Opinion
06-46.
Decided July 20, 2006.
Edward M. Sharkey, Esq., District Attorney, Cattaraugus County, New York, For the People.
Steven A. Wright, Esq., Olean, New York, for the Defendant.
On November 3, 2005, this court issued a superior court warrant of arrest for Donna Kirkendall, who had been indicted for criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. The following day, members of the Olean Police Department went to an apartment at 626 South Union Street, where they believed Ms. Kirkendall was residing. One of the officers knocked on the door, Ms. Kirkendall looked out the window, and an officer "motioned for [Ms. Kirkendall] to open the door." After they heard some rattling at the door, Investigator Steve Pettit tried the door but found it was locked. Investigator Robert Blovsky then kicked the door in.
The officers went inside and found Kirkendall and others in the living room. Blovsky placed Ms. Kirkendall in handcuffs, spoke to her briefly and took her outside to a patrol car. Pettit, "for officer safety", continued to walk through the apartment, where he found defendant in the kitchen. Pettit told defendant to go to the front of the apartment where the other officers were located. Pettit then went through the rest of the apartment. After checking behind the shower curtain in the bathroom, he observed a bag of cocaine in the toilet.
Conclusions of Law
CPL 120.80 (4) provides that the police may enter any premises in which they reasonably believe the subject of an arrest warrant is present. However, if the premises are the dwelling of a third person, a search warrant must be obtained ( Id.). Here, the officers testified that they had information that Ms. Kirkendall, the subject of the warrant, lived in the apartment and that fact has not been challenged by defendant. Thus, a search warrant was not mandated.
Further, the officers observed Ms. Kirkendall in the apartment and thus, clearly had a reasonable belief that she was present ( see CPL 120.80). However, CPL 120.80 (4) goes on to require that the officer "give, or make reasonable effort to give, notice of his authority and purpose to an occupant" of the apartment unless exigent circumstances are present. Here, there was no testimony that the officers did anything but "motion" for Ms. Kirkendall to open the door. That action does not appear to comply with CPL 120.80 (4).
The first question is whether the failure to comply with CPL 120.80 (4) requires suppression of the cocaine. In Wilson v. Arkansas ( 514 US 927, 115 SCt 1914, 131 LEd 2d 976), the Supreme Court held that the common-law knock-and-announce principle is a part of the reasonableness inquiry under the Fourth Amendment. Therefore, police officers with search or arrest warrants must knock on the door and announce their purpose for being there unless other considerations justify an unannounced entry.
In Richards v. Wisconsin ( 520 US 385, 117 SCt 1416, 137 LEd 2d 615), the court rejected the contention that a search warrant that authorizes a search for drugs automatically allows a no-knock, unannounced entry although, in Richards, there was enough cause to conduct such an entry. Since Richards was decided, New York courts have also found no-knock entries permissible when based on factors that go beyond the nature of the particular crime involved ( see People v. Kusse, 288 AD2d 860, 732 NYS2d 188 [4th Dept. 2001] [but note: this was a search warrant case]; People v. Skeete, 257 AD2d 426, 684 NYS2d 198 [1st Dept. 1999] [same]).
Here, however, there was simply a knock and no announcement. While the 20 seconds or so that elapsed before the officers broke down the door was not unreasonable ( see United States v. Banks, 540 US 31, 124 SCt 521, 157 LEd 2d 343), there was no announcement of the officers' purpose in being there. It seems to this court that the failure to announce their purpose would rarely be justifiable when executing an arrest warrant. In executing a search warrant, the case is stronger for exigent circumstances; drugs can be flushed and records can be destroyed. Indeed, no-knock search warrants are frequently issued by this court for those reasons. An arrest warrant is executed only against an individual; it does not authorize a search of the premises except to search for the named person. In the instant case, there was no showing why the officers could not announce the reason for their presence when they knocked at the door. Thus, it initially appeared that the evidence seized for violating the knock-and-announce rule would have to be suppressed.
However, ten days after this hearing was held, the Supreme Court decided the case of Hudson v. Michigan (547 US ___ [2006]), where the court held that a violation of the knock-and-announce rule during the execution of a search warrant does not require suppression of the evidence found during the search. Hudson raises a whole series of questions relative to this case. For example, CPL 120.80 appears to have been part of the Code of Criminal Procedure prior to New York's adoption of the CPL in 1970. Arguably, the violation of a state statute of long standing might be more noteworthy to the Court of Appeals than the violation of a common-law right was to the Supreme Court. Further, the Court of Appeals has been far less eager to restrict the exclusionary rule as part of the State Constitution than the Supreme Court has as a matter of Federal Constitutional jurisprudence ( compare e.g., People v. Griminger, 71 NY2d 635, 529 NYS2d 55 to Illinois to Gates, 462 US 213, 103 SCt 2317, 76 LEd 2d 527).
