Opinion
5643/2007.
Decided on June 30, 2008.
Law Offices of A. Adam Mehrfar, New York City, (A. Adam Mehrfar of counsel), for Steven Brown, defendant.
Hornstein, Palumbo Keith, New York City, (Arnold P. Keith, Jr., of counsel), for Edward Green, defendant.
Robert M. Morgenthau, District Attorney, New York City (Jason Berland of counsel), for plaintiff.
Defendants have been charged with criminal possession of a controlled substance in the first degree (PL 220.21) and lesser related offenses based upon evidence obtained by police during the execution of two search warrants that had been issued on the same day for apartments at 451 Lenox Avenue in New York County. This decision addresses the defendants' motion to controvert the second search warrant, which was issued for an apartment on the fourth floor. The first warrant had authorized the police to search a second-floor apartment and what the police believed to be a single apartment on the third floor. During the execution of the first search warrant, the police discovered that the third floor actually contained four separate units, not a single apartment, and a stairway that led to four separate units on the fourth floor. Although the probable cause for the second search warrant was tainted by information that the police had illegally obtained during the execution of the first search warrant, this court finds that the defendants have no standing to controvert the validity of the second search warrant.
STATEMENT OF FACTS
On November 1, 2007, a judge of the criminal court issued a search warrant for the fourth floor, southwest apartment at 451 Lenox Avenue in New York County, the second of two search warrants issued on that day for apartments at that address. The warrant application included the affidavit of Detective Anthony Romero of the Narcotics Bureau Manhattan North Major Case Unit. The affiant described 451 Lenox Avenue as a four-story building with a store on the first level, one apartment on the second floor, and four apartments on each of the top two floors. The judge did not hear testimony under oath in deciding the application.
The Search Warrant Affidavit
According to Romero's affidavit, the police had obtained probable cause to search the target apartment based on information obtained from two sources. The first source of information was conversations with a confidential information who had made three police-controlled drug purchases from the apartment on the second floor and observed the drug seller enter the door of what appeared to be the third-floor apartment to obtain more drugs when his supply ran out. The second source of information was information obtained by police during their execution of the first search warrant. The affidavit details the information obtained from both sources.
On October 11, 2007, at 4:45 p.m., the informant made a police-controlled drug purchase from Apartment 1. The informant entered the building after pushing the buzzer for Apartment 1 and being "buzzed in." He went upstairs to the second floor, where Apartment 1 was located. A male, identified as "JD Moustache," opened the door and said, "I'm all out. I will be right back." JD Moustache walked up one flight of stairs to the third floor, where a door was located. He opened the door with a key and walked through the door. He then returned down the stairs to Apartment 1 while holding a bag containing several small bags of cocaine. JD Moustache gave the informant one of the small bags in exchange for $40. The informant exited the building.
The affidavit does not state whether the informant had watched JD Moustache climb the stairs and enter through the door on the third floor or had merely reached that conclusion based on what he had heard after JD Moustache went up the stairs and out of his view.
On October 12, 2007, at 4:20 p.m., the informant made a second police-controlled drug purchase from JD Moustache in Apartment 1. The informant entered the building in the same manner as the day before, and proceeded up to Apartment 1 on the second floor. JD Moustache opened the door to that apartment and handed the informant a bag of cocaine in exchange for $40. The informant exited the building.
On October 19, 2007, at 5:40 p.m., the informant made a third police-controlled drug purchase from JD Moustache in Apartment 1. The informant entered the building in the same manner as for the other two purchases, and proceeded upstairs to Apartment 1, where JD Moustache opened the door and asked, "How much do you want?" The informant asked for one bag and gave JD Moustache $40 in exchange for one bag of cocaine. JD Moustache then said that he needed to "get more" and proceeded up the stairs. According to the affidavit, the informant followed JD Moustache upstairs to the third floor and observed JD Moustache open the door on the third floor with a key and walk through the door. After making those observations, the informant exited the building.
The informant's purported action of following JD Moustache up the[fn ]stairs defies common sense and flatly contradicts the informant's sworn testimony at the Darden hearing, in which he testified that he had not gone above the second floor when making a purchase.
On November 1, 2007, police officers from the Narcotics Bureau Manhattan North executed a judicially authorized search warrant for Apartments 1 and 2 of 451 Lenox Avenue. The police entered Apartment 1 and found JD Moustache inside watching a surveillance monitor showing a feed of the front of the building and the entry stairway of the building. The officers recovered ten small bags of cocaine packed like those that had been purchased by the informant. They also found United States currency, and recovered a set of keys from JD Moustache.
