People v Hall
Annotate this CaseDecided on March 24, 2016
County Court, Monroe County
The People of the State of New York
against
Joseph M. Hall, Defendant.
2015-0402
For the People:
KEVIN D. FITZGERALD, ESQ.
Assistant District Attorney
SANDRA DOORLEY, ESQ.
Monroe County District Attorney
47 S. Fitzhugh Street
Rochester, New York 14614
For the Defendant:
JEAN A. CAPUTO, ESQ.
Assistant Public Defender
TIMOTHY P. DONAHER, ESQ.
Monroe County Public Defender
10 N. Fitzhugh Street
Rochester, New York 14614
Christopher S. Ciaccio, J.
Defendant Joseph M. Hall is charged by the above-referenced indictment number with one count of Criminal Possession of a Controlled Substance in the Third Degree and one count [*2]of Criminal Possession of a Controlled Substance in the Fourth Degree. By omnibus motion dated July 27, 2015, defendant moved to suppress evidence seized from his person and from his home. He also moved to suppress a statement he gave to law enforcement following his arrest and/or a Huntley hearing pursuant to CPL §710.20(3) and 710.70(1). By Answering Affirmation dated July 28, 2015, the People opposed suppression of any evidence or statements. A combined Huntley /Mapp and Payton hearing was held on November 23, 2015. The People's only witness was Officer Nicholas Romeo of the Rochester Police Department. Defendant testified as well. What follows are the Court's findings of fact based on the evidence it finds credible, and its conclusions of law.
Findings of Fact
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At approximately 4:30 p.m. on April 17, 2015, Officer Nicholas Romeo of the Rochester Police Department was in his marked police vehicle patrolling Pennsylvania Avenue in the City of Rochester with fellow Officer Luciano. His attention was drawn to a male, about 20 feet away, standing in a driveway of a residence, facing the street in plain view, and who he believed, based on the officer's experience in investigating hundreds of marijuana possession cases, was "rolling a marijuana blunt."
The officer had been aware of "drug hotline" complaints of drug sales from that location, and explained that in street drug sales from specific locations drugs, are kept inside and delivered through a window to a buyer on the outside. He did not know the date or how long prior to April 17 that drug activity at that location had been reported.
Officer Romeo walked up the driveway, said hello, and asked, "What are you doing, is that a blunt?" The suspect (identified as the defendant Joseph Hall) replied, "Yes, it's just a blunt, it's just weed," and then took a bag of "weed" out of his pocket and showed it to the officer. There was no testimony as to how much "weed" was in the bag.
The officer asked defendant for identification. Defendant replied that he had it in the house. Officer Romeo told him to go get it, then asked if he could come into the house with him. Defendant made a gesture with his hand, which Romeo interpreted as a sign for him to follow defendant inside (to quote, the defendant "kind of made a gesture like with a hand motion like, yeah, follow me"). Although there is testimony in the record that Hall gave his consent verbally as well (when asked if Officer Romeo could accompany the defendant into the house, Romeo said the defendant responded, in sum and substance, that would be "fine," and "yeah sure come on in," all of which was part of a "fluid conversation"), the Court specifically finds, having heard the testimony and observed the actions and demeanor of the witnesses, and taking into account the defendant's testimony, that the expression of consent, prior to when the officers entered the house, was solely through a non-verbal action, which was interpreted as consent. Any verbal expression in the context of the "fluid conversation" where the defendant gave his consent to the officers to enter took place once the officers had entered the house.
Although Officer Romeo did have a standard Rochester Police Department "Consent to Search" card with him, he did not believe he used it on this occasion.
Defendant entered his home first, followed by Romeo and another officer. Just inside the threshold, the officers asked again, in what the Court finds was part of the "fluid conversation," if they could enter, to which defendant replied verbally in sum and substance, that they could, seeing that they had already entered. Standing inside the threshold of the entrance, and looking into the living room area, Officer Romeo noticed a "little sandwich baggie" on the top of a fireplace mantle containing what he believed was crack cocaine. He also noticed marijuana on a [*3]table near the fireplace.
Defendant was asked what was on the mantle and what was on the table. Officer Romeo believed that the defendant answered "marijuana, correct." Again, no weight or amount of marijuana was elicited as part of the testimony, nor was there any testimony as to whether the substance believed to be crack cocaine actually contained cocaine.
Defendant was then taken into custody and driven to the police precinct, where he was placed in an interview room. There he was read his Miranda warnings and rights, which he indicated he understood and was willing to waive and speak with law enforcement.
Defendant's statement was reduced to writing. He read the statement, made one change on it that he initialed, and signed it.
Conclusions of Law
Defendant first contends that the officers exceeded their authority when they entered onto the curtilage of his property without a warrant in order to investigate possible marijuana possession and/or to make an arrest.
It is axiomatic that warrantless entries into a home to make an arrest are " presumptively unreasonable' " (People v Molnar, 98 NY2d 328, 331 [2002], quoting Payton v New York, 445 US 573, 586 [1980]; see also People v McBride, 14 NY3d 440, 445-46 [2010]).
