Opinion
43564.
Decided December 7, 2009.
JEFFERSON COUNTY DISTRICT ATTORNEY'S OFFICE, FRANK A. SEMINERIO, ESQ., ASSISTANT DISTRICT ATTORNEY, ON BEHALF OF THE PEOPLE.
JEFFERSON COUNTY PUBLIC DEFENDER'S OFFICE, SHELIA M. CROWLEY, ESQ., ASSISTANT PUBLIC DEFENDER, ON BEHALF OF JASON HECTOR SALDANA.
Defendant Jason Saldana moves the Court, inter alia, to dismiss the instrument accusing him of unlicensed cannabis cultivation (PHL § 3382) because police unconstitutionally procured the evidence supporting it. The Court agrees with him and therefore grants his Motion.
FACTS
Facts are derived from Watertown Police Department Incident Report WP-04902-09 (September 2, 2009) (Report), to which the stipulated on the Record November 20, 2009. All quoted statements also derive from the Report unless otherwise noted.
Defendant Jason Saldana's residence at 659 Bronson St., Watertown, caught fire in the early evening of August 30, 2009, prompting the Watertown Fire Department to come and extinguish the fire. Also responding to the scene (at 6:55 p.m.) was Watertown Police Department Officer Frederick March, who warrantlessly searched the premises after the fire was out: "I was dispatched to a structure fire located at 659 Bronson St. After the fire was put out I was advised by City Fire that there was something I should see in the attic. I was advised that it look [sic] like they were growing something in the attic, which was a bedroom. I was brought to the third floor, where the fire was located." Upon searching the attic Officer March discovered in plain view a marijuana grow accommodating roughly (by Mr. Saldana's count) 15 marijuana plants.
Officer March then questioned Mr. Saldana about the discovery, and, after initially claiming he was growing pumpkins and vegetables, Mr. Saldana confessed to cultivating marijuana for personal use, adding that "this was the first time he has ever grown marijuana but stat[ing] it was growing good." Mr. Saldana then prepared a Supporting Deposition (around 8:30 p.m.) admitting marijuana cultivation and giving the police permission to search he house and collect the marijuana. Supporting Deposition of Jason Saldana (August 30, 2009) (attached to Report). Another officer arrived, photographed the scene and collected multiple marijuana plants for evidence.
Defendant contests the constitutionality of his confession in his Motion; however, the Court needn't consider that issue because it is granting the Motion on other grounds. Defendant's Notice of Motion.
Officer March departed but was recalled by the Fire Department after fire fighters discovered a bong in the attic that had been badly damaged by fire, so much so that Officer March elected not to collect it for evidence. He asked Mr. Saldana about it and Mr. Saldana admitted it was used for smoking marijuana. Mr. Saldana then gave Officer March permission to search his garage, which he did, finding nothing.
Two days later, Watertown Police Department Sergeant arrested Mr. Saldana for marijuana cultivation and issued him an appearance ticket. Defense filed the Notice of Motion premising this decision on October 9, 2009, arguing, inter alia, that this matter should be dismissed because police obtained the evidence against Mr. Saldana illegally. The People filed an Affirmation in Opposition to Defendant's Motion on October 15, 2009 (Opposition), stating that the search was lawful under either the emergency or inevitable discovery exceptions to federal and state warrant requirements.
DISCUSSION
At issue is the propriety of Officer March's warrantless search of Mr. Saldana's home. Such determination requires consideration of the Fourth Amendment to the U.S. Constitution and, to a lesser extent, Article I, § 12 of New York's Constitution and the emergency exceptions thereto, as well as the inevitable discovery doctrine.
I.
