People v. Garriga

Citation189 A.D.2d 236,596 N.Y.S.2d 25
Parties, 61 USLW 2646 The PEOPLE of the State of New York, Respondent, v. Thomas GARRIGA, Defendant-Appellant.
Decision Date06 April 1993
CourtNew York Supreme Court Appellate Division

Cyrus Benson III, New York City, of counsel (Haliburton Fales, with him on the brief, White & Case, attys.), for defendant-appellant.

Magda S. Vives, New York City, of counsel (Allen H. Saperstein, with her on the brief, Robert T. Johnson, Dist. Atty., atty.), for respondent.

Before CARRO, J.P., and ELLERIN, ASCH and RUBIN, JJ.

CARRO, Justice Presiding.

Defendant's appeal from his conviction, after jury trial, of criminal possession of a controlled substance in the third degree and criminally using drug paraphernalia in the second degree brings up for review the denial, after a hearing, of his motion to suppress evidence seized in his room in a rooming house, and the propriety of the Court's rulings at the motion to suppress and at the trial which limited the defendant's cross-examination of the arresting officers with regard to the circumstances immediately preceding their entry into the defendant's rooming house.

On June 26, 1988, at 11:18 a.m., Police Officers Walter Wasilewski and Alfredo Toro overheard a radio run reporting a black male with a gun in the rear of 1671 Popham Avenue in the Bronx. Neither response nor backup was requested of the officers by the dispatcher. Nevertheless, approximately 25-30 minutes later, after aiding an elderly motorist who was changing a tire, the officers arrived at 1671 Popham Avenue, having decided on their own to "back up" the call. When they arrived, one or two other police units were already present with a number of officers congregated by their vehicles parked in front of the building. Nonetheless, according to the testimony of the two officers, they ignored their colleagues and, without communicating with them, proceeded past them directly to the front door of the building which they believed to be a private home, although it was in fact a rooming house. Without knocking or announcing their presence, they entered with guns drawn.

After proceeding upon a circuitous path through doorways, hallways and up and down stairs, the officers testified that they came upon the defendant standing in the doorway to his room, exchanging a plastic bag of white powder for cash with another man. According to the officers, the purchaser, upon seeing them, barreled past them in the narrow hallway while they had their guns drawn, and escaped through a kitchen-in-common window with his purchase. One of the officers then attempted to cuff the defendant, still in his doorway. The defendant resisted, and during the struggle that followed, the defendant fell into his room where the officer, who was grappling with him, saw in plain view drugs, paraphernalia, and ammunition, as well as over $10,000 cash. The defendant and his girlfriend, who was in the room as well, were arrested.

Initially, we observe that Officers Wasilewski and Toro, under the facts known to them at the time, took it upon themselves to enter, with guns drawn, what they believed to be a private home without knocking or even announcing themselves. There were no exigent circumstances, since the officers were responding belatedly, and further, they proceeded to invade what they believed to be a private home without making any effort to determine whether the officers at the scene had already entered the house or otherwise investigated. Had the house been, in fact, a private home as they believed, their conduct would be constitutionally impermissible (see, People v. Levan, 62 N.Y.2d 139, 476 N.Y.S.2d 101, 464 N.E.2d 469).

Even assuming, arguendo, that the internal hallways of a rooming house are entitled to a lesser degree of privacy protection, the officers' discovery after their entry that the premises was a rooming house does not vitiate the taint arising from the circumstance that they came to that discovery via conduct which they should have understood to be constitutionally impermissible. In our view, police officers may not be free to raid or roust and then, when their efforts yield results which can provide a post hoc justification for their conduct, evade, through backwards reasoning, their obligation to act in accordance with the Constitution in the first place. "A search is good or bad when it starts and does not change character from its success" (People v. McCarthy, 14 N.Y.2d 206, 209, 250 N.Y.S.2d 290, 199 N.E.2d 382).

The primary purpose of the exclusionary rule is to deter future unlawful police misconduct (People v. Young, 55 N.Y.2d 419, 425, 449 N.Y.S.2d 701, 434 N.E.2d 1068, cert. denied, 459 U.S. 848, 103 S.Ct. 107, 74 L.Ed.2d 96). " 'In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generated through its deterrent effect, rather than a personal constitutional right of the party aggrieved' " (id., 55 N.Y.2d at 425, 449 N.Y.S.2d 701, 434 N.E.2d 1068, quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561).

