People v. Gonzalez

• Decision Date: 30 March 1976
• Citation: 39 N.Y.2d 122,347 N.E.2d 575,383 N.Y.S.2d 215
• Parties: , 347 N.E.2d 575 The PEOPLE of the State of New York, Appellant, v. Joseph GONZALEZ and Tracy Gonzalez, Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 215

383 N.Y.S.2d 215

39 N.Y.2d 122, 347 N.E.2d 575

The PEOPLE of the State of New York, Appellant, v. Joseph GONZALEZ and Tracy Gonzalez, Respondents.

Court of Appeals of New York.

March 30, 1976.

Robert M. Morgenthau, Dist. Atty. (Robert M. Pitler, Peter L. Zimroth and T. James Bryan, New York City, of counsel), for appellant.

Joseph I. Stone, New York City, for respondents.

BREITEL, Chief Judge.

The exclusive issue is whether in a criminal action defendants' written consents to search their apartment were involuntary as a matter of law, as indeed the Appellate Division concluded.

Defendants, after denial of their motions to suppress drugs uncovered and seized under the consents, were convicted upon their pleas of guilty of possession of drugs (Penal Law, § 220.16). The Appellate Division unanimously reversed their convictions, on the law, vacated their pleas, granted defendants' motions to suppress the drugs seized, and remanded to Supreme Court for further proceedings. The People appeal.

There should be an affirmance. Consent to search, a relinquishment of constitutional protection under both the Federal and State Constitutions against unjustified official intrusion, must be a free and unconstrained choice. Official coercion, even if deviously subtle, nullifies apparent consent. Whether consent has been voluntarily given or is only a yielding to overbearing official pressure must be determined from the circumstances. Where, as here, the circumstances objectively reveal overbearing official conduct in obtaining an apparent consent, there is, as the Appellate Division concluded, a question of law, and an absence of voluntary consent. Contraband seized as a result of the search must, therefore, be suppressed, because on no view of the evidentiary facts was there an exercise of free will in the giving of the consents.

In viewing the record, because the issue comes to this court solely on a question of law, the evidence, but only the actual evidence, given by the prosecution witnesses must be assumed to be entirely creditable, together with any admissions by defendants. The contrary and largely plausible version given by the defense witnesses detailing an entirely different account of the relevant events must be disregarded. Despite the obvious temptation to describe that version, it will not be set forth except for an occasional reference where the prosecution's version is demonstrably uncreditable as contrary to human experience and the context in which the events in question occurred.

On September 17, 1973, Agent Michael Horn of the United States Drug Enforcement Administration, while negotiating a prospective drug sale, received a 'sample' of cocaine from Joseph Gonzalez in the bedroom of his small, three-room Castle Hill apartment in the northern part of New York County. Gonzalez took the cocaine from a clear plastic bag on top of the bedroom dresser. Present in the bedroom at the time of the transaction was Mr. Gonzalez' bride of three days, Tracy. Both Gonzalezes were under 20 years of age.

A few minutes after leaving the apartment, Agent Horn returned with another Federal agent, Hochman, to arrest Mr. Gonzalez for the initial sale and for possession of drugs and Mrs. Gonzalez only for possession. The agents came upon Mr. Gonzalez in the hallway outside his apartment. They identified themselves and Agent Hochman drew his weapon. When they tried to arrest him, Gonzalez resisted and a brief struggle ensued. During the struggle, Agent Hochman and Gonzalez fell down a flight of stairs and the agent's gun was dropped. Also during the struggle, Gonzalez shouted to his wife to 'lock the door (or) something like that'. Gonzalez was finally subdued by the agents, now assisted by a third agent, and his arms were handcuffed behind his back.

Agents Horn and Hochman then knocked on the apartment door and identified themselves. When no immediate response was forthcoming, the agents banged and kicked the door. At this point, six other agents arrived, now an aggregate of nine. After about five minutes Mrs. Gonzalez opened the door and was immediately handcuffed and placed in the bedroom by the agents. (At the suppression hearing she admitted that, during the interval, she had been disposing of drugs.) Mr. Gonzalez was brought in by Agent Jenkins and placed in the living room.

Nine Federal agents were now in the small apartment with the handcuffed and separated Gonzalezes. Some of the agents began their 'standard procedure' of checking closets for possible other occupants of the apartment. No otherwise full-scale search for contraband was conducted. After the visual search, two agents left to check the area below the apartment windows, and two others went outside the apartment to reassure neighbors who had been disturbed by the fracas. Three agents were clustered about Mr. Gonzalez, 'conversing' with him. At least one agent was guarding Mrs. Gonzalez in the bedroom. None of the agents had their weapons drawn while they were in the apartment.

