Opinion
2013-78057
06-27-2014
The People of the State of New York, v. Michael Barrett, Defendant.
ADA Brad Rudin Tompkins County District Attorney's Office 320 N. Tioga Street Ithaca, NY 14850 Seth J. Peacock, Esq. 308 N. Tioga Street Ithaca, NY 14850
ADA Brad Rudin
Tompkins County District Attorney's Office
320 N. Tioga Street
Ithaca, NY 14850
Seth J. Peacock, Esq.
308 N. Tioga Street
Ithaca, NY 14850
Scott A. Miller, J.
The Defendant, Michael Barrett, is charged with one count of Criminal Possession of a Weapon 4th degree [Penal Law §265.01(1)]. By notice of motion dated January 27, 2014, Defense counsel seeks suppression of statements on the grounds of statement was made involuntarily, and suppression of physical evidence (9 mm semi-automatic pistol, pistol magazine, and marijuana) on the grounds of unlawful search and seizure. By answer dated February 2, 2014, the People opposed the motion to suppress evidence, asserting that the papers did not contain sufficient allegations of fact to warrant a hearing.
A Combined Mapp and Huntley suppression hearing was held on April 8, 2014. The Defense filed a post-hearing memorandum on April 22, 2014. The People filed a response on April 28, 2014.
At the hearing, the People called Investigator Mike Gray. Investigator Gray testified that on October 14, 2013 at approximately 2:00 p.m., he, along with two New York State Parole officers (one being Officer Craven and the other a female parole officer), responded to 107 Fourth Street, City of Ithaca, based upon information that a "wanted parolee" Eugene Cade might be located at such residence. Tina Barrett was the tenant and sole occupant of 107 Fourth Street when Investigator Gray and the parole officers knocked on the door. Investigator Gray informed Tina Barrett that they were looking for parolee Cade and it was believed he was dating Tina Barrett's daughter, Jessica, who also lived with Tina Barrett at 107 Fourth Street. Investigator Gray and Officer Craven asked Tina Barrett if they could come in and "look around" for Eugene Cade, to which request Tina Barrett voluntarily consented. After obtaining Tina Barrett's consent, Investigator Gray and Officer Craven entered the residence and began to search for Eugene Cade around the apartment. Tina Barrett spontaneously revealed that she did not care for Eugene Cade and had told her daughter Jessica that Mr. Cade was not welcome at the residence.
Investigator Gray remained by the front of the apartment near the kitchen area with Tina Barrett while Officer Craven walked to the back of the apartment bedroom area. Officer Craven came back to Investigator Gray and stated to Investigator Gray that he observed marijuana on a brown wooden dresser and an ammunition magazine by the inside of the bedroom door area on a white dresser in one of the bedrooms. Investigator Gray returned to the bedroom with Officer Craven and observed both the ammunition magazine and marijuana in plain view.
Investigator Gray returned to Tina Barrett and explained what they had observed in the bedroom. Tina Barrett expressed her shock at this discovery of the contraband and told Investigator Gray that the bedroom where the items were located belonged to Defendant Michael Barrett, her son. Tina Barrett then phoned her son to come home immediately. Investigator Gray went outside to the sidewalk of Fourth Street, Tina Barrett followed, several other Ithaca Police Officers arrived, and shortly thereafter Defendant Michael Barrett also arrived. Investigator Gray described his conversation with Defendant Barrett as "casual," no weapons were drawn, and he was not under arrest. In fact, Defendant Barrett was not actually arrested until about two weeks later. Defendant Barrett admitted the marijuana belonged to him. However, he stated that while there was a gun in his room, it did not belong to him, as a friend had asked him to hold onto it, and it could be found in a Jordan bag which was inside an orange plastic bag. Defendant Barrett was asked to sign a consent to search form, which form Defendant did voluntarily sign, the scope of which was Defendant's bedroom. (People's Exhibit 1). Tina Barrett also voluntarily signed a consent to search form. (People's Exhibit 3).
Subsequently, Investigators Mike Gray and Kevin McKenna searched Defendant's bedroom. The gun magazine and marijuana that had been observed in plain view were photographed in place and then seized. Additionally, a 9mm semi-automatic pistol was discovered in a Jordan bag inside an orange plastic bag precisely as Defendant Barrett had indicated. (People's Exhibit 6).
Investigators Donald Barker and Kevin McKenna also testified, and while they did not contradict Investigator Gray, they both confirmed that neither were present in Tina Barrett's apartment at the time the contraband was discovered in plain view by Officer Craven. The People did not call Officer Craven to testify and his absence was unexplained. Defendant called his mother, Tina Barrett, whose testimony was almost entirely consistent with that of Investigator Gray. Tina Barrett conformed that she voluntarily consented to the search of her entire apartment when the request was made by Investigator Gray and Officer Craven.
This Court finds that the officers, searching for parolee Eugene Cade, for whom there was an active warrant, had the right to knock on Tina Barrett's door, and also had the right to ask the tenant for consent to search. Tina Barrett had the lawful right to refuse consent, but she chose not to do so. Her consent was knowing and voluntary and not the product of duress or coercion. In short, Tina Barrett's consent was freely given. Likewise, both Tina Barrett's written signed consent to search and Defendant Michael Barrett's written signed consent to search were freely and voluntarily given.
However, Tina Barrett testified that she had been in her apartment for most of the day, and Michael Barrett's bedroom door had been open. Tina Barrett testified that if the gun magazine and marijuana had truly been in open or plain view, she would have seen it. The Defendant thus raised the suggestion that Officer Craven did not in fact observe the gun magazine and marijuana in plain view, but rather conducted a search, a search which Tina Barrett had not authorized, as she had expressly limited her consent to "look around" for the human being, one Eugene Cade. This Court finds as a matter of law that a human being, even one wanted on a parole warrant, could not secret himself inside the wooden dresser and plastic dresser depicted in People's Exhibits 4 and 5.
