People v. Benitez , 76 A.D.2d 196 ( 1980 )

OPINION OF THE COURT

Birns, J.

The actions of police officers in seizing evidence in defendant’s apartment without a warrant and without consent and thereafter questioning the defendant who was represented by counsel in a criminal proceeding requires reversal and a new trial.

At trial, the defendant was identified as one of three men who participated in a robbery of a real estáte office located on the Grand Concourse in the late afternoon of April 11, 1977. Three of the victims identified the defendant as the robber wielding a sawed-off shotgun with a black taped stock. On April 21, 1977 the police obtained entry into the apartment the defendant occupied with Ms. Richardson and in a closet found a sawed-off shotgun with a black taped stock. This weapon was admitted into evidence at trial. Also received in evidence was a statement attributed to the defendant while in police custody. The statement was made on the way back from a Bronx lineup to a Westchester County jail where the defendant was being held on another charge and there represented by counsel.

At the suppression hearing Detective Harnett testified that the defendant told him on the night the police entered his apartment "he did not jump out the window that night because he was worried about me [Harnett] catching him for this robbery, but he thought it was parole officers.” At the trial the statement was redacted to give it benign effect: "[H]e didn’t jump out the window that night because he was worried about this robbery but because he thought someone else was after him.”

The court erred in not suppressing the shotgun and the statement.

The evidence at the hearing disclosed that for three days prior to their entry into the apartment, the police knew that the defendant resided there. In fact, Detective Harnett had actually been in the apartment prior to April 21, 1977, to verify that the defendant lived there with Ms. Richardson. On April 21, at 2:30 a.m., the police, without a warrant, entered the apartment to effect defendant’s arrest. An armed officer was stationed on the roof of the building to prevent defendant’s escape through the apartment window. However, this strategy was unsuccessful, as the defendant eluded the police. In the apartment the police seized the shotgun.

Although a warrant is now required for police to enter a home to arrest for a felony, absent exigent circumstances or consent (Payton v New York, 445 US 573; Riddick v New York, 445 US 573),¹ the police entry was authorized at the time.² Nevertheless, the ensuing search of the premises and the seizure of the shotgun were required to conform to constitutional requirements (US Const, 4th and 14th Arndts; NY Const, art I, § 12) which could only be met by a warrant authorizing the search or consent by the occupant of the apartment. The District Attorney claims Ms. Richardson consented to the entry and the ensuing search of the apartment. The testimony established that Detective Harnett, accompanied by another officer, was at the apartment door with his weapon drawn. He knocked on two occasions before Ms. Richardson opened the door and he obtained entry. By this time Detective Harnett had learned by radio that someone was leaving the apartment through the window. After a fruitless search for the defendant in the apartment, Detective Harnett reholstered his weapon. The District Attorney asserts that Detective Harnett and other officers were told then by Ms. Richardson that they could have anything in the apartment belonging to the defendant. The shotgun was found in a suitcase in a closet.

Although Ms. Richardson had the right to permit the police to enter and search the apartment (People v Cosme, 48 NY2d 286; People v Wood, 31 NY2d 975), "the burden of proof rests heavily upon the People to establish the voluntariness of that waiver of a constitutional right” (People v Whitehurst, 25 NY2d 389, 391),³ that is, "that the consent was, in fact, freely and voluntarily given” (Bumper v North Carolina, 391 US 543, 548; People v Kuhn, 33 NY2d 203, 208; People v Brown, 77 AD2d 537, decided herewith).

It strains credulity to the breaking point to find, in this case, that the consent was "freely and voluntarily given.”

The circumstances of the police entry and the ensuing search are detailed in the dissent. There is no dispute that the police entered Ms. Richardson’s apartment with drawn weapons and unsuccessfully searched the rooms for the defendant. Only when satisfied that the defendant was not present were the police weapons reholstered and further questioning of Ms. Richardson continued. Then followed the search of the closet upon her "consent.”

"Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle [citing cases], 'Where there is coercion there cannot be consent’ ” (People v Gonzalez, 39 NY2d 122, 128).

We do not find that consent was not obtained simply because the police were armed when they entered the apartment in the early morning hours. There was more than the "knock on the door” at 2:30 in the morning. There was not only entry of armed police but the presence of "walkie-talkies” in the apartment and surrounding areas, the search of the rooms for the defendant, the removal of Ms. Richardson’s child from a bedroom before the police went into that room, the possibility of an imminent shoot-out within the apartment, and the questioning of Ms. Richardson as to the location of defendant’s "stuff.” In addition, there was testimony that Ms. Richardson was "excited” and was "told to calm down.”

