People v Ruiz
Annotate this CaseDecided on October 17, 2006
Supreme Court, Bronx County
The People of the State of New York,
against
Dario Ruiz, Defendant.
1714-2004
Analisa Torres, J.
Defendant, Dario Ruiz, is charged with Criminal Possession of Marihuana in the First Degree (Penal Law §221.30).
Defendant moves to suppress statements, physical evidence and identification evidence.
On June 13 and 14, 2006, I conducted a Mapp/Huntley/ Wade/Dunaway/Payton hearing. Following are my findings of fact and conclusions of law.
The People called four witnesses: Police Officer Danny Santiago, Lieutenant Mark Sedran, and Sergeants Edward Degiacomo and William Suarez. I find their testimony to be credible.
FACTS
At 3:30 p.m., on March 20, 2004, an attorney phoned Lieutenant Mark Sedran at the Bronx 42nd Precinct and reported that his client, Nancy Morales, the owner of the commercial building located at 1159 Southern Boulevard, had discovered a marijuana grow house there. Sedran asked the attorney to have Morales come to the police station.
Morales went to the precinct and told Sedran that she is the landlord of the premises and that defendant is the tenant. Morales stated that the rent was long overdue and that she had initiated eviction proceedings. Morales reported that she went to the building to investigate a water leak and "cut the locks" in order to get in. Morales discovered a marijuana grow house on the second floor.
Sedran phoned an assistant district attorney and asked whether he should obtain a warrant to search the property. The assistant advised him that a warrant was not necessary, because the landlord had a legal right to be there.
Sedran and three other officers drove to 1159 Southern Boulevard, where they were met by Morales. She opened the padlocked gates and permitted the officers to enter the building. As Sedran searched the ground floor, he observed a car, tools, miscellaneous car parts and garbage scattered about. Sedran testified that the downstairs area looked like an abandoned shop that was long out of use.
The officers walked up a narrow set of stairs to the second floor. As Sedran got to the top of the stairs, he noted a strong smell of marijuana. Sedran stated that the second floor is a "loft-type set up" with miscellaneous junk. In the back of the building, there are two recently [*2]constructed rooms. Unpainted sheet rock walls are framed with two by fours. Black plastic covers the windows. Boxes, soil, fertilizer, empty planters, dead marijuana plants and garbage are on the floor outside the rooms.
In the first room, Sedran observed small marijuana plants with grow lights above. The second room, which measures about 20 by 35 feet, contained 50 marijuana plants, between 6 and 8 feet tall, with about 20 grow lamps. An elaborate irrigation system, consisting of water flowing through plastic pipes, lay below the plants. In addition, the room was outfitted with carbon dioxide generators, an air conditioning unit and an automatic timer attached to the watering apparatus.
Police Officer Danny Santiago also inspected the premises. He vouchered the marijuana plants, grow lamps and generators. Neither Santiago nor Sedran observed any evidence of a leak or water damage.
At 7:00 a.m., on March 23, 2004, Sergeants Edward Degiacomo and William Suarez went to 4705 Henry Hudson Parkway, defendant's home. Suarez was wearing plainclothes and a police shield around his neck. The officers informed defendant that the police had discovered a marijuana grow lab at 1159 Southern Boulevard. Defendant expressed shock and denied knowing about the marijuana. He said that he had not been to the location in over a year, that he was involved in litigation concerning repairs to the premises and that he was trying to buy the property from Morales. Defendant showed Degiacomo a document with respect to the lawsuit.
Defendant agreed to go to the precinct in the officers' unmarked car. Neither officer drew his weapon. Defendant was not handcuffed. At the station house, defendant was taken to the youth office room. The door to the office was kept open and defendant was not handcuffed. Defendant left the precinct to buy something and returned.
Defendant told Suarez that he worked exclusively on the first floor of 1159 Southern Boulevard and that he knew nothing about the second floor, which someone else occupied. Defendant only knows the person's Spanish nickname and cell phone number. Defendant tried to call the person, but the number was disconnected. Suarez does not recall whether this conversation occurred at defendant's home or the police station.
Degiacomo left the 42nd Precinct to speak with shopkeepers near 1159 Southern Boulevard. He and another officer had a conversation with Mamadou Tidjani, who runs a 99 cent store across the street from the premises. Tidjani said that he had known defendant by his surname for over a year, that they had a friendly relationship, that as business owners in the area, they had brief talks, that defendant visited the 99 cent store to buy snacks and drinks for his employees and that Tidjani had seen defendant a few times during the month, as recently as a couple of weeks ago. Tidjani later identified defendant in a photo array.
