People v. Adams

• Decision Date: 22 January 1980
• Citation: 423 N.Y.S.2d 936,72 A.D.2d 156
• Parties: The PEOPLE of the State of New York, Respondent, v. Clarence ADAMS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 936

423 N.Y.S.2d 936

72 A.D.2d 156

The PEOPLE of the State of New York, Respondent, v. Clarence ADAMS, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Jan. 22, 1980.

Henry Winestine, New York City, of counsel (William E. Hellerstein, New York City, attorney), for defendant-appellant.

Timothy J. McGinn, New York City, of counsel (Steven R. Kartagener, Brooklyn, with him on the brief; Mario Merola, Dist. Atty.), for respondent.

Before MURPHY, P. J., and KUPFERMAN, LANE, LUPIANO and LYNCH, JJ.

LUPIANO, Justice.

Defendant stands convicted, after a jury trial, of the attempted murder of Housing Patrolman, Rudolfo Quinones. According to the officer's testimony at the suppression hearing, he saw a man, later identified as defendant, holding a gun to a woman's head at 9:00 P.M. on September 13, 1976. The officer, approximately twenty-five feet from defendant, drew his weapon and ordered the latter to drop his weapon. As defendant hesitated, the woman he was holding fled. Defendant thereupon fired two shots at the officer which missed. Patrolman Quinones fired two shots in response, and defendant fell to the ground. As Quinones approached, defendant suddenly wheeled and fired two more shots which missed. Thereupon defendant escaped into the gathering crowd and eluded capture. The weapon used by the assailant appeared to Officer Quinones to be either a .32 or .38 calibre revolver. Police responded to the patrolman's call for assistance. A woman, Arah Blue, approached and identified herself to the police as the girlfriend of the gunman, defendant herein. She provided defendant's name and address and urged the police to go to his apartment because he had threatened to kill her and kept weapons and ammunition at the apartment and she was afraid that he would succeed in that endeavor. She escorted the police to the defendant's apartment and gave them access by opening the door to defendant's apartment with a key which she was carrying. Nobody was inside the apartment at this time. Arah Blue pointed out to the police the closet in which, according to her, defendant stored his weapons. Inside, the police found, as indicated by Ms. Blue, a .308 calibre rifle, twenty-five rounds of ammunition for the rifle and forty-four rounds of .32 calibre ammunition. The police did Not otherwise search the apartment or conduct a general search.

Defendant's pre-trial motion to suppress the rifle and ammunition was denied, after a hearing, the hearing court being of the view that since the apartment belonged to defendant, it was incumbent upon the police to go there to attempt to find him without delay. Further, the hearing court ruled that as permission to enter was granted to them by one who, having her own key, ostensibly possessed the authority to admit them and as such individual, physically present in the apartment, directed the police to the exact spot where the rifle and ammunition were located, there was no need to obtain a search warrant, and the limited search was properly conducted.

Arah Blue had known defendant for about a year, lived with him occasionally and had a key to his apartment. At trial she testified that on the night of September 13 she was admitted to the apartment by defendant's children, defendant not being at home. When defendant subsequently arrived, he was upset to find Blue there and berated his son for letting her in. After commencing to beat the child, Blue intervened and fled from the apartment pursued by defendant. She went down the stairwell, while defendant took the elevator. Officer Quinones testified that he was on duty across the street from defendant's residence when he heard a scream and saw defendant holding a gun to a woman's head. The officer, in uniform, ordered defendant to stop. Instead, defendant pointed what appeared to be a .32 or .38 calibre pistol at the officer and fired. Ms. Blue stated that she emerged from the apartment building just as defendant began firing on Officer Quinones. She ran down the street and encountered Housing Police Officer Carl Peters whom she asked for help in getting the children safely out of the defendant's apartment. She told Peters about the attack on Officer Quinones. Peters declared that he accompanied her to the apartment and after they were let in by the children, waited while Ms. Blue gathered up some belongings. He then brought them all to a radio car which had arrived downstairs.

