| People v Theodore |
| 2014 NY Slip Op 01025 [114 AD3d 814] |
| February 13, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Rashid Theodore, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Deborah E. Wassel of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kron, J.), rendered August 7, 2013, convicting him of criminal possession of a weaponin the second degree (two counts) and criminal possession of marijuana in the fifthdegree, upon his plea of guilty, and imposing sentence. The appeal brings up for reviewthe denial, after a hearing (Paynter, J.), of that branch of the defendant's omnibus motionwhich was to suppress physical evidence.
Ordered that the judgment is reversed, on the law, that branch of the defendant'somnibus motion which was to suppress physical evidence is granted, the indictment isdismissed, and the matter is remitted to the Supreme Court, Queens County, for furtherproceedings consistent with CPL 160.50.
On September 29, 2011, Detective Gregory Anderson of the 113th Precinct of theNew York City Police Department (hereinafter the NYPD) received a radio call directinghim to respond to a residential fire at 123-06 Sutphin Boulevard in Jamaica, Queens. Thedispatcher advised him that a child had placed the call to the 911 emergency operator,and had reported the location as 123-06 Rockaway Boulevard, but that the firefightersand the police officers from the 106th Precinct who responded to that location did notfind a fire. Detective Anderson, along with an NYPD sergeant, responded to 123-06Sutphin Boulevard, and found neither a residence nor a fire, but only a vacant lot alongthe entire side of that block where even-numbered addresses would have been situated.Detective Anderson circled the block once or twice, looking for the closest house. Acrossthe street from 123-06 Sutphin Boulevard were four houses, and Detective Andersondetermined that 123-09 Sutphin Boulevard was the closest one. He did not see or smellany smoke or fire coming from 123-09 Sutphin Boulevard. Detective Anderson did notring the doorbell at that house. Instead, he walked along a walkway on the left side of thehouse for about 30 feet before reaching the rear yard. He made a right turn and walkedover to the rear yard. From there, Detective Anderson could see, at the other end of theyard, a car parked at the end of a driveway. The [*2]defendant was inside the car, and Detective Andersonapproached him. As he neared the vehicle, Detective Anderson saw the defendantholding a cigar-shaped object that turned out to be a cigar with the tobacco removed andmarijuana substituted in its place, commonly known as a "blunt." Detective Andersondirected the defendant to exit the vehicle. Once the defendant did so, Detective Andersonsaw a firearm on the driver's seat. He seized the firearm, along with marijuana andmarijuana grinding apparatus commonly known as a "crusher" that was also inside thevehicle.
The defendant was charged with two counts of criminal possession of a weapon inthe second degree and one count of criminal possession of marijuana in the fifth degree.The defendant moved, inter alia, to suppress the physical evidence, but, after a hearing,the Supreme Court denied that branch of the motion. The defendant later pleaded guiltyto the entire indictment, and was sentenced.
A search occurs, thereby triggering the protection of the Fourth Amendment to theUnited States Constitution and article I, section 12 of the New York Constitution, whenthe police invade an area where a person has a legitimate expectation of privacy (seePeople v Knapp, 52 NY2d 689, 694 [1981]; United States v Moran, 349 FSupp 2d 425, 467 [2005]). A legitimate expectation of privacy exists where a person hasmanifested a subjective expectation of privacy that society recognizes as reasonable(see Oliver v United States, 466 US 170, 177 [1984]; Katz v UnitedStates, 389 US 347, 361 [1967]; People v Ramirez-Portoreal, 88 NY2d 99,108 [1996]; People v Reynolds, 71 NY2d 552, 557 [1988]; see also Florida vJardines, 569 US —, 133 S Ct 1409, 1417 [2013]). The curtilage of thehome—the area immediately surrounding and associated with the home or the areathat is related to the intimate activities of the home—is part of the home itself(see Florida v Jardines, 569 US at —, 133 S Ct at 1414; Oliver vUnited States, 466 US at 178, 180; People v Reynolds, 71 NY2d at 558;People v Reilly, 195 AD2d 95, 98 [1994]). The determination of whether an areafalls within the home's curtilage may be made by reference to four factors: "the proximityof the area claimed to be curtilage to the home, whether the area is included within anenclosure surrounding the home, the nature of the uses to which the area is put, and thesteps taken by the resident to protect the area from observation by people passing by"(United States v Dunn, 480 US 294, 301 [1987]).