To establish that the entry was proper, the People are required to show, by a totality of the circumstances, either that the entry did not offend the Fourth Amendment of the U.S. Constitution or New York's analogous provision (NY Const., Art. I, § 12) or that probable cause existed for the entry and that one of the recognized exceptions to the warrant requirement applied (People v Saurini, 201 AD2d 869, 869-70 [4th Dept 1994]).
The rights of privacy not only extend to a person's home but also to its "curtilage," i.e., the grounds immediately surrounding a dwelling (Katz v United States, 389 US 347 [1967]). The curtilage of the home - the area immediately surrounding and associated with the home or the area that is related to the intimate activities of the home - has been held to be part of the home itself (see Florida v Jardines, 133 S Ct 1409, 1414 [2013]; Oliver v Unites States, 466 US 170, 178-180 [1984]; People v Reynolds, 71 NY2d 552, 558 [1988]; People v Reilly, 195 AD2d 95, 98 [3d Dept 1994]).
The determination of whether an area falls within the home's curtilage may be made by reference to four factors: "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by" (U.S. v Dunn, 480 US 294, 301 [1987]); People v Theodore, 114 AD3d 814, 816 [2d Dept 2014], lv denied, 23 NY3d 968 [2014], cert denied 135 S Ct 946 [2015]; see also People v. Sutton, 5 Misc 3d 1005[A] [Jefferson Cnty Ct. 2004]).
Here, the Court finds that the driveway where the defendant was rolling his "blunt" was not part of the curtilage of his home. The evidence established that the driveway is clearly open to public view and that the entrance to the driveway is not in any way enclosed or fenced (see e.g. People v Theodore, 114 AD3d 814 [3d Dept 2014]). The driveway led to an entrance of the house, through which the defendant entered when asked to retrieve his identification, and which presumably was for the use of the public. Defendant was plainly visible from the street openly engaged in what the officers reasonably suspected was the rolling of a marijuana cigarette, and he thus had no legitimate expectation of privacy in the area. The officers had at least an objective, credible reason to walk up the driveway and ask the defendant what he had on him, an [*4]intrusion that was minimal (People v Kozlowski, 69 NY2d 761, 763 [1987]; People v Versaggi, 296 AD2d 429 [2d Dept 2002], lv denied 98 NY2d 714 [2002]).
Defendant next contends that even if the entry onto the driveway was legal, the contraband seized from the interior of the house must be suppressed because, first, the officers lacked a basis to ask the defendant for permission to enter the house without a warrant, and secondly, consent to enter was never given.
The Court agrees with both contentions.
Consent to search is an exception to the requirement that governmental intrusion in to the privacy of a home is prohibited by constitutional limitations in the absence of a search warrant. (NY Const, Art I, §12; US Const, Amdts IV, XIV; see People v Loria, 10 NY2d 368, 373 [1961]; Silverman v United States, 365 US 505, 511 [1961]; Jones v United States, 357 US 493, 498 [1958]; cf. People v Gleeson, 36 NY2d 462, 466 [1975].
Police do not have an unlimited freedom to ask a person for consent to search a residence. There must be at least a "founded suspicion of criminal activity afoot" inside the house to justify the request for consent to enter the defendant's residence (People v Madden, 58 AD3d 1023, 1026-27 [concurring opinion] [3d Dept 2009], citing People v Marshall, 5 AD3d 42, 45 [3d Dept 2004], lv denied 2 NY3d 802 [2004]).
In Madden the majority declined to apply a DeBour- type analysis, which it said was designed for use only in "fast-moving street encounters," (Madden at 1024, quoting People v Moore, 6 NY3d 496, 499 [2006]), and therefore inapplicable to a situation where police are knocking on the door of a hotel (or by extension, a residence), holding rather that it is "irrelevant" whether the police had a basis to suspect criminal activity before requesting consent to search (Madden at 1025, citing People v Gonzalez, 39 NY2d 122, 127 [1976]).
The concurring opinion disagreed, arguing a DeBour-type analysis is appropriate and that before police can request consent to search, police must have at least a "founded suspicion of criminal activity afoot," which is the "level two" inquiry under DeBour.
Although the encounter with the defendant was not a "fast-moving street encounter," this Court agrees with the concurring opinion, to the extent that officers need a degree of suspicion before asking to enter a person's residence. If "fast-moving street encounters" require a "founded suspicion of criminal activity afoot" as a predicate to questioning, why would a knock on the door of a person's residence and a request to enter and search require any less? Moreover, the cases cited by the majority do not support its position, since the facts of each case show that some degree of criminal activity was present to justify law enforcement's request to search the defendant's residence (or hotel room) (see, e.g., Gonzalez, supra [agents had just purchased drugs inside the apartment], People v Oldacre, 53 AD3d 675 [3d Dept 2008] [ officers had conducted surveillance of the defendant and seized nearly a pound of marijuana from him before requesting permission to search his apartment], People v McKenzie, 263 AD2d 778 [3d Dept 1999], lv denied 93 NY2d 1045 [1999] [the victim reported he had just been robbed within the place sought to be searched]).
