Opinion
440/08.
Decided August 6, 2008.
Following his arrest on November 17, 2007, defendant Jassan Jones, was indicted for two counts of Criminal Possession of a Controlled Substance in the Third Degree (PL § 220.16) and three counts of Criminally Using Drug Paraphernalia in the Second Degree (PL § 220.50). On July 31, 2008 a combined Mapp/Dunaway/Huntley hearing was held at which the people called one witness, Police Officer Gregory Encarnacion, shield No. 22515, who the Court finds testified credibly. The defense called Paul Jones, the defendant's uncle, whose testimony the court credits to the extent indicated in the findings of fact set forth below. Upon the testimony and evidence elicited at the hearing, as well as the oral arguments and written submissions of the parties, I make the following findings of fact and conclusions of law.
Findings of Fact
The People's Case
P.O. Encarnacion is a seven year veteran of the NYPD who has been assigned to PSA 5 his entire career. He has made over 100 narcotics related arrests and has received training with respect to the identification and packaging of narcotics and the methodology of drug sales (Tr:8-9).
On Nov. 17th 2007 he was on anti-crime patrol within the confines of the 25th Precinct. P.O. Encarnacion was in plain clothes in an unmarked vehicle. He was the driver and his partner P.O. Filette was the passenger. At about 10:00 pm they received a radio run of a "1010," meaning a call for help at 505 E 120th Street apt 1H in NY county. P.O. Encarnacion was unable to recall exactly what the dispatcher said to him (Tr:28). Upon arriving at that address the two officers knocked on the apartment door and announced "police". They heard someone approach the door from the inside but that person did not open the door. After knocking again P.O. Encarnacion went outside the building to see if he could see into the window of apartment which was on the first floor (Tr:9-11, 29).
At that point P.O. Encarnacion observed a male black in a white tee-shirt, dark pants with a slim build running away from the area of the window into the interior of the Wagner Houses. P.O. Encarnacion returned to the apt and knocked again until finally, defendant's uncle, Paul Jones opened the door (Tr:11-12,33). According to P.O .Encarnacion he told Mr. Jones of the 911 call but Mr Jones, who allowed the officers into the apartment, denied that anyone from the apartment had placed that call. At this point the officer called dispatch and had them call back the number that the 911 call had been placed from. The phone from inside the apartment rang and PO Encarnacion picked up the phone and it was in fact the dispatcher (Tr:12, 34, 35).
In addition to Mr. Jones, defendant's aunt, Evelyn Jones was also in the apartment. P.O. Encarnacion told her about the 911 call and received her verbal permission to look into the different rooms of the apartment to make sure no one was in danger (Tr:12,52). P.O. Encarnacion testified that even had he not received consent he would have gone through the apartment anyway to ensure there was no emergency (Tr:53). The officer looked through each of the four bedrooms to make sure no one was in any of them needing help (Tr:13).
One of those bedrooms, which the Officer came to believe was the defendant's, was furnished with a bed, a dresser, a television, a play-station and a stack of sneaker boxes. The Officer further noticed a book bag with school books in it, pictures on the wall etc, which led him to believe the room belonged to a teenager(Tr:14,16,39) Upon entering this room P.O. Encarnacion immediately noticed a scale with white residue and a box of baking soda on the dresser or hutch — as he described it (Tr: 14, 15, 38, 40, 44). As he walked further into the room P.O. Encarnacion saw an open cigar box on top of a stack of sneaker boxes near the window, with a plate, a box cutter, empty baggies, a folded calling card, a strainer and what he believed was a large rock of crack cocaine wrapped in clear plastic (Tr:14,15,38) The Officer was unable to recall if he could see the contents of the cigar box from the doorway or not (Tr: 56). All the aforementioned items were in plain view according to P.O. Encarnacion(Tr:13-14). The Officer also noticed that the window was closed in the bedroom but the window guard — a large gate, was opened (Tr:20).
P.O. Encarnacion then called his supervisor to apprise him of his discovery(Tr:170. Shortly thereafter, P.O. Filette called P.O. Encarnacion to the front of the apartment where the defendant had recently entered and, upon seeing the police, had tried to leave. Defendant had a cut on his arm and was wearing a white tee-shirt and dark jeans both of which were dirty (Tr:18). The Officer asked defendant, who was not immediately handcuffed, to remain where he was while they completed their investigation (Tr:18-19). P.O. Encarnacion then asked defendant where he had come from to which defendant replied that he had been "on the fifth floor visiting a friend." When asked for the friend's name defendant replied that they "were in the staircase." P.O. Encarnacion again asked for the friend's name and defendant merely repeated that "we were up on the 5th floor in the staircase" (Tr:19).