Consideration of these factors in connection with the evidence in this record,including two photographs of a portion of the subject premises, compels us to concludethat the defendant's rear yard was within the curtilage of the home. The rear yard was inclose proximity to the home, shielded from view by those on the street, and within thenatural and artificial barriers enclosing the home. This physical arrangement mademanifest the defendant's expectation of privacy, and that expectation is one that societyrecognizes as reasonable (see People v Saurini, 201 AD2d 869 [1994];People v Abruzzi, 52 AD2d 499 [1976], affd 42 NY2d 813 [1977];United States v Wells, 648 F3d 671, 677 [2011]; United States v Howe,414 Fed Appx 579, 581 [2011]; Lundstrom v Romero, 616 F3d 1108,1128-1129 [2010]; United States v Romero-Bustamente, 337 F3d 1104, 1108[2003]; Daughenbaugh v City of Tiffin, 150 F3d 594, 601-602 [1998];Quintana v Commonwealth of Kentucky, 276 SW3d 753, 760 [Ky 2009];Kamins, 1-6 New York Search & Seizure § 6.03 [4]). Therefore, since DetectiveAnderson conducted a search without a warrant when he entered the defendant's rearyard, the People were required to demonstrate that his entry was justified under someexception to the warrant requirement (see People v Rodriguez, 77 AD3d 280, 282-283 [2010]).
Under the emergency exception, the police may make a warrantless entry into aprotected area if (1) they have reasonable grounds to believe that there was an emergencyat hand and an immediate need for their assistance for the protection of life or property;(2) the search was not primarily motivated by an intent to arrest and seize evidence; (3)and there was some reasonable basis, approximating probable cause, to associate theemergency with the area or place to be searched (see People v Mitchell, 39 NY2d173, 177 [1976]; People v Rodriguez, 77 AD3d at 283; People v Desmarat, 38 AD3d913, 914-915 [2007]). The United States Supreme Court has determined that thesecond prong regarding the subjective intent of the police is no longer relevant under theFourth Amendment (see Brigham City v Stuart, 547 US 398, 404-405 [2006]).However, we need not decide whether the second prong of Mitchell is still viableunder the New York Constitution because we conclude that the People did not satisfy thethird prong of Mitchell (see People v Doll, 21 NY3d 665, 671 n [2013]; People v Dallas, 8 NY3d890, 891 [2007]; People v Rodriguez, 77 AD3d at 284). There was no basisfor believing [*3]that there was any "direct relationship"or "nexus" between the report of the fire and 123-09 Sutphin Boulevard (see People vMitchell, 39 NY2d at 179; People v Alster, 28 AD3d 490, 491 [2006]). The childcaller reported the location of the fire as 123-06 Rockaway Boulevard (see People vDePaula, 179 AD2d 424 [1992]). Although the location Detective Andersonresponded to, 123-06 Sutphin Boulevard, had the same number as the address reported,the two street names were not similar (cf. United States v Huebner, 125 FedAppx 767 [2005]). At that location, Detective Anderson did not find a fire or even aresidence, only a vacant lot. Detective Anderson decided to continue his investigationacross the street from the vacant lot at the defendant's home at 123-09 Sutphin Boulevardsimply because it was closest in proximity to the vacant lot, but, again, he found noevidence of smoke or a fire. Under these circumstances, Detective Anderson did not havea reasonable basis to believe that there was a fire at 123-09 Sutphin Boulevard (seePeople v Andujar, 160 AD2d 403 [1990]; United States v Deemer, 354 F3d1130 [2004]).
Since Detective Anderson did not have a lawful vantage point when he saw thedefendant holding a "blunt," the People may not rely on the plain view doctrine to justifythe seizure of the gun, marijuana, and the "crusher," since an essential predicate of theplain view doctrine is that the officer had the right to be in a position to have the view ofthe incriminating evidence (see Horton v California, 496 US 128, 136 [1990];People v Machovoe, 242 AD2d 898 [1997]; People v Abruzzi, 52 AD2dat 502; Katz and Shapiro, 1-15 New York Suppression Manual § 15.03).
Accordingly, that branch of the defendant's omnibus motion which was to suppressphysical evidence should have been granted. Since, without that evidence, the Peoplewould be unable to adduce legally sufficient evidence to prove the defendant's guilt ofthe crimes charged, the indictment should have been dismissed. Consequently, the mattermust be remitted to the Supreme Court, Queens County, for further proceedingsconsistent with CPL 160.50. Dillon, J.P., Balkin, Chambers and Cohen, JJ., concur.