People v M.R.

[*1] People v M.R. 2009 NY Slip Op 52717(U) [26 Misc 3d 1213(A)] Decided on July 20, 2009 Supreme Court, Bronx County Tallmer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 20, 2009
Supreme Court, Bronx County

The People of the State of New York

against

M.R., Defendant.



0546-07



For the People: Dilia K. Travieso, Esq.

Office of the District Attorney, Bronx County

198 East 161st Street

Bronx, New York 10451

For the Defense: Monica Dula, Esq.

The Legal Aid Society

1020 Grand Concourse

Bronx, New York 10451

Megan Tallmer, J.

Defendant is charged with criminal possession of a weapon and related charges. He moved to suppress physical evidence and statements made to the police. A hearing on defendant's motion was held before me, at which Sargent Timothy Jaycox testified on behalf of the People. The Court has serious reservations about Sargent Jaycox's credibility, particularly as to his reasons for going over to defendant's home when he was not assigned to the investigation of the shootings of defendant's brothers. Absent an alternative account by the defendant, however, the Court cannot conclude that Sargent Jaycox's testimony was incredible as a matter of law, tailored to nullify constitutional objections or "manifestly untrue, physically impossible, contrary to experience or self-contradictory." See People v. Carmona, 233 AD2d 142 (1st Dept 1996); People v. Diaz, 10 Misc 3d 9 (App Term, 1st Dept 2005). I therefore find Sargent Jaycox sufficiently credible to satisfy the People's burden of going forward and make the following findings of fact and conclusions of law. [*2]

FINDINGS OF FACT

Sargent Jaycox is a seven year veteran of the NYPD who has made approximately 140 arrests.[FN1] In January of 2007, he was assigned to an anticrime unit in the 40th Precinct. The unit was responsible for patrolling in an unmarked police car to thwart crimes in progress or to investigate minor street crimes. Sargent Jaycox had seen defendant in the neighborhood. He knew that defendant's nickname was "Murder M., " leading Sargent Jaycox to believe that people were afraid of defendant because of murders. He was also aware that defendant had a misdemeanor conviction, but did not know that defendant had a gun conviction.[FN2]

On January 2, 2007, Sargent Jaycox was on anticrime patrol in an unmarked police car with Sargent Walton and two other police officers. He had been informed that during the previous week, defendant's two brothers were shot on Courtlandt Avenue. There were two suspects in the shootings; one thought to be named "Cash," the other "Zachary Del Rosario." Defendant was not considered a suspect in his brothers' shootings. Sargent Jaycox had not spoken to the detective assigned to investigate the shootings of defendant's brothers and did not even know which detective had the assignment. He acknowledged that it would have been good police work to have conferred with the assigned detective. Sargent Jaycox thought about speaking with the victims who were shot but decided to see defendant instead.

Although no one directed them to speak with defendant, Sargent Jaycox and his fellow officers decided to go to defendant's home on their own initiative. According to Sargent Jaycox, the reason for visiting defendant was to see if defendant had any idea who shot his brothers. The police obtained defendant's home address from Department of Motor Vehicle records.

Sargent Jaycox and his fellow officers went to defendant's building. They gained access to the building by following a young woman who was buzzed in at the entrance. The woman proceeded to defendant's apartment on the second floor, with the officers following a short distance behind her. The police were outside the apartment in the hallway when the young woman knocked on the door and was admitted into the apartment by her mother.

The door to the apartment was more than halfway open and the officers could see down the hallway of the apartment. The police asked the woman who answered the door if defendant was home. She said she would get him and left the door ajar as she walked down the hall, yelling to defendant that the police were there to see him. Defendant came to the doorway and stood with his hand on the door.

The police asked defendant if they could speak with him, to which he replied "no [*3]problem." The police then asked whether he would like to go outside or talk in the apartment and defendant said, in substance, that he wanted to grab his coat and his hat. It was Sargent Jaycox's belief that defendant was willing to go with the police.