By this time the supervisor, Sgt. Delacruz, had arrived. P.O. Encarnacion questioned Evelyn Jones about whose room the drugs had been recovered from. She first stated that it was her room and that the scale was used to weigh her medications and that the baking soda was in there since her nephew, the defendant, sometimes "gets it and throws it around." P.O. Encarnacion told Ms. Jones that he did not believe her and one of the officers informed Ms. Jones that she could be brought to the police station despite the fact that she was in a wheelchair (Tr: 20, 47). Ultimately Ms. Jones stated that it was defendant's room (Tr:20,47,49). P.O. Encarnacion then wrote a statement in P.O. Filette's memo book which stated" I Evelyn Jones give PSA-5 permission to search Jassan's room at 505 E 120th Street, 1-H". The statement also had Officer Encarnacion's name written underneath the words "PSA-5"(Tr:23) Ms Jones signed directly under this statement after P.O. Encarnacion read it to her and allowed her to read it herself.(Tr:23, 44,53).
On Cross examination Officer Encarnacion acknowledged that he mistakenlyindicated Apt 9-H instead of 1-H on this statement but that apt 9-H was neversearched.
Thereafter, defendant was permitted to retrieve a black coat from the bed of the room where the contraband was found. P.O. Encarnacion checked the coat's pockets and found an identification card with defendant's name on it (Tr:25,40, 55). Defendant was then handcuffed and placed under arrest. The items from the bedroom were taken to PSA-5 for vouchering.
The Defense Case
The defense called defendant's uncle Paul Jones to the stand. Though the Court finds that he testified credibly with respect to certain facts the Court also finds that his testimony in certain areas was tailored to benefit the defendant and is not credible. Mr. Jones is a 61 year old unemployed male suffering from kidney disease (Tr: 62-63). He has one prior conviction for Criminal Possession of a Controlled in the Seventh Degree in 2000. He admitted that he pled guilty to that offense in order to avoid a more serious sentence but denied that he was actually guilty. He admitted that he lied under oath about his guilt (Tr:84). He resides in the Bronx but on November 17th, 2007, he was visiting his sister Evelyn Jones and his brother Ronald Jones at 505 E. 120th Street, apt 1H an apartment for which he has keys (Tr:63, 77).
Mr. Jones testified that his brother Ronald and sister Evelyn each occupy a bedroom in the apartment and are the only permanent residents of the apartment which has been in their family for 37 years (Tr:77) He testified on cross-examination that defendant, who was in the kitchen when Mr. Jones arrived that day, stops by the apartment frequently after school to check on his wheel chair bound aunt and ucle (Tr:78). Mr. Jones denied ever seeing drugs in the apartment (Tr:78). He testified incredibly that the room containing the play station was Evelyn's and that it was for the use of various nieces and nephews who came to visit. He denied knowledge of whether defendant ever left personal property in that bedroom (Tr:79).
On this day Mr. Jones, who had just come from dialysis, spent most of the day laying down in the back bedroom (Tr:66). The defendant was also in the apartment when Mr. Jones first arrived but left later that day (Tr:80).While sleeping in the backroom, Mr. Jones testified that he was awaken by Evelyn calling out his name and asking him to answer the door. Mr. Jones did so and discovered P.O. Encarnacion and P.O. Filette in the hallway (Tr:68). The officers were in plain clothes and had guns visible in their holsters. They informed Mr. Jones that they had received a 911 call of a disturbance at the premises. Mr Jones testified that he told the officers that no one had called from the apartment. The officers then responded that they nonetheless had to check and make sure everything was alright. Mr. Jones testified that he then asked if the officers had a warrant to which they replied that they did not need one but could procure one to search the whole house if necessary (Tr:69).
At this point Mr. Jones asserted that the officers then walked into the apartments without permission. They asked whether Mr. Jones was alright and who else was in the apartment to which he replied he and Evelyn (Tr:69).The police then asked Evelyn if she was okay and whether she had called 911. Evelyn denied making the call at which point the officers announced their intention to make sure everything was alright in the apartment and proceeded to go down the hall and check the bedrooms (Tr:70). Both Paul and Evelyn remained in the living room while the officers did this. Mr Jones was able to observe P.O. Encarnacion entering the various bedrooms from his vantage point in the living room. He stated that he looked into the back bedroom very briefly and then went into the room he claimed belonged to Evelyn where he remained for three to five minutes.(Tr:72,81). When the offices emerged they had a cigar box in their possession but he was unable to see its contents (Tr:83). When P.O. Encarnacion finally left that bedroom a female plainclothes officer had arrived at the apartment with whom Officer Encarnacion conferred. The female officer then went outside and entered with yet another male officer. Shortly thereafter a fifth Officer with gold bars on his uniform arrived (Tr:73).
