People v. Burr

• Decision Date: 20 October 1987
• Citation: 520 N.Y.S.2d 739,70 N.Y.2d 354,514 N.E.2d 1363
• Parties: , 514 N.E.2d 1363 The PEOPLE of the State of New York, Respondent, v. David BURR, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 739

520 N.Y.S.2d 739

70 N.Y.2d 354, 514 N.E.2d 1363

The PEOPLE of the State of New York, Respondent, v. David BURR, Appellant.

Court of Appeals of New York.

Oct. 20, 1987.

Linda S. Reynolds, Rose H. Sconiers and John A. Ziegler, Buffalo, for appellant.

Richard J. Arcara, Dist. Atty. (J. Michael Marion and John J. DeFranks, Buffalo, of counsel), for respondent.

OPINION OF THE COURT

KAYE, Judge.

In seeking to overturn his murder conviction, defendant challenges the legality of the warrantless arrest in his home, as well as the admission of physical evidence seen before--but taken from his home after--a search warrant was obtained. While we recognize that a confirmatory search ¹ may require the suppression of evidence, the record in this case supports denial of all of defendant's challenges and affirmance of his conviction.

On Sunday, January 9, 1983, at approximately 9:45 P.M., Timothy Murray and his father appeared at the Buffalo Police Department with information about a murder Murray claimed to have witnessed. He told police that the previous evening he had been at defendant's apartment with defendant (whom he had known for 10 years), defendant's girlfriend and John Borek, and that in the early morning, he had seen defendant kill Borek, put Borek's body into a manhole, and throw his clothing and a knife into a reservoir. Murray then led police to the manhole and the reservoir. A naked body was visible in the sewer, and clothing and a pair of boots were found in the reservoir. Murray and the police returned to the station where, at 11:45 P.M., Murray gave a statement.

In a full, detailed statement, which was transcribed and sworn, Murray related the following events. During an argument with Borek in defendant's apartment, defendant hit his victim on the head with the leg of an endtable; poked him in the throat, face and chest with a four-inch brown-handled lock-blade "buck knife" that he carried in his belt; and banged his head against the kitchen radiator. Defendant then plunged the knife into Borek's left leg saying that he wanted to watch him bleed to death. Defendant ordered Murray to tie Borek's hands, which he did with an extension cord he found in the apartment. Defendant then led Borek out of the apartment to the railroad tracks, ordered Murray to strip him, and began stabbing him in the mouth, face, throat and body, screaming that he liked the sight of blood. Defendant jumped up and down on Borek's chest and kicked him in the head, shouting "camon die, camon die." Murray helped defendant put Borek into a manhole and heard defendant say, "don't forget I killed you and I made one of your friends watch." Defendant threw Borek's clothes and the knife into a nearby reservoir and took Murray back to defendant's apartment, where he warned Murray to keep his mouth shut or he would kill him. Defendant placed the clothes he was wearing into a garbage bag in his bedroom closet, dressed, and told Murray that "he was going to Houston, Texas and he would keep in touch with [him]." That evening Murray reported the incident to the police.

Between midnight Sunday and one o'clock Monday morning, Leo Donovan, homicide chief--who had been at the scene when the body was discovered--directed Police Detective Edwin Gorski to arrest defendant at his apartment. While two officers watched the building entrance, Gorski and another detective knocked on defendant's door and identified themselves. Although the police could hear movement inside, no one responded. With the aid of the fire department, the police opened the apartment door as well as the door to defendant's bedroom.

While in the apartment looking for defendant, Gorski noticed a jacket which appeared to be bloodstained. ² Defendant meanwhile was found hiding under the bed and, as the officers pulled him to his feet, he shouted, "I didn't kill him, Timothy Murray did." The officers then handcuffed defendant to a chair in the kitchen. During questioning in the kitchen, Gorski observed electrical cords. (Indeed, Gorski testified that all of the items later taken pursuant to warrant had been seen by him in the apartment during the period defendant was handcuffed in the chair.)