While defendant was speaking with the police, the door was wide open. When Sargent Walton asked defendant where his coat was, defendant pointed with his finger to the couch in the living room, indicating that his jacket was on the couch. The police followed defendant as he walked down a short hallway to the couch to retrieve his jacket. Although defendant never invited the police into the apartment, Sargent Jaycox interpreted defendant's action of pointing to his coat and walking towards the couch as an invitation for the police to enter defendant's apartment.

Upon entering the living room, the police observed a couch arranged in an "L" shape with a love seat. Defendant's jacket was hanging over the arm of the couch. Next to the jacket, the police saw a small baggie with marijuana. They also saw three other baggies of marijuana; one on the floor and two on the coffee table.

After the police observed the marijuana, defendant was immediately placed in handcuffs. The People conceded that defendant was not free to leave at that point. Sargent Jaycox claimed, however, that defendant was merely being detained because the police could have issued him a summons for the marijuana violation instead of placing him under arrest According to Sargent Jaycox, "[t]he decision was made to put M.R. in handcuffs, at that point, while we investigated."

Defendant was told to sit down on the couch. He sat between two of the couch cushions in an unnatural position, with his body slanted towards the love seat. Sargent Jaycox did not see a bulge in the couch and acknowledged that he had no reason to fear that while handcuffed, defendant would have been able to retrieve a weapon.

Speaking at the same time, Sargent Jaycox and Sargent Walton said to defendant "listen, we came over here to talk to you about your brothers, and is there anything else in this apartment that is not supposed to be here?" When defendant responded "no, you are not going to find anything else in here," Sargent Jaycox asked if defendant would mind if the police looked around his bedroom. No Miranda warnings were given to defendant prior to these questions by the police, nor was he asked to give written consent to a search. Defendant replied that he had no problem with that and directed Sargent Jaycox to the first bedroom off the entrance to the apartment. Sargent Jaycox acknowledged that the purpose of searching defendant's bedroom was to find more contraband.

When Sargent Jaycox entered the first bedroom, he saw another small bag of marijuana on a shelf with a stereo. The room did not appear to be a man's bedroom; there were posters, CDs and clothing indicating that a younger person lived there. Sargent Jaycox also found an ID card for a 16 year old named "Michael Hall." Sargent Jaycox conceded that while defendant was sitting handcuffed on the couch, defendant had no ability to gain access to the first bedroom.

After making these observations, Sargent Jaycox went back out to the living room and said to defendant "I found this marijuana in the room ... listen, I don't believe you sleep in that room." Defendant then acknowledged that the marijuana belonged to him. Defendant's girlfriend said the bedroom belonged to her 16 year old son. As Sargent Jaycox came out of the first bedroom, he saw defendant talking with Sargent Walton. Defendant asked for a cigarette and Sargent Walton agreed he could have one. Defendant's girlfriend put the cigarette in defendant's [*4]mouth and he smoked it very quickly.

Defendant appeared to be nervous. He drank a half glass of water quickly and was breathing fast. When Sargent Walton offered the defendant the choice of sitting on a dining room chair or the love seat, defendant moved to the love seat. His hands were shaking and he asked for another cigarette. Sargent Jaycox saw Sargent Walton lift the cushions of the love seat, where Sargent Walton found open empty glassines stuffed in between and under the cushions. Sargent Jaycox had not seen these open glassines when he first came into the living room. Sargent Jaycox assumed that Sargent Walton searched the love seat because Sargent Walton saw glassines, but did not really know why Sargent Walton decided to search the love seat. After Sargent Walton lifted up the second cushion of the love seat, he asked defendant to stand up.

