In the Matter of Leroy M.
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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In the Matter of Leroy M., &c.,
Respondent.
Presentment Agency,
Appellant.
Norman Corenthal, for appellant.
Judith Harris, for respondent.
PIGOTT, J.:
In January 2008, officials at a school in the Bronx
discovered that a laptop computer, valued at almost $1,500, was
missing.
Fortunately, the computer was equipped with tracking
software designed to facilitate its recovery.
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Using that
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software, the police were able to trace the computer to an
address in the Bronx.
Police officers went to the address, a single family
dwelling, in the middle of the afternoon.
Once there, they
entered the vestibule of the house without ringing the doorbell
or otherwise announcing their presence.
Inside the vestibule, one of the officers knocked on an
inner door separating the vestibule from the rest of the home.
Respondent's sister, who had heard the officers enter the
vestibule, welcomed the officers inside, saying "Thank God you're
all here."
When asked whether respondent was at home, she
answered affirmatively, explaining that her brother had been
"acting up" and cursing at her mother, and that she "was going to
call [the police] anyway, if [her brother] kept it up."
The sister then directed the officers up the stairs, to
a bedroom where they encountered a young man, not the respondent,
with a laptop.
When asked whether it was his laptop, the young
man answered that it was not.
At this point, respondent entered
the room and, according to one of the officers, said, "That's my
laptop, my friend stole it."
Respondent, who was 15 years old at
the time, was arrested and charged with committing an act that,
if committed by an adult, would constitute the crimes of fourthdegree and fifth-degree criminal possession of stolen property.
Respondent moved to suppress all evidence obtained by
the police at his residence on the ground that they had entered
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without a warrant, permission to enter, or exigent circumstances.
The Presentment Agency maintained that respondent's sister had
consented to the entry.
Following a suppression hearing, Family Court denied
respondent's motion, concluding that the Presentment Agency had
met its burden of proving that the police had consent to enter
the premises.
In particular, Family Court found that the
sister's consent had not been coerced or otherwise invalidated.
After a fact-finding hearing, Family Court found that respondent
had committed an act that, if committed by an adult, would
constitute fifth-degree criminal possession of stolen property,
adjudicated him a juvenile delinquent, and placed him with the
Office of Children's and Family Services for 12 months.
The Appellate Division reversed Family Court's order of
disposition.
It held that the officers' "intrusion over the
threshold of the home was unlawful" (65 AD3d 500, 501), and that
the Presentment Agency had not met its burden of showing that the
sister's consent was both voluntary and "sufficiently
distinguishable" from the entry to be purged of any illegality
(id. at 501-502).
The court did not pass on the question whether
the sister's consent was voluntary, instead resting its decision
on a lack of attenuation of the illegal entry.
We granted leave
to appeal and now reverse.
For purposes of this appeal, the Presentment Agency
concedes that the entry into the vestibule was illegal, and
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No. 24
respondent concedes that his sister's consent was voluntary.
The
Presentment Agency argues attenuation, asserting that
respondent's sister's consent was "sufficiently distinguishable"
from the concededly illegal entry so as to be purged of the taint
of the illegality (Brown v Illinois, 422 US 590, 599 [1975]).
In deciding whether voluntary consent attenuated the
taint of illegal police action, a court must give consideration
to a variety of factors, including
"the temporal proximity of the consent to the [illegal
police action], the presence or absence or intervening
circumstances, whether the police purpose underlying
the illegality was to obtain the consent or the fruits
of the search, whether the consent was volunteered or
requested, whether the defendant was aware he could
decline to consent, and particularly, the purpose and
flagrancy of the official misconduct" (People v Borges,
69 NY2d 1031, 1033 [1987]; see Brown, 422 US at 603604).
Such factors enable the court to decide
"whether, granting establishment of the primary
illegality, the evidence to which instant objection is
made has been come at by exploitation of that
illegality or instead by means sufficiently
distinguishable to be purged of the primary taint"
(Brown, 422 US at 599).
Here, under Borges, the sister's consent attenuated the taint of
the initial unlawful entry into the vestibule as a matter of law.
This is so because of, among other things, the sister's
unsolicited welcoming of the officers into her home.
Upon seeing
the officers, the sister exclaimed, "Thank God you're all here" - not the response of someone intimidated into allowing the
police into her home.
Indeed, the sister testified that she
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would have summoned the police anyway, had her brother continued
to act disrespectfully to their mother.
The testimony of both
the officers and the sister established that her consent was
volunteered and not given upon request.
Further, the fact that the consent came close on the
heels of the initial illegality -- the factor heavily relied upon
by the Appellate Division -- is not dispositive of attenuation
here, particularly where the person giving the consent is not the
subject of the police action.