Shortly after the arrest, Chief Donovan arrived at the apartment. He summoned an evidence squad, directing them to pick up items that might be evidence and photograph the entire apartment. As Chief Donovan testified in the suppression hearing, "I don't see anything wrong with looking around in a place where we believe a crime was committed." After defendant had been taken to the police station, the police remained in the apartment until about 3:00 A.M., securing the door when they left.

Later that morning Chief Donovan directed Detective Delano to read Murray's statement and obtain a search warrant. Detective Delano testified that based only on that statement he prepared an affidavit, appending the Murray statement to it. After obtaining a warrant, Detective Delano and two detectives who had been present the night before, returned to defendant's apartment where they recovered a jacket and electrical cords. Chief Donovan directed another officer to make sure that a table and its broken legs were seized when the warrant was executed. That officer went to the apartment as the others were leaving. Detective Delano made a handwritten addition to the typed return indicating that the table and legs also had been recovered. All of the items seized pursuant to warrant were mentioned in Murray's statement.

After a pretrial suppression hearing, the warrantless arrest of defendant in his home was sustained. The suppression court found probable cause to believe that defendant had murdered Borek in that the information given to police by Murray was recent, based on personal observation, extremely detailed and verified by police observation. The court then found that "[c]onfronted late at night, with information that the alleged perpetrator of the homicide was preparing to flee the jurisdiction for Houston, Texas; information * * * they were * * * entitled to rely on under the circumstances," the "police found themselves in obvious exigent circumstances and were entitled to proceed to arrest the defendant in his home, as quickly as possible, without a warrant." Defendant's statements were held admissible as spontaneous utterances following a lawful arrest.

Defendant also moved to suppress various items of physical evidence, including the jacket, table and cords. He contended that even if the police had lawfully arrested him, they acted unlawfully in conducting a pre-warrant search of the apartment after he had been handcuffed. Defendant premised his argument for suppression on People v. Arnau, 58 N.Y.2d 27, 457 N.Y.S.2d 763, 444 N.E.2d 13, arguing that the case was distinguishable in result because the police there had only secured--and did not search--the suspect's home while they obtained a warrant. Thus, there was no exploitation or taint of the subsequent search pursuant to warrant. Here, defendant urged, the search conducted by Chief Donovan and his evidence squad was unlawful and therefore did taint the subsequent lawful search. The suppression court concluded that once defendant had been arrested, the police were not justified in remaining on the premises and conducting a warrantless investigative search, and therefore suppressed all items taken from the apartment before the warrant issued. Those items are no longer in issue. Nonetheless, the court found that the evidence seized during the search pursuant to warrant was admissible because the warrant was supported by an independent source of probable cause, untainted by anything the police may have illegally learned earlier from defendant or obtained from his home.

A divided Appellate Division affirmed, the majority agreeing that there were exigent circumstances to justify the warrantless arrest (124 A.D.2d 5, 510 N.Y.S. 949). The court further ruled that, even if the initial entry was illegal, there had been no showing that the search and seizure following the issuance of the search warrant was tainted by any illegality. To the contrary, the court noted that the warrant application was based solely on Murray's statement and did not exploit the initial entry. Thus, the jacket, table and cords were properly admitted. ³ We now affirm.

The Warrantless Arrest

The warrantless arrest of defendant in his home would violate both the State and Federal Constitutions (N.Y. Const., art. I, § 12; U.S. Const. 4th Amend.) unless based on probable cause and justified by exigent circumstances (People v. Mealer, 57 N.Y.2d 214, 218, 455 N.Y.S.2d 562, 441 N.E.2d 1080; Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639, on remand 51 N.Y.2d 169, 433 N.Y.S.2d 61, 412 N.E.2d 1288). Both lower courts found that the arrest was justified because, after the police investigation and Murray's statement, the police had clear probable cause to believe that defendant had murdered Borek, and because there were exigent circumstances in (among other things) the combined savagery of the crime, the late weekend...