People v Sutton

[*1] People v Sutton 2004 NY Slip Op 51206(U) Decided on September 9, 2004 County Court, Jefferson County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 9, 2004
County Court, Jefferson County

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

against

TERRENCE SUTTON, Defendant.



2004-0172

Kim Martusewicz, J.

The defendant has been indicted for one (1) count of Criminal Possession of Marihuana in the First Degree, an alleged violation of section 221.30 of the Penal Law, and one (1) count of Growing of the Plant Known as Cannabis By Unlicensed Persons, an alleged violation of section 3382 of the Public Health Law. He has been arraigned on the indictment and has entered a plea of not guilty to both counts of the indictment.

Defense counsel submitted a pre-trial omnibus motion (within the time limits established by the Court at arraignment) in which he sought, among other things, a hearing to determine the suppression of physical evidence seized as a result of the police entry onto the defendant's premises and suppression of statements he made to the police on August 28, 2003. A hearing was held in this Court on July 18, 2004. The omnibus motion also sought permission to file future motions that, for good cause shown, could not have been filed within the statutory time limits.

On or about July 30, 2004 (after the presentation of evidence at the hearing and after

Rosario material had been provided) defense counsel submitted an additional motion in which he sought dismissal of the indictment in the furtherance of justice. By written stipulation dated August 11, 2004, both the prosecution and the defense agreed that a further hearing was unnecessary and that the Court should determine the motion based on 1) the evidence before the grand jury; 2) the motions, memoranda, police reports, search warrant application, warrant and any other documents in this case; 3) the testimony and evidence adduced at the suppression hearing held on July 18, 2004 and 4) any other information from prior proceedings in this matter.

At the hearing held on July 19, 2004, testimony was received from Jefferson County Sheriff's Detective Joseph Murtha, U. S. Border Patrol Agents David Teeple, Bradley Garza, and [*2]Andrew Fair, Krystal Sutton (the defendant's wife) and Terrence Sutton, the defendant. Miscellaneous exhibits were received at that hearing including photographs of the exterior of the Sutton residence and surrounding front and back yards (including a mailbox in front of the residence with the name "C. Smith" and the numbers "47727" on it) and of some of the marihuana plants seized, the property/chain of custody report, the defendant's written statement, the application for a search warrant, the search warrant issued and a Miranda card read to the defendant.

FINDINGS OF FACT

The Court makes the following findings of fact based on the credible evidence presented at the hearing and contained in the documents or other exhibits submitted and received:

On a clear, sunny day on August 28, 2003, at about 10:15 A.M., Krystal Sutton (the

defendant's pregnant wife and co-owner of the subject residential property) was preparing to go on a bicycle ride with her eight (8) year-old daughter, Brittany, near their modest, single-family modular home in a rural section of the Town of Alexandria, northerly of the village of Alexandria Bay (in northern Jefferson County). Mrs. Sutton had just returned home from her job at the Victims Assistance Center (formerly the Women's Crisis Center).

Mrs. Sutton had asked Brittany to retrieve a cell phone from the family car in the driveway so that it could be taken with them on their up-coming bike ride. Brittany excitedly returned to the house telling her mother that a helicopter was in their yard. After initially dismissing the child's claim and at Brittany's insistence (and after hearing the loud helicopter noises) Mrs. Sutton went outside to investigate. She watched a gray, unidentified helicopter as it hovered over her residence and yard, at or near tree-top level. The helicopter was low enough for Mrs. Sutton to identify two (2) occupants in the aircraft and was low enough so that she could see that the pilot was wearing a green uniform and headgear. Mrs. Sutton estimated the tallest trees in her yard to be approximately 40 to 50 feet high.

Brittany and Mrs. Sutton watched the helicopter for a few minutes as it hovered and circled over the Sutton property and then flew away. They briefly went back into the house to finish their biking preparations. As they exited the side door of the house to get to their bicycles, five (5) police vehicles swarmed into the Sutton gravel driveway from Jefferson County Route No.1.

A federal agent (later identified as Andrew Fair of the United States Border Patrol) confronted Mrs. Sutton in her yard and demanded "where do you think your going?" and

snatched the cell phone from the hands of eight (8) year-old Brittany. He then proceeded to enter the residence with other agents of the ten (10) member force assembled to search and enter this residential property.

Other participants in this operation (in addition to the two federal agents in the helicopter) included New York State Police Investigators John Pignone and Karole Elthorp (members of the Community Narcotics Enforcement Team or CNET), Detectives Richard Purvis and Jerry Golden of the Watertown City Police Department (members of the Metro-Jeff Drug Task Force) [*3]and additional federal Border Patrol Agents Bradley Garza and Steven Oldman (together with a search dog "Ricky"), as well as Detective Joseph Murtha of the Jefferson County Sheriff's Department (also a member of the Metro-Jeff Drug Task Force at that time).