In reaching its conclusion, the
Appellate Division considered only the temporal relationship
between the illegality and the consent, and ignored the fact that
the sister's consent was volunteered, rather than requested, and
that she was not the subject of the police investigation.
The
mere fact that, in other situations, the passage of time has
supported a finding of attenuation does not mean that the absence
of that factor precludes attenuation.
Indeed, the immediacy --
the spontaneity -- of the sister's consent shows that it was
truly volunteered and not, in any way, coerced.
There was no evidence that the illegal entry was
undertaken for the purpose of obtaining the consent or seizing
the fruits of the search.
Moreover, the alleged police
misconduct here -- walking through an unlocked front door into a
vestibule, before knocking on an interior door -- is not so
flagrantly intrusive on personal privacy that its taint cannot be
dissipated.
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In sum, the hearing testimony established, as a matter
of law, that "the evidence to which . . . objection [was] made
[was not] come at by exploitation of th[e initial] illegality,"
(Brown, 422 US at 599).
Rather, the computer was recovered "by
means sufficiently distinguishable to be purged of the primary
taint" (id.).
Accordingly, the order of the Appellate Division should
be reversed, without costs, and the order of Family Court, Bronx
County, reinstated.
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In the Matter of Leroy M.
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CIPARICK, J.(dissenting):
Attenuation is generally a mixed question of law and
fact in juvenile delinquency adjudications, as in criminal cases
(see Matter of Daniel H., 15 NY3d 883, 884 [2010]).
However, the
majority holds that the consent to search in this case was so
obviously untainted by the improper police entry into the home as
to be "attenuated . . . as a matter of law" (see majority op at
4).
I disagree and respectfully dissent.
As the majority observes, in determining whether
consent to search is attenuated from the illegal police entry,
"consideration must be given to a variety of factors" (People v
Borges, 69 NY2d 1031, 1033 [1987]; majority op at 4).
In its
analysis, the majority heavily emphasizes a single factor,
voluntariness, which may militate towards a finding of
attenuation here.
As we took pains to emphasize in Borges,
however, "voluntariness of the consent is an important factor in
the court's determination of attenuation, [but] it is not
dispositive" (69 NY2d at 1033).
Giving due consideration to all
of the Borges factors, I believe the Appellate Division correctly
applied our attenuation standard.
Its determination that the
sister's consent "was not acquired by means sufficiently
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distinguishable from the unlawful entry to be purged of the
illegality" has support in the record (Matter of Leroy M., 65
AD3d 500, 502 [1st Dept 2009]).
Contrary to the majority's assertion that the
"immediacy" and "spontaneity" of the sister's consent to search
"shows that it was truly volunteered" (majority op 5), the close
temporal proximity of the consent to the illegality weighs
heavily against a finding of attenuation (Cf. People v Bradford,
15 NY3d 329, 334 [2010] [noting that the 2 1/2 hours that
transpired between the illegal arrest and inculpatory statement
supported a finding of attenuation]).
The majority inexplicably
assumes that the sister's frame of mind was unaffected by the
sudden presence of several police officers in her living room.
In my view, the temporal proximity undermines any finding that
her statements were distinguishable from the entry, and certainly
is not further evidence of their voluntariness.
Needless to say,
given the quick pace of events, there were no intervening
circumstances destroying the link between the illegal entry and
the sister's consent.
Further, the Presentment Agency, which has the burden
of demonstrating attenuation (see Borges, 69 NY2d at 1033),
proffered no evidence that the sister was aware she could decline
consent to search and exclude the police officers from her home.
Had the officers knocked and requested entry, the sister or
another resident might have considered whether letting them in
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Instead, the officers'
presence inside may well have suggested that they had entered
legally.
Finally, as the Appellate Division emphasized, the
police misconduct here was flagrant.
Numerous officers, some in
uniform, illegally entered what was obviously a private home
without any semblance of a warrant or exigent circumstances.
Neither of the officers who testified at the hearing could
explain how this happened and the failure of their recollection
in this context is disturbing.
Since there is record support for the Appellate
Division's finding that the sister's consent was not attenuated
from the unlawful entry,
I would affirm the Appellate Division's
order granting suppression of the illegally obtained evidence.
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Order reversed, without costs, and order of Family Court, Bronx
County, reinstated. Opinion by Judge Pigott. Judges Graffeo,
Read and Smith concur. Judge Ciparick dissents and votes to
affirm in an opinion in which Chief Judge Lippman and Judge Jones
concur.
Decided February 17, 2011
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