| People v Freeman |
| 2016 NY Slip Op 05472 [141 AD3d 1164] |
| July 8, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Darrion B. Freeman, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John L. DeMarco, J.),rendered January 16, 2013. The judgment convicted defendant, upon his plea of guilty,of criminal possession of a weapon in the second degree (two counts) and criminalpossession of marihuana in the third degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty oftwo counts of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [1] [b]; [3]) and one count of criminal possession of marihuana inthe third degree (§ 221.20), defendant contends that County Court erred indenying that part of his omnibus motion seeking to suppress tangible property andstatements obtained by the police following their warrantless entry into his home. Wereject that contention and affirm the judgment.
"Where, as here, the People contend that a suspect gave his or her consent to thepolice to enter the suspect's home, 'the burden of proof rests heavily upon the People toestablish the voluntariness of that waiver of a constitutional right' " (People v Forbes, 71 AD3d1519, 1520 [2010], lv denied 15 NY3d 773 [2010], quoting People vWhitehurst, 25 NY2d 389, 391 [1969]). Based on the totality of the circumstancessurrounding defendant's consent to enter his home, we conclude that the consent wasvoluntary (see People vMcCray, 96 AD3d 1480, 1481 [2012], lv denied 19 NY3d 1104 [2012]).Testimony at the suppression hearing established that, although defendant was in custodyat the time he gave consent, he cooperated with the police and assisted them in gainingentry by indicating which of his keys opened the front door (see People v Nance, 132 AD3d1389, 1389 [2015], lv denied 26 NY3d 1091 [2015]; McCray, 96AD3d at 1481). Once inside the home, the police observed marihuana in plain view andimmediately read defendant his Miranda rights. After defendant waived thoserights, he voluntarily consented, both verbally and in writing, to a search of thepremises.
We reject defendant's further contention that any voluntary consent he may havegiven did not encompass a search of a duffel bag inside of his closet. "The standard formeasuring the scope of a suspect's consent under the Fourth Amendment is that ofobjective reasonableness—what would the typical reasonable person haveunderstood by the exchange between the officer and the suspect?" (People v Gomez, 5 NY3d416, 419 [2005] [internal quotation marks omitted]; see Florida v Jimeno,500 US 248, 251 [1991].) Where an officer informs a suspect of the specific items theofficer is searching for, " '[t]he scope of a search is generally defined by itsexpressed object' " (Gomez, 5 NY3d at 420, quoting Jimeno, 500US at 251). Here, defendant responded affirmatively when the officer asked him whetherhe "could have permission to search both the room and the house for drugs or any otherweapons or illegal contraband in the house." Additionally, defendant signed a writtenconsent that included the "premises" and his "personal property." We therefore concludethat defendant's consent encompassed the duffel bag. "It was [*2]objectively reasonable for the police to conclude that theconsent to search the apartment . . . encompassed a thorough search of anylocation where a gun [or narcotics] might have been secreted" (People v Bruno,294 AD2d 179, 179-180 [2002], lv denied 99 NY2d 533 [2002]).
All concur except Whalen, P.J., and Troutman, J., who dissent and vote to reverse inaccordance with the following memorandum.
Whalen, P.J., and Troutman, J. (dissenting). We respectfully dissent. In our view, thePeople failed to meet their burden at the suppression hearing of establishing thatdefendant voluntarily consented to the police officers' entry into and search of hisresidence. We would therefore reverse the judgment, vacate the plea, grant that part ofdefendant's omnibus motion seeking suppression of tangible property and statementsobtained following the entry into defendant's residence, dismiss the first and secondcounts of the indictment, and remit the matter to County Court for further proceedings onthe third count of the indictment.
The record of the suppression hearing establishes that two Rochester police officerswere on routine patrol in a marked patrol vehicle when they noticed a vehicle operated bydefendant. They followed his vehicle a short distance. When defendant turned into thedriveway of his residence, one of the officers observed that the windows wereexcessively tinted in violation of Vehicle and Traffic Law § 375 (12-a) (b)(3). As defendant exited his vehicle, the officers approached him on foot. One of theofficers detected the odor of marihuana and observed that defendant appeared to benervous. Defendant disclosed to the officer that he was on probation. When he wasunable to produce a license or other identification in response to the officer's request,defendant was frisked and, during the frisk, defendant's keys fell to the ground. Theofficer seized them and placed them on the trunk of the vehicle defendant had beendriving. He then handcuffed defendant, escorted him to the patrol car and locked him inthe backseat. Inside the patrol car, defendant provided his name and date of birth and arecord check disclosed that defendant's driver's license had been suspended. At that pointdefendant was under arrest for aggravated unlicensed operation of a motor vehicle.
