Opinion
11-1271.
Decided June 1, 2011.
Michael C. Green, Monroe County District Attorney (Matthew M. Tantillo, Assistant District Attorney, of counsel) for plaintiff.
Timothy Donaher, Monroe County Public Defender (Jean A. Caputo, Assistant Public Defender, of counsel) for defendant.
BACKGROUND
Defendant Lorenzo Surles was charged with the crimes of Criminal Possession of a Weapon in the Fourth Degree, Resisting Arrest, Obstructing Governmental Administration in the Second Degree [OGA], and Endangering the Welfare of a Child [EWOC], and the Rochester City Code violation of Possession of an Unsecured Loaded Firearm. The charges arose when defendant was taken into custody after allegedly directing aggressive language to two law enforcement officers who were in his house inquiring about a missing person.
On March 23, 2011, the Court dismissed the OGA and EWOC charges without prejudice. The Court dismissed the Resisting Arrest charge without prejudice on April 7, 2011. On April 27, 2011, the People refiled its EWOC charge against defendant.
On May 20, 2011, a probable cause hearing was held to determine whether the search of defendant's home following his arrest was constitutionally permissible. On that date, defendant was arraigned on the refiled EWOC charges.
Monroe County Deputy Sheriff Ryan Fisher testified at the hearing for the People. Defendant presented no evidence. Based on the credible evidence, the Court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
While in their patrol car on January 22, 2011, at about 12:10 a.m., Monroe County Deputy Sheriff Ryan Fisher and his partner received a call about a possibly missing person at 30 Newcombe Street, in Rochester, New York. The two deputy sheriffs went to the side door of the premises, a multi-family building, and knocked. Defendant Lorenzo Surles answered the door, holding a beer, and identified himself as a resident. Deputy Sheriff Fisher explained that the deputies were there to look for a missing person and asked if they could come into defendant's home. Defendant invited them in.
The deputies walked into a large combination living room and bedroom. An unidentified woman was sitting on a sofa. Deputy Sheriff Fisher again explained that he and his partner were there to look for a missing person, and asked defendant if he knew where the person was. At that point, defendant became extremely upset, repeatedly stated that he did not need to answer the deputy's questions, and stated, "I have gats and guns."
In response to defendant's behavior and statements, the deputies decided to take defendant into custody. According to Deputy Sheriff Fisher, they did so for "officer safety." When defendant resisted putting his hands behind his back, the deputies used force to handcuff defendant, took him outside, and placed him into their patrol car.
After defendant was secured, Deputy Fisher reentered defendant's residence, purportedly to clear the house for safety purposes. As he walked through the main living and sleeping room, Deputy Sheriff Fisher observed a cane sword that was hanging in plain view from a curtain rod. He also saw a shotgun, later found to be loaded, that was leaning upright near the bed's bedpost in plain view. While walking through the unit, Deputy Fisher found both the person for whom they were looking and a boy who was identified as defendant's son.
No evidence about the missing person's identity or description, or about the circumstances of the person's alleged disappearance, was presented at the hearing.
CONCLUSIONS OF LAW
At a pretrial evidence suppression hearing, once the People have satisfied their burden of showing the lawfulness of a warrantless search, the burden shifts to defendant to show, by a preponderance of the evidence, the unlawfulness of the police conduct. See People v. Berrios, 28 NY2d 361, 367 (1971); People v. Lazcano , 66 AD3d 1474 , 1475 (4th Dep't 2009), lv. denied 13 NY3d 940 (2010). Where, as here, the police have searched a defendant's home without a warrant, the People's initial burden of showing an urgent need to conduct a warrantless search is a heavy one. See Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984); People v. Cruz, 149 AD2d 151, 159 (1st Dep't 1989); People v. Davis, 195 Misc 2d 858, 864 (Rochester City Ct. 2003).
The Supreme Court has long emphasized that searches and seizures inside a home without a warrant are presumptively unreasonable under the Fourth Amendment to the United States Constitution. See Kentucky v. King, ___ U.S. ___, 131 S.Ct. 1849, 1856 (2011). On the other hand, the Court has also held where the exigencies of a situation are compelling, a warrantless search of a defendant's home may be reasonable. Kentucky v. King, ___ U.S. ___, 131 S.Ct. at 1856.
