People v. Kane

• Decision Date: 19 August 1991
• Citation: 175 A.D.2d 881,573 N.Y.S.2d 729
• Parties: The PEOPLE, etc., Respondent, v. Matthew KANE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 729

573 N.Y.S.2d 729

175 A.D.2d 881

The PEOPLE, etc., Respondent, v. Matthew KANE, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 19, 1991.

Mound Cotton & Wollan, New York City (Daniel Markewich, of counsel), for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Emil Bricker, of counsel), for respondent.

Before THOMPSON, J.P., and KUNZEMAN, SULLIVAN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dufficy, J.), rendered September 20, 1989, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and statements made by him to the police.

ORDERED that the judgment is affirmed.

The landlord of the defendant's apartment building reported to the police that she had found a box containing explosives in the garage. The area was evacuated, and the defendant's roommate questioned. The roommate told the police that two weeks earlier, he had seen dynamite in the defendant's bedroom closet. Although he asked the defendant to remove the dynamite, he was unsure whether the defendant complied. In addition, he indicated that the defendant told him that he had once blown up a tugboat. The roommate also informed the police that the defendant had weapons, ammunition and newspaper clippings regarding bombing incidents in the apartment. When the box found in the garage was described to the roommate, he stated that it was the same type of box he had seen in the defendant's closet. In the meantime, the bomb squad had examined the box and its contents and determined that the simultaneous presence of the blasting caps, the dynamite, and an accelerant made the situation very unstable and dangerous to the community.

After the roommate consented to a search of the apartment, the bomb squad conducted a cursory, olfactory search for more dynamite sometime between 9:00 P.M. and 10:00 P.M. Although the weapons and newspaper clippings were observed by the police, no explosives were discovered and nothing was seized. Following the search, the apartment was secured and a warrant was obtained. Thereafter, at about 3:00 A.M., the police conducted a second, more thorough search of the apartment and discovered more explosives in the defendant's bedroom. The explosives, weapons and newspaper clippings were then seized.

It is fundamental that where "a police officer reasonably perceives that an emergency situation exists, he may enter and conduct a warrantless search of the premises" (People v. De Vito, 114 A.D.2d 374, 375, 493 N.Y.S.2d 892), the scope and duration of which is "limited by and reasonably related to the exigencies of the situation" (People v. Cohen, 87 A.D.2d 77, 82-83, 450 N.Y.S.2d 497, affd. 58 N.Y.2d 844, 460 N.Y.S.2d 18, 446 N.E.2d 774, cert. denied 461 U.S. 930, 103 S.Ct. 2092, 77 L.Ed.2d 302; People v. Taper, 105 A.D.2d 813, 814, 481 N.Y.S.2d 745). Applying the three basic elements necessary to invoke the emergency doctrine as set forth in People v. Mitchell, 39 N.Y.2d 173, 177-178, 383 N.Y.S.2d 246, 347 N.E.2d 607, cert. denied 426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191, to the facts of this case, it is readily apparent that the first search of the apartment, without a warrant, was completely justified as an emergency (see also, People v. Doerbecker, 39 N.Y.2d 448, 384 N.Y.S.2d 400, 348 N.E.2d 875). Thus, we need not reach the issue of whether the defendant's roommate could properly consent to a search of the defendant's room.

Moreover, the question of whether the emergency continued to exist so as to justify the second search made several hours later is irrelevant in light of the fact that the second search was made pursuant to a valid search warrant. Contrary to the defendant's contentions, the application for, and the issuance of, the search warrant was proper. As a general rule, an appellate court will give deference to a judicial determination of probable cause (see, People v. Fromen, 125 A.D.2d 987, 989, 510 N.Y.S.2d 384), and "as long as the evidence creates substantial probability that the seizable property will be on the premises when searched, the warrant should be sustained" (People v. Glen, 30 N.Y.2d 252, 259, 331 N.Y.S.2d 656, 282 N.E.2d 614).

In this case, keeping in mind that a search warrant application should not be read in a hypertechnical manner and should be "considered in the clear light of everyday experience and accorded all reasonable inferences" (People v. Hanlon, 36 N.Y.2d 549, 559, 369 N.Y.S.2d 677, 330 N.E.2d 631; see also, People v. Williams, 119 A.D.2d 606, 607, 500 N.Y.S.2d 778), it is clear that the issuing justice herein did not act merely as a rubber stamp (see, People v. P.J. Video, 68 N.Y.2d 296, 307, 508 N.Y.S.2d 907, 501 N.E.2d 556, cert. denied 479 U.S. 1091, 107 S.Ct. 1301, 94 L.Ed.2d 156; People v. Potwora, 48 N.Y.2d 91, 94-95, 421 N.Y.S.2d 850, 397 N.E.2d 361). The record does not support the defendant's claim that...