Federal Agent Fair testified at the suppression hearing in this matter that Detective Purvis was in charge of this operation. However, Detective Purvis did not testify at the hearing, nor does his signature appear on any of the documents considered in this matter.

Agent Fair was the first person to confront Mrs. Sutton and was the officer who initiated the entry and search of the Sutton residence. At that time Mrs. Sutton was hysterical and eight (8) year-old Brittany was crying and the family dog was barking.

Agent Fair neither asked for nor received permission to enter and search the Sutton residence or any adjoining premises. In fact, Mrs. Sutton refused to give any such consent, despite repeated requests later made during the police occupation of her property. None of the police force who assisted in this operation received voluntary consent to enter and/or search the Sutton property from anyone.

Several officers went through the Sutton home, room by room, looking in cupboards, opening drawers, rifling through closets and looking under beds. While Mrs. Sutton was following the officers throughout her home she repeatedly asked them who they were and why were they in her house. No officers initially identified themselves at the point of entry. Only after the agents had occupied the house for some time did one of the officers tell Mrs. Sutton that they were searching for contraband. She asked if they meant guns.

At one point, one of the officers kicked open a box containing a new Remington rifle on the floor of one of the bedrooms at the rear of the home and demanded to know if it was loaded. Mrs. Sutton told the officer it was her husband's new turkey hunting gun and was not even completely assembled (and therefore not operable). The officers did not seize that gun.

At the same time that Agent Fair first detained Mrs. Sutton and her daughter and was entering the Sutton home, other federal agents (accompanied by "Ricky," the search dog) were simultaneously entering the Sutton's five-acre lot from the rear (which adjoins New York State Route #12). Mrs. Sutton saw them in her yard and demanded to know why a man with a dog was on her property. They were visible to Mrs. Sutton as the other agents were entering her home. Border Patrol Agents Bradley Garza and Steven Oldman and the search dog had crossed a fence line and the Sutton boundary, which had been posted with "No Trespassing" signs and they went through a wooded area at least 50-feet deep before they came upon a mowed section of the Sutton property. In 2002 approximately 600 to 800 feet of Sutton property (along NYS Route #12) had been posted with approximately 15 signs spaced about 50-feet apart. The property was initially posted to discourage unwanted hunters from the property. Agents Garza and Oldman

were guided on to the property (and to the growing marihuana plants) by Border Patrol Agent David Teeple who remained in radio contact with them from the helicopter hovering overhead.

Thirty-five (35) marihuana plants potted in twenty-eight (28) five-gallon pails were interspersed throughout the brush on the Sutton parcel. Although there were clearly identified [*4]mowed pathways [FN1] throughout the brush, none of the marihuana plants was visible from either Jefferson County Route #1 (where the driveway of the residence is located) or from New York State Route #12 at the rear of the property. Agent Fair, at one point in time, took a Polaroid photograph of one of the marihuana plants that was within 3 or 4 feet of a brown metal storage shed, which was only visible from the rear deck of the home. The photo was later used to support an application for a search warrant. A burn barrel was situated on the parcel, on or near one of the mowed pathways and a few feet from one of the marihuana plants. Detective Joseph Murtha testified at the grand jury that a garden hose (physically connected to the house) extended from the house itself, and "spider-webbed throughout the back yard" to provide water to the obscured marihuana plants.

On August 8, 2004 a Vermont Army Guard Recognizance Aerial Unit (a drug eradication unit) had earlier made an observation of suspected marihuana plants over the Sutton property and gave the GPS mapping coordinates to Border Patrol Agent David Teeple who loaded the coordinates into a computer program and located the site in the Town of Alexandria and then contacted Detective Joseph Murtha of the Jefferson County Sheriff's Department (and a member

of the Metro-Jeff Drug Task Force) on that same day.

Thereafter, Teeple and the Metro-Jeff Drug Task Force planned and coordinated an extensive search and seizure operation to take place on August 28, 2003, which included the use of ten (10) personnel, a helicopter, five (5) police vehicles and a search dog.

Not one single law enforcement official sought or received a search warrant or an arrest warrant before the ten (10) person force (and search dog) entered and occupied the Sutton home and surrounding yard, despite the fact that an aerial over-flight of the Sutton property twenty (20) days earlier had identified suspected marihuana plants at that site.

On August 28, 2003, members of the Border Patrol, the Metro-Jeff Drug Task Force and CNET first met at a local diner in Alexandria Bay at approximately 8:30 A.M. and thereafter mustered in a vehicular rest area along New York State Route #12 (north of Alexandria Bay and approximately three hundred (300) hundred yards from the rear of the Sutton property). As members of the force entered the Sutton driveway, Agent Teeple, with his naked eye and from his vantage point in the helicopter hovering at tree level, observed and coordinated the agents' secret entry from the rear of the property.