Another issue that comes to mind is whether the rule should be different depending on whether a search warrant or an arrest warrant is being executed. As the Supreme Court noted in Hudson, the premises were going to be searched no matter how much time elapsed between the knock and the entry because a valid search warrant had been issued. An arrest warrant does not give the police the same authority to search that a search warrant does; it merely directs the arrest of a named person.
In Maryland v. Buie ( 494 US 325, 108 LEd 2d 276, 110 SCt 1093), the Supreme Court addressed the scope of search that is permissible during the execution of an arrest warrant. There, the police possessed an arrest warrant and probable cause to believe that the defendant was inside his house. Thus, they could enter and lawfully search any part of the house in which the defendant might be found ( Id.). However, once the defendant was found, "the search for him was over, and there was no longer that particular justification for entering any rooms that had not yet been searched" ( 494 US at 333, 110 SCt 1093, 108 LEd 2d at 285).
The court went on to hold that, incident to the arrest, and without probable cause or reasonable suspicion, the police could look into spaces "immediately adjoining" the place of arrest from which an attack against the police could be launched ( 494 US at 334, 110 SCt 1093, 108 LEd 2d at 286). Beyond that, however, "there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." ( Id.).
Since Buie was decided, the Fourth Department has approved searches that meet these requirements. For example, in People v. Martinez ( 187 AD2d 992, 590 NYS2d 952 [4th Dept. 1992], lv. denied 81 NY2d 889, 597 NYS2d 950), the Court found the officers' entry into an upstairs area proper because they had observed two additional subjects of the arrest warrant enter the defendant's residence, and thus they possessed knowledge that there were other suspects in the apartment who might have posed a danger. In People v. Rivera ( 172 AD2d 1059, 569 NYS2d 316 [4th Dept. 1991]), the court noted that the police "had articulable facts that warranted reasonably prudent officers in believing that the attic of defendant's home might harbor an individual posing a danger to those on the scene" and therefore, a protective sweep was justified.
Here, there was no testimony that would even arguably justify a continued search of the apartment after Ms. Kirkendall was taken into custody. As in Maryland v. Buie, once Kirkendall was in custody, "there was no longer that particular justification for entering any rooms that had not yet been searched" ( 449 US at 333, 110 SCt 1093, 108 LEd at 285). Indeed, there was no attempt to justify the further search except for the generic "officer safety". In US v. Paradis ( 351 F 3d 21 [1st Cir 2003]), the police possessed both arrest warrants for the defendant and a search warrant to search an apartment for him. Once the defendant was apprehended, no further protective sweep was justified and a gun found thereafter was suppressed. In US v. Akrawi ( 920 F 2d 418 [6th Cir. 1990]), ATF agents had an arrest warrant. The subject of the warrant opened the door and was taken into custody. The officers then conducted a sweep of the second floor, which resulted in the seizure of a 9 mm Beretta. Because there was no articulated basis for searching the second floor, the weapon was suppressed.
That appears to be the situation here; i.e., a search of other rooms in the apartment for no particularized reason but "officer safety" after the subject of the arrest warrant had been taken into custody. Under Buie, that search is improper and the evidence must be suppressed, not because there was a failure to announce the officers' purpose in being at the apartment but because, once Ms. Kirkendall was in custody, there was no reason to continue searching the apartment.
The court also disagrees with two claims made by the district attorney in her memorandum. First, the claim that the people in the apartment might have weapons has no factual support in this record and the Supreme Court has previously rejected the assertion that a search warrant in a drug case automatically permits an unannounced entry ( see Richards v. Wisconsin, 520 US 385, 117 S.Ct. 1416, 137 LEd 2d 615).
Finally, the claim that defendant lacked standing is specious. The only reason the court did not dismiss the indictment on the basis of the Grand Jury testimony is because the People introduced evidence that defendant listed his address as 626 South Union Street when he was arrested. Further, when defendant moved to suppress, he alleged that 626 South Union Street was his residence. The People did not dispute the claim in their opposing papers so it has been admitted ( see People v. Gruden, 42 NY2d 214, 397 NYS2d 704). Thus, aside from the fact that the People never raised the standing issue at any time, they are clearly wrong on the merits.
Submit order on notice.