People v. Terrell

• Decision Date: 15 February 1967
• Citation: 277 N.Y.S.2d 926,53 Misc.2d 32
• Parties: PEOPLE of the State of New York, Plaintiff, v. William TERRELL et al., Defendants.
• Court: New York Supreme Court

Page 926

277 N.Y.S.2d 926

53 Misc.2d 32

PEOPLE of the State of New York, Plaintiff, v. William TERRELL et al., Defendants.

Supreme Court, Trial Term, Bronx County, Part XVII.

Feb. 15, 1967.

Isidore Dollinger, Dist. Atty., James Randolph, Asst. Dist. Atty., for the People.

Edmund A. Rosner and James Siff, New York City, for William Terrell.

Harry Fractenberg, New York City, for Mary Berry, Barbara Polite.

I. Irving Braff, New York City, for Willie Crews.

Joseph Prata, New York City, for Ollie Stephens.

Joseph P. Carrozza, New York City, for Stanley Hillard.

Wallace Pruzansky, New York City, for Ruth Holman.

Roy J. Schwartz, New York City, for Vicky Hill.

Joseph Carmel, New York City, for Shirley Monroe.

Alfred Ranieri, New York City, for Vermello Stokes.

Bernard Gore, New York City, for Rosalind Jeffers.

Richard Pardes, New York City, for Irene Collins.

Harry Cohen, New York City, for Nancy James.

FRANCIS T. MURPHY, Jr., Justice:

The defendants move to suppress tangible evidence and admissions allegedly obtained from them by the police during the course of a raid made without a warrant upon residential premises located in Bronx County.

The court finds that several law enforcement officers met at a Bronx cafeteria and then proceeded to a six-story multiple dwelling located at 827 Union Avenue, Bronx, wherein the residential apartment 4G, the subject premises of this motion, is located. The entrance gate to the front courtyard was open as was the door leading to the lobby. Two officers were upstairs and positioned themselves between the fourth and fifth landing of the building. Two other officers took the elevator to the top floor and walked up a flight of stairs to the roof. The roof door was latched by a hook and eye. They opened it, went onto the roof and then went down the fire escape to the fourth floor. They were now outside the closed window of apartment 4G. No shade was on the window. It was covered instead with a piece of cloth which had an open area of three to five inches at the top. The window itself was set back about eight inches from the outside wall of the building. There were accordion type bars across the outside of the window which they touched while making their observations. The officers alternated looking through the open area at the upper left hand portion of the window. The light in the kitchen was on, and they each testified they could see glassine envelopes, white powder, rubber bands and scotch tape on the kitchen table. Three women were in the kitchen, one of whom allegedly commented that defendant Terrell suspected the girls of removing heroin from the apartment. Convinced that what they saw was an operation for the 'bagging' of heroin, they were back to the fire escape and across the roof. They opened the door leading from the roof to the hallway which they had closed behind them on entering the roof. They then went down the stairs to the fourth floor landing and told the waiting officers that the plant was in operation and to go in. With gun drawn one of the agents turned the door knob and the door opened (apparently from within). When the apartment door was opened they saw nothing to indicate any illegal activity. They proceed immediately to the bedroom in the rear of the apartment.

The defense called the superintendent of the building and his wife. The substance of their testimony was that there is a burglar alarm system in the building; that the system is activated by cracking or opening the door leading to the roof; that he and his wife were in their apartment on the evening in question and the alarm which rings in their apartment never sounded. In addition they testified that once the door leading to the roof was closed, the only exit from the roof was down the fire escape, since the roof door had no handle on the outside. Pictures demonstrating the alarm system and the door without handle were introduced in evidence. In addition, one of the defense counsel testified that he was six feet one inch tall; (the tallest of the agents who allegedly made the observation was five feet ten inches by his testimony); that he had stood on the fire escape in question and that it was not possible to have looked in the upper left hand portion of the window down into the kitchen. That standing erect his eye level was at least one foot below the indicated area of observation. Pictures of the witness on the fire escape seeking to demonstrate this were also placed in evidence.

