People v DeSusa
Annotate this CaseDecided on September 30, 2013
Supreme Court, Bronx County
The People of the State of New York
against
Donald DeSusa, Defendant.
420/2011
Robert T. Johnson
Bronx County District Attorney
198 East 161 Street
Bronx, New York
Attention: ADA Kellyanne Holohan
(718)838-7615
Anthony N. Iannarelli Jr., Esq.
130 Church Street
Suite 318
New York, NY 10007
(212)431-1031
Barbara F. Newman, J.
On August 14, 2013, August 16, 2013, and August 26, 2013, this Court conducted a Gethers (People v. Gethers, 86 NY2d 159 [1995])) hearing. Upon conclusion of the hearing, by oral decision the Court denied defendant's motion, indicating that a full decision with findings of fact and conclusions of law would follow. This is that decision.
Upon review of the evidence presented, the legal arguments of counsel, and the applicable law, defendant's motion is denied.
Findings of Fact
The Court credits the testimony of the People's witness, Detective Jason Balsan, finding him persuasive, frank, open, truthful, and reliable. He was the only witness at the hearing. The Defense presented no evidence.
Detective Balsan has been a police officer for a little more than eleven years and has been assigned to Bronx Narcotics approximately seven years. He testified that on November 24, 2010, at [*2]about 8:50 a.m. he was part of a "Buy and Bust" team in the vicinity of 1113 Ward Avenue, Bronx, New York. There were three or four police vehicles involved in that operation that day.
Detective Balsan was the designated arresting officer on that "Buy and Bust" team on that day. Prior to the arrest he was set up in an unmarked police vehicle with the supervisor, Sergeant Vetrano, and another member of the team. That car was equipped with a Kel receiver and the officers also had point to point police radios with them. The Kel transmitter was on the undercover police officer who had been designated as the buyer and its transmissions could be heard on the Kel receiver in Detective Balsan's vehicle. During this operation, Detective Balsan heard the voice of the undercover officer, which voice he recognized, having worked with that officer before.
Prior to defendant's arrest, Detective Balsan received transmissions through the Kel which the undercover wore as well as over the point to point radio from ghost officers. Every member of the field team had a point to point radio that day. In those transmissions from the undercover ghosts, Detective Balsan was given a description of the person who the undercover was interacting with. That description was a male black, dark jeans, dark sweatshirt and a Yankee hat. Detective Balsan heard transmissions of the person with whom the undercover was interacting from the ghosts and the undercover when the undercover was outside the building walking with the person. Detective Balsan also heard as well parts of conversations between the undercover and that person, later identified as the defendant, inside the building. Over the Kel he heard conversations that a drug transaction was occurring. Detective Balsan recognized the undercover's voice in those conversations and he recognized that the voice of the person who the undercover was speaking to inside the apartment to be the same voice of the person that he heard the undercover speak to outside the building. During this period, before the extraction of the undercover, Detective Balsan heard conversations coming over the Kel receiver and also heard transmissions from the ghost over the police point to point radio.
Detective Balsan then received a radio transmission that indicated that the undercover officer was in distress. He received one transmission over the Kel that the undercover had been searched, that his body had been searched and that he was going to be searched a second time. The detective testified that that transmission means that the undercover officer is in immediate danger. The detective then received two transmissions which came from the two ghost undercovers over their point to point radios that stated that the undercover may be in danger because his identity as a police officer was likely compromised.
Upon receipt of those calls, in the auto where Detective Balsan and the supervisors were, indicating that the undercover was in immediate danger, Sergeant Vetrano, the supervisor, gave the order to extract the undercover from the apartment.Detective Balsan testified that Narcotic officers assigned as a part of a field team are trained in extractions. Training in extractions is given new members of the Narcotic Division upon their entry to that assignment and that training is also given to the officers in their annual refresher training. As part of their training, the officers go through rescue scenarios in order to be prepared to extract the undercover as quickly and as safely as possible. When the team is engaged in extracting an undercover who is in danger, each member of the Buy and Bust team has a role and knows what that role is.
