People v Davis

[*1] People v Davis 2012 NY Slip Op 51750(U) Decided on September 10, 2012 Supreme Court, Kings County Gary, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 10, 2012
Supreme Court, Kings County

The People of the State of New York

against

Leroy Davis, Defendant



7469-2011



Charles J. Hynes, Esq., Kings County District Attorney, by Assistant District Attorney Leila C. Rosini, for the People of the State of New York.

Howard Kirsch, Esq., for Defendant, Leroy Davis.

Michael A. Gary, J.

The People moved in writing to re-argue this court's oral decision granting defendant's motion to suppress physical evidence as a result of a Payton violation. They argued that the court erred in its interpretation of the law. Defendant filed papers in opposition, arguing that the motion was correctly decided.

This court conducted a Dunaway/Mapp hearing at which the People called three witnesses and the defendant introduced no evidence. A review of some of the factual findings is necessary to explain the arguments raised by the parties.

On August 23, 2011 Detective William Ponzio became involved in an investigation of a larceny of some personal property consisting of an Ipad, an Iphone, sunglasses, and a red Nooka belt, and possible extortion, after speaking with the complainant in this case, Darryl Wells, at the 83rd Precinct. Mr. Wells named Leroy Davis, his neighbor, as the perpetrator. In fact, the crime allegedly occurred at 982 Decatur Street, and Mr. Davis's address was reported as 1129 Decatur Street. Through a computer check, Det. Ponzio obtained a photo of the defendant and after a positive identification by the complainant, Det. Ponzio issued an I-card (investigation card) also referred to as a " wanted card", which is "forwarded to the Investigation Unit and then the Warrant Squad actually picks it up".(Hearing Minutes, p. 7, lines 22-24)

On August 30, 2011, Police Officer Jason Wolfenhaut, assigned to the Brooklyn North Warrant Squad, conferred with the case detective about the I-card. He, along with Sergeant Murphy and Detective Murane, went to 1129 Decatur Street to locate Leroy Davis. All three approached what they believed was Leroy Davis's apartment. P.O. Wolfenhaut knocked on the door. It was early in the morning. A female opened the door and the defendant, in an undressed [*2]state, descended some steps inside of the apartment. P.O. Wolfenhaut recognized the defendant from his photo and told the defendant he was going down to the 83rd Precinct with them. Davis asked permission to get dressed and all three policemen followed him to the basement bedroom and stood in the doorway while defendant got dressed. Davis put on some jeans with a belt. P.O. Wolfenhaut described the belt as a bright orange, reddish belt with a seatbelt type buckle. Remarking to the defendant on the belt, defendant stated that it was called a Nookie [sic] belt. After the defendant got dressed, he and the three policemen exited the apartment. Once outside, they immediately put handcuffs on the defendant and transported him to the 83rd Precinct. Upon arrival, the defendant was placed in a cell in the detective squad and immediately as part of the arrest process, his belt, shoelaces, and other personal effects were removed from defendant's person.

Sometime that morning the belt was shown to the complainant who positively identified it as his own and it was vouchered as arrest evidence. This belt was the subject of the suppression hearing.

The People argue that even if there were an unlawful entry to the home and an illegal arrest pursuant to Payton v. New York, 445 NY 573 (1980), suppression is not required in this case, because the discovery of the belt was sufficiently "attenuated" from the police misconduct as to render the evidence admissible, citing Wong Sun v. United States, 371 US 471(1963) and People v. Bradford, 15 NY3d 329 (2010). The People also argue that the doctrine of "inevitable discovery" should apply, claiming the police would have discovered the belt inasmuch as the defendant himself chose to wear the Nookie (Nooka) belt as part of his wardrobe that day; nothing about the police actions in defendant's home prompted the defendant to select that belt to wear. More importantly, the People urge the court to follow the holding of People v. Jones, 2 NY3d 235 (2004). The Court reasoned, that since the police authority to place a defendant in a lineup exists independently of the manner of the arrest of the defendant, the identification cannot be considered a fruit of the unlawful arrest: regardless of whether the police enter a house unlawfully, the defendant cannot refuse to participate in a lineup for which the police have probable cause. Therefore, as no "fruit" results from the poisonous tree, the identification evidence is deemed admissible, in spite of the violation of the rule enunciated in Payton. Applying this rationale to the seizure of physical evidence, the People cite the cases of People v. Padilla, 28 AD3d 236 (1st Dept.), lv. to appeal denied, 7 NY3d 760, (2006, Table) and People v. Jackson, 17 AD3d 148 (1st Dept.) , lv. to appeal denied, 5 NY3d 790 (2005, Table).

The defendant argues exactly the opposite, stating that this court did not err in its interpretation of the law, and properly found the recovery of the physical evidence as a direct result of a Payton violation must be suppressed. He asserts that the People cannot rely on the attenuation doctrine since that applies only to "secondary evidence" and not to primary evidence of a crime. As he defines it, the belt is primary evidence and therefore, once there was unlawful conduct, no degree of attenuation would render it admissible. He further disputes the People's position that the belt would have inevitably been discovered through lawful means, as the belt was discovered as a direct result of the Payton violation.

After a review of the papers, the court grants the People's motion for re-argument. Because the court must reverse its decision in light of the case law that follows, it need not reach [*3]the arguments concerning attenuation and inevitable discovery.[FN1]

The People point out that in two instances the Appellate Division in the First Department ruled physical evidence admissible in spite of finding a Payton violation. In both instances physical evidence was recovered from the defendant's person after he was removed from his home. The Appellate Division held that there was no causal connection between the Payton violation and the seizure of property.