No evidence was submitted to show that any police official researched the identity of the property owners between August 8, 2003 and the search and seizure operation of August 28, 2003. Federal Agent Garza's report indicated that certain "vehicle records" were accessed (apparently after entry and occupation of the Sutton property) that helped to identify the real property owners as being Terrence and Krystal Sutton.

After the occupation of the Sutton home and surrounding lot at about 10:15 A.M., Mrs. [*5]

Sutton was repeatedly asked for her consent to a search. Mrs. Sutton refused to give any consent whatsoever. Mrs. Sutton did give permission to the police agents, however, to plug in a laptop computer at an electrical receptacle on the deck of her house (to help them prepare a warrant application). Detective Murtha testified at the suppression hearing that he was the one who typed up the application for a search warrant but that he used a battery-powered laptop on the deck of the Sutton home and thereafter contacted Alexandria Town Justice Louis Perry who signed a search warrant shortly after 12 noon that day.[FN2] After reviewing his investigative notes, Detective Murtha testified that he called Judge Perry to request his signature on a search warrant at 11:10 A.M. and thereafter left the Sutton property and did not return until 12:22 P.M. with a warrant that authorized the search of the Sutton residence and outbuildings only.

Detective Murtha's typewritten application for a search warrant contained a typewritten supporting deposition attached to it (dated 08/28/03, Time: 10:45 A.M.) which stated:

"I Joseph D. Murtha am a Police Detective assigned to the Metro-Jeff. Drug Task Force. This date, acting from a tip from US Border Patrol about suspected marihuana plants growing on the property of Terrence and Crystal (sic) Sutton, 47727 County Route 1 Redwood, New York in the township of Alexandria. U.S. Boarder (sic) Patrol Agent, Dave Teeple (sic) flew over the Sutton residence and in plain view saw numerous marihuana plants growing at the rear of Sutton's property to include only a

few feet from a brown tool shed. MJDTF, NYSPT, US Border Patrol Agents, and myself responded to the Sutton property and made contact with Crystal (sic) Sutton. I advised Crystal (sic) of a complaint and showed her the plants next to her tool shed. I am able to detect and identify Marihuana and Marihuana plants in their growing stages."

The application for the search warrant contains the following language:

"3) DESIGNATION OR DESCRIPTION OF PLACE, VEHICLE OR PERSON TO BE SEARCHED:

"The place located at 47727 County Route 1, Redwood, New York, in the Town of Alexandria. A single family one story modular home with tan vinyl siding and white trim. The residence faces south and is located on the north side of County Rt. 1. The numbers 47727 are [*6]clearly posted on the mailbox in front of the home. There is also a brown, metal shed located at the North East corner of the property.

And any and all appurtenances, containers, compartments located at said premises, as well as any vehicles associated with an (sic) present at said residence during the time of the execution of this Warrant, and any outbuildings associated with said residence."

The search warrant signed by Judge Perry on August 28, 2003 at approximately 12:05 P.M. is addressed to "ANY MEMBER OF THE WATERTOWN CITY POLICE, JEFFERSON COUNTY SHERIFF, NEW YORK STATE POLICE, AND/OR THE METRO-JEFFERSON DRUG TASK FORCE" and states:

"YOU ARE HEREBY DIRECTED TO SEARCH THE RESIDENCE AT 47727 County Route 1, Redwood New York in the Town of Alexandria, WHICH IS DESCRIBED AS A single family one story modular home with tan vinyl siding and white trim. The residence faces south and is located on the north side of County Rt 1. The numbers 47727 are clearly posted on the mailbox in front of the home. There is also a brown metal shed located at the North East corner of the property.

And any and all appurtenances, containers, compartments located at said premises, as well as any vehicle(s) associated with said dwelling and any out buildings associated with said dwelling;"

Detective Murtha and the other members of the search and seizure force entered the Sutton property at approximately 10:15 A.M. Murtha called Justice Perry at approximately 11:10 A.M. to seek his signature on the warrant and left the Sutton property shortly thereafter and did not return until approximately 12:22 P.M.