Because of this, "courts have recognized that its purpose would not be furthered by applying it in instances where the police, believing that they are acting lawfully, engage in a search which later turns out to be 'unlawful' because, in hindsight, their reasonable reliance on the consenting person's authority proves to be erroneous" (People v. Adams, 53 N.Y.2d 1, 9, 439 N.Y.S.2d 877, 422 N.E.2d 537, cert. denied, 454 U.S. 854, 102 S.Ct. 301, 70 L.Ed.2d 148). By parity of reasoning, the exclusionary rule, if it is to serve its central purpose of deterring future unlawful police conduct, should be applied in those instances where, as here, the facts reasonably perceived by the police indicate that fundamental constitutional privacy rights are being infringed, even if it should later turn out that those rights are lesser in degree than they first appeared. "An assessment of probable cause turns on what was reasonably and objectively in the mind of law enforcement authorities" (People v. Jennings, 54 N.Y.2d 518, 523, 446 N.Y.S.2d 229, 430 N.E.2d 1282). Here, objectively and reasonably in the minds of the officers, they were proceeding into a private home, and thus the constitutional reasonableness of their actions should be evaluated on that basis.

In any event, if the common hallway area of this rooming house falls within the definition of the defendant's home for the purposes of Fourth Amendment analysis, the officers had no authority to enter without a warrant absent exigent circumstances. Although the Court of Appeals has not yet ruled squarely on the issue, existing precedent, although sparse, supports the conclusion that the internal hallway area of this rooming house was part of the defendant's home for Fourth Amendment purposes.

In People v. Powell, 54 N.Y.2d 524, 446 N.Y.S.2d 232, 430 N.E.2d 1285, the Court examined the issue of whether the lobby of a men's shelter, at which the defendant resided, was part of his "home" within the meaning of the exclusion provision of Penal Law § 265.02(4) for possession of a loaded weapon in a person's home. The Court affirmed the correctness of the jury instruction that a home may " 'extend to facilities shared by several persons not related to each other' but does not encompass a place 'to which the public or a substantial group of persons has access' " (id. at 526, 446 N.Y.S.2d 232, 430 N.E.2d 1285). Significantly, in that opinion, the Court cited with approval the opinion in People v. Bargeman, 92 Misc.2d 173, 399 N.Y.S.2d 393, which held that the common hallways of a single-residency hotel were within the ambit of the defendant's home, again within the meaning of Penal Law § 265.02(4) (54 N.Y.2d, at 530-531, 446 N.Y.S.2d 232, 430 N.E.2d 1285,supra ). The one appellate case clearly on point holds that the common hallways of a rooming house are not "public places" within the context of Fourth Amendment analysis ( People v. Lott, 102 A.D.2d 506, 478 N.Y.S.2d 193 [4th Dept]. Two other cases, from the 1st and 2nd Departments, respectively, also support this proposition, albeit more obliquely (People v. Rodriguez, 159 A.D.2d 201, 552 N.Y.S.2d 13, lv. denied, 76 N.Y.2d 742, 558 N.Y.S.2d 904, 557 N.E.2d 1200; People v. McCurdy, 86 A.D.2d 493, 450 N.Y.S.2d 507).

The cases cited by the People in support of their contention that the defendant had no reasonable expectation of privacy in the inner hallway of the rooming house are distinguishable. In People v. Kozlowski, 69 N.Y.2d 761, 513 N.Y.S.2d 101, 505 N.E.2d 611, the police reached the defendant's front door by means that he had made available for public access to his house; thus they did not intrude into any area in which defendant had a legitimate expectation of privacy. People v. Powell, supra, dealt with a common lobby outside a group residence, and explicitly distinguishes itself from the facts in People v. Bargeman, supra. People v. Marzan, 161 A.D.2d 416, 555 N.Y.S.2d 345, lv. denied, 76...

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  • State v. Williams
    • United States
    • New Jersey Superior Court — Appellate Division
    • August 19, 2019
    ...who are forced by economic circumstances to reside in rooming houses." See Titus, 707 So.2d at 710 (quoting People v. Garriga, 189 A.D.2d 236, 596 N.Y.S.2d 25, 29 (1993) ). Accordingly, we determine that society is willing to treat as private the space between a person's bedroom and bathroo......
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    ...such areas ‘public’ with respect to the constitutional prerequisites for permissible entry by the police" ( People v. Garriga, 189 A.D.2d 236, 241, 596 N.Y.S.2d 25 [1st Dept.1993] ). It is one thing to accept that in a shared home you will come across other residents at the front door, in t......
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