In the case of People v. Jackson, supra, the Appellate Division decided that the lower court had properly denied the suppression motion, and affirmed its finding that the defendant consented to the police entry. (The police officers knocked on the door, defendant Jackson let them in and then asked who they were; at that point the detective pretended to be a parole officer and asked Jackson to accompany them to the precinct). Invoking People v. Jones, supra, the court ruled that "while Jones dealt with a lineup identification, we find that its rationale is equally applicable to physical evidence seized under the circumstances presented here" (at p. 451). Consequently, even if the police entry did violate Payton, that violation would not have required suppression of the physical evidence (consisting of defendant's hat and glasses, recovered after the defendant's arrest at the precinct) because the recovery of the items did not occur in the home. The Appellate Division reasoned that if probable cause for the arrest exists independently of the exploitation of the Fourth Amendment, the recovery of physical evidence from the person which occurs outside of the home (where the Fourth Amendment protection applies) is not to be thought of as a fruit of the tree of the illegal entry.

Similarly, in the case of People v. Padilla, supra, the Appellate Division examined the [*4]seizure of the defendant's clothing (the same beige pants and shoes that Padilla was alleged to have been wearing at the time of the crime some 24 hours earlier) which occurred at the police station. Assuming for the purpose of argument that the police entry to the defendant's home was a Payton violation, the Appellate Division followed the line of reasoning set forth in People v. Jackson, supra, and concluded that because the recovery of the physical evidence occurred at the station house, it was thus unrelated to the entry into defendant's home, and therefore admissible.This court notes that the decisions rendered by the Appellate Division in both Padilla and Jackson do not recount any of the specific facts underlying the courts' conclusions. Thus, this court reviewed the briefs submitted by the parties. A careful reading of the material demonstrates that the Payton issue, though obviously relevant, was clearly not the central argument presented in the defendants' appeals nor the courts' decisions. Notably, in Jackson, the court upheld the trial court's finding that defendant had consented to the police entry into his home. There being no Payton violation, the defendant argued a claim of ineffective assistance of counsel couched in terms of trial counsel's failure to call a witness at the suppression hearing to support the defendant's lack of consent to the entry. The Appellate Division ruled however, that this argument was of no moment because even if a Payton violation occurred, suppression was not required. The court also found that the evidence of guilt, which included fingerprint evidence, was overwhelming, so that any error was deemed harmless.

In Padilla, too, the suppression issue was not critical to the determination of the appeal, since the defendant at trial presented a psychiatric defense. Although suppression of the physical evidence would have assisted him in his defense, the Appellate Division concluded that, as in Jackson, admission of the physical evidence was harmless.

As a matter of policy, it bears noting that unlike the scenario referred to in the Jones case, where a person's privacy interest in their appearance is not implicated by whether or not the police enter into his home without an arrest warrant, the Constitution specifically requires a warrant to seize physical evidence of a crime. This court submits that to say that seizing evidence at the precinct rather than inside a defendant's home dissipates the Payton violation seems to be a distinction without a difference. Indeed, it seems to allow for the admission of evidence based upon the vagaries of police procedure, not a legal principle. In this case, the police had a named suspect and a known address and still did not seek a warrant from the court. If the case detective had gone to the defendant's home, he would have known that the Nooka belt the defendant had selected was evidence of the theft, and had he seized it at that time, it would have been suppressed. The fact that different police personnel acted on an I-card in lieu of an arrest warrant should not be determinative. Allowing for the admissibility of physical evidence obtained by a Payton violation, this court submits, only encourages the police to avoid an application for an arrest warrant. The Fourth Amendment should proscribe the seizure of physical evidence on an individual's person who is in police custody precisely because of a Payton violation. The police should not be allowed to exploit the violation of a non-consensual entry into a home by seizing evidence from the defendant's person.

Nonetheless, because it has found no case law in the other Judicial Departments contrary to the holdings of Padilla and Jackson, this court is constrained to follow them under the principles of stare decisis. See, Mountainview Coach v. Storms, 102 AD2d 663 (2d Dept., 1984). Therefore, the court reverses its previous ruling and denies defendant's motion for suppression.[*5]

The foregoing constitutes the decision and order of the court.

Dated:Brooklyn, New York

Sept. 10, 2012

Michael A. Gary, J. S. C. Footnotes

Footnote 1:It should be noted that if an attenuation analysis were applied to the facts of this case, it appears that the People's argument is tenuous at best. In Brown v. Illinois, 422 US 590 (1975), the United States Supreme Court set forth the factors to be considered in determining whether attenuation purges the taint of illegally seized evidence. The New York Court of Appeals refined and applied those criteria in People v. Martinez, 37 NY2d 662 (1975). Briefly, the three factors as applied here are:

a) whether the evidence was obtained under circumstances sufficiently removed from the arrest that it was purged of any illegality. This refers to the length of time that passed, on the reasoning that the longer an interval between the arrest and the seizure of the evidence, the more likely any taint of the violation will have dissipated;

b) the presence or absence of any intervening factor to sufficiently remove the taint of the non-consensual entry; and

c) the purpose and flagrancy of the police misconduct: the more egregious the conduct the less likely the courts would find the taint purged.

Applying the factors to this case reveals that no time at all passed between the defendant's arrival in the 83rd Pct. and the recovery of the belt as defendant was arrested immediately upon exiting the house with the police and then the belt was seized when he arrived in the precinct. Similarly, no occurrence intervened between the time the defendant arrived in the 83rd Pct. and the recovery of the belt. Finally, the police conduct in this case could indeed be characterized as egregious.