While defendant remained in the backseat of the patrol car, the officer asked himwhether there was anything illegal in the vehicle, and defendant responded that thevehicle did not belong to him, and to his knowledge there was nothing illegal in thevehicle. The officer requested to search the vehicle, and defendant said that he "d[id]n'thave a problem with that." The officer unlocked the vehicle and found a small quantity ofmarihuana in the pocket of defendant's sweatshirt and a larger quantity of marihuanaunder the driver's seat.
The officer returned to the patrol car and advised defendant that marihuanapossession was not "that serious of a charge," but that defendant must produceidentification "if there was any chance for him to bail out on the charge." The officerasked if defendant would accompany him inside the residence to retrieve defendant'sidentification, and defendant agreed to do so. As they approached the rooming housewhere defendant resided, defendant specified which keys opened the main door to thebuilding and the door to his room. Once inside defendant's room, the officer saw a digitalscale and a small quantity of marihuana in an open cigar box. Defendant advised theofficer that his identification was in his dresser and he began to walk toward the dresser,but the officer stopped him and directed him to sit on the bed. Defendant complied, andthe officer advised him that he was under arrest on drug charges. The officer pointed outthat there were drugs and paraphernalia in plain sight, but "it really wasn't a big deal and[the officer] would like [defendant's] cooperation." The officer then advised defendant ofhis Miranda rights, and defendant agreed to speak to him. When asked whetherhe had any marihuana in the house, defendant responded that it was all in the basement.The officer asked defendant whether he could have "permission to search both the roomand the basement for marijuana," and defendant replied affirmatively.
Before conducting the proposed search, the officer prepared a written consent tosearch form. The form misspelled defendant's name, and misidentified the place to besearched and the person giving consent. The officer acknowledged in his testimony at thesuppression hearing that he did not read the form to defendant and did not know whetherdefendant read the form himself. Nevertheless, while defendant's hands remainedhandcuffed behind his back, defendant signed the form card. The officer searched theroom and found a handgun and a large quantity of marihuana in a duffel bag inside acloset next to the bed.
At the outset, we agree with the majority that the People bear a heavy burden ofproving [*3]that defendant consented to the entry into hishome (see People v Gonzalez, 39 NY2d 122, 128 [1976]; People v Forbes, 71 AD3d1519, 1520 [2010], lv denied 15 NY3d 773 [2010]), and whether suchconsent was voluntary must be determined from the totality of the circumstances (seeSchneckloth v Bustamonte, 412 US 218, 227 [1973]; Gonzalez, 39 NY2d at128; People v Harper, 100AD3d 772, 774 [2012], lv denied 21 NY3d 943 [2013]). We add that we are"required to indulge every reasonable presumption against the waiver of constitutionalrights guaranteed by the Fourth Amendment" (People v McNeeley, 77 AD2d205, 209 [1980]; see Johnson v Zerbst, 304 US 458, 464 [1938]). With thoseprinciples in mind, we cannot agree with the majority that defendant's consent to enterand search his home was voluntarily given. "Submission to authority is not consent"(Gonzalez, 39 NY2d at 129) and, here, the circumstances support a finding thatdefendant's "apparent consent was but a capitulation to authority" (id.).