"[T]he ineluctable inference * * * is that the consents could not be, on any creditable view of the [police officer’s] testimony, the product of a free and unconstrained choice.” The consent, if any, was more consistent with "awe” than with free choice (People v Gonzalez, supra, p 129). In these circumstances, unlike the hearing court, we find as a fact that the People failed to meet the heavy burden to show that consent was freely and voluntarily given.⁴

In addition, we cannot find, as did the hearing court, that the statement attributed to the defendant was voluntarily made.

The pertinent portion of the suppression hearing reflects that the defendant was carrying on a conversation with the detectives in the car about the robbery as he was being returned to the Westchester County jail. There were three detectives present, one of whom the defendant knew. While the District Attorney seeks to show that defendant’s statement was voluntarily made in casual conversation with the detectives, the record is unsupportive. The defendant on the journey to and from the lineup was asked about this particular robbery and other robberies. While defendant’s statement was not in response to a direct question, it was the product of subtle interrogation and as such was not spontaneous (see People v Garofolo, 46 NY2d 592, 603-604; People v Maerling, 46 NY2d 289, 301-302).

Even though edited to give it benign effect, the tenor of the statement that the defendant "didn’t jump out the window that night because he was worried about this robbery but because he thought someone else was after him” invited the jury to speculate on the kind of person the defendant would fear.

This case can be distinguished from People v Lynes (49 NY2d 286). In finding that defendant’s admission was spontaneous, the Court of Appeals noted that the defendant initiated the short conversation with an escort officer who knew nothing about the pending charges. In this case, Detective Harnett, who was investigating the defendant, took an active part in the conversation, apprising the defendant of certain facts concerning the case.

Therefore, the statement by the defendant was not a response to an incidental comment by the police. Rather, it was the result of "words or actions on the part of the police * * * that the police [knew were] reasonably likely to elicit an incriminating response from the suspect.” (See Rhode Is. v Innis, 446 US 291.)

Moreover, in People v Rogers (48 NY2d 167, 173) the Court of Appeals declared "that once a defendant is represented by an attorney, the police may not elicit from him any statements * * * Nor may they seek a waiver of this right, except in the presence of counsel * * * even when the interrogation concerns unrelated matters”. While the District Attorney urges that this decision does not bear on this statement because the hearing court reached its conclusion "in accordance with the then well-settled law of the State,” the Rogers opinion states that "[o]ur acknowledgment of an accused’s right to the presence of counsel, even when the interrogation concerns unrelated matters, represents no great quantitative change in the protection we have extended to the individual” (p 173). In the case at bar, the defendant testified that he was represented by counsel on the Westchester charges, and that he so informed Detective Harnett prior to the statement. The record supports the conclusion that Detective Harnett knew that the defendant was represented by counsel on the way to the lineup. In any event, the precise point at which this information was imparted to Detective Harnett is irrelevant (see People v Rogers, supra; People v Arthur, 22 NY2d 325).

In view of the above discussion, it is unnecessary to consider the other points raised on this appeal.

Accordingly, the judgment of the Supreme Court, Bronx County (Bell, J. and a jury), rendered May 29, 1978, convicting the defendant of three counts of robbery in the first degree and sentencing him to three concurrent terms of imprisonment from 9 to 18 years to run consecutively to any undischarged period of incarceration which defendant was subject to serve under a separate Westchester County conviction, should be reversed, on the law and the facts, the shotgun seized by the police and the statement attributed to the defendant suppressed, and a new trial ordered.

1 . These decisions declared unconstitutional CPL 140.15 (subd 4) and its predecessor section 178 of the Code of Criminal Procedure. Said sections provided, in effect, that a police officer may without a warrant enter premises to arrest a person within, in the same manner as if the officer were attempting to make an arrest pursuant to a warrant.

2 . 2. We do not hold Payton v New York and Riddick v New York to be retroactive because it cannot be said that "the major purpose of [this] new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function.” (See Ivan V. v City of New York, 407 US 203, 204, and other cases cited in People v Getch and People v Marr, 50 NY2d 456.)

3 . A number of States "use a higher standard of proof, using such phrases as 'clear and positive proof and 'clear and convincing evidence’ ” in an effort to apply a measurable standard (see Ringel, Searches & Seizures, Arrests and Confessions, 2d ed, § 9.6). In any event, the use of the word "heavily” connotes a great weight or burden (American Collegiate Dictionary), despite the amorphous quality of the word.

4 . The record does not contain any specific finding by the hearing court that Ms. Richardson consented to the search. Such finding, however, is implicit in the record because the court denied the motion to suppress. We note that on a number of occasions the hearing court deplored the failure of the police to obtain a search warrant during the three days that Detective Harnett had information as to the location of the defendant.