People v. Dunn

• Decision Date: 16 March 1990
• Citation: 155 A.D.2d 75,553 N.Y.S.2d 257
• Parties: PEOPLE of the State of New York, v. Jessie DUNN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 257

553 N.Y.S.2d 257

155 A.D.2d 75

PEOPLE of the State of New York, v. Jessie DUNN, Appellant.

Supreme Court, Appellate Division Fourth Department.

March 16, 1990.

Burton Ritter, Ritter, Nagler & Neufeld, New York City, for appellant.

Kevin M. Dillon by Raymond Herman, Buffalo, for respondent.

Before DENMAN, J.P., and BOOMER, GREEN, LAWTON and DAVIS, JJ.

DENMAN, Justice Presiding:

The question presented on this appeal is whether police violated defendant's rights under the Constitution of the United States (U.S. Const. 4th Amend.) or the Constitution of the State of New York (N.Y. Const., art. I, § 12) by conducting a warrantless canine sniff outside the door of his apartment. For the reasons that follow, we conclude that defendant's rights against unreasonable search and seizure were not violated.

Following his joint trial with codefendant Henry Hill, defendant was convicted of criminal possession of a controlled substance (cocaine) in the first and seventh degrees; criminal use of drug paraphernalia in the second degree (two counts); criminal possession of marijuana in the second degree (two counts); criminal possession of stolen property in the fourth degree; criminal possession of a weapon in the third degree; and unlawful possession of marijuana. The trial evidence included various items seized pursuant to two warrants authorizing the search of separate apartments leased by defendant. The first warrant was executed on May 12, 1988 at defendant's apartment in Hamburg, resulting in the seizure of large quantities of cocaine and marijuana, drug paraphernalia, two handguns, and $6200 in cash found in the apartment, on defendant's person, and in his car. That seizure led to a second warrant, executed the next day, to search defendant's apartment in Cheektowaga. The second search resulted in the seizure of additional drugs and drug paraphernalia.

On appeal, defendant contends that the court erred in denying his motion to suppress without a hearing. Defendant also contends that the first warrant was improperly issued because it was based in part on the positive result of a warrantless "canine sniff" conducted in the common hallway outside defendant's Hamburg apartment, and because the balance of the information contained in that warrant application failed to establish probable cause to search the apartment. Although defendant's challenges are directed at the first warrant, if the first warrant fails, so must the second.

The relevant facts are gleaned from the affidavits of the investigating officer, New York State Police Investigator Joseph Gramaglia, and the dog handler, U.S. Customs Service Canine Enforcement Officer Leon Senecal, submitted in support of the first warrant application. Those affidavits reveal that the magistrate had the following information before him when he issued the first warrant:

New York State Police Sergeant Kenneth Gellart resides in an apartment adjacent to the Hamburg apartment that defendant leased in April, 1987. On numerous occasions Gellart observed defendant go to the apartment, stay a short time, and leave carrying a bag or briefcase, without ever staying overnight. Gellart never observed defendant move furniture into the apartment. On certain occasions when defendant was at the apartment, including one occasion two and one-half weeks prior to the search, Gellart smelled burning marijuana combined with the smell of incense emanating therefrom. Gellart generally observed defendant driving two vehicles, a 1985 Mercedes and a 1987 Chevrolet truck. Gellart also observed defendant's Mercedes at the apartment on the day before the search.

Jeffrey Osgood, the maintenance man at the apartment complex, entered defendant's apartment approximately three and one-half months before the search. Osgood, who stated that he is familiar with marijuana and cocaine and their use, saw white powder and chunks of white rocks on a cutting board, on a rolling pin, on a triple beam scale, and on the floor of the apartment. Osgood tasted the powder and determined that it was cocaine. Osgood also saw plastic bags, marijuana roaches, and sticks of incense. He smelled the strong odor of marijuana emanating from a closed bedroom closet. Osgood observed that the apartment contained only a table, that defendant was seldom at the apartment, and that he always came and went carrying bags and packages.

Approximately three months prior to the search, Osgood again went to defendant's apartment. When defendant answered the door, Osgood observed that he appeared to be under the influence of cocaine and that he had a white powdery substance around one nostril. Osgood observed that a second man (evidently codefendant Hill) had been coming to the apartment in a Mustang.

