People v. Cosme

• Decision Date: 20 November 1979
• Parties: , 397 N.E.2d 1319 The PEOPLE of the State of New York, Respondent, v. Maximo COSME, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 652

422 N.Y.S.2d 652

48 N.Y.2d 286, 397 N.E.2d 1319

The PEOPLE of the State of New York, Respondent, v. Maximo COSME, Appellant.

Court of Appeals of New York.

Nov. 20, 1979.

Hal V. Patterson, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. (Donna Krone and Robert M. Pitler, New York City, of counsel), for respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

Defendant appeals from an order of the Appellate Division, First Department, which unanimously affirmed his conviction for criminal possession of a controlled substance in the third degree (Penal Law, § 220.16). His appeal raises a substantial question concerning the authority of police officers to search jointly occupied premises when both of the occupants are present and one consents to the search while the other explicitly refuses to consent.

The incident that forms the basis of this appeal was precipitated by a quarrel between defendant Cosme and his fianceee, Meyrle Hennessey, with whom he shared his apartment on at least a part-time basis. At about 1:00 a.m. on the morning of October 26, 1976, Hennessey, who had been drinking rather heavily, telephoned the police and reported that defendant was storing a gun and a large quantity of cocaine in the apartment. Although the police official who took the call initially stated that no action could be taken until a search warrant had been obtained, he eventually acceded to Hennessey's demand for an immediate response and dispatched a patrol car to the address she gave.

When the police arrived at the apartment house at about 1:30 a.m., they found Hennessey waiting for them in the building's outer vestibule clad only in a man's pajama top, slippers and a pair of jeans. She told the officers that the contraband was hidden in the bedroom closet, which she and her fianceee shared, and drew a diagram of the apartment to indicate the closet's precise location. In addition, she gave the officers the key to the apartment and told them how to use it without triggering the burglar alarm system. Hennessey then followed the officers up the stairs to the third-floor apartment, waiting on the landing behind them as they unlocked the door and let themselves in.

Immediately upon entering the apartment, the police officers saw defendant Cosme and a male companion, both of whom were standing in the kitchen. Their guns drawn, the officers ordered the two men to "freeze". The men promptly surrendered, whereupon they were placed in handcuffs under protest and made to lie face down on the floor so that the police could conduct their search without interference. The officers then proceeded to the bedroom closet where the contraband was supposed to be cached. They systematically searched the closet and its contents until they found a gun and a quantity of cocaine hidden in a pillowcase on the floor.

Following his indictment for criminal possession of the gun and narcotics, defendant Cosme made a motion to suppress the evidence seized during the October 26 search on the ground that the police had acted without either probable cause or valid consent. After conducting a hearing, the trial court rejected defendant's contentions and denied his suppression motion in an opinion which set forth the relevant factual determinations and conclusions of law. The trial court found, Inter alia, that Hennessey had the authority to consent to the October 26 search by virtue of her unfettered access to and joint occupancy of defendant's apartment. In addition, the court found that Hennessey's capacity to consent had not been impaired by her consumption of alcohol earlier that evening and that she had, in fact, knowingly and voluntarily consented to the search. Finally, the court concluded on the basis of these findings that the search was lawful even if defendant Cosme's protests upon being handcuffed could be construed as an attempt to deny the police officers the authority to conduct a warrantless search of his apartment.

After the denial of his suppression motion, defendant pleaded guilty to a reduced charge of criminal possession of a controlled substance in the third degree and a judgment of conviction was entered against him. The Appellate Division subsequently affirmed the conviction, without opinion.

On his appeal to this court, defendant contends that his protest at the time he was handcuffed was the equivalent of a refusal to consent to the search which was sufficient to override the consent given earlier by Hennessey. Thus, he argues, the police were without authority to conduct a search of his apartment and, accordingly, the fruits of their search should have been suppressed. Although the trial court did not explicitly determine that defendant's protestations upon being handcuffed constituted a refusal to consent, we deem it unnecessary to dwell upon this point since we conclude that any refusal on the part of defendant to consent to a search would have been ineffective in the face of Hennessey's contrary expression of consent.

It is well settled that the police may lawfully conduct a warrantless search when they have obtained the voluntary consent of a party who possesses the requisite degree of authority and control over the premises or personal property in question (Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; People v. Lane, 10 N.Y.2d 347, 223 N.Y.S.2d 197, 179 N.E.2d 339). Furthermore, it has consistently been held that where two or more individuals share a common right of access to or control of the property to be searched, any one of them has the authority to consent to a warrantless search in the absence of the others (United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242; Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684; People v. Wood, 31 N.Y.2d 975, 341 N.Y.S.2d 310, 293 N.E.2d 559). Until the issue was presented in this case, however, we had not had occasion to consider whether the presence of a protesting co-occupant at the scene of the search invalidates the authority of the other occupants to consent to search of the shared premises. After an examination of the relevant precedents, we conclude that it does not.

Our resolution of this question depends, in large measure, upon our long-standing view of the theoretical underpinnings of the third-party consent rule. In People v. Carter (30 N.Y.2d 279, 332 N.Y.S.2d 865, 283 N.E.2d 746), we expressly rejected the notion adopted by some courts (e.g., Lucero v. Donovan, 9 Cir., 354 F.2d 16) that a cotenant's right to consent to a search of jointly occupied premises is predicated solely upon his status as agent for the other occupants. Under the agency approach, which was seemingly rejected in Schneckloth v. Bustamonte (412 U.S. 218, 245-246, 93 S.Ct. 2041, 36 L.Ed.2d 854 Supra ), the "agent's" implied authority to give binding consent to a search on behalf of a co-occupant is deemed to be "rescinded" when the co-occupant expresses a contrary intention not to permit...