The Fourth Amendment to the U.S. Constitution and Article I, § 12 of New York's Constitution generally forbid warrantless searches and seizures of persons or places. U.S. Const. Amend. IV; NY Const., Art. I, § 12. Moreover, the home enjoys greater protection than other places against warrantless searches. See People v. Liggins , 64 AD3d 1213 , 1214, leave to appeal granted, 13 NY3d 751 (2009) ( quoting People v. Knapp, 52 NY2d 689, 694; citing U.S. Const. Amends. IV, XIV; N.Y. Const. Art. I, Sec. 12); People v. Guins, 569 NYS2d 541, 542, appeal denied, 78 NY2d 1076 (1991) ( citing Payton v. New York, 445 U.S. 573, 585 (1980); Knapp at 694)). Cf. Michigan v. Clifford, 464 U.S. 287, 298 (1984) (plurality opinion) ("An administrative search into the cause of a recent fire does not give fire officials license to roam freely through the fire victim's private residence.").
Courts have created various exceptions to the warrant requirement over time, including the emergency exception, which arises when public safety concerns eclipse those of privacy. Two conceptually intersecting lines of emergency exception cases inform the inquiry here. See People v. Calhoun, 49 NY2d 398, 403-405 (1980). The first stems from Michigan v. Tyler, 436 U.S. 499, 511 (1978), which provides that "officials" may warrantlessly enter a building to extinguish the fire and "may remain there for a reasonable time to investigate the cause of the blaze." Id. at 511. The other derives from People v. Mitchell, 39 NY2d 173, 177-78, cert. denied, 426 U.S. 953, abrogated by Brigham City v. Stuart, 547 U.S. 398, 402-405 (2006), which permits police warrantless searches in the following circumstances:
See footnote 5, infra.
(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
(2) The search must not be primarily motivated by intent to arrest and seize evidence.
(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.
It should be noted that both Tyler and Mitchell deal exclusively with Fourth Amendment issues and do not mention New York constitutional protections invoked by Calhoun. See Tyler; Mitchell at 179-180; Calhoun at 401.
The search here avoids emergency doctrine protections for two reasons. First, no emergency existed. Officer March entered Mr. Saldana's home "[a]fter the fire was put out." See Guins at 552-553; People v. Christianson, 896 NYS2d 723, 724 (NY App. Div. 2008). In Guins, a fire investigator conducting a post-fire arson investigation in defendant's home discovered a security box he suspected contained contraband and summoned the police, who in turn seized the box and found it contained cocaine. Id. at 550-551. The court rejected the notion that an emergency (property protection) necessitated the box's removal:
The emergency exception to the warrant requirement sanctions warrantless searches and seizures only in limited circumstances presenting an immediate danger to life or property . . . This exception must be narrowly construed because it is susceptible of abuse and may be used to validate an otherwise unlawful arrest or seizure . . . Thus, "there is a strong factual inference that an entry which results in an arrest or seizure of evidence was for the purpose of effecting an arrest or seizure" and "[t]hat inference should prevail unless the police establish a different purpose justified by objective evidence of a privileged basis for making the entry" . . . There is no such evidence in this case . . . The conduct of the police and fire officials at defendant's apartment was constitutionally circumscribed by the exigency of the fire. Although the protection of valuable property of a fire victim from vandals and looters is a legitimate governmental interest . . . the legitimacy of the interest does not undercut the necessity for a warrant to safeguard the substantial privacy interests implicated by entry into defendant's home by the police."
Id. at 552-553 ( citing Calhoun at 403; People v. Gallmon, 19 NY2d 389, 394, 395 (1967); South Dakota v. Opperman, 428 U.S. 364, 369 (1976); Mincey v. Arizona, 437 U.S. 385, 393-394 (1987); United States v. Parr, 716 F.2d 796, 812 (11th Cir. 1983)) (internal citations omitted).