On the third floor, the police broke through the door of what was believed to be Apartment 2. Behind that door, the police discovered "four other locked rooms/apartments." The fourth floor of the building also contained four additional "locked rooms/apartments."
The affidavit next reported that further investigation had disclosed a video camera outside of the building. The camera had a wire that ran into Apartment 1 and "continued up to the fourth floor," leading the affiant to believe that he and his fellow officers were being observed by a person or persons on the fourth floor. The affidavit is silent about whether the police had observed the wire running into any of the units on the fourth floor.
Next, according to the affidavit, the police unsuccessfully attempted to open the locked "rooms/apartments" on the third floor using the keys that had been recovered from JD Moustache. The police then proceeded upstairs to the fourth floor.
On the fourth floor, a police officer inserted one of the keys into the doorknob of the target apartment and discovered that the key fit that lock. The police knocked on the door and announced that they were the police, but received no response. The affidavit then states: "After receiving a negative response, the door to the target premises was opened" (emphasis added). The affiant looked inside the apartment and saw a man sitting on a couch. The affiant also saw, "in plain view," a mirror used for cutting cocaine, a digital scale with a cocaine residue, numerous small plastic bags, and a heat sealer for sealing bags similar to the bags used in the sales to the confidential informant. The officers thereupon removed the male from the apartment, secured the apartment, and applied for a search warrant for the target apartment.
During the subsequent search of the fourth-floor apartment, the police found approximately a half kilogram of cocaine.
The Motion to Controvert and Hearing
Both defendants moved, inter alia, to controvert the search warrant issued for the fourth-floor apartment.
In his omnibus motion, defendant Green, who was inside the target apartment when the police entered it, alleged that he was employed as the building manager and had been invited into the apartment by the resident, whom Green did not identify by name. Green admitted not being the leaseholder of the apartment.
In his omnibus motion, defendant Brown, who was inside the second-floor apartment when the police entered it, alleged that the police had recovered the keys to the target apartment from his person when he was arrested.
In response to the defense motions to suppress the property recovered from the execution of the second search warrant, the motion court ordered a hearing about "the legality of the detectives' initial entry into this fourth floor apartment as well as their actions once inside." The court stated that the hearing would determine whether the information contained in the affidavit stemmed from unlawful police conduct and tainted the warrant application.
In response to defendant Brown's motion to controvert the first search warrant, the court found that the first search warrant had been supported by probable cause, but ordered a Darden hearing. Defendant Green also had moved to controvert the first search warrant, but the motion court ruled that Green lacked standing to challenge that search warrant.
The hearing on the legality of the initial police entry into the fourth-floor apartment was conducted at the same time as the Darden hearing. Detective Romero testified about the initial police entry into that apartment during the execution of the first search warrant.
The Hearing About the Execution of the First Search Warrant
Detective Romero explained the police investigation conducted after the police had broken through the door to what they had believed was the third-floor apartment. Behind that door, the police discovered four doors to other apartments, and heard a door slam on the fourth floor. Upon seeing the layout of the third floor, Romero concluded that "it had been converted to an [sic] SRO type set-up."
The police secured the third floor, and Romero told the other officers that they would not execute the warrant any further. Romero then returned to the second floor, where he recovered the keys from JD Moustache during a search of that apartment. He also observed a gun holster in the second floor apartment.
After obtaining the keys, Romero proceeded up to the fourth floor. At the hearing, Romero explained why he went to the fourth floor. He stated that the police had known that one of the eight apartments on the third and fourth floors was "the stash location" for the previous drug sales. He also proceeded up to the fourth floor because that was the location of the door slam.
On the fourth floor, Romero observed that the surveillance wire went up to the fourth floor and "into" the door of the target apartment.After discovering that one of the keys turned the lock of the target apartment, Romero banged on the door, announced, "Police," and asked anyone inside to exit. He got no response, did the same thing again, but again got no response. He then opened the door and found the room "totally dark." He shined his flashlight inside and saw a man sitting on the floor. The police took custody of the man and turned on the lights in the apartment, at which time they observed drug paraphernalia and a TV monitor, which was turned off. The man in the apartment had keys "to just about everything in the building, including the laundromat."
After discovering that one of the keys unlocked the target apartment, the police tried the keys in the apartment doors on the third floor, but found none that fit any of those locks. The police also had tried the keys in the locks on the other apartments on the fourth floor, but none of the keys fit those apartments.
After the hearing concluded, this court supplied defense counsel, who were not present for the hearing, with a transcript of Romero's testimony (partially redacted) and the post-hearing colloquy between this court and the prosecutors. This court also invited counsel to reopen the hearing for any reason, including cross-examination of Romero. Each defense counsel declined to reopen the hearing, and submitted written memoranda of law on the issues of standing and the legality of the initial police entry into the fourth-floor apartment.