Gramaglia had been assigned to the Narcotics Unit for four years and had conducted hundreds of investigations involving narcotics. He and fellow officers had investigated defendant's activities and had conducted surveillance of his apartment for four months. During that time, Gramaglia had acquired the aforementioned information from Gellart and Osgood. From a leasing agent, he learned that defendant had leased the Hamburg apartment since April, 1987. He also learned that, on September 24, 1986, cocaine, marijuana and hashish had been seized from a car in which defendant was a passenger. Finally, he learned that defendant had been convicted in New Jersey of possessing 22 pounds of marijuana.

During surveillance of the apartment, police had observed defendant and the codefendant enter and leave on numerous occasions. Police determined the identity of codefendant Henry Hill by stopping his vehicle on March 7, 1988. They also ascertained that Hill resided at 57 Suffolk Street in Buffalo. On May 12, 1988, the day of the search, police confirmed that defendant actually resided in an apartment in Cheektowaga. At approximately 12:30 P.M. on that date, police observed defendant carry a brown bag out of the Hamburg apartment and drive his Mercedes to the Cheektowaga apartment. At approximately 2:15 P.M., they observed Hill leave the Hamburg apartment.

Earlier that day, Gramaglia had requested the assistance of Officer Senecal and his dog Amber. Senecal has been a Canine Enforcement Officer for 14 years and is certified to utilize the dog, with whom he has worked since October 1987, in the detection of marijuana, cocaine, hashish, heroin and crack. The dog is certified and annually evaluated by the Canine Training Center and is trained to scratch when she detects controlled substances. The dog had correctly "alerted" on prior occasions, most recently on March 17, 1988, when she discovered a quantity of marijuana in the trunk of a vehicle.

At approximately 2:25 P.M. on May 12, Gramaglia, Senecal and Amber entered defendant's apartment building and proceeded to the hallway on the second floor where defendant's apartment was located. ¹ Senecal had Amber "check out the doorway" of defendant's apartment. Amber headed directly to the door of defendant's apartment and, in Senecal's opinion, showed a "strong alert" by scratching the lower right corner of the door. Based on their prior information and the dog's alert, Gramaglia and Senecal opined that there were drugs on the premises, that defendant and codefendant were using the apartment to store, cut, and package cocaine and marijuana, and that they were using their vehicles to transport the drugs.

Based on the affidavits of Gramaglia and Senecal, the magistrate issued a warrant to search defendant's person and apartment. Police immediately executed the warrant, with the results indicated supra. Defendant was arrested when he returned to the apartment while the police were executing the warrant.

Following indictment, defendant moved to suppress the tangible evidence. In support of that motion, defendant submitted his affidavit and that of his attorney, who averred that the warrant application was insufficient on its face to justify issuance of the warrant. Counsel also argued that the warrantless "canine sniff of the atmosphere in or adjacent to living quarters constitutes an illegal search of a private enclosed area for which the defendant had a legitimate expectation of privacy". He argued that the dog's alert thus must be excised from the warrant application and that the remaining allegations were too stale and equivocal to establish probable cause. Defendant's motion papers did not request a suppression hearing.

The court denied defendant's motion. Without addressing whether the dog sniff constituted an illegal warrantless search, and assuming for the purpose of its discussion that the results of the dog sniff were improperly included in the warrant application, the court nevertheless concluded that the remaining information was sufficient to establish probable cause.

Shortly before trial, defendant's new counsel renewed the suppression motion, specifically requesting a hearing "as to the sources of information and evidence upon which the court granted and issued a search warrant". On the return date, defense counsel also argued for the first time that, at the time of the canine sniff, the police were unlawfully present in the common hallway outside the apartment. The court denied the request for a hearing, holding that there were no factual questions to be determined but only the legal question whether the written warrant application and affidavits set forth a sufficient basis for issuance of the warrant. Defendant's trial and conviction followed.

The first question for our consideration is whether defendant was entitled to a hearing on his motion to suppress. A suppression hearing is required only where the defendant has raised an issue of fact in his motion papers (People v. Glen, 30 N.Y.2d 252, 256, 262, 331 N.Y.S.2d 656, 282 N.E.2d 614, cert. denied sub nom. Baker v. New York, 409 U.S. 849, 93 S.Ct. 58, 34 L.Ed.2d 91; People v. Solimine, 18 N.Y.2d 477, 276 N.Y.S.2d 882, ...