People v. E.
| Decision Date | 20 March 1972 |
| Citation | 330 N.Y.S.2d 3,38 A.D.2d 394 |
| Parties | The PEOPLE, etc., Appellant, v. Ernest E., Jr. and Carl R. (surnames anonymous), Respondents. |
| Court | New York Supreme Court — Appellate Division |
Eugene Gold, Dist. Atty. (Gary I. Zwickel, Brooklyn, and Richard C. Laskey, of counsel), for appellant.
Howard D. Stave, New York City, for respondent Ernest E., Jr.
Saul L. Singer, New York City, for respondent Carl R.
Before HOPKINS, Acting P.J., and LATHAM, SHAPIRO, CHRIST and BRENNAN, JJ.
The narcotic drugs which have been suppressed by the trial court as evidence were seized in a building located at 180 Bergen Street, in Brooklyn. It is a four-story brownstone containing two duplex apartments which are not interconnecting. Access to the upper apartment is through the 'main entrance' at the top of the stoop. That entrance opens into a vestibule. The lower floor of the upper duplex apartment is located at the top of a staircase leading from that vestibule.
On February 25, 1970, William Nickels, who managed and serviced the building for the landlord, went to the upper apartment to collect rent. He observed the tenants and two other persons 'smoking pot'. He also saw a scale and 'other drugs'. The tenants told him they had spent the rent money to buy the drugs which they planned to sell and that they would pay the rent with money received from the resale of the drugs.
Nickels thereupon left the apartment and immediately telephoned the police. As a result, two patrolmen responded to a 'radio run' which advised them of a possible sale of narcotics at the premises. They met Nickels on the street. He introduced himself as the person who had made the complaint to the Police Department and told them what he had seen and what he had been told. By the use of a key, he admitted them to the building through the entrance above the stoop. The officers entered the vestibule and climbed the flight of stairs. As they looked into the apartment, the door of which was open, they observed the defendants and a third person seated on a couch in front of a table. They testified that from their position in the hall they saw a scale containing marijuana and marijuana in packages, all of which were on the table.
The officers thereupon entered the apartment and arrested the three occupants. After confiscating the items on the table one of the officers looked 'behind a curtain dividing the room' and observed a 'small safe'. He opened the safe and confiscated its contents--seventin foil cubes of hashish.
The Criminal Term concluded that the portion of the premises which the defendants occupied was in effect a one-family dwelling. That finding of fact is hereby reversed. Nickels' testimony that he was in charge of maintenance for the building and his possession of a key indicated that the main entrance, vestibule and staircase were reserved to the landlord and were not part of the premises rented to the tenants. Hence Nickels, as the landlord's agent, had the right to admit the police officers to the vestibule and they, in turn, had the right to climb the stairs. Once they reached the top of the staircase the evidence on the table was in plain view through the open door to the apartment and was subject to seizure, the officers being lawfully at the place from which they obtained their view (cf. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564). Hence, insofar as the motions to suppress related to the evidence seized from the table, they should have been denied.
I would reach the same result even if the vestibule and staircase were regarded as part of the leased premises, for when Nickels was in the apartment he observed the commission of a felony--unlawful possession of a dangerous drug for the purpose of sale (Penal Law, § 220.10). That observation gave him the right to make a citizen's arrest of the occupants of the apartment without a warrant (Code Crim.Proc., § 183). Although he did not personally exercise that right, its existence, based upon personal knowledge, when communicated to the police immediately after he had witnessed the commission of a felony provided sufficient probable cause to warrant their reasonable belief that the felony which he had observed was still in progress (cf. Brinegar v. United States, 338 U.S. 160, 175--176, 69 S.Ct. 1302, 93 L.Ed. 1879; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723). That fact alone justified their entry for the purpose of effecting an arrest (Ker v. Cal ifornia, Supra; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327) and they were not required to announce their office or purpose in view of the exigent circumstance that the ongoing felony involved the presence of easily destructible evidence. * As the court said in People v. Richardson, 36 A.D.2d 603, 604, 318 N.Y.S.2d 891, 894, affd. 29 N.Y.2d 802, 327 N.Y.S.2d 364, 277 N.E.2d 412:
In that case the court found 'that probable cause was established' (p. 603, 318 N.Y.S.2d p. 892), even though the informant, the manager of the rooming house in question, who had summoned the police, had told them that the source of his information that narcotics were being sold in the room occupied by the defendant was merely 'his own observations of addicts going in and out of the room, and complaints which had been received from other tenants' (p. 603, 318 N.Y.S.2d p. 893). He had no personal...
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Rodriguez v. Butler
... ... Sabbath v. United States, supra 391 U.S. at 590, 88 S.Ct. 1755; Ker v. California, supra 374 U.S. at 38, 83 S.Ct. 1623; People v. Floyd, 26 N.Y.2d 558, 312 N.Y.S.2d 193, 260 N.E.2d 815 (1970) ... New York courts, however, have held entries in technical violation of the announcement requirements to be lawful if exigent circumstances exist, People v. Floyd, supra at 562, 312 N.Y.S.2d 193, 260 N.E.2d 815; ... ...
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