People v Hernandez-Garcia
Annotate this CaseDecided on November 3, 2017
Supreme Court, Queens County
The People of the State of New York, Plaintiff,
against
Francisco Hernandez-Garcia, Defendant.
02367-2016
The People by:
ADA Mary Kate Quinn
Queens County District Attorney's Office
125-01 Queens Boulevard
Kew Gardens, New York 11415
The Defendant by:
Jorge Santos, Esq.
118-35 Queens Boulevard
Suite 1500
Forest Hills, New York 11375
Gene R. Lopez, J.
The defendant is charged with one count each of attempted murder in the second degree (Penal Law §110/125.25[1]), assault in the first degree (Penal Law §120.10[1]), attempted rape in the first degree (Penal Law §110/130.35[1]), assault in the second degree (Penal Law §120.05[2]) and criminal possession of a weapon in the fourth degree (Penal Law §265.01[2]).
The defendant has moved to suppress the knife on the ground the evidence was recovered [*2]as a result of unlawful search.
On July 13, 2017, this court held a Mapp hearing. The People presented Police Officer Jacquelyn Campbell and the defendant did not present any witnesses. This court finds that the witness testified in a straight forward and credible manner.
FINDINGS OF FACT
Police Officer Campbell, a New York City Police Officer since 2006, has been assigned to the 115th precinct for the past year.
On July 29, 2016, Police Officer Campbell and her partner, Police Officer Tortorella, were in uniform and on patrol in an unmarked police vehicle. At about 5:56 a.m, the police officers received a radio run and were directed to 35-31 91st Street in Queens County. Police Officer Campbell explained that the radio run was for an ambulance case or an aided case which meant that someone was injured at that location.
Upon her arrival at the location, a private house, Police Officer Campbell saw a female and male sitting on the stoop located close to the entrance of the home [FN1] . The female was holding her left shoulder, her shirt was stained with fresh blood and she appeared to be injured. Police Officer Campbell and her partner, Police Officer Tortorella, attempted to question the female as to what had happened but learned she spoke Spanish only. Although Police Officer Tortorella was not fluent in Spanish, he understood the female to say that her husband or boyfriend had done something to her. The male, the occupant of the first floor apartment, who had been sitting on the stoop with the injured female, also spoke very little English but told Police Officer Campbell that the injured female lived in the downstairs living area with her boyfriend and had come upstairs for assistance.
While the police officers were speaking to the female, the Emergency Medical Services (hereinafter "EMS") workers arrived and also spoke to the female. One of the EMS workers told Police Officer Campbell that the female had said that her boyfriend had cut her. At that point, the female was bleeding heavily from a wound to her neck and became so fatigued and faint that she was rushed by EMS personnel to the hospital.
Police Officer Campbell then asked the male whether she and her partner could enter the home. The male replied yes, pointed downstairs and told the police officers to go around and down the stairs and to where the female and her boyfriend lived.
Prior to being removed to the hospital, Police Officer Campbell said that either she or her partner asked one of the EMS workers who spoke Spanish to ask the injured female whether the perpetrator was still present and learned the injured female did not know whether the perpetrator was still downstairs. Police Officers Campbell and Tortorella then walked past the injured female, who was still seated in the doorway of the house, and entered the home to check if the perpetrator was present and to ensure that no one else was injured. Both officers entered the apartment of the occupant of the first floor apartment then walked through two rooms including a living room and then down a staircase. Upon arriving at the downstairs landing, Police Officer [*3]Campbell saw three doors, one directly in front of her and the two other doors to her left, and blood splattered throughout the hallway. Police Officer Campbell entered the door directly in front of her that was ajar then exited that room, returned to hallway and then entered another room to which the door also was ajar.
Police Officer Campbell saw furniture, clothing on the floor and blood splattered throughout the second room she entered. The People introduced a photograph of the doorway of this bedroom Police Officer Campbell had entered. The photograph depicted blood stains on the floor, on the hamper and on the door of the bedroom. Police Officer Campbell exited this bedroom, returned to the hallway and entered a third room which was also a bedroom the door to which was also open. The People introduced three photographs of this second bedroom, the third room Police Officer Campbell had entered. The photographs depicted bloodstains on the floor, wall, pillows, sheets and mattress.