Detectives Golden and Purvis interviewed Krystal Sutton quite extensively after their arrival. Mrs. Sutton was questioned about, among other things, her husband's employment and his current location. She was isolated by the officers on the back deck while Brittany was placed in front of the TV in the family room. At one point Mrs. Sutton asked permission to use her own phone in her home to call her mother to come and pick up young Brittany who was quite upset with the occupation of her home. Mrs. Sutton was not allowed to use her own phone, but one of the detectives did place a call to Mrs. Sutton's mother and asked her to come to the site. One of the detectives also called the defendant who returned to his home sometime after Detective Murtha had left the site to seek a warrant from Town Justice Perry. At approximately 11:30 A.M., Mrs. Sutton recalls asking permission to open her own purse to retrieve an inhaler to relieve her asthmatic condition. A female detective (presumably Investigator Karole Elthorpe, from the New York State Police) searched Mrs. Sutton's purse before Mrs. Sutton was allowed to retrieve her inhaler. Mrs. Sutton testified (that, at or near the time she used her inhaler) she recalled officers at the scene removing buckets of marihuana plants and dragging them out into the mowed pathways of her yard. Mrs. Sutton's mother had arrived by that time and was talking to her in the back yard behind the Sutton house when these actions were taking place. The [*7]defendant had also arrived home by then and was assisting with the identification and removal of

the marihuana plants. Mrs. Sutton specifically recalls that, after watching the officers removing the marihuana plants, her mother took her into the front yard to comfort her.

Mrs. Sutton's testimony is totally consistent with Border Patrolman Garza's testimony that he and Agent Oldman (together with K-9 dog, Ricky) were assisted by the defendant in identifying and removing the marihuana plants in the yard. Garza had earlier testified about his reluctance to blindly remove the plants without knowing whether booby traps were guarding them.At some point after Murtha had departed (and before his return from Judge Perry's home) the defendant's father and Krystal Sutton's step-father had arrived at the Sutton home as well.

Shortly after returning to the Sutton site, (at approximately 12:22 P.M.), Detective Joseph Murtha handed Krystal Sutton the executed search warrant as signed by Judge Perry. Mrs. Sutton recalls making a "smart comment" to him about receiving the search warrant at that moment. After serving Mrs. Sutton with the search warrant and after talking with some of the officers at the scene, Murtha sat down at the Sutton kitchen table and interviewed the defendant, reviewed his Miranda rights and, in long-hand, prepared a two (2) page written statement that conformed to an oral statement that the defendant had given. For some reason, the detectives' laptop computer was not used to prepare the defendant's written statement. The defendant's statement contained a written admission that he had been growing marihuana on his property and that his wife did not know that he was cultivating pot in their back yard.

After Murtha had returned with the search warrant Agent Oldman and K-9 Ricky and other officers conducted another, additional, search of the Sutton home and located a Nike shoe box containing marihuana seeds. The chain of custody report indicates that the seeds were

located at approximately 12:52 P.M.

The thirty five (35) marihuana plants that were pulled and removed from the five (5) gallon pails were located in what Detective Murtha subjectively believed was the defendant's "back yard" and were in the home's curtilage. The plants were systematically stripped and the leaves separated from the stems and stalks and packed and marked for eventual drying and weight confirmation.

All of the agents and the police officers left the Sutton property at approximately 1:30 P.M. No arrests were made. No weapons were found or seized (other than the new turkey hunting rifle that was left in its box). There was no evidence of any threats to any members of the public or any threats to the safety or well-being of any of the officers. No evidence of any illegal alien or illegal border activity was alleged or found. All of the law enforcement personnel left the Sutton property at the same time. The defendant was charged with the subject crimes on September 9, 2003. Krystal Sutton was neither charged nor indicted for any crime or offense.

Since Mr. Sutton's arrest, he has been fired from the Thousand Island Region of the New York State Department of Parks, Recreation and Historic Preservation and Mrs. Sutton has been fired from her job with the Victims Assistance Center (formerly the Women's Crisis Center), and they lost accompanying health care, retirement and other benefits.

[*8]Issues of Credibility

The testimony of the People's witnesses at the hearing held in this matter was rife with instances in which answers to questions were vague, non-responsive, misleading and false regarding the important issues of whether or not any police officer had ever received consent to

enter and search the Sutton home, regarding the sequence of events, regarding the identity of the officers performing certain acts and regarding other actions taken by the federal agents and police as they entered and occupied the Sutton residence between 10:15 A.M. and 1:30 P.M. on August 28, 2003 (including, but not limited to, the after-the-fact attempt to secure a search warrant). The testimony of Agent Fair as it relates to the time when the marihuana plants were seized is of little value. When asked when the marihuana plants on the property were physically seized, Agent Fair responded "after the search warrant was obtained and served". The next question put to him was: "did you see the search warrant served?", to which he admitted he didn't think he saw the warrant being served. The credible evidence (which, among other things, is supported by Agent Garza's testimony and by Krystal Sutton's testimony) indicates that the plants were being removed from their location while Detective Murtha was absent from the property seeking a search warrant. The absence of any supporting information (regarding the pulling of the plants) in Detective Murtha's notes tends to confirm this finding. Despite the fact that both Agent Fair and Detective Murtha testifed that they helped pull the marihuana plants, Agent Garza testified that only he (Garza), Agent Oldman (and the search dog) and the defendant pulled the plants, which conforms with the time line in Detective Murtha's notes and with other credible evidence and which comports with plain, common sense.