On cross-examination, Sargent Jaycox had the following colloquy with defense counsel concerning Sargent Walton's reasons for searching the love seat: Q. Why did you search the love seat?A. That is where we found the first marijuana and that wasn't his lungeable area.Q. He could lunge towards the love seat?A. The sofa - he can - he was sitting on the sofa, that's where we found the first marijuana.Q. Right?A. The love seat had open glassines stuffed into - in between the cushion. Walton picked up the cushion, first cushion then the second cushion, no other contraband was found, only open -Q. Right?A. - I mean its nothing, its an open glassine envelope.Q. Okay. Now how does he have a lungeable area are if he's handcuffed?A. He wasn't handcuffed when I came in the apartment, and that is where he went to right where the first amount of marijuana was.Q. Okay. So after you saw the marijuana though, you testified you put him in handcuffs, correct?A. Yes.Q. Okay. And then you proceeded to search the love seat, correct?A. I said Sargent Walton lifted up the cushion on the love seat.Q. So Sargent Walton picked up the cushion on the love seat and you said you searched there because it was a lungeable area, right?A. No, I didn't. I searched -Q. You didn't?A. - I said there were open glassines of what appeared to be marijuana stuffed into the cushion.Q. Okay, but did you see that stuffed into the cushion when you first came into the living room?A. No, I didn't.Q. Okay. So you saw, after Sargent Walton picked up the cushion -A. The love seat - I didn't see it stuffed in there, he lifted the cushions because he saw the glassine opened in there, he lifted it, there was only empty glassines. It is [*5]not contraband. We can't arrest him for that. We didn't recover because - he put the cushion - he lifted up two of them, that was it. I didn't search that. He lifted those up. I was there when he did. I did see them when he lifted the cushion. There were more underneath the cushion.Q. So you searched - Sargent Walton searched the love seat because he saw a glassine?A. I am assuming ... I saw them when he lifted up the cushion, so I am assuming he saw them.Q. You don't really know why he searched the love seat?A. True.

Sargent Walton went over to the couch where defendant had been sitting and lifted up the cushions. According to Sargent Jaycox, Sargent Walton lifted up the sofa cushion to see if there was more contraband. Nothing was found under the first cushion. When Sargent Walton lifted up the cushion on which defendant was sitting when he was handcuffed, Sargent Walton found a .357 revolver. On top of the gun was a New York State driver's identification with defendant's name and live rounds of ammunition. Approximately three minutes elapsed from the time Sargent Jaycox emerged from the first bedroom until Sargent Walton discovered the gun.

After finding the gun, Sargent Jaycox told defendant that he had not been up front with the police and that they were going to get a search warrant, go through the entire apartment, and charge defendant with any additional contraband. Sargent Jaycox asked defendant if there was anything else in the apartment he wanted to tell the police about before they left. Defendant told Sargent Jaycox the only things left were some baggies and two scales on the floor of a closet in the second bedroom. Defendant admitted that the first bedroom was not his and that he slept in the second bedroom. On the floor of the closet in the second bedroom, Sargent Jaycox recovered two scales, baggies used to package narcotics and a magazine for a semi-automatic handgun. When Sargent Jaycox asked defendant about the magazine, he said he found it on the street but did not have a gun that went with the magazine.

CONCLUSIONS OF LAW

At the oral argument on defendant's motion, the only issue addressed by the parties was the legality of the initial entry into the apartment by the police. The Court reserved decision on the motion. In the course of researching this decision, the Court asked the parties to brief additional issues. The Court emailed counsel as follows:

Assuming that defendant's words and actions amounted to a consent to enter the apartment and to seize contraband in plain view on the couch, what justified the subsequent search underneath the love seat cushions and the couch cushions, in terms of both the predicate for the search and an exception to the warrant requirement?

In response to the Court's request, the defense counsel submitted a memorandum of law in which counsel contended that defendant did not consent to the police entry into his apartment and that all of defendant's statements to the police after he was handcuffed were the product of custodial interrogation without the benefit of Miranda warnings. The defense further asserted that the police observations of marijuana in the living room did not give them a basis for a warrantless search of the bedrooms, that defendant did not voluntarily consent to the search of the bedrooms and never consented to a search of the sofa. [*6]

In response, the People filed a memorandum of law in which they argued that the couch and love seat cushions were within defendant's grabbable area and therefore subject to being searched incident to defendant's arrest. Citing People v. Smith, 59 NY2d 454 (1983) and People v. Johnson, 86 AD2d 165, 168 (1st Dept. 1982), the People maintained that even though defendant was handcuffed, he was sufficiently close to both the love seat and the couch to conceal or destroy evidence underneath their cushions. The People rely upon the totality of the circumstances confronting the police — the observation of the marijuana on the couch, defendant's awkward position, the discovery of marijuana in another bedroom, defendant's admission that the marijuana was his, defendant's nervousness and the discovery of glassine envelopes in the love seat cushions — to urge that the police had reason to believe that the search under the couch cushions was necessary to prevent defendant from destroying any additional evidence.

