People v. Harris

• Decision Date: 28 July 2016
• Citation: 141 A.D.3d 1024,34 N.Y.S.3d 798,2016 N.Y. Slip Op. 05670
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael L. HARRIS, Appellant.
• Court: New York Supreme Court — Appellate Division

141 A.D.3d 1024

34 N.Y.S.3d 798

2016 N.Y. Slip Op. 05670

The PEOPLE of the State of New York, Respondent,

v.Michael L. HARRIS, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

July 28, 2016.

David M. Kaplan, Penfield, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Sophie J. Marmor of counsel), for respondent.

Before: LAHTINEN, J.P., ROSE, LYNCH, CLARK and AARONS, JJ.

ROSE

, J.

Appeal from a judgment of the County Court of Chemung County (Keene, J.), rendered October 21, 2013, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

When police officers responded to a call regarding a disturbance at an apartment, they arrived at the door and heard the sounds of a physical altercation inside. The officers opened the unlocked door, entered the apartment and broke up a fight between two male residents. The perceived aggressor was restrained, handcuffed and placed in a sitting position on the floor in the hallway next to the living room while the apparent victim was asked to sit on the couch while both were questioned. Defendant emerged from the bathroom and also sat on the couch at the request of the officers, who continued their questioning regarding the incident. The officers then heard the sounds of another person and, when asked, defendant indicated that his wife was in the back bedroom, which the victim said was rented to defendant. While the other officers remained in the living room, one of the officers conducted a sweep of the apartment. After looking in the bedrooms that opened directly into the living room, the officer proceeded into the kitchen where he knocked on defendant's locked bedroom door and directed defendant's wife to “open the door.” After indicating that she had to get dressed, she emerged and complied with the officer's request to go into the living room to join her husband and the victim on the couch. At that point, the officer smelled a chemical odor that he did not recognize emanating from the bedroom. He then entered the bedroom and saw bottles of rubbing alcohol and a gallon jug of distilled water. Seeing a shirt covering something up on the floor, he lifted it up and observed a pot of liquid on a hotplate that he believed to be used to make methamphetamine (hereinafter the meth lab). Only then was everyone present frisked for weapons. Investigators were called and, while still inside the apartment, defendant was questioned by investigators who elicited incriminating admissions. He was then removed from the apartment and taken to a police station where he signed a written statement. Based upon the officer's observations inside the back bedroom, a search warrant was issued and executed, and a quantity of methamphetamine together with the equipment and materials used to produce it were seized.

Defendant was indicted on charges of criminal possession of a controlled substance in the second degree, unlawful manufacture of methamphetamine in the third degree and criminal possession of a controlled substance in the seventh degree. Following a suppression hearing, County Court (Hayden, J.) denied defendant's motion to suppress both the physical evidence and his statements to police. Defendant thereafter accepted a plea agreement pursuant to which he pleaded guilty under the top count of the indictment to the lesser included offense of criminal possession of a controlled substance in the third degree, and he was sentenced, as a second felony offender, to the agreed-upon prison term of 3 ½ years with three years of postrelease supervision.

On appeal, defendant contends that County Court erred in denying his motion to suppress the physical evidence and his statements to police. Specifically, with regard to the evidence recovered from his bedroom, defendant argues that the entry into and search of his bedroom were illegal and, thus, the police were not lawfully in his bedroom when they made the observations that formed the basis for the search warrant application, requiring that the evidence be suppressed. We agree.

While warrantless searches of a home are presumptively unreasonable under the Fourth Amendment (see U.S. Const. 4th

Amend; Kentucky v. King, 563 U.S. 452, 459, 131 S.Ct. 1849, 179 L.Ed.2d 865 [2011] ), defendant does not dispute that exigent circumstances justified the officers' initial entry into the apartment without a warrant, as they had reasonable grounds to believe that there was an altercation occurring and, thus, an immediate need to render assistance inside the apartment (see

People v. Musto, 106 A.D.3d 1380, 1381, 966 N.Y.S.2d 263 [2013], lv. denied 21 N.Y.3d 1007, 971 N.Y.S.2d 258, 993 N.E.2d 1281 [2013] ; see also Brigham City v. Stuart,