The procedure to extract an undercover requires the team to immediately obtain the compliance from any subject who is inside the location where the undercover is and then to [*3]physically grab the undercover and take him outside the location, which in this case was an apartment. The extraction procedure requires that upon entry of the police into the apartment each person in the apartment where the undercover is located be put in a safe position, which is generally on the ground with their faces down. Everyone therein is handcuffed for the safety of the police officers and the civilians. It is important that the faces of the occupants be down so that they cannot identify the undercover.
In this case after the supervisor gave the order to extract the undercover from the apartment, Detective Balsan and the rest of the field team went to apartment 1E, a ground floor apartment at 1113 Ward Avenue, the location where the undercover who was in danger was located. Detective Balsan's role in the extraction was that he had a ram and he gained entry to the apartment by hitting the door with the ram, which essentially pushed the door open. He was not the first member of the team to enter the apartment, but all members did enter. However, the ghost officers were not in the apartment. When he entered the apartment, Detective Balsan saw people being placed in handcuffs on the floor with their faces down. The detective believes he recalls two persons on the ground and Mr. DeSusa, was standing up facing a wall. Detective Balsan walked past those through the apartment until he located the undercover. The undercover was in the bedroom and was alone. Detective Balsan then physically grabbed the undercover by his shirt and pulled him out of the apartment. As Detective Balsan pulled the undercover past the defendant, who was still in the apartment, the undercover said to the detective that the defendant was "good to go" which Detective Balsan knew from his working with this undercover meant that defendant was the subject that they had been listening to as far as the description went and that defendant had sold a controlled substance to the undercover. At that time defendant was with the members of the field team and was placed under arrest..
That concluded the People's case, and, as stated above, the Defense presented no evidence.
Conclusions of Law
A Gethers hearing was held to determine the legality of the police conduct which led to the arrest of the defendant. Upon a finding of illegal action on the part of the police, any evidence which the police may come upon because of the exploitation of that illegality should be suppressed. People v. Gethers, 86 NY2d 159 (1995). In the instant matter, the issue to be determined is whether or not the police were justified in their warrantless entry which led to the arrest of the defendant inside of apartment 1E at 1113 Ward Avenue.
The Court's analysis must begin with the fundamental principles set forth in the Fourth Amendment of the United States Constitution and article 1, §12 of the New York State Constitution. These constitutional provisions guarantee that all individuals will be free from unreasonable searches and seizures in any area where they possess a legitimate expectation of privacy. Generally, a warrant is required before the police may enter a private home. However, "[c]ourts have long recognized that the Fourth Amendment is not violated every time police enter a private premises without a warrant." People v. Molnar, 98 NY2d 328 (2002). While the fundamental principles of the Fourth Amendment are intended to protect an individual against unreasonable searches and seizures, they were never intended as a barrier to police action in order to assist someone in immediate danger. Id. at 332. Accordingly, a number of exceptions have been created which obviate the need for a warrant. One of the exceptions to the warrant [*4]requirement is the emergency doctrine.
A warrantless entry may be made pursuant to the "emergency" doctrine into a protected area if the police reasonably believe an emergency exists. The determination of reasonableness will be based upon an objective assessment of the facts known to the police at the time of their entry. In People v. Mitchell, 39 NY2d 173 (1976), the New York Court of Appeals established guidelines for application of the "emergency" doctrine. Pursuant to the guidelines enunciated in Mitchell, for a warrantless entry to be justified as an "emergency," "1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property. 2) The search must not be primarily motivated by intent to arrest and seize evidence. 3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched." Id. at 178.
The touchstone for evaluating police conduct is reasonableness. Molnar at 332 (internal citations omitted). see also, People v. Rodriguez, 77 AD3d 280 (2nd Dept 2010), People v. Herold, 282 AD2d 1 (1st Dept 2001). In order to determine if an emergency exists, the court must consider the objective facts which the police were presented with and determine whether or not these facts provided them with a reasonable basis to believe that they were faced with an emergency. The Court's determination of reasonableness turns upon the totality of circumstances presented in each case. see People v. Batista, 88 NY2d 650 (1996) citing, People v. Chestnut, 51 NY2d 14 at 22 (1980).