In the instant case, the officers were not justified in asking for consent to enter the residence, since the record is devoid of any basis — let alone a "founded suspicion" - to believe that criminal activity was afoot in the house. The possession of a marijuana "blunt" is a violation (Penal Law §221.05), not punishable by imprisonment (see Penal Law §10.00[6]), and is nearly the equivalent of a traffic ticket or a code violation, nothing more. That defendant was rolling a blunt on his own driveway did not give rise to a "founded suspicion" that he was storing and/or [*5]selling drugs out of the house. That he had a bag of marijuana proves little, since there was no testimony as to the quantity of marijuana in it). The anonymous "hotline" tip regarding drug sales at some unknown point in the past similarly does not add to the officer's quantum of suspicion as it existed at the time the decision to seek entry was made.
Even if the officers had a basis to seek consent to enter the house, the People failed to sustain their heavy burden of establishing, by clear and convincing evidence that the defendant "freely and voluntarily" gave his consent to search his residence (see People v Gonzalez, 39 NY2d 122, 128 [1984]). The issue is not so much whether the consent was given freely, but whether it was given at all.
Here, given the ambiguous nature of the meaning of the gesture that the defendant made to the officers when they asked him if they could come into his house - to quote, "kind of made a gesture, like with a hand motion like, yeah, follow me" - "it would be inappropriate for this Court to conclude in the first instance that a valid consent was given ." (People v Love, 152 AD2d 925, 926 [4th Dept 1989], lv denied 74 NY2d 849 [1989]). The ambiguity of the gesture required further inquiry. (Illinois v Rodriguez, 497 US 177, 181 [1990] [the burden of establishing a voluntary consent "cannot be met if agents, faced with an ambiguous situation, nevertheless proceed without making further inquiry]). Such a gesture cannot satisfy the requirement that consent be the "unequivocal (emphasis added) product of an essentially free and unconstrained choice." People v Gonzalez, supra, at 128.
Of course use of the standard consent card would have cleared up any ambiguity.
Accordingly, the motion is granted and the evidence seized from inside the defendant's home is suppressed.
Statement of Defendant
At a hearing to consider suppression of statements made by a defendant, it is the People's burden to prove beyond a reasonable doubt that the statements were voluntarily made and not the result of coercive police activity (People v Guilford, 21 NY3d 205, 208 [2013]).
Miranda warnings are required whenever a person is subjected to custodial interrogation; that is, when a person's freedom of movement is restrained in a manner associated with a formal arrest, and the questioning is intended to elicit incriminating evidence. (See Miranda v Arizona, 384 US 436 [1966]; People v Bennett, 70 NY2d 891, 893-894 [1987]; People v Shelton, 111 AD3d 1334 [4th Dept 2013], lv denied 23 NY3d 1025 [2014]).
The issue of whether a person is in custody is generally a question of fact (People v. Centano, 76 NY2d 837 [1990]. In deciding whether a defendant was in custody, the test is not what the defendant thought, but rather, whether a reasonable person, innocent of any crime, would have believed that he or she was in police custody (see People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]). The factors to be considered include the amount of time the individual spent with the police, whether his freedom of action was significantly restricted, the location of the questioning and atmosphere under which he was questioned, his degree of cooperation, whether he was apprised of his constitutional rights, and whether the questioning was investigatory or accusatory in nature (see People v Macklin, 202 AD2d 445, 46 [2d Dept 1994], lv denied 83 NY2d 912 [1994)].
Moreover, even where a Payton violation has occurred, if the statement was sufficiently attenuated from the illegal arrest or entry such that the taint of the unconstitutional entry had dissipated, then the statement is admissible (People v Harris, 77 NY2d 434, 440-41 [1991]).
In determining whether a statement obtained after a Payton violation is admissible, it is [*6]necessary to consider three factors: (1) the time interval between the illegal arrest and the statement; (2) the presence or absence of intervening factors; and (3) the purpose and flagrancy of the official misconduct (People v Herner, 212 AD2d 1042, 1044 [4th Dept 1995], citing People v. Harris, id.
Here, defendant was in custody when he gave the officers a detailed written statement, but he was appropriately advised of his Miranda warnings and clearly understood them and freely and voluntarily waived his right to remain silent. Nearly two hours elapsed from the time the officers illegally entered into the defendant's home and the time defendant was administered his Miranda warnings. Defendant gave his statement at the police precinct, away from the scene of the Payton violation. The purpose and flagrancy of the police conduct was minimal. The defendant plainly admitted that no pressure or force was used to get him to make a statement, and he acknowledged that he corrected a mistake that had been on the original draft of the statement — a mistake that made him less culpable, not more, so that in correcting it, he was acknowledging control over the premises where the contraband was found. Little or no taint remained from the illegal entry to warrant suppression of the statement.
The motion to suppress the statement is denied.
Accordingly, in light of the foregoing, it is hereby
ORDERED that the motion to suppress physical evidence is GRANTED; and that portion of defendant's motion seeking suppression of statements is DENIED.
This constitutes the ORDER of the Court.
Dated: March 24, 2016
Rochester, New York
___________________________________________
HON. CHRISTOPHER S. CIACCIO
Monroe County Court Judge
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