At this point his nephew, the defendant, arrived at the apartment and was stopped at the threshold by an officer stationed in the living room. Mr. Jones, who was unable to see defendant at this point, asserted that he could hear defendant asking why he was being searched. The officer told defendant to stand against the wall (Tr:74). At some point one or more of the officers questioned Evelyn about the room where the contraband had been discovered. She stated that the room was hers. The officers then told Evelyn that "they could handcuff her and take her in." An officer, presumably PO Encarnacion, gave Evelyn a piece of paper at about his time which Evelyn signed. Paul was unable to see what the paper said but he tried to tell her not to sign it (Tr:75).
Conclusions of Law Defendant's Standing
Although the People originally contested defendant's standing with respect to the subject
premises, they now assert in their post-hearing submission that the evidence adduced at the hearing established a reasonable expectation of privacy by the defendant with respect to the bedroom which was shown to contain numerous personal possessions belonging to him. More specifically, the People now assert that the evidence established that defendant did in fact reside in the bedroom where the cocaine and paraphernalia were recovered. The People nonetheless contend that the warrantless search of 505 E 120th Street apt 1H and the seizure of contraband therein was lawful under the circumstances.
The defendant who, as set forth in People v Rodriguez ( 69 NY2d 159), bears the burden of establishing a a reasonable expectation of privacy in the premises searched argues that he has demonstrated a sufficient "indicia of connectedness" ( see, People v Rodriguez, supra at 163) to the bedroom in question since it was established that the room contained his personal property and that his Uncle, Paul Jones, testified that he comes to the apartment on a regular basis.
The Court, however, does not concur that defendant has established an expectation of privacy in the bedroom. The testimony at the hearing on this point was contradictory at best. P.O. Encarnacion testified that Evelyn Jones first stated that the room belonged to her before eventually stating it was defendant's. However, there was no testimony that Evelyn Jones ever stated that defendant lived or slept in the apartment as opposes to merely storing personal property there. Even the defendant's own witness, Mr. Jones denied that defendant resided in the apartment unequivocally asserting that only Ronald and Evelyn Jones were occupants and that defendant was merely a frequent visitor. He also denied knowledge that defendant stored property in the bedroom.
In determining who may challenge a warrant less search of a house or apartment, the Court of Appeals has unequivocally distinguished between a "casual visitor" who lacks standing and an overnight visitor who possesses it. In People v Ortiz, ( 83 NY2d 840), the Court found that a defendant who visited his daughter and girlfriend several times a week, even sleeping over occasionally but who had not slept there in the month prior to the police entry, was merely a casual visitor. In contrast, the Court defined an overnight guest as a person who has slept in the subject premises the night before the police entry or very close in time to the police entry ( see, People v Ortiz, supra; People v Delgado 204 AD2d 242 [1st Dept 1994]). Here, it was never established that defendant ever slept at the subject apartment on even one occasion.
Although not introduced at the hearing the Court notes that the intake form prepared by theCriminal Justice Agency ("CJA") for use at defendant's Criminal Court arraignmentindicates that defendant provided a completely different address as his residence and that theaddress provided was verified by a CJA representative who spoke to defendant's mother.
As a general rule a mere invitee or visitor lacks standing ( People v Mercia 170 AD2d 181 [1st Dept 1991]). This includes grandchildren who regularly visit the grandparents home and occasionally sleep over ( People v Ponder, 54 NY2d 160, 166 as well as persons who use a premise to sell or store drugs and who cannot establish another legitimate expectation of privacy People v Freeman, 220 AD2d 369 [1st Dept 1995]). Finally, a person does not acquire standing merely because he is charged with possessing drugs secreted in the apartment ( People v Casado, 199 AD2d 845 [3d dept 1993]). Applying these principles, the Court finds that defendant has failed to establish an expectation of privacy in the subject bedroom.
Defendant, citing People v Millan 69 NY2d 514,519[1987] and People v Tejada, 81 NY2d 861) further asserts that he possesses so called "automatic standing" by virtue of the People's reliance on the statutory "room presumption" as set forth in CPL 220.25 [2] and which the grand jury was instructed on in this case. This argument however is unavailing since, where as here, the People are relying upon the presumption as well as a theory of constructive possession defendant is not entitled to automatic standing ( People v Ayers, 214 AD2d 459 [1st Dept 1995]; People v Wesley, 73 NY2d 351[1989]). The Court further notes that the room presumption applies only to those individuals "in close proximity to [such] controlled substance at the time such controlled substance was found" (CPL 220.25[2]). The uncontroverted testimony at the hearing established that defendant was not even in the apartment at the time the narcotics were discovered. Accordingly, defendant has not acquired automatic standing.
