People v. Hernandez

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before BRACKEN; BRACKEN
• Citation: People v. Hernandez, 639 N.Y.S.2d 423, 218 A.D.2d 167 (N.Y. App. Div. 1996)
• Decision Date: 26 February 1996
• Parties: The PEOPLE, etc., Appellant, v. Angel HERNANDEZ and Rudolfo Hernandez, Respondents.

Page 423

639 N.Y.S.2d 423

218 A.D.2d 167

The PEOPLE, etc., Appellant, v. Angel HERNANDEZ and Rudolfo Hernandez, Respondents.

Supreme Court, Appellate Division Second Department.

Feb. 26, 1996.

Richard A. Brown, District Attorney of Queens County, Kew Gardens (Nicole Beder, Steven J. Chananie, John M. Castellano, and Gonzalo Pinacho, of counsel), for appellant.

Cheda & Sheehan, Jackson Heights (Thomas Sheehan, of counsel), for respondent Angel Hernandez.

Before BRACKEN, J.P., and ROSENBLATT, SANTUCCI and JOY, JJ.

BRACKEN, Justice Presiding.

Society is not prepared to recognize as legitimate whatever subjective expectation of privacy an escaped prisoner might have with respect to the confines of the house or apartment in which he is being harbored by an obliging friend or relative. For this basic reason, we hold that the defendant Angel Hernandez, who had escaped from a work-release program and who was being protected by his brother, the codefendant Rudolfo Hernandez, has no standing to object to the search of the latter's apartment.

The defendant Angel Hernandez absconded from a prisoner work-release program on or about November 5, 1992. Subsequent investigation established that he was "running with Alberto Rodriguez, who was a parole violator with an active warrant". The defendant Angel Hernandez, in addition to being an absconder, was, according to a police witness, "known to carry weapons and [to] be violent".

On February 8, 1993, investigating officers arrived at 87-72 Lefferts Boulevard where the codefendant Rudolfo Hernandez maintained a two-floor apartment. Information provided by various citizens had established the likelihood that the defendant Angel Hernandez could be found at his brother's apartment. The officers also had reason to believe that Alberto Rodriguez could be found at this location. It was stipulated in open court that the officers also had a "detainer warrant" for Angel Hernandez, who, as noted above, had escaped from the lawful custody of the Department of Correctional Services.

The two defendants, Angel and Rudolfo Hernandez, were secured in the first floor living room area of Rudolfo's apartment shortly after the officers' entry. The officers noticed "numerous crack vials and marijuana cigarette butts throughout this location".

One group of officers proceeded upstairs, continuing what the People characterize as a "protective sweep". After arriving on the second floor, these officers encountered Rudolfo's wife, who, in response to their request, advised the officers that Alberto Rodriguez was not present in the apartment. One officer asked Ms. Santiago whether the officers might "check the area for the subject". This officer would later testify that Ms. Santiago consented.

Pursuant to this alleged consent, the officers examined the interior of a closet, and saw, "in plain view", a bulletproof vest and a box of ammunition. The officers then asked Ms. Santiago if there were any weapons on the premises. She allegedly responded affirmatively, directed the officers to a dresser, and proceeded to open one of the drawers. For safety reasons, the officers stopped Ms. Santiago from opening the drawer, and one officer then discovered a .22 caliber semi-automatic with a silencer, and two fully automatic submachine guns.

While this group of officers was upstairs, one of the officers who had remained downstairs with the defendants was "looking around the room because it was alleged the subject was with a third person". This officer observed an open brown bag in the midst of the crack vials, and, on the inside of the bag, he saw "several vials of crack cocaine, bundled, packaged".

The Supreme Court granted those branches of both defendants' omnibus motions which were to suppress physical evidence. The court found that the officers had no right to enter Rudolfo Hernandez's apartment (see, Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639; Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38), even though the court found, as a matter of fact, that the officers "had a warrant of arrest for Angel [Hernandez]". The court concluded, also, that the officers had exceeded the scope of any "protective sweep" by "rummag[ing]" for evidence on the second floor of the apartment, after both defendants had been immobilized on the first floor. The court also concluded that whatever consent might have been given to this search by Ms. Santiago was "under duress". For the following reasons, we modify the Supreme Court's order.

