| People v Allen |
| 2012 NY Slip Op 09106 [101 AD3d 1491] |
| December 27, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jamie D.Allen, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered October 6, 2011, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the fourth degree.
On February 11, 2010, officers from the Broome County Drug Task Force executed a searchwarrant in the City of Binghamton, Broome County, which authorized the search of "7 EATONPLACE, APARTMENT # 8," an individual named Kendew Johnson and "ANYONE PRESENTDURING THE TIME OF EXECUTION OF THE WARRANT." As the police entered thepremises to execute the warrant, defendant, who was with Johnson and another individual insidethe apartment, fled to the rear of the apartment where he was apprehended near a window andplaced in handcuffs. On the floor near defendant and the window, police found a plastic bagcontaining crack cocaine. Defendant was then searched and $326 was recovered from his person.After defendant was charged by indictment with criminal possession of a controlled substance inthe third and fourth degrees, he moved to, among other things, suppress the cocaine found by thepolice on the apartment floor, as well as the money seized from his person after his arrest. Asuppression hearing was held and the motion was subsequently denied. Thereafter, defendantpleaded guilty to criminal possession of a controlled substance in the fourth degree and wassentenced, as a second felony offender, to three years in prison, to be followed by three years ofpostrelease supervision. Defendant now appeals.[*2]
Defendant's sole contention on appeal is that CountyCourt erred in denying his motion to suppress because a clause authorizing the search of "anyperson present" inside the apartment (CPL 690.15 [2]) was improperly included in the warrant,rendering the entire search warrant invalid. County Court found—and the People do notdispute—that probable cause did not exist for such a clause to be included in the searchwarrant. However, the court determined that the "any person present" provision could be severedfrom the rest of the warrant and the remainder of the search warrant was otherwise valid (see generally People v Mothersell, 14NY3d 358 [2010]). In addition, the court found that the cocaine and money were recoveredby the police, not as a result of the "any person present" clause, but because defendant attemptedto flee once the police had legally entered the premises and the police subsequently discoveredthe cocaine in plain view near defendant.
"It is now settled law that when a search warrant is partially but not wholly invalid, only thefruits of the invalid portion need be suppressed" (People v Brown, 96 NY2d 80, 85[2001]; see People v Hansen, 38 NY2d 17, 21-22 [1975]). Here, the search warrant wasnot used by the police as a pretext to search other individuals who might be in the apartment(see People v Hansen, 38 NY2d at 21-22; see also People v Paul, 96 Misc 2d1085, 1090 [1978]), and the facts set forth in the search warrant application established thatprobable cause existed authorizing a search of the entire apartment (see People v Pinkney, 90 AD3d1313, 1315-1316 [2011]; People vBailey, 80 AD3d 999, 1001 [2011], lv denied 18 NY3d 856 [2011]). As such,the warrant without the "any person present" clause was valid, and provided the police with thelegal authority to enter the apartment and search it. Once inside, they had the right to detaindefendant when he attempted to flee. Only then, and not as a result of the search of defendant or"any person present," did the police discover the packet of cocaine in plain view on the apartmentfloor. Since defendant was the only person seen in that area of the apartment, probable causeexisted for his arrest for possession of the cocaine. A search of defendant's person incident to thatarrest was then properly performed by the police, and the money was recovered. Simply stated,the contraband that defendant seeks to suppress was seized, not pursuant to the "any personpresent" provision of the warrant, but as the result of defendant's actions once the police werelegally inside the apartment. Therefore, County Court's decision denying defendant's motion tosuppress is in all respects affirmed (compare People v Mothersell, 14 NY3d at 360-361).
Rose, J.P., Lahtinen, Spain and McCarthy, JJ., concur. Ordered that the judgment is affirmed.