People v. Molnar , 732 N.Y.S.2d 788 ( 2001 )

—Judgment affirmed. Memorandum: Supreme Court properly determined that the warrantless entry into defendant’s apartment by the police in response to a foul odor emanating from it was justified under the emergency exception to the search warrant requirement (see, People v Mitchell, 39 NY2d 173, 177-178, cert denied 426 US 953; see also, Mincey v Arizona, 437 US 385, 392-393). A tenant in the building called 911 to report a foul odor coming from the apartment below her apartment. Police officers responding to the call detected a foul odor unlike anything they had previously experienced, which necessitated the use of charcoal masks. Although the officers did not immediately recognize the odor as that of a decomposing body, their actions were consistent with the perception of an emergency. They spoke to other tenants, contacted maintenance and tried to communicate with the tenant of the subject apartment. They learned that the tenant had not been seen and that previous attempts to contact the tenant had been unsuccessful. They further learned that the odor had been pervasive throughout the apartment building for at least two days and was so foul that at least one tenant in the building had to spend the previous night elsewhere. At that point, they forcibly entered the apartment to discover the source of the odor and to render aid if necessary. They traced the odor to a closet, where a decomposing body was found.

We conclude that “the very uncertainty created by the totality of circumstances created a justification and need for the police to take immediate action” (People v McGee, 140 111 App 3d 677, 681, 489 NE2d 439, 442). People v Gallmon (19 NY2d 389, 394, rearg denied 20 NY2d 758, cert denied 390 US 911) recognized the duty of police “to resolve the causes of unusual sounds suggesting harm to persons, animals and property.” It was the duty of the police here to resolve the source of the noxious odor “suggesting harm” to the person or persons inside defendant’s apartment (People v Gallmon, supra, at 394; see, People v McGee, supra, 140 111 App 3d, at 681-682, 489 NE2d, at 442-443; see also, United States v Presler, 610 F2d 1206, 1209-1211 [4th Cir]; State v Russell, 127 Ohio App 3d 414, 419, 713 NE2d 56, 59; State v Scott, 343 NC 313, 326-329, 471 SE2d 605, 613-615; State v Epperson, 571 SW2d 260, 264 [Mo], cert denied 442 US 909; see generally, 3 LaFave, Search and Seizure § 6.6 [a] [3d ed]). Contrary to defendant’s contention, People v Pereyda (NYLJ, Sept. 24, 1993, at 22, col 6, at 23, col 1 [Sup Ct, NY County]) is distinguishable because the police in that case “received no information to encourage their suspicion of a decomposing corpse nor did they attempt to investigate that possibility.”

The police were not motivated by an intent to arrest the tenant or to seize evidence from the apartment. In addition, because the odor was emanating from the apartment, and in particular the closet where the body was found, the emergency was associated with the limited area searched. Thus, the court properly denied that part of defendant’s motion seeking suppression of the body found in the closet (see, People v Mitchell, supra, at 177-180).

Finally, we reject defendant’s contention that the verdict is against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495) and we conclude that the sentence is not unduly harsh or severe.

All concur except Green, J., who dissents and votes to reverse in the following Memorandum.