Opinion
321/2016
09-05-2017
The People of the State of New York, Plaintiff, v. Ted Saint-Ilmar, Defendant.
The People are represented by: Hon. Michael McMahon District Attorney-Richmond County By: Assistant District Attorney Kate Malloy 130 Stuyvesant Place Staten Island, New York 10301 (718) 556-7096 The Defendant- Ted Saint-Ilmar is represented by: Bernard H. Udell, Esq. 26 Court Street Brooklyn, New York 11242 (718) 595-2410
The People are represented by: Hon. Michael McMahon District Attorney-Richmond County By: Assistant District Attorney Kate Malloy 130 Stuyvesant Place Staten Island, New York 10301 (718) 556-7096 The Defendant- Ted Saint-Ilmar is represented by: Bernard H. Udell, Esq. 26 Court Street Brooklyn, New York 11242 (718) 595-2410 Mario F. Mattei, J.
The issue before the Court is whether the police properly recovered weapons from a bathroom the defendant was occupying in an apartment in which he did not reside.
The Court held a Dunaway/Mapp/Huntley hearing on June 9, 2017. The People called one witness, Police Officer Steven Cosentino, of the 121 Precinct. The defendant declined to testify. The witness and his testimony were credible.
The defendant's motion to suppress is denied.
FACTS
On November 20, 2016, at approximately 11:00 p.m., Police Officer Steven Cosentino and his partner, Police Officer Cavalotti, received a radio run regarding a family dispute at 173 Brabant Street. The radio run indicated, in sum and substance, that the boyfriend, a male black wearing red shorts, is trying to kill a female. He is chasing her outside the building right now. There is a possibly that a firearm is involved, but it hasn't been displayed.
After responding to 173 Brabant Street, the officers, driving a marked police car, were approached by a woman who they later came to know as Laquisha Johnson. She was crying and shaking. In Cosentino's opinion she was scared. She was also barefoot. She asked Cosentino "Can you help me?" and told him that "My boyfriend's chasing me out of the apartment. I ran out. It's possible he has a firearm." She told Cosentino that she believed he was in her apartment, which was apartment 5B. She told him that she lived there with her mother and three children.
Cosentino responded to the apartment and found the door unlocked and slightly ajar. Ms. Johnson gave him permission to enter to get the defendant. Inside, he saw Ms. Johnson's mother in the living room, who told him that "He's in the back in the bathroom." Three children were also in the living room. The women and children were escorted outside the apartment into the hallway.
Cosentino approached the bathroom. The door was shut. He announced his presence and knocked on the door. He received no response. He knocked on the door again and asked "Can you please open the door?" A man in the bathroom, later identified as the defendant, answered "No, you're going to kill me. You're going to shoot me." The defendant did not say "I'm not opening the door" or "You guys can't come in."
The officers entered the bathroom by opening the unlocked door. The defendant was seated in the "Indian" position on the floor against the wall. He was shaking, appeared to be nervous, and had his hands raised in the air. He got up with the officers' assistance. When the defendant was standing Cosentino noticed that the defendant had been sitting on a firearm. The defendant was taken into the hallway. At no time did the officers have their guns drawn.
Cosentino re-entered the bathroom to secure the firearm that he had observed the defendant sitting on. He then observed another firearm in the bath tub. He also observed a third firearm behind the bathroom door.
At this point Cosentino re-interviewed Ms. Johnson, and asked if she knew if any firearms were involved. She said that she hadn't seen any, but had heard what she believed to be a gun cock back while the defendant was in the bathroom. Ms. Johnson then signed a Consent Form, allowing the officers to search the entire apartment and take possession of any items they deemed appropriate. Cosentino re-entered the bathroom and observed a magazine for a firearm inside a blue bucket and a round of ammunition in a red bucket.
After leaving the bathroom, Cosentino recovered another round of ammunition from the floor of the hallway near the master bedroom. Cosentino asked Ms. Johnson if the defendant was carrying anything when he entered the apartment. She indicated that he was carrying a bag which was on top of a carriage in the living room. Cosentino went to the carriage and looked at the bag. It was open. Inside he observed another magazine for a firearm.
The parties stipulated that the defendant was a guest in the apartment and that Ms. Johnson had run a bath/shower for him.
THE ENTRY INTO THE APARTMENT
The defendant concedes that the entry by the police into Ms. Jordan's apartment was lawful, as they had her consent and were there to resolve an apparent domestic dispute. "As public servants, the police perform the lion's share of services expected of local government. Among other functions, the police in a democratic society are charged with the protection of constitutional rights, the maintenance of order, the control of pedestrian and vehicular traffic, the mediation of domestic and other noncriminal conflicts and supplying emergency help and assistance" (People v Debour, 40 NY2d 210, 218 [1976]).
THE ENTRY INTO THE BATHROOM
Based upon Georgia v Randolph, 547 US 103 [2006], the defendant contests the officers right to search the bathroom, contending that the defendant's refusal to open the door is tantamount to a refusal to consent to a search. This argument is not persuasive.
While an overnight guest may have a reasonable expectation of privacy in premises where he does not reside, that, in and of itself, does not mandate suppression (Minnesota v Olsen, 495 US 91 [1990]; People v Ortiz, 83 NY2d 840 [1994]."Our cases firmly establish that police officers may search jointly occupied premises if one of the occupants consents ... In Georgia v. Randolph, we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search" (Fernandez v California, - US -, 134 S Ct 1126 [2014], [internal citations omitted]).