Police Officer Campbell followed the trail of blood from the hallway closest to the second bedroom (and third room the police officer had entered) to the kitchen; after walking through the kitchen she exited a door which led to the side of the house. Both police officers checked the backyard, looked for the perpetrator under the truck parked in the driveway and, after not finding anyone, returned to the front of the house and met with their supervisor, Sergeant O'Bryant. Police Officer Campbell estimated three minutes had elapsed from the time she arrived at the location until they met with the Sergeant.
In order to show Sergeant O'Bryant the trail of blood inside the house, Police Officers Campbell and Tortorella re-entered the house with their supervisor. Police Officer Campbell stated that since they believed a domestic violence incident had occurred, she was required to take photographs. The three police officers entered the first bedroom and then the second bedroom. While inside the second bedroom, Police Officer Campbell found a knife on the top of a dresser smeared with blood and hair.[FN2] Police Officer Campbell also found the handle of the knife on the floor. Either she or Police Officer Tortorella placed the knife and its handle inside a paper bag, and at some time later that evening, she vouchered the knife at the precinct.
Police Officer Campbell stated that at no time did the male who had been seated on the stoop object to her presence at the scene nor did she ever learn the connection between this male and the house, although she believed him to be either a tenant or owner.
CONCLUSIONS OF LAW
In People v McBride, 14 NY3d 440, 446 (2010) the Court of Appeals set forth guidance to assist suppression courts in their analyses of whether an urgent need justifies a warrantless entry.
Here, Police Officer Campbell and her partner learned immediately upon arriving at 35-31 91st Street in Queens County that a violent crime occurred moments before they arrived. The complainant was bleeding heavily from a knife wound to her neck and being assisted by the owner of the building. Despite a language barrier, Police Officer Campbell learned the complainant's boyfriend or husband was the assailant and that the assault occurred in the downstairs living area of the location. Police Officer Campbell also was aware from the complainant that she could not say whether her assailant was still in the space or had fled, nor did [*4]she know whether anyone else was there.
The facts and circumstances presented to Police Officer Campbell and her partner created an exigency that required her to take immediate action and justified her warrantless entry into the downstairs living area of 35-31 91st Street. The violent nature of the crime was self-evident to Police Officer Campbell; the complainant was bleeding heavily and required immediate medical attention. Police Officer Campbell also was aware, given the nature of the wound inflicted on the complainant, that a knife was used to inflict the injury. Moreover, the circumstances Police Officer Campbell encountered suggested the assault occurred moments before, that there was still strong reason to believe that the assailant was at the location armed with a knife, that the safety of others was in jeopardy if they were in the downstairs living area with the assailant and his escape likely unless she took immediate action by entering and searching the premises. The court finds that exigent circumstances, based on these facts and circumstances, existed that created an urgent and immediate need that justified Police Officer Campbell's warrantless entry into the downstairs living space of 35-31 91st Street.
Within three minutes after arriving at the scene, Police Officer Campbell and her partner searched the downstairs living area for the perpetrator, exited the area through a side door near the kitchen to a driveway on the side of the house and briefed their supervisor who had by then arrived at the scene. Police Officer Campbell and her partner then reentered the area with their supervisor to show him and to photographically document the crime scene. As Police Officer Campbell and her team continued their investigation of the crime scene she recovered a bloodstained knife and its broken handle both in plain view from the second bedroom that was splattered with blood. The fact that Police Officer Campbell and her partner exited the downstairs living area after not finding the perpetrator did not terminate their investigation. The police, from the moment Police Officer Campbell arrived until she recovered the bloody knife and its broken handle a few moments thereafter, maintained a continuous presence at the crime scene. This court finds Police Officer Campbell's subsequent search and inspection of the crime scene was a continuation of her investigation, that it was reasonably related to the exigent circumstances she encountered and limited in scope and duration. (See People v Dancey, 84 AD2d 763 [2d Dept 1981], aff'd 57 NY2d 1033 [1982]; cf. People v Cohen, 87 AD2d 77 [2d Dept 1982], aff'd 58 NY2d 844 [1983].)