Based upon the evidence adduced at the hearing, the People have established that it was reasonable for the police to conclude that they were presented with an emergency and immediate action was necessary for the preservation of life. Accordingly, the police action was justified as outlined by the Court of Appeals in Mitchell pursuant to the emergency doctrine.
In the instant matter, the credible testimony of Detective Balsan established that he and his field team possessed a reasonable belief that an emergency existed and that they needed to take immediate action to protect the life of the undercover officer. This emergency occurred during a buy and bust operation in which Detective Balsan and the field team were monitoring the undercover officer by both visual and audio surveillance. The initial encounter between the undercover officer and the defendant began on the street, where the field team and the "ghost" officers were able to observe the encounter. However, shortly after the transaction began, the visual surveillance was terminated when the undercover officer and the defendant entered an apartment. Detective Balsan and the field team continued to monitor the transaction through the audio transmissions from the undercover's Kel. It was during this time that based upon what Detective Balsan heard he determined that the undercover officer had been searched and was about to be searched a second time. Fearing that discovery of the undercover's true identity would endanger his life, the field team was given the order to extract the undercover from the apartment.
The police were confronted with a series of rapidly unfolding events and based upon the escalating situation the officers encountered, their mode of entry, ramming the door of the apartment where the undercover was located was justified. Their entry was motivated by the need to protect the undercover officer and not by any ulterior motive such as making an arrest or seizing evidence. The impetus for the decision to extract the undercover was their fear that the identify of the undercover was about to be discovered and his safety was in jeopardy. [*5]
Further the evidence clearly established a direct relationship between the area to be searched and the emergency. The emergency occurred inside of the apartment where the undercover officer had engaged in a drug transaction with the defendant. Based upon the aforementioned facts there was no Constitutional violation of defendant's rights as the warrantless police entry was justified pursuant to the emergency doctrine.
Upon entry into an apartment, the police are permitted to take limited precautionary measures in order to gain control of the occupants based upon the encountered circumstances. see People v. Williams, 97 AD2d 706 (1st Dept 1983). In Williams, officers responded to a radio call of an armed robbery in a hotel which was known for drug and gun activity. Upon arrival at the location their attention was directed to an apartment on the second floor where the owner permitted them to enter. As they entered the apartment, two men hurriedly got off the bed and two other men got up from their chairs. The officers observed drugs, drug paraphernalia and one of the men was pacing nervously around the room. The officers ordered all men to stand against the wall. The court held "[I]t was clearly an appropriate precautionary measure to have directed the several occupants of the room to stand near the wall."
Similarly, in the instant matter, members of the field team entered the apartment and immediately placed two men face down on the ground and had the defendant stand facing the wall. These precautionary measures were for the safety of the occupants of the apartment as well as for the safety of the field team and the undercover officer. The actions of the field team inside of the apartment were permissible as they were warranted by the circumstances that were encountered.
While the undercover was being removed, he stated to Detective Balsan, " The male black is good to go." Having worked with this undercover in the past, Detective Balsan understood the undercover to be making a positive identification of the defendant, as the "hand to hand" subject with whom the undercover officer had been engaged with prior to the emergency.
The statement by the undercover officer which served to identify the defendant as the individual with whom he was engaged in a drug transaction occurred at a time and place which was sufficiently connected to the transaction location and therefore constituted the ordinary and proper completion of an integral police procedure. see People v. Wharton, 74 NY2d 921 (1989). This statement gave Detective Balsan probable cause to arrest Mr. DeSusa.
Upon consideration of the evidence and the testimony presented, the Court finds that the police acted lawfully and there was probable cause to arrest the defendant.
Accordingly, defendant's motion to suppress is denied.
Dated: Bronx, New York
September 30, 2013____________________________
Honorable Barbara F. Newman
Justice of the Supreme Court
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