Opinion
2005SU001705.
Decided September 2, 2005.
Attorneys of record — S.C. District Attorney — S.C. Legal Aid.
The defendant, Robert L. Eccleston, has been charged with criminal possession of a controlled substance in the Seventh Degree in violation of section 220.03 of the Penal Law. A combined probable cause Huntley/ Payton hearing was held on June 2, 2005 and concluded on June 9, 2005. The arresting officer, Police Officer Brian Valentin of the Suffolk County Police Department, testified that on January 12, 2005 he was working an 8 to 4 shift and he arrived at 31 Essex in Bay Shore, NY for the purpose of investigating suspected drug activity at that location. A second officer, Officer Rathgaber, arrived at about the same time. The location was described by Officer Valentin as property once occupied by Hulk Towing that now had a fence around the perimeter with a locked gate. There were abandoned vehicles and overgrown weeds, which, in the officer's opinion, gave the appearance of a "junk yard". After exiting their vehicles, the officers heard voices coming from within the fenced property. They proceeded over the fence and determined that the voices were coming from a camper type vehicle. The officer knocked on the door which was answered by a female with a crack pipe in hand. She was recognized by the officer as he had previously arrested her and knew her name to be Valerie Randolph. Ms. Randolph had previously given information to the officers pertaining to alleged drug use at 31 Essex Street. Ms. Randolph dropped the crack pipe within the threshold of the trailer's doorway. The officers then ordered her out of the camper and placed her under arrest.
Upon entering the camper to retrieve the pipe dropped by Ms. Randolph, Officer Valentin observed the defendant, Robert L. Eccleston, seated with a crack pipe next to him. The defendant was then ordered to exit the camper and was placed under arrest. The second crack pipe was recovered. On cross examination, Officer Valentin testified that he observed the defendant inside the trailer when he retrieved the crack pipe dropped by Ms. Randolph.
The defendant asserts that his rights were violated when the officers scaled the fence, entered the property and then ordered the defendant out of the camper. The defense called the defendant's father, Robert Eccleston, Sr. as a witness. He testified that he was and is the owner of the property at 31 Essex Street, that it is not abandoned and that his son is employed by him to do periodic vehicle repairs at that location and has permission to stay overnight. Defense counsel contends that the defendant's status as an employee gave him an expectation of privacy in the premises and, therefore, standing to object to the search ( see, People v. Ramirez-Portoreal, 88 NY2d 99; People v. Perez, 266 AD2d 242, [1999]).
A defendant has standing when he/she manifests an expectation of privacy that society recognizes as reasonable. There are two components to this issue to determine reasonableness. The first is a subjective, did defendant exhibit an expectation of privacy in the place or item searched, in other words, did he seek to preserve something as private? The second is objective, — does society generally recognize the defendant's expectation of privacy as reasonable under the circumstances? Is the defendant's expectation of privacy justifiable under the circumstances? ( See, People v. Ramirez-Portoreal, supra; People v. Mercado, 68 NY2d 874).
The uncontradicted testimony establishes that the defendant, as an employee, was given the authority to be on the premises and to occupy the trailer. Given the status of the defendant as an employee and the authority he had pursuant to the uncontradicted testimony of the defendant's father, the Court finds that the defendant exhibited an expectation of privacy upon the property and in the trailer where he was arrested. Further, the expectation of the defendant, under these circumstances was reasonable and would be generally recognized. As a result, the defendant has the standing to challenge the police conduct and its legality. ( See, People v. Perez, supra; People v. Reid, 148 Misc 2d 539, [1990]; People v. Norberg, 136 Misc 2d 550).
Further, the Court finds that the police action was not justified in its inception and was not reasonably related in scope to the circumstances that the police were investigating ( see, People v. Wheeler, 2 NY3d 370, [2004]). The scaling of the fence which surrounded the premises in order to investigate the location from where the voices emanated constituted a trespass ( see, People v. Sciacca, 78 AD2d 545, [1998]). Thus, the statements and evidence seized and sought to be suppressed by the defendant is granted as they are the fruits of an illegal search. In this regard, the voices heard by the officers did not give rise to a reasonable suspicion that a crime was being committed or that one was about to be. The voices were conversational. There was no testimony that the voices were loud, threatening or otherwise alarming. The officers also did not attempt to communicate verbally with the voices from their initial position from the sidewalk. In Payton v. New York, 445 U.S. 573 (U.S. 1980) it was held that the police may not cross the threshold of a suspect's home to effect a warrantless arrest absent exigent circumstance or the suspect's consent to the police entering. There was neither consent nor exigent circumstances in the instant case. Hence, the initial warrantless entry by the police officer was an unreasonable search in violation of the fourth amendment and cannot be used to justify the arrest of the defendant ( see, People v. Gleeson, 36 NY2d 462, [1975];
People v. Gravano, 67 AD2d 988). The statements "she was smoking crack" and "she got the crack" attributed to the defendant after the warrantless entry by the Police onto the premises and into the trailer are also the product of the illegal entry and are hereby suppressed. ( See, People v. Hanson, 5 Misc 3d 67; [2004]). Motion to suppress the physical evidence and the oral admission is hereby granted.