People v. Laskaris

• Decision Date: 13 July 1981
• Citation: 82 A.D.2d 34,441 N.Y.S.2d 110
• Parties: The PEOPLE, etc., Appellant, v. George LASKARIS, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 110

441 N.Y.S.2d 110

82 A.D.2d 34

The PEOPLE, etc., Appellant, v. George LASKARIS, Respondent.

Supreme Court, Appellate Division, Second Department.

July 13, 1981.

John J. Santucci, Dist. Atty., Kew Gardens (Joan L. Craig, Asst. Dist. Atty., Kew Gardens, of counsel), for appellant.

Goldberger, Feldman, Dubin & Young, New York City (Michael Young, New York City, of counsel), for respondent.

Before HOPKINS, J. P., and LAZER, GIBBONS and GULOTTA, JJ.

LAZER, Justice.

This appeal by the People from a suppression order presents yet another example of the endless varieties of factual patterns which mandate interpretation of the Fourth Amendment. Despite the People's belated effort to justify the challenged police conduct on a theory not raised during the suppression hearing, we believe the only real issue is probable cause to arrest.

On December 20, 1977 Dino Frisone met with an undercover police officer at the latter's Queens apartment to negotiate the sale of one-eighth of an ounce of cocaine. When the negotiations concluded and while still in the apartment, Frisone, who had been given a portion of the purchase price with which to obtain the narcotics, made a telephone call, but no part of the conversation was overheard. When he left the apartment, Frisone was followed by a police 'tail' to a building in the vicinity of 75-10 Grand Central Parkway, which it was thought he entered. Shortly afterwards, Frisone returned to the officer's apartment with the drugs and received the balance of the price. A police check revealed that Frisone's call had been made to a telephone located in apartment 2A at 76-35 113th Street. Utility records revealed that one of the two names listed for the apartment was that of Gus Laskaris, the defendant.

Nine days later--on December 29, 1977--the same undercover officer again contacted Frisone, this time proposing to purchase four ounces of cocaine for $6,000. The ensuing negotiations resulted in an agreement for a further transaction; Frisone was to receive an advance on the purchase price for which he was to return with two ounces of cocaine; at that point he was to be given the balance of the price and was to depart again and return with the other two ounces. In accordance with this arrangement, Frisone went to the officer's apartment where he was given $1,000 in recorded money as the initial step in the sale. We now know that while still in the undercover's apartment, Frisone made a call to someone to the same apartment 2A at 76-35 113th Street, but this call was not overheard either. In any event, when Frisone left the officer's apartment, he was followed by a surveillance team to the 113th Street building, approximately one block from the building that police believed he had entered on December 20. He was then seen entering apartment 2A where he remained for approximately 20 minutes. ¹ During this period no one else was seen entering or leaving the apartment, nor was anyone else seen or heard inside it.

At approximately 9:00 P.M. Frisone emerged from the building--where two officers continued to maintain constant observation of apartment 2A--entered his car and drove toward Queens Boulevard where a backup police unit blocked his vehicle and placed him under arrest. An immediate search turned up approximately two ounces of cocaine on Frisone's person and two tin-foil packets of cocaine and a quantity of marijuana in the car. The recorded purchase money was not found, however, and at this point the police did not know whether Frisone had the cocaine on his person or in his car before he entered apartment 2A or whether he had obtained the drugs in the apartment.

At approximately 9:25 P.M. four of the police officers who had participated in Frisone's arrest joined the two officers who were stationed in the hallway near apartment 2A and were informed that no one had entered or left it since Frisone's departure. The supervising officer then instructed the officers to enter the apartment for the purpose of arresting Frisone's 'connection'. The officers gathered at the front of the apartment door, one of them knocked, and without any words being spoken, the door was opened by the defendant. The officers announced themselves as police, and with shields displayed--and in some cases with guns drawn--rushed in and secured defendant and a woman friend who was with him before any consent or objection could be voiced by either individual. As the last of the six officers was entering the apartment, defendant declared: 'Leave her alone She had nothing to do with it, I'll show you where the stuff is'. According to the police, the defendant was considered to be under arrest prior to making the statement. Defendant then led some of the officers to a bedroom where two or three plastic bags containing a white powder were immediately seized, after one of the officers was dispatched to obtain a warrant, the remainder of the apartment was searched, yielding various other items of evidence.

Following his indictment on a variety of drug related charges, defendant moved to suppress his statement and all physical evidence on the ground that the search of the apartment was without probable cause, consent, warrant, or other justification. The suppression hearing, however, quickly focused upon whether probable cause to arrest existed at the time of the police entry. Although defendant did not take the stand, the hearing court granted suppression, finding that the police had forcibly entered the apartment and effectuated an immediate seizure of the individuals inside without probable cause. The court concluded that defendant's statements were the direct result of unlawful police conduct and that the causal connection between the conduct and the statements had not been sufficiently attenuated so as to dissipate the taint. The items seized both before and after issuance of the search warrant also were suppressed as fruits of the initial illegality. On their appeal, the People, for the first time, raise the contention that exigent circumstances justified the warrantless entry because there was a need to make an immediate search.

It scarcely bears repetition that, in the absence of exigent circumstances, the warrantless entry of a felony suspect's home for the purpose of arresting him is unconstitutional (Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 on remand People v. Payton, 51 N.Y.2d 169, 433 N.Y.S.2d 61, 412 N.E.2d 1288; People v. Riddick, 51 N.Y.2d 764, 432 N.Y.S.2d 373, 411 N.E.2d 792, see, also, Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38, cf. Michigan v. Summers, ---- U.S. ----, 101 S.Ct. 2587, 69 L.Ed.2d 340). Nevertheless, this court has declared that the Supreme Court's ruling in Payton is not retroactive (see People v. Whitaker, 79 A.D.2d 668, 433 N.Y.S.2d 849; see, also, People v. Benitez, 76 A.D.2d 196, 430 N.Y.S.2d 287 People v. Graham, 76 A.D.2d 228, 431 N.Y.S.2d 209 because the rationale for the new constitutional doctrine is not founded upon considerations of overcoming 'an aspect of the criminal trial that substantially impairs its truth-finding function' ( Ivan V. v. City of New York, 407 U.S. 203, 204, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659; see People v. Getch, 50 N.Y.S.2d 456, 429 N.Y.S.2d 579, 407 N.E.2d 425). Consequently, the instant appeal must be decided in accordance with the initial Payton determination in the Court of Appeals (45 N.Y.2d 300, 408 N.Y.S.2d 395, 380 N.E.2d 224) and CPL 140.15, both of which sanction the warrantless arrest of a felony suspect in his home upon an unembelished showing of 'reasonable cause' to believe that the individual sought has committed a crime (CPL 140.10, subd. 1). The recited standard is the equivalent of probable cause as the term is used in the Fourth Amendment (People v. Lombardi, 18 A.D.2d 177, 239 N.Y.S.2d 161, affd. 13 N.Y.2d 1014, 245 N.Y.S.2d 595, 195 N.E.2d 306). In reviewing the police conduct involved here, we see no reason to disturb the hearing court's conclusion that a Fourth Amendment seizure was effectuated immediately upon entry into the apartment by the officers, at least some of whom had weapons drawn (cf. People v. Chestnut, 51 N.Y.2d 14, 431 N.Y.S.2d 485, 409 N.E.2d 958). The reasonableness of that action must be measured by the facts and inferences within police knowledge at the time they crossed the threshold into the apartment itself (see Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; see also, United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752).

It is fundamental to Fourth Amendment jurisprudence that probable cause is that quantum of evidence which would warrant a person of reasonable caution in believing that the suspect had committed or was committing an offense (Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327). 'In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act' (Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879). Probable cause to make an arrest requires far less proof than is required for conviction (People v. Miner, 42 N.Y.2d 937, 397 N.Y.S.2d 999, 366 N.E.2d 1353; People v. White, 16 N.Y.2d 270, 266 N.Y.S.2d 100, 213 N.E.2d 438, see Draper v. United States, supra), but it still requires more than mere suspicion (Brinegar v. United States, supra; People v. O'Neill, 11 N.Y.2d 148, 227 N.Y.S.2d 416, 182 N.E.2d 95). The reasonableness of the police action depends not on 'inchoate or unparticularized suspicion or hunch, but the specific reasonable...