Subsequently, the Court again emailed the parties, stating:

Assume for the sake of argument:

1. The initial entry of the police into defendant's apartment was justified;

2. The marijuana on and around the couch was observed in plain view;

3. Upon seeing the marijuana, the police were entitled to handcuff defendant and search any grabbable area incident to his arrest;

4. Once handcuffed, defendant did not voluntarily consent to the police search of the first bedroom;

5 Once the gun was recovered, defendant could not be asked whether there was any other contraband in the apartment without first receiving Miranda warnings.

The issue is whether assuming all of the above, would the gun under the couch cushions have inevitably been discovered, so as to attenuate any illegality in searching the bedrooms and/or the cushions under the love seat [see People v. Turriago, 90 NY2d 77, 86)].

In response to the Court's second inquiry, defense counsel submitted a second memorandum of law, in which counsel asserted that the search underneath the couch cushions could not be upheld as a search incident to arrest absent proof of any exigent circumstances. Noting that the police did not search under the sofa cushions initially and denied having any reason to believe a weapon was concealed under the cushion, the defense maintained that the People could not rely upon the search incident to arrest exception to the warrant requirement. Defense counsel also argued that the inevitable discovery doctrine does not apply where the evidence sought to be suppressed is the primary evidence derived from police misconduct and where the People have failed to show a high probability that the evidence would have been discovered regardless of the police misconduct.

The People filed a supplemental memorandum of law in which they maintained that the gun found under the couch cushions was not the primary evidence obtained from improper questioning of defendant by the police without Miranda warnings. The People also asserted that the evidence adduced at the hearing supported the conclusion that the police would have obtained a search warrant and that the gun would inevitably have been discovered in the course of executing such warrant. [*7]

Following the People's response, defense counsel filed a supplemental memorandum of law in which counsel argued that the People had not met the prerequisites for the inevitable discovery exception to the warrant requirement.

A. Police Entry into Defendant's Apartment

This case presents several close questions of law. The first concerns the initial police entry into the apartment. Where entry into a home and the subsequent seizure of evidence is based upon consent, the People bear a heavy burden to prove by clear and positive evidence the voluntariness of the purported consent. See People v. Gonzalez, 39 NY2d 122, 128 (1976); People v. Packer, 49 AD3d 184, 187 (1ST Dept 2008). Notwithstanding this "heavy burden," in a series of cases relied upon the People, the courts have found consent to enter a dwelling based upon relatively minimal words and conduct. See People v. Smith, 239 AD2d 219 (1st Dept 1997) ; People v. Brown, 234 AD2d 211 (1st Dept 1996); People v. Velez, 4 Misc 3d 1004(A) (Crim Ct, Bronx County 2004) and cases cited therein.

In Smith, supra, the police went to the apartment of a man accused of assaulting another man earlier in the day. The police knocked on the door and spoke with defendant about the incident. Defendant admitted having an argument. When defendant was asked for identification, he originally reached for his pocket but then told the police he did not have the identification. Defendant walked towards a dresser inside the apartment. The police followed to make sure defendant did not produce a gun or weapon. Defendant gave the police two identification cards, one of which had the name "Frank Mills." The Smith court inferred that defendant consented to the warrantless entry into his home by engaging in discussion with the police officer at the door, complying with the request for identification without hesitation and not making any objection to the officer's entry or continued presence in the apartment.

In People v. Brown, defendant was the suspect in a shooting that occurred earlier in the day. The police went to defendant's home. The police knocked on the door and told defendant's girlfriend through the door that they wanted to talk about a shooting. Defendant's girlfriend opened the door a few inches and said she knew nothing about a shooting. The police saw defendant walking across the living room and repeated that they wished to speak with defendant Defendant's girlfriend then walked over to the defendant, leaving the door wide open. A divided court held that defendant's girlfriend's gesture of opening the door, leaving it wide open and then walking away from the door "could certainly be interpreted by the police to consist of tacit approval for them to enter." 234 AD2d at 213.