The credible evidence supports the People's version of the activities of the police on April 5, 1966, notwithstanding the physical evidence produced by defendants which indicates the police officers were indeed understanding in testifying to their agility.

The defendants contend that the contraband seized and admissions obtained resulted from an illegal trespass within the curtilage of a residential apartment which made the resulting search, seizure and ultimate arrests violative of their constitutional rights as provided for in the Fourth Amendment of the Constitution of the United States. It is further argued that the police, in obtaining the alleged admissions, failed to comply with the mandatory constitutional warnings as set forth by the United States Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

The gravamen of the People's argument is that there was no physical encroachment into a constitutionally protected area; that the police had probable cause to make the arrest and incidental search without a warrant. The People, in their brief, make clear that the basis of the probable cause upon which the search and resulting arrest were predicated was obtained by the officers' observations from the fire escape into the kitchen window. With respect to the alleged admissions and written statement, the People urge that there was no custodial interrogation of the defendants within the intendment of the Miranda case, and that the statements were made voluntarily.

The first question to be determined then is whether or not an observation made surreptitiously from a fire escape into a residential apartment is a trespass into a constitutionally protected area within the intendment of the Fourth Amendment of the United States Constitution. Said Amendment reads as follows:

'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

Curtilage has a well defined legal meaning.

'In its most comprehensive and proper legal signification it includes all that space of ground and buildings thereon which is usually enclosed within the general fence, immediately surrounding a principal messuage, outbuildings, and yard, closely adjoining to a dwelling house.' (25 C.J.S. p. 82).

In support of their argument that no trespass has taken place, the People rely heavily on the case of People v. Sperber, 40 Misc.2d 13, 242 N.Y.S.2d 652, affirmed 15 N.Y.2d 566, 254 N.Y.S.2d 538, 203 N.E.2d 219. In that case, personal investigation and surveillance by a police officer suggested illegal gambling activities in a candy store. The police officer placed a ladder on the roof of a building about two feet away from the structure in which the store was located. The base of the ladder was on the roof of the adjacent building, and the top of it leaned against the outer wall of the store. From his position on the ladder the policeman was able to hear and observe sufficient evidence relative to gambling. He then entered the store and made the arrest and incidental search.

By a 4--3 decision, defendants' argument that the observations were made pursuant to a trespass and unlawful entry was rejected by the court, which affirmed the lower court decision. Examination of the lower court decision (40 Misc.2d 13, 242 N.Y.S.2d 652, supra) reveals, however, that the decision was predicated upon facts dissimilar to the case at bar.

The court notes first, that in the instant case, unlike the Sperber case, supra, the record is barren as to any prior surveillance, or investigation by the police which would have compelled them to continue their observations in a surreptitious manner as from the fire escape. There is nothing in the record which suggests anything suspicious about the subject apartment or its occupants until the observations were allegedly made on the fire escape. The fire escape and window in question were part of residential premises. This is unlike the business space with which Sperber is concerned. Second, in the Sperber case the policeman was standing in an area concededly not part of the building grounds into which his observations were made. He was thus outside the curtilage of the subject premises and that area was not entitled to the protection of the Fourth Amendment. However, the fire escape from which the instant observations were made is appurtenant to the building and clearly within the grounds belonging to the building in which the apartment is located.

Third, in the Sperber case it was held that there was no physical intrusion sufficient to create a trespass, since the ladder merely rested against the wall. In the instant case, the uncontroverted evidence is that without reason, uninvited, and without a warrant, they entered the building, went up the elevator and unlatched a hook and eye which had closed the door separating the hallway from the roof. They then went across the roof, down the fire escape and looked into the window which was set back about eight inches inside the building wall; and that they touched the window bars directly in front of the window while doing so. Thus, the court finds Sperber inapposite to the case at bar.

The People next urge that when a residential apartment is used for...