Without described preliminary conversation, Agent Horn read Mr. Gonzalez the now standard preinterrogation warnin (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694). On question, Gonzalez responded that he understood them. Agent Horn and two other agents then went into the guarded bedroom and read Mrs. Gonzalez the same warnings, and she too said that she understood them.

About five minutes after the agents had entered the apartment, Mrs. Gonzalez' mother and grandfather came in. Mrs. Gonzalez' mother immediately went into the bedroom to talk with her daughter. Mrs. Gonzalez' grandfather berated her for having married Joseph. After being in the apartment for approximately five minutes, they were 'required to leave' by the agents. Agent Jenkins explained that Mrs. Gonzalez' mother 'could say what she had to say and it was time to leave'. These events consumed a period of approximately one-half hour.

The bare description of what had occurred thus far is the version of the Federal agents. As might be expected, a quite different narration was given by the defense witnesses, who described threats to expose the defendants to State prosecution under the severe State sentencing laws, threats to separate the newlyweds forever, and the desirability of defendants signing consents to a full-blown search of the apartment induced further by the comment about how a search warrant was 'on the way'. Interestingly, when asked whether he had threatened Mr. Gonzalez with State prosecution with its well-advertized severe penalties, rather than Federal prosecution, Agent Horn replied with negative pregnant in classic form 'Not in the apartment'. True, after the arrest, Mr. Gonzalez averred that he had been so threatened in seeking his co-operation with the Federal agents. This is now explained to have occurr in a different 'context' and at a different time.

Agent Horn then returned to the living room and asked Mr. Gonzalez whether he now wished to 'waive his rights'. Gonzalez said that he did. The Federal agent then asked him whether he was willing to sign a statement consenting to a search. Agent Horn read a printed consent form to Gonzalez and had him read it. Having agreed to sign the consent form, Gonzalez was unbound and signed the form. At the suppression hearing, Mr. Gonzalez testified that, when he signed the consent, he did not know whether his wife had disposed of all the drugs before she let the agents enter the apartment.

Returning now to the bedroom, Agent Horn told Mrs. Gonzalez that her husband had signed a consent form and asked her if she would. After seeing her husband's signature to the consent form, she said that she would sign it too. The Federal agent read a consent form to her and then handed it to her to read and sign.

At the suppression hearing, Mrs. Gonzalez was asked whether 'there were other drugs in the apartment other than the ones that you had flushed down the toilet bowl?' She responded 'No'. She was then asked whether she thought she had gotten rid of everything. She responded 'Pretty much'. She was asked 'So, when you signed the consent you figured you had gotten rid of everything?' She responded 'No'. She testified that she knew some cocaine had been found in the bathroom before she had signed the consent. When finally asked 'Did you know there were any others (drugs) in the apartment?' She responded 'I wasn't sure.'

After the Gonzalezes were taken away, a full-blown search discovered a commercial quantity of drugs. The significance of a rummage search after the Gonzalezes had been removed indicated again the critical need for the consent, if there were no warrant.

Governmental intrusion into the privacy of the home is, with limited exceptions, prohibited by constitutional limitations in the absence of a valid search warrant (N.Y.Const., art. I, § 12; U.S.Const. Amdts. IV, XIV; see People v. Loria, 10 N.Y.2d 368, 373, 223 N.Y.S.2d 462, 466, 179 N.E.2d 478, 482; Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734; Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 2 L.Ed.2d 1514; cf. People v. Gleenson, 36 N.Y.2d 462, 466, 369 N.Y.S.2d 113, 116, 330 N.E.2d 72, 74). Even if an individual has been lawfully arrested, the police are not thereby free to conduct a full-blown, rummaging search of the arrested person's home without a warrant (see People v. Clements, 37 N.Y.2d 675, 678--679, 376 N.Y.S.2d 480, 482, 339 N.E.2d 170, 172; People v. Perel, 34 N.Y.2d 462, 468, 358 N.Y.S.2d 383, 389, 315 N.E.2d 452, 456; Chimel v. California, 395 U.S. 752, 764--765, 89 S.Ct. 2034, 23 L.Ed.2d 685).

One of the limited exceptions to the warrant requirement and, indeed, to the requirement of probable cause, is voluntary consent to the search (People v. Singleteary, 35 N.Y.2d 528, 532, 364 N.Y.S.2d 435, 438, 324 N.E.2d 103, 105; People v. Carter, 30 N.Y.2d 279, 282, 332 N.Y.S.2d 865, 866, 283 N.E.2d 746; People...