Degiacomo also spoke to Mr. Rosario, the owner of the tire shop adjacent to the building. Rosario said that he saw defendant a few days before the police were there and on the day after. Because defendant's version of the facts contradicted those of Tidjani and Rosario, Digiacomo arrested defendant.
LAW
Under the Fourth Amendment, a warrantless search of private property is presumptively unreasonable (Groh v. Ramirez, 540 US 551, 559 [2004]), subject to a few exceptions. These exceptions include consent (People v. Adams, 53 NY2d 1, 8 [1981], rearg denied 54 NY2d 832 [1981], cert denied 454 US 854 [1981]) and exigent circumstances (People v. Molnar, 98 NY2d [*3]328, 332 [2002]). The prohibition against unreasonable searches applies to private homes and commercial establishments. See generally See v. City of Seattle, 387 US 541, 543 (1967); People v. Perez, 266 AD2d 242 (2d Dept 1999), lv dismissed 94 NY2d 923 (2000). Even if a police search is made at the request of a private citizen, it is subject to constitutional scrutiny. People v. Adams, 53 NY2d at 7.
A third party may only consent to a search if that person is a "co-occupant with equal authority" over the premises. People v. Cosme, 48 NY2d 286, 292 (1979); see People v. Adams, 53 NY2d at 8. Common authority rests "on mutual use of the property by persons generally having joint access or control for most purposes." Illinois v. Rodriguez, 497 US 177, 181 (1990), quoting United States v. Matlock, 415 US 164, 171 n 7 (1974) (internal quotations omitted).
A third party's status as a landlord "calls up no customary understanding of authority to admit guests without the consent of the current occupant." Georgia v. Randolph, 547 US ___, 126 SCt 1515, 1522 (2006) (dictum). See Chapman v. United States, 365 US 610 (1961). A landlord does not share common authority with a tenant, and, therefore, may not consent to a search. People v. Ponto, 103 AD2d 573 (2d Dept 1984).
In order to establish standing to challenge a warrantless search, a defendant must manifest a subjective expectation of privacy that society is prepared to accept as reasonable. See People v. Ramirez-Portoreal, 88 NY2d 99, 108 (1996).
DISCUSSION
The warrantless search of the premises, based upon the landlord's consent, was unlawful. Having been informed by Morales that eviction proceedings were underway and that she "cut the locks" in order to gain entrance, Sedran could not "reasonably . . . suspect" (Georgia v. Randolph, 126 SCt at 1522) that defendant had authorized Morales to freely invite the police to enter and search the building. Considering the overtly adversarial nature of the parties' relationship, the only reasonable conclusion is that the landlord did not enjoy "mutual use" of (Illinois v. Rodgriguez, 497 US at 181) or "equal authority" over (Cosme, 48 NY2d at 292) the premises.
The issue is not whether or under what circumstances the lease permits Morales to enter the building without first notifying defendant and obtaining his permission. In other words, it is not necessary to address the propriety of Morales' breaking of the locks to investigate a leak. The only relevant question is whether Morales' status as owner authorizes her to consent to a police search of the premises. I hold that it does not.
The People offer no evidence to support their claim that exigent circumstances compelled a warrantless search. Morales sought police intervention to address the presence of marijuana, not to investigate a purported leak. In fact, the officers observed no signs of water damage.
Nor can the failure to obtain a search warrant be excused by Sedran's reliance upon an assistant district attorney's opinion that a warrant was unnecessary. Bad advice from an assistant cannot validate an otherwise unlawful search. People v. Lugo, 2 Misc 3d 1003 (Sup Ct, Kings County 2004).
Moreover, I reject the People's contention that defendant lacks the standing to challenge the search. As a tenant in possession, he has an obvious, reasonable expectation of privacy. Ponto, 103 AD2d at 578.
The statements made by defendant to the police were voluntarily given and not the [*4]product of custodial interrogation. Tidjani's identification of defendant in the photo array was not suggestive, nor was it the product of an unlawful arrest. Moreover, the statements and identification evidence were not tainted by the unlawful police conduct.
CONCLUSION
That branch of defendant's motion which seeks suppression of physical evidence is granted; the balance is denied.
This constitutes the decision and order of the court.
Dated:
Analisa Torres, J.S.C.
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