This Court found Investigator Gray entirely credible. While this Court likewise found Tina Barrett credible, and while she may believe she would have seen the gun magazine and marijuana, because of her access to the apartment, this Court finds that it is entirely reasonable and much more plausible that Tina Barrett simply did not notice the gun magazine on the plastic dresser inside the bedroom and further that she did not notice the small plastic bag of marijuana that was even further inside Michael Barrett's bedroom.
The Defense argues that the People's failure to call Officer Craven, the officer who initially observed the contraband, is fatal to their case and warrants suppression. This Court concedes, it cannot explain why the People failed to call a key witness, the very parole officer who claims to have observed contraband in plain view. The Defendant argues that since the plain view claim has been challenged, the People have the burden to prove that the "sending" officer (i.e. Officer Craven) actually possessed this knowledge, and that the failure to call Officer Craven is fatal to the People's case and requires suppression. If this Court were to find that the People have failed to sufficiently establish that the contraband was in plain view, but rather that the items were improperly seized by Officer Craven, then the subsequent written consents provided by Tina Barrett and Michael Barrett would be void. Where "police confront a person with contraband that they have illegally found, the subsequent consent to search is fruit of the Government action" and because "the consent [ ] flowed from the Government's illegal action, it is invalid." U.S. v. Oaxaca, 233 F.3d 1154, 1158 (9th Cir. 2000). See also, U.S. Const. Amend 4.The single issue this Court must resolve is: Does the People's failure to call Parole Officer Craven, require a finding that the People did not sustain their burden of proving that the contraband was in plain view, mandating a finding that the contraband was illegally seized and consequently resulting in a determination that the signed written consents are tainted fruit of unlawful government activity?
At a suppression hearing, hearsay is admissible to prove any material fact. Officer Craven's statement as testified to by Investigator Gray was that when he looked in the bedroom Officer Craven "saw some marijuana on a stand of some sort a desktop or small dresser and *** he also observed the magazine of a gun" while not using the words "plain" or "open" view, when viewed in the totality of the circumstances, lends itself most reasonably to only one plain meaning, i.e., that Officer Craven was reporting to Investigator Gray that he had just observed a gun magazine and marijuana in plain view in Defendant's bedroom.
While this Court cautions the People not to rely upon hearsay to prove a material fact, and in this case the essential fact, of whether contraband was in plain view, appellate authority nonetheless permits this practice. It is true as the Defense argues, that there is no presumption of the sufficiency of the information conveyed to another officer. See, People v. Dodt, 61 NY2d 408 (1984). Likewise, once the Defense challenges police action in a search, the "People must demonstrate that the sending agency possessed the requisite knowledge to justify the police conduct." People v. Weddington, 192 AD2d 750, 751 (3rd Dept. 1993). However, the People may prove plain view by testimony of another officer, given sufficient proximity in the time and place to the discovering officer's first observation of the evidence. In People v. Norman, 304 AD2d 405 (1st Dept. 2003), the First Department addressed this issue and explained: Contrary to defendant's contention, the testimony of the officer who did not personally discover the drugs was sufficient in this case to meet the People's burden of going forward to prove the legality of the actions of the arresting officer, who did not testify at the hearing, but who relayed to the testifying officer the circumstances concerning his discovery of the drugs. Hearsay may be admitted at a suppression hearing to establish a material fact (CPL 710.60[4] ) and the witness was present at the scene, was aware of the events as they unfolded and provided circumstantial evidence from which the court could conclude that the drugs were discovered in open view (compare People v. Gonzalez, 80 NY2d 883,
587 N.Y.S.2d607, 600 N.E.2d 238).
In a case where the People fail to call the "direct sender" of the information (i.e., Craven), this Court will require some corroboration that the hearsay is in fact reliable when the People offer up such testimony on an essential fact. Here, Investigator Gray almost immediately returned to Defendant Michael Barrett's bedroom with Officer Craven and also observed the contraband in plain view. No witness testified to hearing Officer Craven opening drawers or containers. Investigator Gray's testimony was consistent with a brief cursory "look around" for a human being, not a full blown search for any possible incriminating evidence. Also, there is no evidence in the record that the contraband was anything but in plain view. There was no reason to discredit Investigator Gray's testimony, as was the case in US v Kiyuyung , 179 F 301 78 (2nd Cir. 1998), as argued by the Defense. The Defense simply never rebutted the People's version of events. This Court finds that Tina Barrett simply did not notice the contraband as there was no evidence she ever went into her son's room on the day in question, and the magazine and bag of marijuana, while in plain view, would not necessarily be noticeable to a lay person. But the illegal character of such items would certainly be and was immediately apparent to both Officer Craven and Investigator Gray.
This Court finds that Officer Craven observed the gun magazine and marijuana in plain view. Both Tina Barrett's and Defendant Michael Barrett's subsequent written consent to search Defendant's bedroom was voluntary and untainted, as there was no unlawful government activity. Suppression of physical evidence is Denied. Defendant Barrett was neither under arrest nor in custody when he responded to Investigator Gray's questions on the sidewalk of Fourth Street. Consequently, Defense's motion to suppress his statements is Denied
The Court hereby schedules this matter for pre-trial conference on August 11, 2014, to set a trial date.
This constitutes the Decision of the Court entered upon notice to both parties. A notice of appeal, if applicable, must be filed within thirty (30) days of the date of this decision.
DATED: June 27, 2014
________________________________________
Scott A. Miller
Ithaca City Court Judge