Other cases finding consent involve similar fact patterns. See People v. Satornino,

153 A2d 595 (2d Dept 1989) (consent found where defendant's mother told detectives her son was in his room and pointed in that direction); People v. Scof, 136 AD2d 578 (2d Dept 1988) (occupant's cooperation with police evidence of consent to enter); People v. Davis, 120 AD2d 606 (2d Dept 1986) (stepping aside to let officers in tantamount to consent). But see People v. Richardson, 229 AD2d 316 (1st Dept. 1996) (where the police never asked to enter the apartment and no words were spoken, defendant's glancing over his shoulder in the direction of another occupant did not amount to an invitation to enter).

In this case, the door to defendant's apartment was more than half way open when the police spoke to defendant's girlfriend and asked if defendant was home. She said he was and left the door open when she went down the hall, calling the defendant. The officers saw defendant [*8]walking down the hallway to the door and asked if they could speak with him. Defendant was cooperative. The police asked if defendant wanted to go outside or speak in the apartment. He said he wanted to grab his jacket, motioned with his finger down a short hallway towards his jacket on the couch and moved in the direction of the couch. These facts are indistinguishable from those in the above cases. The Court accordingly finds that the police had the right to follow defendant into the apartment.

B. The Baggies of Marijuana on the Couch

Once the police lawfully entered defendant's apartment, they observed bags of marijuana on the couch. The police had a right to seize any contraband in plain view.People v. Brown, 96NY2d 80, 88-89 (2001); People v. Ballard, 57 AD3d 264 (1st Dept 2008); People v. Batista, 261 AD2d 218, 220 (1st Dept 1999). Defendant's motion to suppress the baggies of marijuana laying on top of the couch accordingly is denied.

C. Defendant's Statements to the Police

After the police observed marijuana on the couch, they placed defendant in handcuffs. The People conceded at the hearing that defendant was not free to leave at that point. The test for determining whether an individual is in custody for purposes of requiring the administration of Miranda rights before defendant can be asked questions likely to incriminate him is whether a reasonable person in defendant's situation, innocent of any crime, would believe he was in custody. People v Yukl, 25 NY2d 585, 589(1969); People v. Page, 63 AD3d 506

(1st Dept 2009). Although the use of handcuffs is not dispositive, it is a critical factor in determining whether defendant has been arrested. See People v. Robinson, 282 AD2d 75, 80

(1st Dept 2001). The Court concludes that once contraband was discovered by the police in defendant's apartment and defendant was handcuffed, any reasonable person innocent of a crime would believe he was in custody.

When a defendant is in custody, the police may not make comments or ask questions that are reasonably likely to evoke an incriminating response from defendant without first advising defendant of his Miranda rights. Rhode Island v. Innis, 446 US 291, 300-302 (1980). This rule applies whether defendant's responses are considered inculpatory or exculpatory. Interrogation can take subtle forms as well as overtly coercive techniques. People v. Lynes,

49 NY2d 286 (1980). The test is whether "using an objective standard ... defendant's statement can be said to have been triggered by police conduct which should reasonably have been anticipated to evoke a declaration from the defendant." People v. Lynes, 49 NY2d at 295.

Here, the police did not merely ask defendant whether he would consent to a search of the apartment. Both officers said to defendant "listen, we came over here to talk to you about your brothers, and is there anything else in this apartment that is not supposed to be here?" This question clearly was the equivalent of interrogation and was more than reasonably likely to elicit either an incriminating statement or a false exculpatory statement.