LAW
A defendant seeking to suppress evidence as obtained in violation of the Fourth Amendment must establish standing by demonstrating a legitimate personal expectation of privacy in the area searched ( People v Ramirez-Portoreal, 88 NY2d 99, 108). A legitimate expectation of privacy contains a subjective and objective component ( id.) Under the subjective component, the defendant actually must exhibit an expectation of privacy in the area searched ( id.). Under the objective component, the defendant must show that the expectation of privacy exhibited is one that society would accept as reasonable ( id.).
Defendant Brown has not demonstrated a legitimate expectation of privacy in the target apartment. His possession of the key to the apartment does not give him standing to challenge the search of that apartment ( see People v Jose, 252 AD2d 401 [1st Dept 1998]). The additional evidence that Brown was seen going through the door on the third floor does not illuminate the nature of whatever ties or relationship Brown might have to that apartment. In the absence of any additional evidence about Brown's relationship to the apartment, he has failed to carry his burden of proving that he had a legitimate expectation of privacy in that apartment.
Defendant Green also has failed to establish standing to challenge the police search of the target apartment. Green's mere presence in the apartment does not establish that he had a reasonable expectation of privacy in the apartment. The hearing evidence contains no other evidence about Green's relationship to the target apartment. Although Green's possession of keys "to just about everything in the building, including the laundromat," provides some corroboration of his omnibus motion claim that he was the building superintendent, his status as the superintendent does not give him a legitimate expectation of privacy in the apartment of a building resident. Moreover, Green's conclusory allegation that he had been invited into the apartment is not supported by any evidence at the hearing. In any event, his status as a visitor, even if true, confers no right to contest the search of the apartment ( see People v Freeman, 220 AD2d 369 [1st Dept 1995]).
This court must determine each defendant's standing notwithstanding the motion court's decision to order a hearing about the legality of the initial police entry into the target apartment. Even after a hearing has been ordered, a defendant must still establish standing at the suppression hearing ( see People v Washington , 39 AD3d 1228, 1229 [4th Dept], lv denied, 9 NY3d 870). They could carry their burden to do so by relying on evidence presented by the prosecution ( see People v Whitfield, 81 NY2d 904, 906) or affirmatively presenting evidence that the defendants possessed an expectation of privacy in the target apartment. In this case, the defendants did neither.
Lastly, neither defendant has automatic standing to challenge the seizure of evidence from the target apartment. The doctrine of automatic standing does not apply here because the charge is predicated on ordinary constructive possession principles and a statutory presumption ( see People v Tejada, 81 NY2d 861, 862-863). This court questions whether the statutory room presumption in PL 220.25 (2) applies to Brown, who was in the second-floor apartment, not the fourth-floor apartment, when arrested by police. In any event, even if the statutory presumption did apply to Brown, the evidence that he possessed the keys to the fourth-floor apartment and had traveled above the second floor to replenish his drug supply establishes that the prosecution is not asserting reliance on constructive possession principles in bad faith to deny Brown automatic standing ( cf. People v Davis, 195 Misc 2d 858, 863 [Rochester City Ct 2003] [finding defendant had automatic standing because "the record is devoid of any evidence supporting a constructive possession theory of defendant's guilt]). Proof that a defendant has dominion and control of contraband does not necessarily establish that the defendant also has a legitimate expectation of privacy of the area containing the contraband ( see People v Wesley, 73 NY2d 351, 358). Accordingly, this court denies each defendant's motion to controvert the search warrant.
Although the defendants lack standing, this court will address the validity of the second search warrant. This court finds that the search warrant application contained insufficient information to conclude that the plain view observation of the interior of the fourth-floor apartment was not the fruit of preceding illegal police activity — namely the use of the key to unlock the door of the target apartment — and that the judge who reviewed that application should have attempted to cure that deficiency by examining, under oath, the affiant or some other police officer to learn who had opened the door to the target apartment. Consequently, defendants would have been entitled to suppression of the contraband recovered from the fourth-floor apartment if they had established standing.
When reviewing a search warrant application, a judge must determine the validity of the warrant in accordance with CPL art 690 and decisional case law ( People v Hanlon, 36 NY2d 549, 559). Foremost, the judge must determine that the warrant is supported by probable cause (CPL 690.10). The judge must decide that the warrant specifies the places or places to be searched and the property to be seized (CPL 690.15). The judge also must determine that probable cause is not based solely on illegally obtained information ( see People v Arnau, 58 NY2d 27, 33, n 1 [1982]).