Agent Fair was asked during cross examination when the search warrant was obtained. Fair testified that he put "12:30 P.M." in his written report (which he referred to as the "I-44, Report of Seizure Apprehension"). That particular answer suggested that he (Agent Fair) had prepared his own written report. However, continued questioning revealed that Agent Fair never

did prepare and file a report, but that one was filed by Agent Garza, and that Garza's report never did contain a time notation as to when the search warrant was obtained, nor did it contain an identifying time as to when the marihuana plants were seized.

At another time during cross examination, when asked when the detective returned to deliver the authority to search the property, Agent Fair stated "I had no dealings with [the warrant]". Later on Agent Fair was asked how long it took to pull and process the plants and Agent Fair's response was that he didn't time it (the pulling process) himself.

Agent Bradley Garza's testimony was more credible on the seizure issue. He indicated that he had had prior experience in the southwestern United States in searching and seizing marihuana plants in open fields where he had encountered booby-traps placed to discourage intruders. Garza testified that he, Agent Oldman (and Oldman's partner and search dog, "Ricky") and the defendant were the ones who actually pulled the marihuana plants. Garza admitted he did not know what time the warrant was obtained, and admitted that he did not know if and when the sweep of the residence was done by Agent Fair and/or the others. Agent Garza also readily [*9]admitted it was his understanding that Mrs. Sutton had never consented to any officers entering her home.

Regarding the time of the plants' seizure, Detective Murtha stated "we don't pull nothing (sic) until we have the search warrant or consent to search". However, at one point, Murtha stated that members, other than himself, started doing the physical seizure (supposedly after he returned with the warrant). When asked by defense counsel whether he personally pulled any marihuana plants himself, Murtha answered: "some". It should be noted that the chain of

custody report signed by Detective Murtha indicates that the plants were seized at 10:37 A.M. (shortly after the police entry and before he left to get a search warrant). However, Detective Murtha later testified that that particular time entry (in the chain of custody report) must have been an inadvertent error.

Turning to entry into the residence, when asked about his authority to enter the Sutton home without a warrant, Agent Fair implied that he had obtained Mrs. Sutton's consent. At one point Agent Fair actually stated, "well, I don't often do this, but I did ask Mrs. Sutton, we went together in the house". When pressed, Agent Fair admitted "I didn't ask for consent".

There were other credibility issues with the prosecution witnesses.

Several times during the hearing, the People's witnesses testified to actions of which they had no personal knowledge. One example included Detective Murtha' s testimony that [the border patrol agents and others] did not initially search the residence for anything other than "bodies and weapons, plain view". However, later on Detective Murtha admitted "in fact I never did a search inside the residence myself". That begs the question of how he was sure that the Border Patrol agents and others only searched for bodies and weapons when he wasn't present during any of the searches of the home. At another point when testifying about his initial entry on to the Sutton property, Detective Murtha was questioned about where he first met Mrs. Sutton and he stated "I think she went back in after talking to a U.S. Border Patrol agent".

The People's individual witnesses also answered many questions without having first-hand knowledge as to what took place and there are also indications that the U.S. Border Patrol agents took actions that day that the local law enforcement officers did not expect. For example,

Detective Murtha stated that the Border Patrol agents went into the house "before we even got there". At another point Detective Murtha testified "apparently the U.S. Border Patrol agents that came from the rear of the residence across Route #12 met [Mrs. Sutton] first." However, Agent Fair stated that he entered the Sutton property through the front driveway and first confronted Mrs. Sutton.

At another point in his testimony, Agent Fair initially stated that his authority for entering the Sutton's home without a warrant was "exigent circumstances." At another point he admitted that nobody could flee the scene after the marihuana had been spotted from the air because of the helicopter's coordination of the police entry. Fair seemed to abandon his "exigent circumstances" theory when pressed by defense counsel for a clarification of that legal term. Fair then stated that the initial authority for entering Mrs. Sutton's home without her consent (and without a warrant) [*10]was for "officer safety".

It appears from the testimony (and other documents reviewed by this court) that Agent Fair (and his fellow Border Patrol officers) were sometimes operating independent of the direction and authority of the local law enforcement officers on the scene. It appears that Agent Fair and other federal officers either took action or directed action (including the pulling of the marihuana plants) for which local law enforcement officers were not yet prepared.

Another problem concerns the testimony about the Polaroid photo that was taken by Agent Fair and that was later attached to the search warrant application submitted by Detective Murtha to Town Justice Louis Perry. Agent Fair testified that the photo was of the large plant that was near the tool shed in the Sutton yard. Detective Murtha (who presented the photo to

the issuing magistrate but did not know who took it) testified that the marihuana plant in the photo was not the large plant near the storage shed but was, instead, another plant located within the area behind the residence. In addition to testifying that the plant depicted in the photo was not the one by the shed, Detective Murtha tried (albeit unsuccessfully) to imply that he could identify that particular plant in the photo from among the thirty four (34) other plants located in the brush on the property. That declaration was not credible, especially after Detective Murtha admitted "I didn't see all of them until after the fact".