Courts have suppressed statements in many cases with similar fact patterns. See, e.g., People v. Flowers, 59 AD3d 1141 (4th Dept 2009) (asking handcuffed defendant whether he owned cash found during the execution of a search warrant was improper); People v. Long, 27 AD3d 1053 (4th Dept), lv den 7 NY3d 758 (2006) (after defendant placed under arrest for traffic violation, improper to ask defendant whether there was anything in the car police should know about and gun recovered as a result of defendant's statements in response to the police inquiry [*9]suppressed); People v. McCowen, 159 AD2d 210 (1st Dept), lv den 76 NY2d 739 (1990) (although police could properly have seized gold chains incident to defendant's arrest, questioning of defendant concerning the characteristics of the chains was required to be preceded by Miranda warnings). See also People v. Hardy, 5 AD3d 792 (2d Dept 2004) (where defendant was handcuffed while police executed search warrant, police should not have asked defendant whether there was anything in the room they should know about).

All of the questions put to defendant by the police after defendant was handcuffed amount to custodial interrogation without the benefit of the warnings required by Miranda. Defendant's motion to suppress his statements to the police before and after they discovered the gun accordingly is granted.

D. Drugs and Other Evidence Found in the Bedrooms

The People argue that the police were not required to obtain a warrant to search the bedrooms because defendant gave his consent to these searches. "Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle." People v. Gonzalez, 39 NY2d 122, 128 (1976). Whether consent has been given must be determined from the totality of the circumstances. Among the factors to be considered are: 1. Whether the defendant is in custody or under arrest and the circumstances surrounding his custody and arrest;2. Defendant's cooperation or lack of cooperation when placed in custody;3. The number of police officers present;4. Whether the defendant was handcuffed;5. Defendant's prior contact with the criminal justice system;6. Whether defendant was advised of his right to refuse to consent.

People v. Gonzalez, 39 NY2d at 128-130.

In this case, there are some factors that tend to support a finding of consent and others that do not. On the one hand, as conceded by the People, defendant was not free to leave at the time he was asked for consent to search. He was handcuffed, not advised of his right to refuse to consent and subjected to custodial interrogation without benefit of his Miranda rights. Defendant also attempted to mislead the police into believing that he occupied the first bedroom. On the other hand, only two officers were present in the room and they were both in plainclothes. Defendant, then 31 years old, had numerous prior contacts with the criminal justice system.

Because the relevant factors in determining consent weigh evenly, the Court relies upon the burden of proof to resolve the question. As noted above, the People bear a heavy burden to prove by clear and positive evidence the voluntariness of any purported consent. Where, as here, the evidence supporting consent is no greater than the evidence negating consent, the People [*10]have not sustained their burden of proof. Having found that defendant did not give consent, the court suppresses all the evidence recovered by the police from both bedrooms, as well as testimony concerning the police observations made in the bedrooms.

E. The Gun and Ammunition

The most difficult question facing the Court is whether the gun, ammunition and identification found under the couch cushions should be suppressed. The People argue that because the gun was within defendant's grabbable area, the police had a right to search under the couch incident to defendant's arrest for possessing marijuana.

There is support in the caselaw for finding that a search incident to arrest is proper even when defendant is handcuffed, if he is physically capable of reaching evidence or contraband. Thus, in People v. Johnson, 86 AD2d 165, 168 (1st Dept 1982), the court found that although defendant was handcuffed, the search under the mattress of a bed two feet away from defendant was lawful, given defendant's close proximity to the mattress. See also People v. Johnson,

59 NY2d 1014 (1983) (search of shoulder bag two feet away from restrained defendant permissible); People v. Smith, 59 NY2d 454, 458 (1983) (warrantless search of handcuffed defendant's briefcase permissible because defendant was still holding briefcase and it was sufficiently large to contain a weapon); People v. Raily, 309 AD2d 604 (1st Dept 2003) (bag near defendant's foot properly seized incident to arrest).

The police had a right to arrest defendant for possession of marijuana and to search him incident to such an arrest See People v. Lewis, 50 AD3d 595(1st Dept 2008) (police may conduct search incident to lawful arrest for violation other than vehicle and traffic violation). Following the reasoning of the above cases, had the police arrested defendant when they first saw the marijuana on the couch, they lawfully could have searched under the sofa cushions incident to defendant's arrest. The problem here is that the police did not place defendant under arrest and immediately search under the couch cushions. Rather, as candidly conceded by Sargent Jaycox, the police deferred making a determination whether to arrest defendant or issue a summons for the marijuana possession because they wanted to look for more drugs in the apartment.

