People v Ortiz

[*1] People v Ortiz 2010 NY Slip Op 50358(U) [26 Misc 3d 1233(A)] Decided on February 3, 2010 City Court Of Troy Maier, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 3, 2010
City Court of Troy

The People of the State of New York, Plaintiff,

against

Joseph A. Ortiz, Defendant.



09-4748



APPEARANCES:HON. RICHARD J. McNALLY

Rensselaer County District Attorney

(Jonathan Cohen, Esq., of Counsel)

Attorney for the People

MARTIN KEHOE, ESQ.

Attorney for the Defendant

Christopher T. Maier, J.

On October 27, 2009, the Court conducted a combined Mapp/Dunaway and Huntley hearing with respect to the above referenced defendant. The defendant stands charged with two counts of the crime of Menacing in the Second Degree, a violation of Section 120.14(1) of the Penal Law of the State of New York, one count of the crime of Criminal Possession of a Weapon in the Fourth Degree, a violation of Section 265.01(2) of the Penal Law of the State of New York and one count of the crime of Resisting Arrest, a violation of Section 205.30 of the Penal Law of the State of New York. . The defendant argues that the search of his home violated his right against illegal search and seizure pursuant to Fourth Amendment to the Constitution of the United States. Further, the defendant argues that a statement attributed to him at the time of the [*2]incident was involuntary and as such, must be suppressed.

FINDINGS OF FACT

The Court makes the following findings of fact from the credible evidence adduced at the hearing held on October 27, 2009. The People presented three witnesses: police officers David Dean, Daniel Magnetto, and Brandon Cipperly.

Officer Dean testified that at approximately 7:10 a.m. on the morning of March 16, 2009, he and a supervising police officer (McNall) responded to a call that a man in the vicinity of Marshall Street in the City of Troy was threatening a Department of Public Works (hereinafter DPW) sanitation worker with a knife. Officer Dean testified that upon his arrival, he noticed that the front door of 10 Marshall Street was open. He also observed an unidentified man in the window of the second floor apartment who was "bickering back and forth" with individuals on the street. He was then directed by Sergeant Matthew Montanino to interview Ted Schultz, one of the DPW workers. It was Officer Dean's recollection that seven to eight patrol cars responded to the scene and that perhaps eight to nine police officers were present.

The People's next witness was Police Officer Daniel Magnetto. Upon his arrival he observed two to three DPW workers on the roadway. The DPW workers indicated that an individual from 10 Marshall Street had threatened them with a cleaver. Officer Magnetto also observed an individual in the second floor window of 10 Marshall Street and requested that the individual, later identified as the defendant, come down and speak with him. According to Officer Magnetto, "several" police officers were on the porch when the defendant came outside. Officer Magnetto asked the defendant what happened and then asked the defendant "[d]id you have a knife or a cleaver out here?" The defendant allegedly responded "[a] meat cleaver, but I never left the porch." Officer Magnetto testified that at that point the defendant was not under arrest or in custody and was free to go back into his apartment. Miranda warnings were not given at that point.

Officer Magnetto then spoke with Sergeant Montanino and was directed to place the defendant under arrest. The defendant was escorted from the scene to a patrol car by Officer Magnetto and then transported to central station. Officer Magnetto testified that the defendant never told him the police could not to enter his apartment, though the defendant contends otherwise.

The People's last witness was Police Officer Brandon Cipperly, who has been trained as an evidence technician. Officer Cipperly stated that he and Officer Malloy entered an open door to 10 Marshall Street and proceeded to the second floor apartment after seeing a "large black man" in the window of the apartment. After knocking on the door, the same individual, who had been observed in the window by the Officer Cipperly, opened the second floor apartment door. The individual represented himself as the defendant's roommate. Officer Cipperly asked the roommate if he had seen a knife that the defendant used to threaten the DPW workers. Officer Cipperly then testified that the roommate gave consent to the police officers to enter the apartment and directed Officer Cipperly to the kitchen area where a knife was found near the sink. Officer Cipperly confirmed with the roommate that it was the knife alleged to have been used in the incident and it was taken into evidence. Police Officer Cipperly testified that when he and Officer Malloy entered 10 Marshall Street, the defendant had already been taken away under arrest. Officer Cipperly testified that he did not hear the defendant utter any instruction to [*3]the police not to enter the apartment.

