People v. Dancey

• Decision Date: 09 November 1981
• Citation: 84 A.D.2d 763,443 N.Y.S.2d 776
• Parties: The PEOPLE, etc., Respondent, v. Linda DANCEY, a/k/a Linda Hickman, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 776

443 N.Y.S.2d 776

84 A.D.2d 763

The PEOPLE, etc., Respondent, v. Linda DANCEY, a/k/a Linda Hickman, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 9, 1981.

William E. Hellerstein, New York City (John Van Der Tuin, New York City, of counsel), for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Steven P. Polivy and Beth S. Lasky, Brooklyn, of counsel), for respondent.

Before DAMIANI, J. P., and GIBBONS, GULOTTA and THOMPSON, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered September 19, 1979, convicting her of manslaughter in the first degree, after a nonjury trial, and imposing sentence.

Judgment affirmed.

Defendant requested the assistance of police officers, because she was locked out of her apartment and her five-month-old baby was in a plastic bag within the apartment. Responding to her request, and pursuant to their obligation to help people in distress, the officers broke into the apartment. Defendant directed the officers to a closet, where the baby was found "apparently deceased". At this point defendant was accusing her husband of placing the baby in the bag. The officers rushed the baby to the hospital, in the hope that it could be revived. They were too late.

Shortly thereafter a police officer was directed to the apartment in order to safeguard it. As a crime scene, the police believed it was necessary to prevent any possible intrusion into, or disruption of, the apartment which might result in the loss of relevant evidence.

Defendant was asked to go to the local precinct to make a statement. At that time she was not under arrest or in custody; we see no reason to disagree with the trial court's findings in this regard. While being questioned about the details of what happened, defendant changed her story and admitted placing the baby in the bag. She was then read her Miranda rights and stated that she understood them and still wished to make a statement.

Subsequently the investigating detective went to the apartment. His purpose was not to search the premises, nor to gather evidence. He wished to return to better view the physical layout of the place in order to better understand the statements that were being given to him. The police guard was still in the apartment. While the detective was there, he saw on a dresser, and in open view, a note with the name "Timmy" conspicuously visible inscribed thereon. "Timmy" was the name of defendant's husband. The detective picked up the note. It contained statements incriminating the defendant. Returning to the precinct, the detective asked her if she had written the note. She acknowledged that she had.

Defendant argues that this note should not have been admitted into evidence as its seizure violated her Fourth Amendment rights. The People maintain that defendant's original request for police assistance was a continuing request that the police investigate this crime, in and outside of her apartment, and that defendant's subsequent confession at the precinct did not affect her prior consent to the police entry into her apartment. Additionally, the People look to our decision in People v. Neulist, 43 A.D.2d 150, 350 N.Y.S.2d 178 in support of the proposition that the police have a right to search the scene of a crime, where the initial police presence on the scene was prompted by the defendant's request and by the exigencies of the situation. Defendant argues that People v. Neulist (supra) is no longer viable precedent in light of Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290.

The facts in the case at bar are distinguishable from those in Mincey v. Arizona (supra). In that case, the United States Supreme Court (p. 394, 98 S.Ct., p. 2414) specifically approved the placing of officers at a crime scene in order to prevent the loss or destruction of evidence. What was disapproved by the Supreme Court was a four-day warrantless search by the detectives who were there for the purpose of finding and seizing evidence to support a prosecution.

In this case the investigating detective went to the apartment, which was already occupied by a police guard. His entrance into the apartment constituted no more of an intrusion into defendant's privacy than did the legitimate presence of the police guard (cf. People v. Clements, 37 N.Y.2d 675, 376 N.Y.S.2d 480, 339 N.E.2d 170). The detective was not there to search the premises, nor to gather evidence (cf. People v. Calhoun, 49 N.Y.2d 398, 426 N.Y.S.2d 243, 402 N.E.2d 1145). He did not find the note pursuant to a search. It was in plain view. Since the police presence in the apartment was a legitimate response to the exigent need to safeguard the crime scene, and the detective's appearance and activities did not exceed the ambit of that presence, the detective had the right to seize evidence in plain view (see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 reh. den. 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120).

