People v. Borges
| Decision Date | 11 June 1987 |
| Citation | 517 N.Y.S.2d 914,69 N.Y.2d 1031,511 N.E.2d 58 |
| Parties | , 511 N.E.2d 58 The PEOPLE of the State of New York, Respondent, v. Joseph BORGES, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 120 A.D.2d 993, 502 N.Y.S.2d 315, should be modified by remitting the case to Supreme Court, Bronx County, for a determination whether defendant's consent to search his apartment was sufficiently an act of free will to purge the primary taint of the illegal arrest.
On this appeal, the People concede that defendant was illegally arrested (Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639). Defendant does not challenge the determination of the suppression court that his postarrest consent to search his apartment was voluntary (People v. Gonzalez, 39 N.Y.2d 122, 383 N.Y.S.2d 215, 347 N.E.2d 575; see, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct 2041, 36 L.Ed.2d 854). Defendant does claim that the consent, albeit voluntary, was not acquired by means sufficiently distinguishable from the illegal arrest to be purged of the illegality.
When a defendant challenges the admission of evidence obtained by a consensual search, claiming the consent was the product of an illegal arrest, the burden rests on the People to demonstrate that the consent was "acquired by means sufficiently distinguishable from the arrest to be purged of the illegality" (People v. Conyers, 68 N.Y.2d 982, 983, 510 N.Y.S.2d 552, 503 N.E.2d 108; Brown v. Illinois, 422 U.S. 590, 603-604, 95 S.Ct. 2254, 2261-2262, 45 L.Ed.2d 416). Although the voluntariness of the consent is an important factor in the court's determination of attenuation, it is not dispositive (People v. Henley, 53 N.Y.2d 403, 407, 442 N.Y.S.2d 428, 425 N.E.2d 816). Rather, consideration must be given to a variety of factors, including but not limited to the temporal proximity of the consent to the arrest, the presence or absence of intervening circumstances, whether the police purpose underlying the illegality was to obtain the consent or the fruits of the search, whether the consent was volunteered or requested, whether the defendant was aware he could decline to consent, and particularly, the purpose and flagrancy of the official misconduct (cf., People v. Conyers, supra; Brown v. Illinois, supra; see, 3 LaFave, Search and Seizure § 8.2at 193-194 ). Of course, the relevant factors will vary from case to case and each case must be individually considered on the particular facts and circumstances presented and the determination made with due regard for the...
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