Detective Murtha has testified before this Court on several occasions and the Court notes that his testimony in this particular hearing appeared to be rattled, that he hesitated for long periods of time before answering questions, that he frequently relied on his notes and reports when answering and he appeared to be physically uncomfortable.

In contrast to the demeanor of the People's witnesses, Krystal Sutton and Terrance Sutton both testified calmly. They appeared to be forthright. They were direct and answered questions put to them by both sides without hesitation or evasion.

CONCLUSIONS OF LAW

The warrantless entry of the defendant's residence and yard on August 28, 2003 by a ten (10) member force of federal, state, county and city police officials (and a search dog), was unlawful under provisions of the United States and New York State Constitutions.

Both the 4th Amendment to the United States Constitution and Article I, §12 of the New York State Constitution state in pertinent part, that:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,

and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized".

The United States Supreme Court has repeatedly stated a strong preference for search warrants and has found that it is "a basic principle of Fourth Amendment Law that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371 (1980). That Court has also found that individuals in this country are protected in all those areas where they have a "constitutionally protected reasonable [*11]expectation of privacy" Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967). The Katz case (id.), of course, found that the rights of privacy not only extend to a person's home but also to its "curtilage" (the grounds immediately surrounding a dwelling), and that the expectation of privacy could be extended to other places as well (depending on the facts of the case).

While society and the courts may not recognize an "open field" as an area where there is an expectation of privacy, the home's curtilage which is defined as "the land immediately surrounding and associated with the home" does "warrant the Fourth Amendment protection that attaches to the home [see Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735 (1984)]. That case noted that ". . . the curtilage is the area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life" [id. at 180 quoting Boyd v. United States, 116 US 616, 630 (1886)]. The officers in this case, when they crossed the fence line in the back yard, and when they entered from the driveway in the front yard and thereafter proceeded to the rear yard of the home (where the marihuana plants were located) were within the curtilage of the Sutton home.

The determination of the scope of the home's curtilage is a question of fact for the Court. United States v. Riley, 875 F. Supp. 108, 115 (N.D.NY 1994), aff'd 76 F.3d 1271 (2d Cir. NY 1996), citing Williams v Garrett, 722 F. Supp. 254 (W.D. Va. 1989); citing United States v. Berrong, 712 F.2d 1370, 1374 (11th Cir. Ga. 1983), reh'g denied 718 F.2d 1115, cert. denied 467 U.S. 1209, 104 S. Ct. 2397 (1984).

In assessing what constitutes curtilage in this case the Court would specifically note that what may be considered "curtilage" in an urban or suburban area may be very different indeed than what is considered "curtilage" in a rural area (see United States v. Arboleda, 633 F.2d 985 (2d Cir. 1980), cert. denied. 450 U.S. 917, 101 S. Ct. 1362 (1981). The curtilage of a single family home in rural northern Jefferson County often includes much more physical land than would be common to the curtilage of a single family home in an urban or suburban area.

The Sutton lot was described as being 5.09 acres in size, which is a very common single family residential lot size in rural Jefferson County (and in Northern New York, in general). Numerous single family residential lots just slightly over 5 acres are routinely found in northern Jefferson County as a result of the state's subdivision law requirements contained in Title II of Article 11 of the New York State Public Health Law which mandate more onerous zoning restrictions for subdivisions of lots of five (5) acres or less.

In the instant case, the Sutton property contained a metal storage shed, an active burning barrel, mowed front yards and rear yards and mowed pathways throughout the brush (where the marihuana plants were actually seized). In addition the brush area where the plants were located was physically connected to the single family residence by a garden hose that was attached to the

house and "spider-webbed" throughout the parcel. A fence continued the length of the rear yard and "No Trespassing" signs were posted at least every 50 feet along the rear boundary.

In the case of People v. Scott, 79 NY2d 474, 583 N.Y.S.2d 920, the New York State Court of Appeals specifically held that where landowners have posted "No Trespassing" signs on their property there is an unmistakable indication that privacy rights attach to that posted parcel [*12]where there is an expectation of privacy.

Furthermore, it is uncontroverted here that the subject marihuana plants could not be viewed from the driveway of the Sutton home, nor from the fence line at the rear of the Sutton home. It was only after entering the Sutton driveway and walking behind the Sutton home that marihuana plants became visible. Likewise, coming from the rear, it was only after the officers had traveled through approximately fifty (50) feet of woods that they were able to observe the subject marihuana plants.