As the People recognize, the right to conduct a warrantless search incident to arrest is more narrow under the New York State Constitution than the United States Constitution. The Court of Appeals has ruled that our state Constitution requires that a warrantless search incident to arrest be justified by exigent circumstances. People v. Gokey, 60 NY2d 309, 312 (1983); People v. Hernandez, 40 AD3d 777 (2d Dept 2007). In Gokey, the Court of Appeals identified two circumstances that can justify a search incident to arrest: (1) the safety of the arresting officer and the public or (2) protecting evidence from destruction or concealment. 60 NY2d at 312. The Court further held that a search incident to arrest must be conducted contemporaneously with the arrest. See also People v. Belton, 55 NY2d 49, 53 (1982); People v. Julio, 245 AD2d 158 (1st Dept 1997).

The facts of Gokey are instructive. The police received a tip that defendant was traveling on a bus with drugs in his possession. When defendant got off the bus, he was placed under arrest based on an unrelated larceny charge. Defendant was ordered to place his hands against the wall and was frisked. A trained dog indicated the presence of marijuana in a duffel bag defendant placed between his feet. After defendant was handcuffed, the duffel bag was opened and drugs were discovered. [*11]

The Court of Appeals granted suppression, saying (60 NY2d at 312): In the present appeal, the People have not asserted the presence of any exigency to justify the warrantless search of defendant's duffel bag. The police sought defendant's arrest for two nonviolent crimes and the People concede that "in all frankness there was no immediate suspicion by the police officers that the defendant was in fact armed." Indeed, the officers' conduct leading up to the search of the bag confirms the absence of exigency. The police did not seize the bag from defendant upon his arrest but permitted him to keep the bag between his legs while he was frisked. The police officers' interest in the bag focused solely on the possibility that it contained marihuana. A search was undertaken only after the dog's conduct had corroborated the information that the bag contained marihuana.[FN3]

In People v. Price, 211 AD2d 943 (3rd Dept 1995), defendant left a letter in the trash in which he threatened to detonate an explosion. Rather than arresting defendant immediately after discovering the letter; the police waited to search defendant's trailer until after defendant was followed to a bus station. The court rejected the People's argument that the police were justified in searching the trailer because they needed to confirm whether defendant had already implemented his threat. Noting that "[t]he People's own witnesses admit that the search of the premises was motivated by intent to seize evidence," the court rejected the People's claim that exigent circumstances justified the search.

As in Gokey and Price, the police conduct and testimony in this case is contrary to the People's belated claim that exigent circumstances justified the search under the sofa cushions. Sargent Jaycox never asserted that either he or Sargent Walton acted out of concern for their safety or the destruction of evidence. To the contrary, Sargent Jaycox denied having any fear that defendant could retrieve a weapon while he was seated on the sofa with his hands cuffed.Sargent Jaycox candidly acknowledged that defendant was detained to allow the police to continue their investigation and that the bedrooms were searched to uncover additional drugs. He also maintained that the love seat was not within defendant's lungeable area and did not know what prompted Sargent Walden to search between the love seat cushions.

The People's own witness thus essentially negated the existence of any exigency to justify the search between the love seat cushions or under the sofa cushions. While the police could have arrested defendant for marijuana possession and searched under the sofa incident to that arrest, the police were not free to restrain defendant while pursuing the type of rummaging search for incriminatory evidence condemned by the United States Supreme Court 40 years ago in Chimel v. California, 395 US 752, 763 (1969). In light of Sargent Jaycox's own acknowledgment that he had no reason to suspect the presence of a weapon or other contraband [*12]under the sofa and never felt in danger, the Court concludes that the mere presence of marijuana in the living room [FN4] while the police searched the bedrooms did not create exigent circumstances justifying a warrantless search. The Court therefore suppresses the gun, ammunition and identification found under the couch cushion.