We also conclude that defendant's admission and confessions were voluntarily made. She was informed of her Miranda rights, and voluntarily and intelligently waived those rights. The trial court's findings in this regard are supported by the record (see People v. Morales, 62 A.D.2d 946, 404 N.Y.S.2d 344).

We have considered defendant's remaining contentions, and find them to be without merit.

DAMIANI, J. P., and GULOTTA and THOMPSON, JJ., concur.

GIBBONS, J., dissents and votes to reverse the judgment and order a new trial, with the following memorandum:

In view of the rule expressed by the Supreme Court of the United States in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290, that the possibility of a homicide does not create a "murder scene exception" which, in the absence of continuing exigent circumstances, dispenses with the demands of the Fourth Amendment, I am impelled to vote for reversal.

The continued presence of a police guard at the scene of such crime is for the purpose of preventing the loss or destruction of evidence until the police have obtained a search warrant (People v. Knapp, 52 N.Y.2d 689, 439 N.Y.S.2d 871, 422 N.E.2d 531).

Under the factual posture of this matter, inasmuch as the initial exigent circumstances had come to an end and since no search warrant was sought or obtained, not only was the continuing presence of the police guard in the apartment unauthorized, but the later entry of the investigating detective, at which time he seized the note, was also without legal sanction. The seizure of the note cannot be justified upon the plain view doctrine for the reason that the prerequisite of lawful presence by the police in the place of observation has not been satisfied (see Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067).

As noted, the fundamental holding in Mincey (supra), to which reference is now made, is that there is no "crime scene" exception to the Fourth Amendment prohibition against warrantless searches and seizures. The facts in Mincey are instructive. Police officers forced their way into the defendant's apartment, where an undercover drug sale had previously been arranged. The undercover officer who had arranged the deal slipped into the apartment as an acquaintance of the defendant tried to slam the door. As the other officers entered, they heard a volley of gunshots and then observed the undercover officer collapse. He later died. The police did a quick search, looking for other victims. In fact, they found a wounded young woman and the defendant, also wounded. At that point the officers halted their investigation until a new unit arrived. They remained at the apartment guarding the suspects and the premises.

The new unit arrived 10 minutes later. For the next four days the apartment was searched without a warrant. Photographs and diagrams of the apartment, taken and made during this period, along with items seized, were introduced at trial.

The Arizona Supreme Court held that the items seized and the photographs and diagrams were admissible. That court held that, at the scene of a homicide, where officers were legally on the premises in the first instance, investigating officers had a right to search the scene for the purpose of determining the circumstances of death.

The United States Supreme Court unanimously reversed the Arizona court's decision. It held that there was no homicide scene or crime scene exception to the general requirement that searches be made pursuant to a warrant, absent exigent circumstances. A police officer's right, in fact, duty, to respond to emergency situations was not questioned. Thus, for example, a warrantless entry and search may be justified where the officers reasonably believe that a person is dead or is in need of immediate aid, or where they are in hot pursuit of a suspected criminal, or where necessary to preserve evidence from loss or destruction (Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290, supra; Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782; People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607; People v. Coley, 83 A.D.2d 640, 441 N.Y.S.2d 522. If evidence is seen in plain view by the officers during their response to such an emergency, it may be seized (Mincey v. Arizona, supra, p. 393, 98 S.Ct., p. 2413). However, once the emergency has been dealt with and the situation is secure, any further search must be predicated upon a properly authorized warrant.

Returning to Mincey, the implication of its holding is that any evidence discovered in plain view during the initial search of the apartment, when the officers were looking for additional victims and/or suspects, would be admissible. Other evidence, found during the search after the situation was secure and any exigencies dealt with, would be inadmissible (cf. People v. Fields, 45 N.Y.2d 986, 413 N.Y.S.2d 112, 385 N.E.2d 1040). The...