To establish that the police agents had the right to enter the Sutton property the People were required to show that the entry did not offend the Fourth Amendment of the Constitution (nor New York's Constitutional Article I, § 12), and that probable cause existed for the entry and that one of the recognized exceptions to the warrant requirement applied in this matter. People v. Saurini, 201 AD2d 869, 607 N.Y.S.2d 518 (4th Dep't 1994), citing Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S. Ct. 20022 (1971) reh'g denied 404 U.S. 879, 92 S. Ct. 26 (1971); Katz v. United States, supra 357. Additionally, probable cause alone, no matter how incontrovertible, cannot support a warrantless seizure (People v. Saurini, (id.), citing Horton v. California, 496 U.S. 128, 137, 110 S. Ct. 2301 (1990) and People v. Spinelli, 35 NY2d 77, 358

N.Y.S.2d 743 (1974).

The Court specifically finds that the helicopter used in this search and seizure invaded an area where there is a reasonable expectation of privacy and violated Federal Law and Regulations, specifically 49 U.S.C. 40102, (and the federal regulations implementing that statute) by operating below "navigable airspace." Border Patrol Agent Teeple's testimony that the helicopter was in "navigable airspace" (i.e. over 500 feet above the Sutton residence) is simply unbelievable. The noise of the helicopter was so overwhelming that eight (8) year old Brittany ran into the Sutton home to tell her mother that the helicopter "was in the yard" requiring Mrs. Sutton to investigate. The helicopter hovered so low that Mrs. Sutton could identify the color of the helicopter pilot's clothing with her naked eye. It should also be recalled that Teeple testified he could direct his fellow federal agents (and search dog) on the ground by the use of his naked eye, as well.

Even if we assume, for the sake of argument, that the helicopter was within "navigable airspace" and more than 500 feet above the Sutton home, the observation of the marihuana plants from that location still did not justify the immediate warrantless entry and seizure that took place by the remaining members of the 10-member force at the same time that the helicopter was hovering over the property. While probable cause may have been established, the federal agents, and state, county and local police were then obligated to obtain a warrant before physically entering the Sutton home and yard. People v. Saurini, supra.

As a result of the illegal entry, search and seizure in this matter, New York State Criminal Procedure Law, Section 710.20 requires the suppression of the marihuana plants and marihuana

seeds seized in this operation. That same section also requires the suppression of any oral or written admissions given by the defendant. These statements were given while the defendant's [*13]wife was under police detention and while his home and yard were occupied by eight (8) agents and/or police officers and a police dog. His statements were the result of the illegal police activity and have been therefore tainted by that illegality and are not voluntary within the meaning of CPL Section 710.20. The taint from the violation has not been so attenuated or removed as to render the defendant's statements free from coercion. See People v. Harris, 77 NY2d 434, 568 N.Y.S.2d 702 (1991); People v. Herner, 212 AD2d 1042, 623 N.Y.S.2d 674 (4th Dep't 1995) appeal denied 85 NY2d 974, 629 N.Y.S.2d 734 (1995), cf. Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684 (1990).

The defendant has moved to dismiss the indictment in the furtherance of justice pursuant to section 210.40 of the Criminal Procedure Law which provides the statutory guidelines which this court must follow, including consideration of the following:

"(a) the seriousness and circumstances of the offense; (b) the extent of harm caused by the offense; (c) the evidence of guilt, was it admissible or inadmissable at trial; (d) the history, character and condition of the defendant; (e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant; (f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense; (g) the impact of dismissal upon the confidence of the public in the criminal justice system; (h) the impact of a dismissal on the safety or welfare of the community; (i) where the court deems it appropriate the attitude of the complainant or victim with respect to the motion; and (j) any other relevant fact indicating that a judgement of conviction would serve no useful purpose."

This Court finds that it would be appropriate to dismiss this indictment in the furtherance

of justice under section 210.40 of the CPL. The methodical, deliberate and coordinated lawless entry and subsequent warrantless search and seizure at the Sutton home and yard by a ten (10) member force of federal, state, county and city law enforcement agents shocks the conscience of this Court. The blatant and overwhelming violations of the applicable federal and state constitutional provisions involved and the misleading and false testimony of the government's witnesses in this case are inexcusable. Supreme Court Justice Louis Brandeis has said that "if the Government becomes a law breaker, it breeds contempt for the law" [see Olmstead v. United States, 277 US 438, 485, 48 S. Ct. 564 (1928)].

The actions of the government in this case are particularly surprising to this Court because they are in stark contrast with the actions taken in a strikingly similar case where a lawful search and seizure of marihuana plants was made in the Town of Theresa (which adjoins the Town of Alexandria) only 3 weeks prior to the search of the Sutton property..