Similarly, in Christianson, a fire chief conducting a post-fire search of defendant's residence invited a sheriff's deputy to the scene to render a second opinion regarding other safety concerns unrelated to the fire's cause, including a locked interior door. Christianson at 1386-1387. After entering the home, the deputy noticed marijuana on a coffee table and immediately demanded that defendant, who was present, allow him into the area behind the locked door. Id. Defendant complied and the deputy found a marijuana grow behind the door. Id. at 1387. The court refused deputy emergency exception protection, reasoning that, "[a]t the time the Sheriff's Deputy arrived at defendant's home, the fire officials had extinguished the blaze, ventilated the home, and determined the origin of the fire" and that the other safety concerns "did not pose an immediate threat to defendant and thus do not fall within the purview of the emergency exception to the warrant requirement." Id. ( citing People v. Molnar, 98 NY2d 328, 332 (2002); Mitchell at 177-178).
The Christianson court does not explicitly consider the propriety of extending Tyler protections to police (as opposed to fire personnel). Moreover, given its holding, it cannot be said to have done so. Aside from Crawford, this Court has not discovered any New York case that has explicitly extended Tyler to cover post-fire police searches as other jurisdictions have done ( see generally 31 A.L.R. 4th 194, "Admissibility, in criminal case, of evidence discovered by warrantless search in connection with fire investigation — post-Tyler cases", § 5) and even there emergency circumstances arguably still obtained.
Second, Officer March's apparent intent was to investigate a crime, not to provide emergency services. He entered the residence after the fire was out and because "I was advised by City Fire that there was something I should see in the attic. I was advised that it look [sic] like they were growing something in the attic, which was a bedroom." This was fairly clearly a request to investigate a possible crime, not to render aid, and it came after the danger had abated. See Guins at 552-553 ( citing Mitchell at 177-179) ("Since the warrantless search and seizure of the security box and glassine envelopes were motivated by [police Sergeant] Uhlig's intent to seize evidence of a crime, it cannot be justified by the emergency exception to the warrant requirement."); People v. Crawford, 298 AD2d 850, 851 (App. Div. 2002). See also Calhoun at 405 ( citing Mitchell at 177; Tyler at 504, n. 4; People v. Dajnowicz, 43 Mich. App. 465, 474-475 (Mich. Ct. App. 1972) ("Thus, had there been a finding that the visit to the premises was motivated instead primarily by an intent to gather support for an arson prosecution, the warrantless intrusion might well have exceeded the bounds of the emergency exception and trespassed on the constitutional guarantee.").
Motive remains critical to the analysis notwithstanding the Supreme Court's recent holding otherwise in Brigham City v. Stuart, which rejected subjective intent inquiries for determining the propriety of warrantless police emergency actions in favor of an overall reasonableness test. Brigham City at 405 ("It therefore does not matter here-even if their subjective motives could be so neatly unraveled-whether the officers entered the kitchen to arrest respondents and gather evidence against them or to assist the injured and prevent further violence."). The Court of Appeals has not yet decided whether to adopt Brigham City's holding or to retain Mitchell's stricter standard. See People v. Dallas , 8 NY3d 890 , 890 (2007) ("We have no occasion to consider whether our holding in Mitchell should be modified in light of the Supreme Court's decision in [Brigham City]."); moreover, the Appellate Division, Fourth Department has chosen to retain the stricter standard in the meantime. See People v. Edwards , 65 AD3d 829 , 831-832 (App. Div. 2009) (Invalidating cocaine possession conviction because arresting officers' improper motive in prolonging traffic stop leading to discovery of drugs); People v. Stevens , 57 AD3d 1515 , 1516 (App. Div. 2008) ( quoting Mitchell at 177; citing Dallas) (Upholding warrantless search under emergency doctrine and noting "nor can it be said that the search was primarily motivated by intent to arrest and seize evidence.'").