F. Inevitable Discovery

The People argue that even if the police questioning of defendant without benefit of Miranda warnings was improper, the drugs and gun would inevitably have been discovered by the police and therefore should not be suppressed. The inevitable discovery exception to the warrant requirement is not applicable to primary evidence, that is, "the very evidence obtained in the illegal search." People v. Stith, 69 NY2d 313, 318 (1987). Accord People v. Turriago, 90 NY2d 77, 85-86 (1997); People v. Julio, 245 AD2d 158, 159 (1st Dept. 1997), lv denied 91 NY2d 942 (1998). Here, the gun was the primary evidence of the search under the sofa cushions not justified by exigent circumstances or consent and therefore is not subject to the inevitable discovery exception to the warrant requirement.

Moreover, to invoke the inevitable discovery exception to the exclusionary rule, the People must show a very high degree of probability that the evidence in question would have been obtained independently of the tainted source. See People v. Hardy, 5 AD3d 792 (2d Dept 2004) (although questioning of defendant improper, guns and drugs would have been discovered pursuant to execution of existing search warrant). Accord People v. Decker, 23 AD3d 1139 (4th Dept 2005).

The Court agrees with the defense that the People cannot make the necessary showing by relying on the circular reasoning that the police were entitled to conduct a warrantless search because they would have obtained a warrant. As the Court of Appeals observed in People v. Knapp, 52 NY2d 689, 697-698 (1981): The People do not suggest any other means by which they would have gained possession of the contraband in question except for the by now tainted search of the bedroom and basement. Once so flawed, it could not be reincarnated as a hypothetical untainted one. Were the rule otherwise, every warrantless nonexigent seizure automatically would be legitimatized by assuming the hypothetical alternative that a warrant had been obtained. Without the deterrent effect of the exclusionary rule, in such circumstances the constitutional warrant procedure for shielding Americans from unreasonable searches and seizures would be a shambles.

See also United States v. Reilly, 224 F.3d 986, 994-995 (9th Cir 2000) (property recovered as fruit of questioning of defendant in violation of his right to counsel not salvageable under [*13]inevitable discovery rule where police had probable cause but failed to obtain warrant).

Even if the possibility of securing a search warrant was sufficient to satisfy the inevitable discovery rule, the People do not claim that the police had probable cause for a warrant to search the sofa based merely on their plain view observation of marijuana in the living room. Given Sargent Jaycox's concession that the police had no reason to believe a gun or other contraband was secreted under the sofa cushions, the People could not plausibly make such a showing. Sargent Jaucox's threat to obtain a search warrant was not made until after the discovery of the gun in the living room and the marijuana in the bedroom. Thus, at most, only the drugs and scales found in the second bedroom would inevitably have been discovered had the police obtained a search warrant.

For the above reasons, defendant's motion to suppress physical evidence and his statements to the police is granted, with the exception of the marijuana found in plain view on the couch. This constitutes the decision and order of the Court.

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Megan Tallmer, J.S.C.

Dated: July 20, 2009 Footnotes

Footnote 1:For purposes of publication, references to page numbers of the hearing transcript are omitted. References to dates irrelevant to the facts underlying defendant's motion to suppress also are omitted.

Footnote 2:Because it is relevant to the issue of consent, the Court takes judicial notice that the rap sheet included in the court file indicates that defendant was convicted of felony weapon possession in 1998, misdemeanor weapon possession in 2000 and 2004, criminal mischief in 2004, criminal facilitation in 2005 and resisting arrest in 2005. Defendant also pled guilty to the violations of disorderly conduct in 1996, criminal possession of marijuana in 2000, unlawful possession of marijuana in 2004 and disorderly conduct in 2005.

Footnote 3:Although Gokey has been distinguished on its facts in several cases [see, e.g., People v. Capellan, 38 AD3d 393 (1st Dept 2007); People v, Wylie, 244 AD2d 247, 250-251 (1st Dept 1997)], as recently as 2008, the Court of Appeals acknowledged the continued vitality of the Gokey standard. See People v. Hall, 10 NY3d 303, 319 (2008).

Footnote 4:The Court would reach the same conclusion even if the police had lawfully gained access to the first bedroom and discovered additional marijuana in the bedroom.