The defendant testified in his own behalf. The defendant testified that in the early morning hours of March 16, 2008, he observed the sanitation workers "throwing" his trash can. The defendant indicated that over the past eight months he had to replace his trash cans because they had been damaged by DPW workers. He testified that he went to the street in his bare feet to retrieve his trash can. The defendant heard the driver of the truck call 911 and report that there was a man "swinging a cleaver." The defendant returned to his apartment, put on shoes, and voluntarily returned to the street in order to tell his side of the story once he heard the police sirens. The defendant denies being in the window of his apartment when the police arrived or having ever told the police that he had possessed a meat clever on the front porch. He testified that when he returned to the porch, he closed the door behind him and began to speak with four police officers. The defendant testified that no guns were drawn, nor did the police frisk him. The defendant testified that the DPW employees were making comments to him while he was talking to the police. It was at this point that the defendant claims he was placed under arrest. The defendant states that while being escorted away by Officer Magnetto, being about 20 to 25 feet away from his apartment building's front door, he yelled to the police not to enter his apartment and repeated his position to Officer Magnetto while in the patrol car.

CONCLUSIONS OF LAW

The question for the Court is whether the police officers warrantless entry into the defendant's home on the morning of March 16, 2008 was reasonable in light of the consent given by the defendant's roommate to search the apartment, when the defendant testified that he told the police that they did not have permission to enter his home. Further, the Court must decide whether the statement attributed to the defendant, just prior to his arrest, must be suppressed.

A warrantless search of an individual's home is presumed to be unconstitutional (People v. Payton, 445 US 573 [1980]; People v. Hodge, 44 NY2d 553 [1978]). However, an exception to the warrant requirement is the obtainment of a valid and voluntary consent to search (People v. Hodge, 44 NY2d at 559). New York has long held that occupants of shared premises assume the risk that any one of them may consent to a warrantless search (People v. Cosme, 48 NY2d 286 [1979]). Under Cosme, the Court held that a present defendant's objection to a warrantless search would not trump the consent conferred to the police by a co-tenant with apparent authority to consent to a search (id. at 293).

A recent Supreme Court case has held contrary to New York's view (Georgia v. Randolph, 547 US 103 [2006]). Under Randolph, if a physically present defendant objects to the warrantless search of his home, and a present third party with apparent authority to consent to a search gives consent, a warrantless search by the police will be found to be unreasonable, hence unconstitutional (id. at 106).

In Randolph, the police were investigating a domestic incident involving an estranged married couple. The wife volunteered that her husband had a drug problem and that there were " items of drug evidence' in the house" (id. at 107). The police officer asked the defendant if he could search the home, the defendant refused (id.). With that, the police officer turned to the defendant's wife and asked for her consent to search the home, which "she readily gave" (id.). [*4]The police conducted a search and cocaine was found [FN1] (id.). The police officer took the evidence and under the direction of the District Attorney, applied for a search warrant (id.). The Supreme Court held that the search of the defendant's home was unreasonable because "a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident" (id. at 120)(emphasis added).

The Randolph decision seems not to have abrogated the long held position that third party individuals, with common authority to consent to a warrantless search, may still allow the police to conduct a warrantless search of shared premises, when there is not a presentobjecting person who has refused to consent (Georgia v. Randolph, 547 US at 109, citing US v, Matlock, 415 US 164, 170 [1974]). However, the police may not remove a defendant with the express goal of preventing him from objecting to a warrantless search of his home, or else a subsequent search of the defendant's home will be deemed unreasonable (Georgia v. Randolph, 547 US at 121, see also People v. McClain, 61 AD3d 416, 417 [1st Dept 2009]).

This Court has found one case in New York applying the Randolph standard (People v. Olmo, 18 Misd 3d 307 [Sup Ct, Kings County 2007]). In Olmo, the defendant's landlord alleged that the defendant threaten him with a gun, the defendant denied the allegation (id. at 308). The police asked the defendant for permission to search his apartment, but the defendant refused (id.). When the defendant's wife returned home from work some 20-25 minutes later, and after the defendant had been taken to the police station, she gave her consent [FN2] to the police to search of the apartment (id. at 309). The court in Olmo held that Randolph did not apply and denied suppression. In so holding, the Olmo court found that the defendant's wife retained her right to cooperate with police and "the Randolph Court was emphatic about avoiding unseemly confrontations between disputing occupants when, both are physically present" which in Olmo the parties were not (id. at 310-311).

Here, the defendant testified that he was 20-25 feet away from his apartment building when he informed Officer Magnetto, who did not participate in the search of defendant's apartment, that he did not want the police to enter his apartment, an allegation disputed by the police. However, assuming, arguendo, that the defendant did inform the police he did not want them to enter his home, the credible testimony at the hearing indicates that the roommate remained in the apartment, while the defendant was being led away. As such, the defendant and his roommate were not physically present when the defendant states he expressed that he did not want the police to enter his apartment.

