| People v Marcial |
| 2013 NY Slip Op 05920 [109 AD3d 937] |
| September 18, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Benjamin Marcial, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J.Twersky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Guzman, J.), rendered March 29, 2010, convicting him of burglary in the second degree(seven counts) and criminal possession of stolen property, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing (McKay,J.), of those branches of the defendant's omnibus motion which were to suppress physicalevidence and his statements to law enforcement officials.
Ordered that the judgment is reversed, on the law, those branches of the defendant'somnibus motion which were to suppress physical evidence and his statements to lawenforcement officials are granted, and a new trial is ordered.
In December 2007, police officers were investigating a pattern of burglaries inBrooklyn. During the course of the investigation, a detective contacted the defendant'sparole officer and arranged to accompany her to the defendant's apartment for "a visit."Three detectives and a sergeant met the defendant's parole officer outside the defendant'sresidence. The parole officer knocked on the door of the defendant's apartment, andwhen the defendant answered, she explained to the defendant that she was there toconduct a home visit and that the officers were "working with" her. Upon entering thedefendant's apartment, one detective noticed a unique ring on the defendant's desk thatresembled a ring allegedly stolen in one of the subject burglaries. The defendant wasgiven Miranda warnings (Miranda v Arizona, 384 US 436 [1966]) andthe police obtained a purported consent to search the apartment. Thereupon, the policerecovered several items of property allegedly stolen in the subject burglaries. Thedefendant was taken to the police station, where he admitted to committing 9 of the 12burglaries.
Following a suppression hearing, the Supreme Court determined that the visit to thedefendant's apartment had no parole-related objective. Instead, the court found that theparole officer merely facilitated the police's contact with the defendant. Thus, theSupreme Court concluded that the People could not rely on the line of cases which haveupheld the warrantless search of a parolee's apartment by a parole officer where it isreasonably related to the performance [*2]of the paroleofficer's duties (see People v Johnson, 63 NY2d 888 [1984]; People vHuntley, 43 NY2d 175 [1977]; People v Porter, 101 AD3d 44, 47 [2012]; People v Taylor, 97 AD3d1139 [2012]; People vJohnson, 94 AD3d 1529, 1532 [2012]; People v Maynard, 67 AD3d 1391 [2009]; People v Johnson, 54 AD3d969 [2008]; People vBurry, 52 AD3d 856 [2008]). Nevertheless, the Supreme Court found that thedefendant voluntarily consented to the officers' entry into his apartment, where the stolenring was in plain view. Finding the entry lawful, the court also determined that thedefendant's consent to search the apartment was consensual. Further, the court found thatthe defendant waived his Miranda rights before making statements to the police.
When the People rely on consent to justify an otherwise unlawful police intrusion,they bear the "heavy burden" of establishing that such consent was freely and voluntarilygiven (People v Gonzalez, 39 NY2d 122, 128 [1976]; see Schneckloth vBustamonte, 412 US 218, 248 [1973]; Bumper v North Carolina, 391 US543, 548 [1968]). "Consent to search is voluntary when it is a true act of the will, anunequivocal product of an essentially free and unconstrained choice. Voluntariness isincompatible with official coercion, actual or implicit, overt or subtle" (People vGonzalez, 39 NY2d at 128; see People v Quagliata, 53 AD3d 670, 671 [2008]; People v Packer, 49 AD3d184, 187 [2008], affd 10 NY3d 915 [2008]). The People's burden of provingvoluntariness "cannot be discharged by showing no more than acquiescence to a claim oflawful authority" (Bumper v North Carolina, 391 US at 548-549; see Floridav Royer, 460 US 491, 497 [1983]; People v Gonzalez, 39 NY2d at 128).
We agree with the defendant that the People failed to prove that his consent to theentry into his home was voluntary. Consent is not voluntary where an officer falselyrepresents facts that normally establish the exercise of police authority to which a personwould ordinarily yield (see Bumper v North Carolina, 391 US at 548-549;People v Torres, 45 AD2d 185, 187 [1974]; People v Jefferson, 43 AD2d112 [1973]; cf. People v Matta, 76 AD2d 844, 846 [1980]). Here, pursuant to theconditions of the defendant's release to parole supervision, he was obligated to allow hisparole officer to enter his home to conduct a home visit and conduct a related search ofhis residence. The People showed no more than the defendant's acquiescence to thisauthority, which does not sustain their burden of proving that he freely and voluntarilyconsented to the entry by the detectives and the sergeant for the purpose of investigatingthe subject burglaries.
Furthermore, because the People failed to prove the lawfulness of the entry into thedefendant's apartment, they cannot rely on the plain view doctrine to support the seizureof the ring or other physical evidence (see People v Brown, 96 NY2d 80, 87-89[2001]; People v Allende, 39 NY2d 474, 477 [1976]; People v Matta, 76AD2d at 846).
In the alternative, the People contend that the warrantless search was reasonableunder the Fourth Amendment because the defendant, as a parolee, had a diminishedexpectation of privacy, and the parole officer had the lawful authority to enter thedefendant's residence, accompanied by the detectives, because the entry was reasonablyand rationally related to her parole duties. Because the Supreme Court decided that issuein the defendant's favor, this Court is jurisdictionally barred from considering that issueon the defendant's appeal (see CPL 470.15 [1]; People v Yusuf, 19 NY3d314, 322 [2012]; People vIngram, 18 NY3d 948, 949 [2012]; People v Concepcion, 17 NY3d 192, 196 [2011];People v LaFontaine, 92 NY2d 470, 474 [1998]).
Accordingly, the evidence adduced at the suppression hearing was insufficient toshow that the defendant freely and voluntarily consented to the entry by the police intohis apartment. The physical evidence recovered therefrom must, therefore, be suppressed.Moreover, the defendant's statements must be suppressed as the fruit of an illegal seizure(see Wong Sun v United States, 371 US 471, 488 [1963]).
In light of our determination, we need not reach the defendant's contention that thesentence imposed was excessive. Rivera, J.P., Dillon, Dickerson and Austin, JJ., concur.