]).
In Georgia v Randolph (547 US 103 [2006]), the Supreme Court "carved out a verysimple, clear, and narrow exception to a co-occupant's consent to the search of an area overwhich the co-occupant has common authority" (United States v Lopez, 2007 WL2696595, *6, 2007 US Dist LEXIS 66937, *15-16 [D Conn 2007], affd 547 F3d 397 [2dCir 2008], cert denied 556 US 1138, 129 S Ct 1636 [2009]). The Court held that whenlaw enforcement officers conduct a search, authorized by one co-occupant of [*2]a premises, over the express objection of another co-occupant, anyfurther search would be unreasonable as to the objecting co-occupant (see Georgia vRandolph, 547 US 103 [2006]). The Court continued to "draw[ ] a fine line," and held that ifa potential objector is present and objects to a search, a co-occupant's consent does not suffice fora reasonable search, whereas a potential objector who is "nearby but not invited to take part inthe threshold colloquy, loses out" (id. at 121; see United States v Lopez, 547 F3dat 400). The only limitation is that the police may not remove the potentially objecting occupantfor the purpose of avoiding a possible objection (see United States v Lopez, 547 F3d at400).
Here, the hearing court erroneously concluded that, in order for the search to be valid, thepolice officers were required to obtain consent not only from the defendant's girlfriend, whoresided with the defendant, but from the defendant as well. "[L]aw enforcement officers areunder no affirmative obligation to request consent from a potentially objecting co-occupantbefore acting on permission they received from another occupant" (id. at 400; seeGeorgia v Randolph, 547 US at 122). Rather, the "onus was on [the defendant] to object tothe search" (United States v Lopez, 547 F3d at 400). Moreover, there was no indicationthat the officers removed the defendant for the purpose of avoiding his potential objection, or thatthe officers separated the defendant from his girlfriend in order to conceal from him that theywould ask her for consent to conduct a search.
Accordingly, the hearing court erred in suppressing the physical evidence (see UnitedStates v Lopez, 547 F3d 397 [2008]; United States v Parker, 469 F3d 1074, 1078[2006]). Furthermore, as the search was valid, the defendant's written statement should not havebeen suppressed as the fruit of the poisonous tree (see People v Mais, 71 AD3d 1163, 1165 [2010]; see generallyWong Sun v United States, 371 US 471, 488 [1963]). Dillon, J.P., Leventhal, Austin andMiller, JJ., concur.