| People v Johnson |
| 2015 NY Slip Op 07130 [132 AD3d 1295] |
| October 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAaron J. Johnson, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Linda M. Campbell of counsel),for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.),rendered October 13, 2011. The judgment convicted defendant, upon his plea of guilty,of criminal possession of a controlled substance in the third degree, criminal possessionof a controlled substance in the fifth degree, criminal possession of marihuana in the fifthdegree and criminally using drug paraphernalia in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of,inter alia, criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]) and criminal possession of a controlled substance in the fifthdegree (§ 220.06 [5]), defendant contends that County Court erred inrefusing to suppress physical evidence and his inculpatory statement. We reject thatcontention.
As police officers approached an apartment to execute a search warrant, the validityof which is not at issue on this appeal, they observed defendant standing in the driveway,only 10 feet away from the "wide open" door of the unoccupied apartment. Officersphysically detained defendant while they secured the apartment and, after observing largequantities of cocaine and marihuana in open view on a table in the living room of theapartment, the officers arrested him. Defendant was brought into the apartment whileofficers conducted a more thorough search of the premises and, shortly thereafter,defendant identified the cell phone on the table next to the drugs as belonging to him.When the officers conducted a search of defendant's person incident to arrest, theyrecovered documents linking him to the apartment.
Contrary to defendant's contention, we conclude that defendant was lawfullydetained incident to the execution of the search warrant inasmuch as he was in the"immediate vicinity of the premises to be searched" (Bailey v United States, 568US &mdash, &mdash, 133 S Ct 1031, 1041 [2013]). Although the Supreme Court hasnot defined "immediate vicinity," the Court has limited it "to the area in which [a person]poses a real threat to the safe and efficient execution of a search warrant" (id. at&mdash, 133 S Ct at 1042). Factors to consider include "the lawful limits of thepremises, whether the [person] was within the line of sight of his [or her] dwelling, [and]the ease of reentry from the [person's] location" (id.). In our view, defendant wasin the immediate vicinity of the premises to be searched and, therefore, was lawfullydetained (see People v Sanin, 60 NY2d 575, 576-577 [1983]; People v Jackson, 88 AD3d451, 451-452 [2011], lv denied 18 NY3d 884 [2012]; cf. People vReyes, 210 AD2d 159, 160 [1994], lv denied 84 NY2d 1037 [1995], certdenied 515 US 1152 [1995]).
Once the large quantity of drugs and money were located in plain view in theapartment, there was probable cause to arrest defendant inasmuch as it was reasonable toconclude that "only trusted members of the [drug] operation would be permitted to enteran apartment containing a large cache of drugs [and] money . . . in plainview" (People v Bundy, 90 NY2d 918, [*2]920[1997]; see People vJackson, 44 AD3d 364, 364 [2007], lv denied 9 NY3d 991 [2007]).
As defendant correctly contends, "a person's mere propinquity to othersindependently suspected of criminal activity does not, without more, give rise to probablecause to search that person" (Ybarra v Illinois, 444 US 85, 91 [1979], rehdenied 444 US 1049 [1980]). Here, however, defendant was not merely near otherssuspected of criminal activity. Rather, defendant was the person suspected of criminalactivity because he was the only person in or around an open apartment in which largequantities of drugs were located in plain view. We thus conclude that defendant's relianceon Ybarra is misplaced.
"Because the arrest was supported by probable cause, the police were authorized tosearch defendant incident to that lawful arrest and thus properly seized the inculpatorypaper[s] from defendant's pocket during that search" (People v Ralston, 303AD2d 1014, 1014-1015 [2003], lv denied 100 NY2d 565 [2003]; seegenerally People v Weintraub, 35 NY2d 351, 354 [1974]).
Defendant further contends that the court erred in refusing to suppress his statementidentifying the cell phone, which was located on the table next to the drugs, as belongingto him. Relying on Rhode Island v Innis (446 US 291 [1980]) and People vFerro (63 NY2d 316, 321-323 [1984], cert denied 472 US 1007 [1985]), hespecifically contends that the police officers engaged in the functional equivalent ofcustodial interrogation without the benefit of Miranda warnings when they placedhim in an area near the cell phone and questioned him concerning pedigree information.We reject that contention. The testimony from the suppression hearing established thatthe police officers did not in any way draw attention to the phone and "there is noindication that the police acted in a manner that 'should reasonably have been anticipatedto evoke a statement from the defendant' [concerning the phone] or that the statement[ ][was] not self-generating" (People v Hann, 198 AD2d 904, 904 [1993], lvdenied 83 NY2d 805 [1994], quoting People v Rivers, 56 NY2d 476, 480[1982], rearg denied 57 NY2d 775 [1982]; see People v Castro, 73 AD3d 800, 800-801 [2010], lvdenied 15 NY3d 803 [2010]; People v Arriaga, 309 AD2d 544, 545 [2003],lv denied 1 NY3d 624 [2004]; cf. Ferro, 63 NY2d at 323). Finally, thequestions of the officers relating only to pedigree information "were not 'subtly designedto elicit a statement' from defendant" (People v Lipscomb, 214 AD2d 970, 970[1995], lv denied 86 NY2d 797 [1995], cert denied 516 US 1078 [1996]).Present—Scudder, P.J., Smith, Carni, Lindley and DeJoseph, JJ.