We agree with the People's first contention on appeal, i.e., that the "defendant Angel [Hernandez] had no legitimate expectation of privacy in his brother's apartment". We therefore hold that Angel Hernandez has no standing to assert that the search of Rudolfo Hernandez's apartment was illegal. As an escaped prisoner, Angel Hernandez was "no more than a trespasser on society" (United States v. Roy, 734 F.2d 108, 111) who was "obviously * * * not legitimately on the premises" (State v. Hiott, 276 S.C. 72, 77, 276 S.E.2d 163, 165, cited in United States v. Roy, supra ). Whatever subjective expectation of privacy Angel Hernandez may have had in respect to the confines of Rudolfo Hernandez's apartment, society will "not recognize as reasonable the privacy rights of a defendant whose presence at the scene of [a] search was 'wrongful' " (United States v. Roy, supra, at 110, quoting Rakas v. Illinois, 439 U.S. 128, 141, n. 9, 99 S.Ct. 421, 429 n. 9, 58 L.Ed.2d 387; see also, United States v. Hunt, 893 F.2d 1028, n. 6 [9th Cir.], modf. on other grounds 925 F.2d 1181, cert. denied 502 U.S. 832, 112 S.Ct. 107, 116 L.Ed.2d 77; State v. Amos, 153 Wis.2d 257, 450 N.W.2d 503; People v. Ycasa, 140 Misc.2d 114, 531 N.Y.S.2d 183).

In United States v. Roy (supra), an escaped felon was found driving an automobile, and a search of the vehicle resulted in the discovery of evidence. The Second Circuit rejected the defendant's claim that he had standing to object to the search of the car, stating:

"[Defendant's] expectation of privacy in the automobile is not one that society is prepared to recognize as legitimate. In Rakas v. Illinois, the Supreme Court, citing Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 734, 4 L.Ed.2d 697 (1960), explicitly noted that society did not recognize as reasonable the privacy rights of a defendant whose presence at the scene of the search was 'wrongful.' 439 U.S. at 141 n. 9, 99 S.Ct. at 429 n. 9. The Court noted two examples of persons who did not have legitimate expectations of privacy due to wrongful presence: a person present in a stolen automobile at the time of the search, id., and '[a] burglar plying his trade in a summer cabin during the off season.' Id. at 143-44 n. 12, 99 S.Ct. at 430-31 n. 12.

"Roy's presence in Rocky Hill on December 3 was also wrongful, since he was an escapee from the MCC in Chicago. See 18 U.S.C. § 751 (1982) (inmate who escapes from federal custody commits a criminal act). At the time of the search and seizure, Roy was no more than a trespasser on society" (United States v. Roy, supra, at 110-111).

In State v. Amos (153 Wis.2d 257, 269, 450 N.W.2d 503, 507, supra ), the court stated "[w]e agree with and adopt the view of the Second Circuit Court of Appeals that an escapee has no legitimate expectation of privacy in a residence where he or she is hiding from lawful authority" (see also, Casey D. v. State, 174 Wis.2d 601, 501 N.W.2d 470 [unpublished opinion]. Also, in State v. Hiott (276 S.C. 72, 276 S.E.2d 163, supra ), the court stated that prison escapees could not be considered to have been lawfully on the premises which was subject to a police search.

The defendant Angel Hernandez argues that he has standing to object to the search of his brother's apartment because his own carefully tailored testimony, which we will accept as true purely for the sake of argument, rather than because we agree with the Supreme Court that it is believable, establishes that he was an overnight guest (see, Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85). He then proceeds to argue, implicitly, that the "warrant of arrest" which the Supreme Court found the officers actually possessed was insufficient to justify their entry into his brother's apartment (see, Steagald v. United States, supra; cf., Payton v. New York, supra ).

In advancing this argument, what the defendant Angel Hernandez overlooks is the fact that none of the cited cases involve attempts by prisoners, escapees, parolees, or probationers to avail themselves of the exclusionary rule. Obviously, the Fourth Amendment rights of a person who is actually or constructively in the custody of the New York State Department of Correctional Services differ from those of citizens in general, or citizens under suspicion of criminal conduct in particular. Here, we are dealing with a convicted criminal who has absconded from the lawful custody of the State Department of Correctional Services. The cases relied upon by the respondent Angel Hernandez, and those relied upon by the Supreme Court (see, Payton v. New York, supra; Steagald v. United States, supra; Minnesota v. Olson, supra ), are all distinguishable for this fundamental reason.

"[T]he legitimacy of certain privacy expectations vis-a-vis the State may depend upon the individual's legal relationship with the State. For example, in Griffin [v. Wisconsin (483 U.S. 868, 873, 875, 107 S.Ct. 3164, 97 L.Ed.2d 709) the Supreme Court] held that, although a 'probationer's home, like anyone else's, is protected by the Fourth Amendmen[t],' the supervisory relationship between probationer and State justifies 'a degree of impingement upon [a probationer's] privacy that would not be constitutional if applied to the public at large' " (Vernonia School Dist. 47J v. Acton, 515 U.S. ----, ----, 115 S.Ct. 2386, 2391, 132 L.Ed.2d 564).

Although, as a general rule, police officers may not, in the...