In the interim, several officers had responded to Quinones' call for assistance and had joined him in combing the area for defendant. This search had proved fruitless when Ms. Blue approached and advised them of defendant's name and address and her fear that defendant would harm her. She led them to defendant's apartment and opened the door with a key which she was carrying. Defendant, not being in the apartment, Ms. Blue called the officers' attention to a closet where she told them he kept his weapons. The rifle and ammunition containing, Inter alia, forty-four rounds of .32 calibre ammunition (remaining in a box of 50) alluded to above were seized.

Defendant, testifying in his own behalf, stated that he had previously told Ms. Blue that he did not want to see her again. Finding her at the apartment on the evening of the 13th, he admitted chastising his son, but denied striking him. On opening a drawer to drop off his keys, he noticed that money was missing and demanded that Blue return it. She denied having the money and when he ordered her to strip so that he might search her, she fled. He followed, taking the elevator, although unaware of how Blue might have gotten downstairs. When he arrived at the street and did not see her, he began jogging to her house when a police officer, secreted behind some bushes, "sprang out," ordered defendant to stop and shot at him before he could comply with the command. Defendant stated that he fled, but did not return the officer's fire as he was not carrying a gun. He explained that the full box of .32 calibre ammunition had been found by him on the subway and that he did not own a gun. He could not account for the missing six rounds.

On appeal, defendant first argues that the warrantless search of the closet was unconstitutional because Ms. Blue, his girlfriend and sometime resident of the apartment, did not have the authority to consent to the search of the closet, and because when she reported the weapons in the closet, the police were obligated to safeguard the premises and obtain a warrant. The People aptly rely on this Court's opinion in People v. Robertson, 61 A.D.2d 600, 403 N.Y.S.2d 234 (1st Dept. 1978) Aff'd, --- N.Y.2d ---- (1979), for the proposition that the warrantless seizure and removal of the ammunition at the instigation of Ms. Blue, who had a key to the premises, was proper. This limited search was, in effect, conducted by Ms. Blue, a private individual, not the police. If Ms. Blue had entered the closet and had given the ammunition to the officers who were lawfully on the premises (defendant concedes that the police could properly enter the apartment for the purposes of making an arrest since Ms. Blue reported to them that defendant threatened to kill her and had fired at Officer Quinones), there would be no basis for suppression. This result should not change simply because the officers went into the closet at Ms. Blue's direction, especially where their actions were limited in scope and where a general exploratory search was not conducted.

There was no pre-search governmental encouragement or investigation involved here having as its goal the violation of defendant's Fourth Amendment right to be free of unlawful search and seizure. The rule enunciated in Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921) states that the Fourth Amendment gives protection against unlawful searches and seizures involving governmental action and does not apply to the acts of private individuals in taking the property of another. Ms. Blue had a key to the premises, and by utilizing the key gave access to the apartment to the police. The key is symbolic of control of the premises, subject, of course, to the actual state of control as exemplified by the surrounding and unfolding circumstances. At the time of the seizure of the ammunition and rifle from the closet, the knowledge of the police was limited to the facts of Ms. Blue having a relationship with defendant, having a key to the apartment, having requested and obtained police aid in securing the safety of her person and of the defendant's children, and of enabling her to remove some of her possessions from the premises. The major concern of the police was to apprehend the defendant and to protect Ms. Blue. It was subsequent to the seizure that Ms. Blue imparted to the police information that she had a residence of her own elsewhere. Of critical import, Ms. Blue did not give the police any consent to search the premises, but only directed their attention to the closet where she knew defendant kept his weapons and ammunition by virtue of her relationship and experiences with defendant (See, People v. Cosme, 48 N.Y.2d 286, 422 N.Y.S.2d 652, 397 N.E.2d 1319 (1979)).

At the suppression hearing the People argued for the reasonableness of the police conduct herein, pointing out, Inter alia, that Ms. Blue, who was, apparently, a victim, gave information to the police that she was the girlfriend of defendant, knew the apartment where he lived and that he had weapons in that apartment. Asserting that the police had a duty to go to the apartment and that such conduct is to be viewed as in the nature of "hot pursuit" under the circumstances, the People aptly point out that a general search of the apartment was not conducted. Obviously, the police officers, as reasonable men, believing at that time that the perpetrator might have returned to the apartment to hide as they had not as yet found him, and in close proximity in time...