Exigent circumstances may exist, for example, where there is a need to render emergency assistance to an injured occupant or to protect an occupant from an imminent injury ( see, e.g., People v. Mitchell, 39 NY2d 173, cert. denied 426 U.S. 953 (1976)); where the police are in hot pursuit of a fleeing suspect ( see, e.g., People v. Etcheverry, 39 NY2d 252 (1976)); or to prevent the imminent destruction of evidence ( see, e.g., Kentucky v. King, ___ U.S. ___, 131 S.Ct. at 1856-57; People v. Osorio , 34 AD3d 1271 (4th Dep't 2006), lv. denied 8 NY3d 883 (2007). None of these circumstances existed in this action.
There was no evidence that the woman on the couch, the allegedly missing person, or anyone else in the house was injured or in danger. Further, there was no evidence that the circumstances surrounding the allegedly missing person's disappearance were suspicious.
There was no evidence that the deputy sheriffs were in hot pursuit of a criminal suspect.
Before Deputy Fisher reentered defendant's home, there was no evidence that any contraband was in the house, let alone that someone was about to destroy contraband.
That defendant permitted the deputies to enter his house to talk does not amount to a knowing, willing and voluntary consent to search his home. See People v. Gonzalez, 39 NY2d 122, 128-31 (1976).
Nevertheless, according to the People, the deputy sheriffs were entitled to conduct a warrantless, cursory protective security sweep of defendant's dwelling to look for third persons who might pose a threat to the officers. See Maryland v. Buie, 494 U.S. 325, 334 (1990); People v. Boyland , 79 AD3d 1658 , 1659 (4th Dep't 2010). To justify a warrantless search under the "protective sweep" doctrine, the People must show "articulable facts that warrant[ ] a reasonably prudent [police] officer's belief that the [premises] might harbor an individual posing a danger to those on the scene." People v. Boyland, 79 AD3d at 1658. See Maryland v. Buie, 494 U.S. at 336-37; People v. Eddo , 55 AD3d 922 , 923 (2d Dep't), lv. denied 11 NY3d 897 (2008).
In this case, the only specific and articulable facts upon which Deputy Sheriff Fisher based his protective sweep were defendant's allegedly disruptive conduct and his statement that there were "gats and guns" in his house. Plainly, the presence of guns in a home is neither a crime nor evidence of a crime. Moreover, the presence of guns in defendant's house does not, in itself, justify a warrantless search for imminently dangerous individuals. See People v. Febus, 157 AD2d 380, 383 (1st Dep't 1990), appeal dismissed 77 NY2d 835 (1991)("a radio call of men with guns', standing alone, has almost no legal significance and does not justify intrusive police action").
Deputy Sheriff Fisher did not articulate, nor did the People present, any other facts that would have led the deputy sheriffs reasonably to believe that a dangerous person might be on the premises. Before Deputy Fisher reentered defendant's house, the deputy sheriffs had no basis to believe that there was anyone present other than the woman sitting on the couch. There was no evidence that the woman on the couch threatened the deputy sheriffs or otherwise posed a danger to them. There was no evidence that any criminal activity was occurring in defendant's home, or that defendant was involved in criminal activity.
To the contrary, Deputy Sheriff Fisher's testimony that he was concerned that someone who presented a danger to the deputies might be in the house is undermined by the deputies' actions after they took defendant into custody. After they handcuffed defendant, both Deputy Fisher and his partner escorted defendant outside the house and secured him in their patrol car, leaving the woman on the couch alone in the house while they did so. It is inconceivable that the deputies would have left the woman in the house unattended had they genuinely and reasonably believed that either she or someone else in the house posed an imminent threat to them.
There is, therefore, a dearth of evidence that the deputy sheriffs had a reasonable belief that someone who posed a danger to them was in defendant's house after they took defendant into custody and back to their patrol car. Accordingly, the People have failed to satisfy their heavy burden of demonstrating the existence of exigent circumstances necessary to justify a warrantless protective sweep of defendant's house. See People v. Bost, 264 AD2d 425, 426 (2d Dep't 1999); People v. Williams, 12 Misc 3d 1184(A), 2006 Westlaw 2022190, *3-*4 (Cattaraugus County Ct. 2006).
CONCLUSION
For the reasons discussed above, defendant's motion to suppress evidence seized or observed after the deputies arrested defendant and Deputy Sheriff Fisher reentered defendant's home is granted.