In Georgia v Randolph, supra, the police responded to a domestic dispute in a home. While there, the wife told the officers that her husband had drug paraphernalia in their bedroom. The police "asked Scott Randolph for permission to search the house, which he unequivocally refused" (Georgia v Randolphat 107). In the instant case, the defendant was not asked if the police could search, and he did not object to a search. The defendant's refusal to open the bathroom door, fearing for his own safety, does not constitute an express refusal of consent to a police search. To be afforded the protections of the Fourth Amendment from an unreasonable search and seizure, the defendant must issue an express refusal of consent to search which is clear to the police (Georgia v Randolph, supra; United States v Lopez, 547 F3d 397 [2d Cir 2008]; People v McClain, (61 AD3d 416 [1st Dept 2009], lv denied 13 NY3d 747 [2009]; People v Grillo, 128 AD3d 1103 [3d Dept 2015]). The onus is on the defendant to object to a search (US v Lopez, supra; People v Watson, 101 AD3d 913 [2d Dept 2012]). A person's refusal to comply with a police officer's request is not the equivalent of a refusal to consent to a search, and once legally inside the bathroom the police may seize any evidence in plain sight. Additionally, the officers were present to investigate a possible domestic violence incident, and entered the bathroom not to search, but to speak to the defendant. As Officer Cosentino testified, Ms. Johnson consented for him "to go into the apartment to get Mr. Saint Ilmar."
EXIGENT CIRCUMSTANCES
Even if the defendant objected to the search of the bathroom, his is a limited right. The defendant, a purported overnight guest, did not have the same rights as the legal tenant of the apartment to object to a search once she, the legal tenant, made a police complaint against him. The complaint in effect vitiated the defendant's right to remain in the apartment, since he had no legal right to be there except as a guest of Ms. Johnson. As the defendant concedes in his memorandum, "She was scared of the defendant and wanted him out."
Contrary to the insinuations of the defense, the fact that Ms. Johnson was not in imminent danger while in the parking lot did not obviate the police from, at a minimum, investigating the situation further. She was a distraught, bare-foot woman, in a parking lot late on a November evening. Ms. Johnson's complaint to 911 that the defendant, her boyfriend, had tried to kill her, and was in her apartment, coupled with the 911 report and Ms. Johnson's statement that a firearm was possibly involved, meant the police were duty-bound to go to the apartment and remove the defendant. Any other contention by the defendant is illogical. Were they just supposed to send Ms. Johnson back to her apartment? "This country witnesses more than a million acts of domestic violence, and hundreds of deaths from domestic violence, each year. Domestic violence often escalates in severity over time, and the presence of a firearm increases the likelihood that it will escalate to homicide ... [A]ll too often, as one Senator noted during the debate over §922(g)(9), 'the only difference between a battered woman and a dead woman is the presence of a gun'" (United States v Castleman, - US-, 134 S Ct 1405 [2014], [internal citations omitted]).
The police actions in attempting to remove the defendant from the bathroom were entirely appropriate in a case of alleged domestic violence and an allegation that one of the participants might have a firearm. "The Randolph court noted, however, that while an occupant's express refusal to permit entry negates consent offered by a co-occupant, it does not negate exigent circumstances to assist a suspected domestic violence victim ... '[E]ven when . . . two persons quite clearly have equal rights in the place, as where two individuals are sharing an apartment on an equal basis, there may nonetheless sometimes exist a basis for giving greater recognition to the interests of one over the other . . . . [W]here the defendant has victimized the third-party . . . the emergency nature of the situation is such that the third-party consent should validate a warrantless search despite defendant's objections'" (Patrizio v Nelson, No. 14-CV-7497 (JBW) (VMS), 2016 U.S. Dist. LEXIS 83891, [EDNY June 28, 2016], citing Georgia v Randolph, supra).
STATEMENT EVIDENCE
The defendant's response to the question asked by Officer Cosentino was made while he was investigating the situation and as such did not require the officer to advise the defendant of his Miranda rights. "It is well established that threshold crime scene inquiries designed to clarify the situation and questions that are purely investigatory in nature do not need to be preceded by Miranda warnings" (People v. Shelton, 111 AD3d 1334 [4th Dept 2013], lv denied 23 NY3d 1025 [2014]).
The officers did not threaten, promise or coerce the defendant in any way to make a statement.
The People have met their burden of showing beyond a reasonable doubt that the statement was voluntarily made (People v May, 263 AD2d 215 [3d Dept 2000], lv denied 94 NY2d 950 [2000]). The defendant has not met his burden of showing that the statement was involuntarily made (People v Hughes, 280 AD2d 694 [3d Dept 2001] lv denied 96 NY2d 801 [2001]). Therefore, the defendant's statement was voluntarily made (People v B., 23 NY2d 611 [1969]; People v. Anderson, 42 NY2d 35 [1977]; People v Huntley, 15 NY2d 72 [1965]), and will be admissible at trial.
Accordingly, it is hereby
ORDERED, that the defendant's motion to suppress is denied.
This shall constitute the decision and order of the court. Dated: September 5, 2017 Staten Island, New York Honorable Mario F. Mattei Acting Justice of the Supreme Court