In the case of the People v. John Grisanti (Jefferson County Indictment No. 403-03, Index No. 2003-2074) the Metro-Jeff Drug Task Force had similarly been notified by an anonymous pilot that suspected marihuana was growing on private property in the Town of Theresa, later identified to be owned by John Grisanti. Detective Jerry Golden was apparently in charge of that particular investigation and secured the services of a New York State Police helicopter for an additional fly-over of the Grisanti property and he thereafter properly secured a search warrant [*14]from a local town justice and coordinated a search of not only the Grisanti home but approximately thirty (30) acres of property owned by the defendant. The warrant application and warrant itself, described the thirty (30) acre lot to be searched as well as the Grisanti house.

There were a number of police officers (in addition to Detective Golden) who searched the Grisanti property who subsequently participated in the Sutton operation including Watertown City Detective Richard Purvis, Jefferson County Sheriff Detective Joseph Murtha and New York State Police Investigator Karole Elthorp. One notable difference in the Grisanti operation was that no federal immigration or border patrol agents were involved in the search and seizure at that property.

The participation of federal agents in the Sutton seizure does not exempt any of the law enforcement personnel from obeying the federal and state constitutional laws applicable in this case. Nor is any agency exempt from the requirements set out by the case law of this nation and state. Federal Agent Fair tried to justify the initial entry and subsequent illegal search and seizure on "exigent circumstances." Later he attempted to say the illegality was justified for the security of the police officers. There was absolutely no evidence of any threat to the safety or the welfare of anyone. There were no "exigent circumstances" or threat to police safety that would justify the warrantless entry.

The dismissal of this case in this Court's view would enhance the respect for law in the community by requiring all agents of the government (federal as well as state and local police) to obey our state and federal constitutions. The citizens of this area of the state have a right to demand the compliance by its government officials especially during the present time when there is a heightened presence of federal agents in our border area as a result of stepped up homeland security activities.

Certainly while the growing of marihuana is a serious offense, the Court notes that the

defendant has no criminal record other than a misdemeanor DWI in 1992. He had been gainfully employed for a substantial period of time for the New York State Department of Parks, Recreation and Historic Preservation (until he was fired upon his arrest in this matter) and was (and is) a productive taxpaying citizen.

The defendant lives in a very modest, single family modular home with his wife and children with no outward evidence of the extravagant or opulent lifestyle sometimes associated with drug trafficking. The defendant's wife, who was not charged or indicted in this matter, subsequently lost her job with the Victims Assistance Center, after the alleged intervention of certain police officials with that agency [FN3]. The unlawful actions of the government agents in this case unnecessarily traumatized the defendant's wife and eight (8) year-old Brittany There was absolutely no showing that it was justified for any lawful purpose. Any dismissal would have little, if any impact upon the safety or welfare of the community. [*15]

The defendant appeared contrite and remorseful, both to the officers at the scene and to the Court.

Despite the substantial economical loss suffered by the defendant and his wife the defendant, after a significant unemployment period, secured gainful employment (albeit without the substantial benefits of his prior job).

There is no individual victim or any restitution owned in this matter.

If only a small fraction of the time spent by the government agents in planning,

coordinating and undertaking the warrantless invasion of the Sutton home had been spent on securing a warrant as required by the law of this state and nation, the trust in certain law enforcement agents in this community would not have been unnecessarily jeopardized.

The motion to dismiss was made in a timely manner under section 255.20 (3) of the Criminal Procedure Law since much of the information to justify such a motion was not available to the defense until or after the suppression hearing was held. The motion was filed promptly after that hearing and did not prejudice the People's ability to respond.

CONCLUSIONS

For the reasons set forth in this decision/order the physical evidence seized (i.e. the marihuana plants and marihuana seeds) are hereby suppressed. The oral and written statements given by the defendant on the Sutton property, after the illegal entry and subsequent illegal search and seizure, are also hereby suppressed.

Pursuant to Section 210.40 of the New York State Criminal Procedure Law the indictment is hereby dismissed in the furtherance of justice.

Dated: September 9, 2004ENTER ____________________

Jefferson County Judge Footnotes

Footnote 1:Mrs. Sutton testified that the mowed pathways existed before she and her husband purchased the property and were maintained after their purchase and were used for family recreational purposes.

Footnote 2: Krystal Sutton testified that she personally witnessed Detective Jerry Golden type up the application for a warrant on the laptop on her deck and that it was Golden who asked permission to plug in the laptop to an electrical receptacle on the deck and that Murtha later left the property to physically secure the warrant. (Krystal Sutton has an Associates Degree with a major in Criminal Justice and was familiar with the warrant application process.) It should also be noted that Mrs. Sutton did not see any computer printer attached to the laptop computer at the back deck. It is unclear where the warrant application was actually printed or even if it was printed before Murtha left the Sutton property. .

Footnote 3: This Court makes no determination as to liability for possible federal civil rights violations in this matter under 42 U.S.C. 1983.