Notwithstanding the existence of exigent circumstances that justified the warrantless entry into the house and basement living area, the People also established that the male assisting the injured complainant had consented to the entry of the police. In People v Adams, 53 NY2d 1, 9 (1981) the Court of Appeals stated ". . . [t]hat where the searching officers rely in good faith on the apparent capability of an individual to consent to a search and the circumstances reasonably indicate that the individual does, in fact, have the authority to consent, evidence obtained as a result of such a search should not be suppressed."
The Court of Appeals also stated:
"We emphasize that the police belief must be reasonable, based upon an objective view of the circumstances present and not upon the subjective good faith of the searching officers. Moreover, a warrantless search will not be justified merely upon a bald assertion by the consenting party that they possess the requisite authority. Nor may the police proceed without making some inquiry into the actual state of authority when they are [*5]faced with a situation which would cause a reasonable person to question the consenting party's power or control over the premises or property to be inspected. In such instances, bare reliance on the third party's authority to consent would not be reasonable and would, therefore, subject any such search to the strictures of the exclusionary rule." (Id. at 9-10).The People must establish, by the preponderance of the evidence, that the consenting party had either actual or apparent authority to consent to the search. (People v Gonzalez, 88 NY2d 289, 295 [1996].) In addition, the People must establish from the totality of the circumstances by clear and convincing evidence that the consent was freely given. (People v Zimmerman, 101 AD2d 294, 295 [2d Dept 1984].) In determining whether the People satisfied their burden, the following factors must be considered: whether the one giving his or her consent is in custody or under arrest and the circumstances surrounding the custody or arrest; the background of one giving his or her consent; whether the one giving his or her consent was evasive or uncooperative with the police; and whether the individual was advised that he or she had the right to refuse consent. (People v Gonzalez, 39 NY2d 128-130) The Court of Appeals advised that not one factor is determinative of the voluntariness of the consent.
Upon arriving at the location, Police Officer Campbell saw the male assisting the injured complainant. The male told Police Officer Campbell and her partner that the complainant had sought him out for help and that she lived downstairs with her boyfriend. The male thereafter actively assisted Police Officer Campbell by directing them through the interior of the first floor apartment to a staircase leading to the downstairs area. Police Officer Campbell and her partner then entered the first floor apartment of the private home, walked through the living area of the first floor as directed by the male and used an interior staircase to access the basement area. Police Officer Campbell stated that there was no door which led from the first floor apartment to the basement area.[FN3] Moreover, Police Officer Campbell described the front entrance of 35-31 91st Street as having only a single exterior door which leads directly into the first floor apartment through which to access the downstairs living area. This court finds, applying the principles of Adams, that the interactions between Police Officer Campbell and the male coupled with the appearance of 35-31 91st Street reasonably suggested to Police Officer Campbell that the male was the owner of the single family residence and had the apparent authority to consent to the search of the downstairs living area. It is also clear that the male's consent was freely given and voluntary; no evidence was presented that the male was threatened or coerced in consenting to the police officers' entry into the home. Therefore, this court finds that the People have established that the male had the apparent authority to consent to the search of the premises by Police Officer Campbell and that his consent was freely and voluntarily given.
This court, however, finds that the People have failed to show the injured complainant gave her consent to Police Officer Campbell to enter and search her downstairs living area. The injured complainant, who was clearly in a distressed medical condition, spoke only Spanish, and had the limited ability and time to speak with Police Officer Campbell and her partner, both of whom were not fluent in Spanish. Moreover, neither Police Officer Campbell nor her partner ever asked the injured complainant directly whether they could enter and search her area for the [*6]assailant. Given the injured complainant's medical condition and the language barrier that existed coupled with the absence of any discussion by Police Officer Campbell about entering her living area, this court finds that the People have failed to show by clear and convincing evidence that the injured complainant consented to the entry and search of her downstairs living area.
Accordingly, the defendant's motion to suppress the physical evidence recovered on the ground of an unlawful search is denied.
This constitutes the decision and order of the court.
The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.
November 3, 2017
_________________________
GENE R. LOPEZ, A.J.S.C. Footnotes
Footnote 1:The People introduced a photograph of the front entrance of the house. The photograph depicts a stoop of four steps and one front door. The photograph also depicts blood stains on the wall near the door and on the door itself.
Footnote 2:The People introduced a photograph of the knife positioned on the dresser as it was found.
Footnote 3:Police Officer Campbell stated that when she arrived at the interior staircase, she "just saw the stairs." (T. at 17)
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