547 U.S. 398, 403–404, 126 S.Ct. 1943, 164 L.Ed.2d 650 [2006] ; United States v. Simmons, 661 F.3d 151, 157 [2d Cir. 2011] ). Rather, the question is whether, on these facts, the officers were entitled to enter and look under clothing in defendant's bedroom as part of a protective sweep, which “is a quick and limited search of premises ... conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding” (Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 [1990] ; see

United States v. Hassock, 631 F.3d 79, 86–88 [2d Cir.2011] [collecting cases]; see also

People v. White, 259 A.D.2d 400, 401, 687 N.Y.S.2d 329 [1999], lv. denied 93 N.Y.2d 1029, 697 N.Y.S.2d 588, 719 N.E.2d 949 [1999] ). Recognizing the dangers faced by police officers who enter homes, the Supreme Court of the United States has held that officers may, “as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched” (Maryland v. Buie, 494 U.S. at 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 ). Beyond that precautionary measure, the Court held that, to conduct a further protective sweep, “there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene” (id. at 334, 110 S.Ct. 1093

).

Here, the suppression testimony established that the officers responded to a general disturbance call at 7:30 a.m. and immediately stopped a fist fight between two male roommates. The officers subdued and cuffed the aggressor and placed the victim on the couch, bringing the situation under their control. While the two continued to argue, they made no further aggressive moves. No guns or weapons were observed, no blood or serious injuries were noted and no one was seen or heard fleeing when police entered the apartment. When asked at the outset, the victim asserted only that the aggressor had hit him and should be arrested. When defendant exited the adjacent bathroom, he did not run out of the apartment or to his bedroom but, rather, he was compliant, provided his name and did as requested. When asked, defendant disclosed that his wife was in his bedroom. No one present reported that others had been involved in the altercation and no facts were alleged by the officers to support a belief that a third person had been involved or was hiding in the apartment and posed a danger to those present. Significantly, no one was patted down for weapons until after the search of defendant's bedroom.

Although the officers were informed that defendant's wife was in the back bedroom, there was no basis upon which to believe that she had been involved in or was a witness to the altercation, that she posed a threat to them or that there were weapons in that or any other room (compare People v. Kims, 24 N.Y.3d 422, 427, 439–440, 999 N.Y.S.2d 337, 24 N.E.3d 573 [2014]

; People v. Gibson, 117 A.D.3d 1317, 1319–1320, 986 N.Y.S.2d 660 [2014], affd. 24 N.Y.3d 1125, 3 N.Y.S.3d 320, 26 N.E.3d 1175 [2015] ; People v. Musto, 106 A.D.3d at 1382, 966 N.Y.S.2d 263 ; People v. Lasso–Reina, 305 A.D.2d 121, 122, 758 N.Y.S.2d 652 [2003], lv. denied 100 N.Y.2d 595, 766 N.Y.S.2d 171, 798 N.E.2d 355 [2003] ). The officers never testified that they asked those present any questions to ascertain if there were other witnesses or participants. While police officers are understandably concerned about the presence of any person in a home where they are involved in an ongoing investigation of a crime, they are not entitled to expand the scope of a protective sweep—which is a limited, “cursory inspection” of “immediately adjoining” areas—unless they have “articulable facts” upon which to believe that there is a person present who may pose a danger to those on the scene (Maryland v. Buie, 494 U.S. at 334–335, 110 S.Ct. 1093, 108 L.Ed.2d 276 ).

The concurrence notes that, in gauging the safety of the situation, the officer who conducted the protective sweep was not limited to information provided by the occupants of the apartment, but could make his own assessment based on the totality of the circumstances. While we agree with this as a general statement, we cannot agree with the suggestion that the officer's observation of a glass pipe and suspected narcotics in the aggressor's bedroom provided articulable facts that warranted the belief that an individual in the back bedroom posed a danger to those in the living room. In our view, the facts known to the officer—prior to the entry and search of defendant's bedroom—do not support a belief that there was any such threat. Rather, the altercation had been subdued and the situation was no longer volatile. In short, the record lacks the requisite articulable facts that would lead a reasonably prudent officer to believe that, once defendant's wife had exited the bedroom and prior to the officer's entry into it, there was anything within that posed a danger to the...