The validity of a search warrant application must be based on the information known to the judge at the time of the application ( see People v Asaro, 57 Misc 2d 373, 380 [Sup Ct, Queens County 1968]). In most cases, the information in the written warrant application will be sufficient to find the warrant valid. But if the written application is deficient for any reason, the judge can attempt to cure that deficiency by examining, under oath, any person believed to possess pertinent information (CPL 690.40).
In this case, the validity of the search warrant turned on whether the door to the target apartment was opened under circumstances that attenuated the illegal police conduct that occurred when the police used a key to turn the lock of that apartment ( see People v Munoz , 19 AD3d 243 , 243 [1st Dept], lv denied, 5 NY3d 805). This court finds that using the key to turn the lock constituted a police intrusion that required, at minimum, reasonable suspicion to be lawful ( see Com v Alvarez, 661 NE2d 1293, 1302 [Mass 1996]; see also United States v DeBardeleben, 740 F2d 440, 445 [6th Cir 1984] [insertion of key into a car door was minimal intrusion justified by "founded suspicion" and in furtherance of police investigation]). The police here did not possess reasonable suspicion to believe that the target apartment contained the narcotics supply. The mere fact that the target apartment was one of eight apartments beyond the front door of the third floor does not constitute reasonable suspicion to believe that any one of those eight apartments was being used to store the narcotics supply. The police had observed the wire for the video surveillance camera go up to the fourth floor, but the search warrant application does not state whether the wire went into any of the fourth-floor apartments. Lacking reasonable suspicion to believe that any particular apartment was used to store the narcotics supply, the police could not test the keys recovered from JD Moustache to determine if any of them fit the target apartment. Under those circumstances, the plain view observation would constitute a fruit of illegal police conduct unless an intervening act attenuated that illegality.
But see United States v Concepcion, 942 F2d 1170, 1172-1173 [7th Cir 1991] [inserting a key and turning lock of apartment door to learn if defendant was tenant was a search, but did not require probable cause, noting police entitled to learn suspect's address without probable cause]; United States v Lyons, 898 F2d 210, 212 [1st Cir 1990] [insertion of key into lock solely to identify ownership of locker did not constitute a search]).
Based on the information contained in the search warrant application, the reviewing judge could not conclude that the plain view observation was attenuated from the illegal police activity. The plain view observation could have been attenuated if the defendant in the apartment had voluntarily opened the door to expose the interior of the apartment to police view ( see People v Munoz, 19 AD3d at 243 [defendant's choice to open the door after hearing police turn the lock with a key "was a voluntary act that was attenuated from any possible illegality . . . in testing the key"]). But the affidavit's ambiguous allegation that "the door . . . was opened" does not establish that the door was opened by an occupant rather than a police officer. Consequently, the warrant application, as drafted, did not contain sufficient information for the reviewing judge to determine that the probable cause supporting the search warrant was not based upon illegally obtained information.
The judge who decided this search warrant application could have attempted to cure any deficiency in the poorly drafted warrant application by examining the affiant ( see CPL 690.40). The judge could have asked the affiant, or any other police officer present for the plain view observation, to identify the person who had opened the door. Alternatively, the judge might have been able to find reasonable suspicion to believe that the target apartment was the stash apartment if the affiant had been able to state that the wire for the surveillance camera had gone into the target apartment. Although a reviewing judge's authority to take testimony under oath is invoked most often to assess the credibility of a confidential informant, the statutory language allows the judge to hear testimony about any issue affecting the validity of the search warrant, not just the credibility of a confidential informant.
This court recognizes that a judge asked to decide a search warrant application might have to decide the application promptly. The police might have to act quickly to execute the warrant if the search is to be successful. The judge might need to interrupt court business or delay a legal proceeding to review the application. But the need for a prompt determination of the application cannot deter the judge from making a complete inquiry, when necessary, into the factual and legal basis for the search warrant. Moreover, whenever speed is of the essence, the prosecutor should have access to any potential witnesses that a judge might wish to examine in deciding a search warrant application.
Lastly, this court acknowledges that a coordinate court of equal jurisdiction had ordered a hearing to explore the legality of the police conduct that led to the plain view observation. Nevertheless, the search warrant's validity must be evaluated based on the information known to the issuing judge when the application was approved, not information developed later at a hearing conducted months after the warrant was issued ( see People v Asaro, 57 Misc 2d at 380). Thus, in determining the validity of the search warrant application, this court does not consider Romero's hearing testimony about any information that was known to the police but omitted from the written search warrant application.
For the reasons stated above, the motions to suppress are denied.
This constitutes the decision and order of this court.