The Court is constrained to apply the law under Randolph, regardless of how narrowly it applies. For instance, had the defendant's roommate come down to the street with the defendant and the defendant objected to the police entry into his home, in the presence of his roommate, a subsequent search would be held unreasonable under Randolph. But the facts in this case clearly place the defendant and his roommate apart when the defendant arguably indicated that he did [*5]not want his home searched. As Chief Justice Roberts points out in his dissent in Randolph,

"[t]he rule the majority fashions does not implement the high office of the Fourth Amendment to protect privacy, but instead provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room" (Georgia v. Randolph, 547 US at 127).

Therefore, this Court finds that the holding in Randolph should be applied very narrowly to situations where the parties are physically present when one party objects and the other party gives consent to a search of shared premises. The defendant does not challenge the People's assertion that the roommate gave valid consent to the police to search the apartment they shared. Further, there was no indication that the police asked for the defendant's consent and disregarded an objection, or that the defendant was removed from the scene in order to prevent his objection in the presence of his roommate (Georgia v. Randolph, 547 US at 121; People v. Olmo, 18 Misd 3d at 310). Therefore, the defendant's motion to suppress physical evidence obtained from his apartment is denied.

Lastly, the Court must determine the admissibility at trial of statements alleged to have been made by the defendant.

The constitutional right against self-incrimination and due process under the law in regard to the suppression of involuntary statements are codified under the Criminal Procedure Law Section 60.45. Under the CPL, a

"statement is involuntarily made' by a defendant when it is obtained from him (a). . . by the use or threatened use of physical force upon the defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant's physical or mental condition to the extent of undermining the ability to make a choice whether or not to make a statement; or (b) [b]y a public servant engaged in law enforcement activity. . . (i) by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself; or (ii) in violation of such rights as the defendant may derive from the constitution of this state or the United States" (CPL §60.45).

The Court of Appeals has concluded in the matter of People v. Huntley (15 NY2d 72 [1965]) that it is the People's burden to establish beyond a reasonable doubt that a statement was voluntarily made by a defendant or else such statement would be inadmissible at trial. Miranda warnings must be administered to a person suspected of committing a crime when that person is taken into custody and they are subject to interrogation (Miranda v. Arizona, 384 US 436 [1966]; People v. Huffman, 41 NY2d 29 [1976]). Interrogation is determined by what an "objective observer" would conclude "with the same knowledge concerning the suspect as the police had would conclude that the remark or conduct of the police was reasonably likely to elicit a response" (People v. Ferro, 63 NY2d 316 [1984]).

Similarly, with respect to determining whether a defendant is in custody, the standard to be applied is an objective one, to wit: whether a reasonable person in a defendant's position, not guilty of any crime, would have thought he or she was free to go (People v. Yukl, 25 NY2d 585 [*6][1969]). In determining custody and interrogation, the subjective beliefs of the defendant or the police officer are not controlling (People v. Hicks, 68 NY2d 234, 240 [1986]). In determining voluntariness, one must consider the "totality of the circumstances", such as "the amount of time the defendant spent with police; how her freedom was restricted, if at all; the location and atmosphere of questioning, the degree of cooperation that the defendant exhibited; whether she was apprised of her constitutional rights; and whether the questioning was investigatory or accusatory in nature" (People v. Sullivan, 224 AD2d 460, 461 [2d Dept 1996], citing People v. Tankleff, 199 AD2d 550 [1993]).

In this case, the defendant testified that he voluntarily left his apartment to return to the street to tell his side of the story to the police. The defendant denies that he was in his apartment window "bickering" with the DPW workers, as had been testified to by the police officers, or that he returned to the street at the behest of the police. The Court finds the testimony of the police officers credible in that the defendant was in his window and voluntarily returned to the street to speak with the police. The defendant testified that no guns were drawn by the police and he was not frisked by the police. Reviewing the totality of the circumstances, the Court finds that the defendant voluntarily spoke with the police and was not in custody when he made the statement that he had "[a] meat cleaver, but I never left the porch." As such, his motion to suppress the statement is denied.

This shall constitute the Decision and Order of the Court.

So ordered.

Dated: February 3, 2010

Troy, New York

____________________________________________

Christopher T. Maier

Troy City Court Judge Footnotes

Footnote 1:The Supreme Court observed that it was unclear whether the parties had reconciled or if the wife was merely retrieving items from the marital residence (id. at 106).

Footnote 2:The wife was not informed by the police that the defendant refused to consent to a search.