Opinion
2003BX069764.
Decided May 12, 2004.
The defendant is charged with Menacing in the second degree in violation of P.L. 120.14. On February 17, 2004, a hearing was held before JHO Harold Enten, to determine whether to suppress physical evidence recovered from the defendant's person. The sole witness for the prosecution was Police Officer Alejandro Colon. No witnesses were called by the defense. The JHO found the officer to be credible and denied the defendant's application to suppress. The defense has now moved to controvert the JHO's recommendations claiming that the police violated the defendant's rights pursuant to Payton v. New York, 445 US 573. The defendant's application to suppress is denied. The court finds that no Payton violation occurred for under a totality of circumstances, the defendant consented to the officers entry into her home.
FINDINGS OF FACT
On December 23, 2002, Police Officer Alejandro Colon along with his partner P.O. Tass were riding in a marked patrol car when they received a radio transmission of an assault in progress at 729 East 215th street. Upon arriving at the scene, the officers met the building's landlord who claimed to have called the police for he had been threatened by a tenant in his building. The landlord informed the officers that while attempting to deliver an eviction letter to the defendant, the defendant threatened him with a knife.
Together with the complainant, the officers proceeded to the scene of the incident on the second floor of the building. Upon arriving at the scene, the defendant was standing in front of her open apartment door, facing the officers and her landlord. The landlord immediately identified the defendant as the individual who had previously threatened him. The defendant left her apartment and spoke to the officers for two to three minutes, explaining that she had an ongoing verbal dispute with the complainant. Following this discussion, the officers decided to place the defendant under arrest. While inside the defendant's apartment, Officer Colon placed the defendant in handcuffs and his partner, Officer Tass, searched the defendant and recovered a knife from her pant's pocket.
ANALYSIS
Absent consent or exigent circumstances, evidence seized following a warrantless arrest of an individual inside his home is unlawful and any physical evidence recovered must be suppressed. People v. Payton, 445 US 573. When a search and seizure is based upon consent, the People bear the heavy burden to establish by clear and positive evidence that the consenter voluntarily waived his constitutional rights. People v. Whitehurst, 25 NY2d 389; People v. Zimmerman 101 AD2d 294. However, consent forced by police coercion is not voluntarily given and any evidence that flows therefrom is nullified People v. Gonzalez, 39 NY2d 122. In Gonzalez, the Court of Appeals examined several factors which may influence one's voluntary consent to a search. Such factors include (1) whether the subject was in police custody; (2) the subject's background; (3) whether the subject was evasive or cooperative with law enforcement authorities; and (4) whether the police advised the subject of the right to refuse consent. Id. at 128. Accordingly, any determination regarding the defendant's free will turns on the totality of circumstances presented on the record. id. Since Gonzalez, Appellate courts have found consent to enter one's home by analyzing the occupant's words and conduct when dealing with the police. See People v. Brown, 234 AD2d 211 (consent found where defendant's companion left front door open and walked over to the defendant while police followed her inside); People v. Satorino 153 AD2d 595 (no Payton violation where defendant's mother told detectives that her son was in his room and pointed in that direction); People v. Davis, 120 AD2d 606, (occupant's act of stepping aside to let the officers in was tantamount to consent). Consequently, when the government claims to have been given consent to enter one's home, an occupant's failure to object to such entry supports the conclusion that implicit permission to enter was granted. See People v. Schoff, 136 AD2d 578 (consent found where after entering premises, occupant neither asked the police to leave nor objected to their presence); People v. Long 124 AD2d 1016 (occupant's cooperation with police is evidence of voluntary consent to enter). While it is unclear why the defendant's encounter with the police progressed into her home, the defendant's failure to object to the officers presence supports the court's finding that no Payton violation occurred.
In People v. Smith, 239 AD2d 219, appeal denied 90 NY2d 911, the First Department found that a defendant consented to an officer's entry when the officer engaged the defendant in a conversation while outside the defendant's apartment and without objection, entered the defendant's apartment during the conversation. In Smith, the arresting officer, while investigating an assault case, accompanied the complainant to the address of the accused. Upon arriving at the defendant's apartment, the complainant identified the defendant by pointing him out through his open front door. The officer knocked on the door, spoke to the defendant and requested identification. The defendant, followed by the officer, went to a dresser inside the apartment to look for identification. While inside, the defendant presented forged identification cards to the officer and was arrested. In denying the defendant's Payton application, the Smith court found that, "[because] the defendant engaged in a discussion with the officer from inside the apartment, he complied with the officer's request for identification without hesitation and not even the slightest objection to the officer's entry or continued presence in the apartment was raised. A consensual entry is a compelling inference from [the] facts." Smith at 220-221 (internal citations omitted). The facts in this case are similar. Here, while standing in the open doorway of her apartment, the defendant was identified by the complainant. Instead of closing her door or asking the police to leave, the defendant voluntarily left her apartment to speak with the officers in the hallway of her building. While there is no testimony that the defendant was informed of her right to refuse to cooperate with the police, such absence is not fatal to the court's conclusion that the officers lawfully entered the defendant's apartment. Like Smith, there is no record that the defendant protested the police presence in any way. The defendant never requested to see a warrant nor did the defendant request counsel while talking to the officers. ( compare People v. Johnson, 48 NY2d 565). Moreover, the defendant was never in police custody prior to the officers' entry into her apartment. Thus, under a totality of circumstances, the court finds that the officers peacefully entered the defendant's home with consent.
Following the identification of the defendant, the officers had the necessary probable cause to conduct a lawful arrest at the defendant's open doorway. People v. Andino, 256 AD2d 153.
Upon entering her hallway, the constitutional protections afforded by Payton evaporate. See People v. Johnson, 114 Misc.2d 578, affd 126 AD2d 993, lv denied 69 NY2d 951.
Finally, in light of Officer Colon's straightforward hearing testimony, the defendant's bald invocation of the Payton rule is not enough to support suppression of the knife recovered from her person. Despite the prosecution's heavy burden to prove consent, the defendant is not relieved of all expectations. Here, neither the record nor the defendant ever suggested that the defendant involuntarily submitted to police authority. ( compare People v. Miller, 6/14/01 NYLJ 22, (col.2)). Furthermore, since Officer Colon's credibility was never challenged by the defense, this court adopts the JHO's credibility determination as well as his recommendation to deny the defendant's motion to suppress the knife recovered from her person.
The foregoing constitutes the decision of the court.