The factors guiding our assessment of the voluntariness of defendant's consentinclude whether defendant was: (1) in custody or under arrest; (2) handcuffed; (3)evasive or cooperative; (4) advised of his right to refuse consent; and (5) experienced indealing with the police (see id. at 128-130; Matter of Daijah D., 86 AD3d 521, 521-522 [2011]). Noneof those factors weighs in favor of a finding of voluntariness in this case. Rather, theevidence establishes that, from the outset, the encounter between defendant and theofficer "included highly intrusive police conduct[,] the coercive effect of which could nothave abated when . . . defendant consented to the" entry and search of hisroom (People v Packer, 49AD3d 184, 187 [2008], affd 10 NY3d 915 [2008]). Within two minutes ofthe officers' approach of defendant based upon a minor Vehicle and Traffic Lawviolation, he was frisked, handcuffed, arrested, and placed in the backseat of a lockedpatrol vehicle. While defendant was thus confined, the officer asked defendant whetherhe would agree to accompany him into defendant's residence, suggesting that he intendedto enter regardless of whether defendant granted or withheld his consent. Under thecircumstances, defendant had no reason to suppose that his consent was required or evensought by the officer and, indeed, defendant was never advised that he had a right torefuse consent (see People v Flores, 181 AD2d 570, 572 [1992]; People vGuzman, 153 AD2d 320, 324 [1990]; cf. People v Green, 104 AD3d 126, 132 [2013]). Rather,defendant was persuaded to accompany the officer into his residence by the officer'smisleading assurances that his identification was the practical equivalent of the keys tothe jail (see generally People vSkardinski, 24 AD3d 1207, 1208 [2005]; People v Cioffi, 55 AD2d 682,682 [1976]). No evidence was presented at the suppression hearing that defendant was "acase-hardened sophisticate in crime, calloused in dealing with the police," and thusresistant to coercive police tactics (Gonzalez, 39 NY2d at 129). Indeed, the onlyevidence of other bad acts or criminality at the hearing was that defendant was onprobation as the result of a Vehicle and Traffic Law offense. We conclude that thetotality of those circumstances weighs heavily against a determination that defendant'sconsent to the officer's entry into the residence was voluntary (see id. at 128-129;Harper, 100 AD3d at 774).
Contrary to the conclusion of the suppression court and the majority, moreover, wecannot conclude that defendant's conduct in pointing out the keys that opened the doorsto the rooming house and his room evinced a desire to be cooperative (cf. People v McCray, 96 AD3d1480, 1481 [2012], lv denied 19 NY3d 1104 [2012]; People vAbrams, 95 AD2d 155, 157 [1983]). The officer had seized defendant's keys at thebeginning of the encounter, and defendant merely facilitated what he must haveperceived to be the officers' inevitable entry into his residence. Nor did the remainder ofdefendant's actions indicate cooperation with the police. To the contrary, defendant wasevasive during the encounter, denying that there were drugs in the vehicle he wasdriving, and falsely advising the officer that any drugs in the rooming house would befound in the basement (cf.People v Yoneyama, 128 AD3d 616, 616 [2015], lv denied 26 NY3d937 [2015]). In sum, therefore, we conclude that the People failed to meet their burden ofestablishing that defendant's consent to the officer's entry was "a true act of the will, anunequivocal product of an essentially free and unconstrained choice" (Gonzalez,39 NY2d at 128). Inasmuch as the entry into defendant's residence was illegal, the Peoplecannot rely on the plain view doctrine to support the seizure of the marihuana andparaphernalia that the officer saw upon entering the residence (see People v Marcial, 109AD3d 937, 938 [2013], lv denied 22 NY3d 1200 [2014]).
We further conclude that, apart from the illegal entry, the People failed to establishthat defendant voluntarily consented to the search of his room. Defendant signed awritten consent form that was nonsensical as completed, and the officer who prepared ittestified that he "presented" it to defendant but neither read it aloud nor sought anyassurance from defendant that he had read it (see Skardinski, 24 AD3d at 1208).Further, defendant signed the form while his [*4]hands were handcuffed behind his back, as they hadbeen almost from the inception of the encounter. In our view, "the coercive logic of thesituation would have been obvious to any reasonable, innocent person in defendant'splace" (Packer, 49 AD3d at 188-189). "Voluntariness is incompatible withofficial coercion, actual or implicit, overt or subtle" (Gonzalez, 39 NY2d at 128).Here, the totality of the circumstances compel the conclusion that defendant's consent tothe search of his residence, like his consent to the entry, was the product of coercionrather than his free and unconstrained choice.
We would therefore grant defendant's omnibus motion to the extent that it soughtsuppression of physical evidence and statements obtained following the entry, whichincludes the weapon seized from the duffel bag. Suppression of the weapon wouldeliminate the evidence supporting the first and second counts of the indictment, and thosecounts should therefore be dismissed. Inasmuch as it is unclear from the record whetherthe evidence supporting the third count of the indictment charging criminal possession ofmarihuana was obtained from the vehicle or the residence, we would remit the matter toCounty Court for further proceedings on that count. Present—Whalen, P.J., Carni,NeMoyer, Troutman and Scudder, JJ.