Crawford is particularly instructive here. There, firefighters combating a blaze in an apartment building broke into defendant's apartment to check if the fire had spread to it after no one answered their attempts to summon the occupants by knocking at the door. Crawford at 618. A police officer on scene, after learning that the firefighters had broken into the apartment, watched from the doorway as they ventilated smoke from it. Id. The officer then entered the apartment to determine whether or not any property damage had occurred and then observed what appeared to be bags of crack cocaine lying in plain view on a pantry shelf (which the officer had seen from the doorway but couldn't identify). Id. at 618-619. The court, in upholding the officer's search of the apartment and seizure of the cocaine, emphasized the good faith nature of the officer's conduct:
Here, the firefighters observed the items [contraband] on the pantry shelf shortly before the police arrived, but, unlike in Guins, did not inform the police that those items were present in the apartment. Thus, the People established that the police officer did not enter the apartment to effect a seizure of the items observed in plain view on the shelf . . . but, rather, entered the apartment based upon her reasonable belief that the fire in the apartment below might have caused property damage.
Id. ( citing Guins, 165 AD2d 549, 552-553; People v. Brown, 96 NY2d 80, 89 (2001); People v. Longboat, 278 AD2d 836, leave to appeal denied, 96 NY2d 802 (2001) (internal citations omitted).
II.
The People also argue that, even if Officer March's search wasn't properly sanctioned, the marijuana plants should be admitted pursuant to the inevitable discovery doctrine. That doctrine provides that evidence otherwise subject to the exclusionary rule may be admitted at trial against the defendant if the People can prove that police would have discovered it in the normal course of their investigation absent the illegal conduct. People v. Turriago, 90 NY2d 77, 85 (1997) ( quoting People v. Fitzpatrick, 32 NY2d 499, cert. denied 414 U.S. 1033 (1973)). To prevail, the People "must demonstrate to a very high degree of probability' that normal police procedures would have uncovered the challenged evidence independently of [a] tainted source.'" Id. at 86 ( quoting People v. Payton, 45 NY2d 300, 313, rev'd on other grounds, 445 U.S. 573, on remand, 51 NY2d 169 (1980)). However, even if the People meet this burden, the doctrine exempts only secondary evidence from exclusion, not that evidence won at the Constitution's expense:
In People v. Stith, 69 NY2d 313, 514 NYS2d 201, 506 NE2d 911 we held as a matter of State constitutional law (NY Const., art. I, § 12; see, People v. Stith, supra, at 316, n, 514 NYS2d 201, 506 NE2d 911) that primary evidence, i.e., the "very evidence * * * obtained during or as the immediate consequence" of the illegal conduct, would still be subject to exclusion even if it would most likely have been discovered in the course of routine police procedures ( 69 NY2d, at 318, 514 NYS2d 201, 506 NE2d 911, supra). However, we recognized that the inevitable discovery exception can validly apply to permit the use of secondary evidence, obtained as a result of information gleaned from or by other exploitation of, the tainted primary evidence (id., at 319, 514 NYS2d 201, 506 NE2d 911; see also, 5 LaFave, [Search and Seizure] op. cit., § 11.4, at 231-232 [3d ed]). Id. at 86. See also People v. James, 256 AD2d 1149, 1150 (App. Div. 1998) ( citing Stith at 317-319; People v. Walker, 198 AD2d 785 (App. Div. 1993)) (Inevitable discovery "applies only to secondary evidence and does not justify admission of the very evidence that was obtained as the immediate consequence of the illegal police conduct.").
The marijuana plants Officer March seized are clearly primary evidence of Mr. Saldana's crime and therefore inadmissible, even if, as the People assert in their Opposition, Officer March would have searched the house pursuant to official policy: "it is the policy of the Watertown Police Department following any structure fire to enter the premises, investigate the potential cause of the fire, and document the extent and location of the damage while this information is still available in case there is a subsequent arson investigation." Opposition at ¶ 5; ¶ 8. For, the People are hard pressed to demonstrate how the primary evidence in this case (the marijuana plants) would lead to discovery of secondary evidence (more marijuana plants) to support the charge, given that it appears they cleaned Mr. Saldana out on the first, illegal sweep of the house. Officer March's conduct was, unfortunately, at once too thorough and not thorough enough.
III.
Defense's Motion to dismiss is granted.
This Opinion shall serve as the Judgment and Order of the Court: