People v. Ocasio

• Decision Date: 25 July 1980
• Parties: The PEOPLE of the State of New York v. Luis OCASIO, Defendant.
• Court: New York County Court

Page 971

430 N.Y.S.2d 971

106 Misc.2d 138

The PEOPLE of the State of New York v. Luis OCASIO, Defendant.

Monroe County Court.

July 25, 1980.

Lawrence T. Kurlander, Dist. Atty. for the County of Monroe; Asst. Dist. Atty. Melchor Castro, of counsel.

Lawrence J. Andolina, Rochester, for defendant.

DECISION

DONALD J. MARK, Judge.

The defendant is charged with Burglary 3rd Degree and Grand Larceny 3rd Degree. He has made an application pursuant to Criminal Procedure Law, Section 710.20(1), to suppress evidence upon the ground that it was illegally seized, and Section 710.20(5), to suppress identification testimony upon the ground it was the result of an illegal photographic array.

The issue of the alleged illegal search will be considered first.

On January 18, 1980, at 6:30 A.M., the Rochester police forcibly entered premises at 41 Evergreen Street, Rochester, New York, to execute a bench warrant for Julio Santiago. The house was rented by Nancy Torrez. Peter Torrez, Ms. Torrez' brother, had previously informed the police that Mr. Santiago resided at that address, that the defendant stayed there at times, that both had been involved in burglaries at which guns were stolen, that some guns were stored on the premises and that two women and one child also resided there.

Inv. Leo Maring of the New York State Police had investigated a burglary in which the defendant was the suspect. Inv. Maring accompanied the Rochester police for the avowed purpose of arresting the defendant if he were there. No arrest warrant was sought for the defendant's arrest. Upon gaining entry the Rochester police apprehended Mr. Santiago, Mr. Torrez and the defendant. The police were then instructed to search for weapons, and Inv. Maring visually inspected the open closet in the room where the defendant was arrested. He observed property which had been described to him as that stolen at the time of the burglary, and this formed the basis for the subsequent issuance of a search warrant.

At the time of his arrest the defendant was on parole status. The defendant was obliged to advise his parole officer of his address and of any change. On November 19, 1979 the defendant told his parole officer he was moving from the YMCA to 41 Evergreen Street, but on December 10, 1979 he notified his parole officer his address was 3349 West Ridge Road, Greece, New York. The defendant listed this same address in an office report to his parole officer on January 17, 1980. When arrested the defendant gave his address as 41 Evergreen Street. The defendant testified he had lived at that address since December 22, 1979, and that 3349 West Ridge Road had been a temporary address.

Relying upon Payton v. New York, --- U.S. ----, 100 S.Ct. 1371, 63 L.Ed.2d 639, decided by the U. S. Supreme Court on April 15, 1980, the defendant claims that his warrantless non-exigent arrest at his "home" was unconstitutional, and that the search warrant issued thereafter was based upon property observed as a result of such illegal arrest. The People contradict the defendant's claim that he was arrested at his "home." They further allege that the police were lawfully at the premises to arrest Mr. Santiago with a bench warrant, so the defendant for whom there was probable cause to arrest could be arrested without a warrant. They then argue that a legitimate search for weapons resulted in the observation which ultimately produced the search warrant.

There is no dispute that 41 Evergreen Street was rented by Nancy Torrez, and that Julio Santiago resided there. There is likewise no dispute that the police had probable cause to arrest the defendant for a felony. It is found that the defendant's residence was 3349 West Ridge Road, but that he resided at 41 Evergreen Street on a temporary basis.

Initially, it should be noted that based upon prior decisions of the U. S. Supreme Court (e. g., United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374; William v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388), and the Court of Appeals (e. g., People v. Morales, 37 N.Y.2d 262, 372 N.Y.S.2d 25, 333 N.E.2d 339; People v. Buia, 34 N.Y.2d 529, 354 N.Y.S.2d 98, 309 N.E.2d 869), two trial courts have refused to give retroactive application to Payton v. New York, supra (People v. Beckford, 102 Misc.2d 963, 427 N.Y.S.2d 908; People v. Coles, N.Y.L.J., 5/16/80, p. 12, col. 1). However, a consideration of this point is not essential to this opinion.

The defendant makes the claim that he was arrested in his "home," and therefore Payton v. New York, supra, necessitated a warrant for his arrest. This issue of residence was resolved against him. The defendant further claims with some logic that even if he were a temporary resident at Ms. Torrez' home, Payton v. New York, supra, required a search warrant to enable the police to forcibly enter the latter's home to arrest him. Some courts have required only an arrest warrant prior to entry to arrest in a third person's home (United States v. Harper, 10 Cir., 550 F.2d 610, cert. den. 434 U.S. 837, 98 S.Ct. 128, 54 L.Ed.2d 99; United States v. James, 5 Cir., 528 F.2d 999, cert. den. 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326; United States v. Brown, D.C.Cir., 467 F.2d 419), while other courts have held that the police can enter a third party's home to arrest a suspect if they have an arrest warrant and also have probable cause that the suspect is within (United States v. Cravero, 5 Cir., 545 F.2d 406, en banc, cert. den. 429 U.S. 1100, 97 S.Ct. 1123, 51 L.Ed.2d 549; Rice v. Wolff, 8 Cir., 513 F.2d 1280, rev'd on other grds. sub nom. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067; Lankford v. Gelston, 4 Cir., 364 F.2d 197, en banc), but there is authority that the Fourth Amendment requires a search warrant to enter a third party's home (Virgin Islands v. Gereau, 3 Cir., 502 F.2d 914, cert. den. 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839; Fisher v. Volz, 3 Cir., 496 F.2d 333; Huotari v. Vanderport, D.C., 380 F.Supp. 645 (dictum)).

The reasoning behind the requirement that a search warrant rather than an arrest warrant is necessary to arrest a suspect on premises occupied by a third party is that the former would protect both the suspect's interest in his freedom and the third party's interest in the privacy of his premises (1978 U.Ill.L.F. 673, 676). While this question is left unanswered by Payton v. New York, supra, this language by the Supreme Court may be indicative: "Nor do these cases raise any question concerning the authority of the police, without either a search or arrest warrant, to enter a third party's home to arrest a suspect" (emphasis added).

However, the validity of the search in this case does not depend upon the police compliance with Payton v. New York, supra, in effecting the arrest of the defendant; rather it depends upon the police compliance with that decision in effecting the arrest of Mr. Santiago.

Although Ms. Torrez rented 41 Evergreen Street, there was no evidence that Mr. Santiago was other than a permanent resident there. So, the police executed the bench warrant at Mr. Santiago's "home." A bench warrant is tantamount to an arrest warrant. The definition of arrest warrant (CPL, Sec. 1.20(28) ) is quite similar to the definition of bench warrant (CPL, Sec. 1.20(30) ). The purpose of an arrest warrant is to bring the defendant before the court (People v. Nieke, 53 Misc.2d 872, 280 N.Y.S.2d 187, rev. on other grds. 56 Misc.2d 363, 289 N.Y.S.2d 448); a bench warrant is obviously designated to accomplish the same purpose. A warrant of arrest must be based on probable cause (Butts v. Justices of Court of Special Session, 65 Misc.2d 536, 318 N.Y.S.2d 245), just as a bench warrant gives the police probable cause to arrest (People v. Gaudio, 95 Misc.2d 47, 407 N.Y.S.2d 130).

The opinion in Payton v. New York, supra, stated that an arrest warrant "implicitly carries with it" the authority to enter a suspect's dwelling "when there is reason to believe the suspect is within." In fact, United States v. Reed, 2 Cir., 572 F.2d 412, decided before and cited with approval in Payton v. New York, supra, held that the police were required to secure an arrest warrant with a magistrate's further determination that the suspect was in his home in such a situation (see, also, United States v. Cravero, supra; Rice v. Wolff, supra; Stone v. Powell, supra; Lankford v. Gelston, supra). So the police here must apparently be able to show that they had reason to believe that Mr. Santiago was on the premises at the time they executed the bench warrant. If this be a requirement of this new constitutional pronouncement, there was compliance in this case via the information the police received from Mr. Torrez as to Mr. Santiago's residence at 41 Evergreen Street and the fact that the police entered at 6:30 A.M., a time when it would be expected the suspect was sleeping.

Thus, Mr. Santiago was validly arrested on the bench warrant and the requirement of Payton v. New York, supra, was satisfied by the same.

The defendant complains that the forcible entry into the premises without notice to effect the arrest of Mr. Santiago was illegal. However, the police had received reliable information from Mr. Torrez, a resident of the premises, that stolen guns were stored on the premises and that women and children resided therein. The police could reasonably have concluded that the lives of the police officers and the women and children were endangered because of the presence of the weapons, and under those circumstances both case law and statutory law justified this manner of entry (Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; United States v. Scott, 9 Cir., 520 F.2d 697; People v. Floyd, 26 N.Y.2d 558, 312 N.Y.S.2d 193, 260 N.E.2d 815; People v. Graham, 69 A.D.2d 544, 419 N.Y.S.2d 290; People v. Wojciechowski, 31 A.D.2d 658, 296 N.Y.S.2d 524; CPL, Sec. 120.80(4)(b) ).

This aspect of the arrest of Mr....