People v. Xochimitl

• Decision Date: 13 September 2018
• Docket Number: No. 129 SSM 17,129 SSM 17
• Citation: 32 N.Y.3d 1026,87 N.Y.S.3d 132 (Mem),112 N.E.3d 309
• Parties: The PEOPLE of the State of New York, Respondent, v. Omar XOCHIMITL, Appellant.
• Court: New York Court of Appeals Court of Appeals

32 N.Y.3d 1026
112 N.E.3d 309
87 N.Y.S.3d 132 (Mem)

The PEOPLE of the State of New York, Respondent,
v.
Omar XOCHIMITL, Appellant.

No. 129 SSM 17

Court of Appeals of New York.

September 13, 2018

Paul Skip Laisure, Appellate Advocates, New York City (Dina Zloczower of counsel), for appellant.

Eriz Gonzalez, District Attorney, Brooklyn, (Michael L. Brenner of counsel), for respondent.

Make the Road New York, Brooklyn (Amy S. Taylor and Ariel Gould of counsel), and Legal Services NYC, New York City (Christine Clarke, Veronica Cook and Edward Josephson of counsel), for Make the Road New York and another, amici curiae.

OPINION OF THE COURT

MEMORANDUM.

32 N.Y.3d 1027

The order of the Appellate Division should be affirmed. The determination as to whether police received voluntary consent to enter the apartment is a mixed question of law and fact (see People v. McFarlane, 21 N.Y.3d 1034, 1035, 972 N.Y.S.2d 530, 995 N.E.2d 845 [2013] ). "Although the voluntariness of the consent is open to dispute, our power to review affirmed findings of fact is limited. Since the finding of the trial court is supported by the record, we are precluded from upsetting it" ( People v. Morales, 42 N.Y.2d 129, 138, 397 N.Y.S.2d 587, 366 N.E.2d 248 [1977] ; see McFarlane, 21 N.Y.3d at 1035, 972 N.Y.S.2d 530, 995 N.E.2d 845 ). As our concurring colleagues acknowledge, defendant did not contend below and does not contend on this appeal that his arrest was unlawful because the police went to his home with the intent of making a warrantless arrest.

For the reasons I have previously explained in People v. Garvin, a home visit by law enforcement for the sole purpose of making a warrantless arrest which leads to the defendant's involuntary consent to the arrest, and is not justified by another exception to the warrant requirement, violates a defendant's constitutionally protected indelible right to counsel ( 30 N.Y.3d 174, 205–210, 66 N.Y.S.3d 161, 88 N.E.3d 319 [2017] [Rivera, J., dissenting]; see also id. at 210–221, 66 N.Y.S.3d 161, 88 N.E.3d 319 [Wilson, J., dissenting] [Under Federal and State Constitutions, absent exigent circumstances, officers

32 N.Y.3d 1028

planning to arrest a suspect at home must obtain a warrant] ). This case illustrates why such warrantless visits undermine our constitutional mandates.

The officers went to defendant's home intending to make an arrest based on his having been deported twice and gained entrance to the apartment from defendant's elderly mother without first confirming that she understood English and their request to be allowed into her apartment to speak with her son. The arresting officer maintained that although he did not recall the mother uttering a single word, she "consented" when she "stepped away from the door" and they walked in. Even though a Spanish-speaking officer was present, he did not interact with the mother or anyone on the other side of the closed door before the officers walked past her towards defendant. While defendant was eventually arrested outside the home, this type of police interaction is intended to avoid the warrant requirement and undermines the protections guaranteed by our State constitution (see

87 N.Y.S.3d 133

112 N.E.3d 310

Garvin, 30 N.Y.3d at 206, 66 N.Y.S.3d 161, 88 N.E.3d 319 [Rivera, J., dissenting] ["It would be the simplest of things for police to avoid the mandates of our Constitution and sidestep a defendant's indelible right to counsel by visiting a defendant solely to effectuate a house arrest without a warrant. Surely that is not what we intended when this Court recognized the broader protections afforded under our Constitution."] ). In Judge Wilson's concurrence, he sets forth the facts in greater detail and the scenarios needlessly created by approaching someone's home without a warrant but intending to make an arrest (see Wilson, J., concurring op. at 1029–1031, 87 N.Y.S.3d at 133–35, 112 N.E.3d at 310–12 ).

However, because defendant does not challenge his arrest on the ground that the police could not go to his home intending to make a warrantless arrest, the issue is not preserved. Therefore, I concur in the result because there is just barely enough record support on this mixed question of law and fact for the finding below that the police officers obtained consent to enter defendant's apartment (majority mem. at 1027, 87 N.Y.S.3d at 132, 112 N.E.3d at 309).

In People v. Garvin , we considered the validity of a warrantless arrest at a home when no exigent circumstances existed ( 30 N.Y.3d 174, 66 N.Y.S.3d 161, 88 N.E.3d 319 [2017] ). Although I concur in the judgment here for the reason given by Judge Rivera, the factual disputes in this case illustrate why, absent exigent circumstances, we should require the police to obtain a warrant when they seek to arrest a person at home, as I set forth in my dissent in Garvin ( id. at 205–10, 66 N.Y.S.3d 161, 88 N.E.3d 319 ).

32 N.Y.3d 1029

Seven police officers, some clad in bulletproof vests, arrived at Mr. Xochimitl's residence at 6:00 AM. Mr. Xochimitl resided there with his elderly mother and father, his sisters and his wife and children. The police believed Mr. Xochimitl was responsible for a homicide, but also knew he was a foreign national who had been twice deported and was not lawfully present in the United States. Thus, although the police were principally interested in Mr. Xochimitl as a homicide suspect, they intended to arrest him for illegal reentry at a minimum.

According to the officers present, they knocked on the door and announced themselves as police officers. An elderly woman opened the door. On direct examination, a detective testified that he asked the woman, in English, if the police could enter the home. In response, the woman backed away and "gestured" for them to enter. Upon cross examination, however, the detective testified that he was "not exactly sure" if the woman gestured, but was sure she backed away, which he took to be an affirmative response to his request for permission to enter the home. The detective...