Mapp/Dunaway
Even assuming arguendo, that defendant had a reasonable expectation of privacy in the premises, the Court finds that suppression is not warranted as the search of the apartment was entirely lawful in light of the exigencies presented by the 911 call and the consent of Evelyn Jones, a resident of the apartment.
At a Mapp/Dunaway hearing the burden is upon the People to present credible evidence tending to demonstrate that law enforcement acted lawfully, while the defendant has the burden of proving by a preponderance of the evidence that the seizure was unlawful ( People v Berrios, 28 NY2d 361, 367-68). Defendant contends that the warrantless search of Apt 1H was illegal as no exception to the warrant requirement existed and that therefore the property seized and his statements to police should be suppressed as the "fruits" of this illegal search.
This assertion is, simply put, at odds with the credible testimony of Officer Encarnacion who was responding to a call for help which, as he stated, "could mean anything." Under these circumstances and the fact that they observed someone running from the direction of the window he and Officer Filette were duty bound to enter the apartment even if they had been unable to procure the consent of the occupants, to make sure no one was injured or that no other emergency situation existed ( see, People v Calhoun (49 NY2d 398,403 [1980 ]; People v DePaula, 179 AD2d 424,426 [1st Dept 1992]).
Once inside the apartment Officer Encarnacion sought and received verbal consent from Evelyn Jones to look in the bedrooms to make sure everyone was alright. Consent, of course is a recognized exception to the warrant requirement. If consent is voluntary — and the People bear a heavy burden to prove it — there is no additional requirement for probable cause for a search ( People v Whitehurst 25 NY2d 389). In this case there is nothing suggesting that Evelyn Jones' consent was not voluntary. Applying some of the factors used to determine voluntariness as set forth in People v Gonzalez, ( 39 NY2d 122) it is clear that she was not in custody nor where threats or coercive tactics (notwithstanding Jones' testimony that the police told Evelyn that she could be arrested despite being in a wheel chair) utilized by the police at the time the verbal consent was given.
Paul Jones' assertion that he objected to the officers entering the apartment and asked whether he had a warrant is irrelevant as the record is clear that Evelyn Jones and not Paul Jones was a resident of the apartment. Moreover, even if Paul Jones shared authority over the premises with Evelyn he had no right to prevent a search in the face of the consent of a co-occupant with equal authority ( People v Cosme. 48 NY2d 286[1979]).
In the course of this search the officers observed, in plain view, narcotics paraphernalia including a scale and dilutant. In close proximity to those items was an open cigar box with a plastic wrapped rock of crack cocaine and a quantity of ziploc bags. Since the officers were lawfully in the room conducting their investigation when they made these observations any contraband in plain view was subject to lawful seizure ( see, e.g Horton v California, 496 US 128, 135919900.
Nor is there merit to defendant's argument that P.O. Encarnacion, by entering the bedroom, exceeded the scope of the authority to search. As stated above the items were all in plain view and there was no testimony elicited that any of the officers looked into drawers, closets or any other closed areas or containers or that Evelyn Jones ever withdrew her consent or attempted to limit the scope of it. That the officers had permission to search the bedroom in its entirety is further evinced by Evelyn Jones' written consent, admittedly procured after the fact, which permitted a search of "Jassan Jones' bedroom." For these reasons this branch of defendant's motion is denied
Huntley
Addressing the admissibility of defendant's alleged statement, in response to being asked
where he was coming from, that he was on the fifth floor at a friends and, shortly thereafter, that he was in the fifth floor staircase, the Court notes that the People bear the burden of proving, beyond a reasonable doubt, that defendant's statement was voluntary ( People v Huntley, 15 NY2d 72, 78 (1965). The hearing record is devoid of any evidence that defendant was in any way threatened or coerced to make these statements. Moreover, as this initial question posed was designed to clarify the situation and not to elicit incriminating information Miranda warnings were not required since defendant's statement was not in response to police interrogation. The defendant was not asked whether the drugs and contraband were his or any other questions designed to elicit an admission or confession. As such, defendant's subsequent statement was voluntary and not subject to suppression.(see, Miranda v Arizona, 384 US 436; People v Bennett (70 NY2d 891[1987]; People v Huffman, 41 NY2d 29; People v Chappelle, 189 AD2d 695 [1st Dept 1993]). Accordingly, defendant's motion to suppress statements and physical property seized is denied. in its entirety
This constitutes the Decision and Order of the Court.