Opinion
No. 083429.
2010-09-10
The PEOPLE of the State of New York v. Trent J. Russell Frantz VOLMAR, Defendant.
Richard J. McNally, Rensselaer County District Attorney, (Shane Hug, Esq., of Counsel), Attorney for the People. Kindlon Shanks & Associates, (Lee Kindlon, Esq., of Counsel), Attorney for the Defendant.
Richard J. McNally, Rensselaer County District Attorney, (Shane Hug, Esq., of Counsel), Attorney for the People. Kindlon Shanks & Associates, (Lee Kindlon, Esq., of Counsel), Attorney for the Defendant.
CHRISTOPHER T. MAIER, J.
Defendants in the above captioned matter have moved the Court to suppress marijuana that was seized from their apartment. A two part suppression hearing was begun on November 19, 2009 and concluded on April 16, 2010. The Court received the parties' Memorandum of Law via facsimile on July 12, 2010
in support of their respective positions. The Court finds from the credible testimony elicited at the hearing the following facts.
Transcripts were ordered following the hearing on November 19, 2009. Due to the relocation of the original transcriptionist, there was a delay in receiving both transcripts.
On September 29, 2008, the Street Crimes Unit (hereinafter SCU) from the City of Troy Police Department were conducting warrant checks in an attempt to locate wanted individuals. Officer Chad Klein testified that it was a slow, rainy day and “we decided that we would go grab a bunch of jackets out of the desk and just go house to house to see what we would come up (sic).”
At a point that day, members from the SCU attempted to execute a warrant for an unnamed individual who lived on the second floor of 507 Second Street in the City of Troy. The building in question was described as a two unit apartment building with a common entrance so as to appear from the street as a single family home. The front door opened into a common area leading the doorway to the first floor apartment and the stairway to the second floor apartment.
According to Officer John Keeler, he and fellow Officer Chad Klein knocked on the “plain steel” front door of the residence at 507 Second Street. Sergeant Hayden and Officer Brian Gross went to the rear of the building. Defendant Russell answered the front door. Officers Keeler and Klein entered the building into the aforesaid common area which was described as a foyer. There was no testimony that consent to enter was sought from, or given by, Defendant Russell. According to Officers Klein and Keeler, they entered the building once Defendant Russell answered the door, inquired about the Defendant's identity and asked about the subject of the warrant (hereinafter referred to as the “target”). As to the warrant itself, the police witnesses were unable to provide the name of the target and it was never offered into evidence at the hearing. There was no testimony concerning how long the warrant had been pending or that the police possessed a photograph of the target on that date. In fact, the very nature of the warrant remains in question because Officer John Keeler testified that it was an arrest warrant and Sergeant Robert Hayden testified that is was a bench warrant.
Upon entry, Officer Klein went to the second floor apartment to look for the target. Officer Keeler remained on the first floor with Defendant Russell. Officer Keeler testified that he could smell a “strong odor of marijuana coming from the first floor apartment” and that Defendant Russell admitted to smoking marijuana.
Officer Klein's attempt to locate the target of the warrant on the second floor was unsuccessful and as he descended the stairs he observed through the open door of the first floor apartment what he believed to be marijuana on a coffee table in the living room. He walked toward the apartment doorway and looked in to verify his sighting. At that point, the police moved to secure the apartment by first calling out for individuals in the apartment. Defendants Russell and Volmar, and third individual, were, in the words of the police, “detained” on the couch in the apartment. A cursory search was conducted for the stated purpose of insuring police officer safety. During that search, Sergeant Hayden saw what he believed to be additional marijuana in another room. Based upon the police observations a search warrant was obtained. As a result of the execution of the search warrant Defendants were arrested for Criminal Possession of Marihuana in the Third degree in violation of Section 221.25 of the Penal Law of the State of New York.
Defendants now argue that the police illegally entered their first floor apartment and the contraband seized should be suppressed.
CONCLUSION OF LAW
A warrantless search of an individual's home is presumed unconstitutional ( People v. Payton, 445 U.S. 573 [1980];People v. Hodge, 44 N.Y.2d 553 [1978] ). The police may enter the home of an individual who is the subject of an arrest warrant when they reasonably believe that the defendant is present (CPL x 120.80[4] ), but it is incumbent upon the them to demonstrate a “reasonable belief the defendant is present within” (Preiser, Practice Commentaries, McKinney's Con Laws of NY, Book 11A; see also People v. Payton, 445 U.S. at 603;People v. Gerecke, 34 A.D.3d 1260, 823 N.Y.S.2d 797 [4th Dept 2006] ).
Courts will review the type of efforts the police make to ascertain whether an individual named in an arrest warrant resides at the address in the warrant and whether he is actually present when deciding if the search was reasonable under the circumstances. What is required is “some modicum of concrete, believable information of recent vintage, pointing to the suspect's presence at the time his home is searched” (People v. Cabral, 147 Misc.2d 1000, 1007, 560 N.Y.S.2d 71 [Sup Ct, Kings County 1990]; see People v. Brown, 56 A.D.2d 543, 391 N.Y.S.2d 589 [1st Dept 1977]; see also People v. Smith, NYLJ, Aug. 12, 2005, at 19, col 1)(finding efforts by police to verify current residency of defendant insufficient when Department of Motor Vehicle (DMV) records, postal service records or verification by neighbors was not conducted); People v. Baez, NYLJ, Mar. 13, 1997, at 28, col. 6 (finding anonymous tip which formed bases of warrant check for address not sufficient indicia that wanted person remained at that address); People v. Fernandez, NYLJ, Aug. 31, 1990, at 19, col. 2 (finding no independent investigation conducted to verify that defendant remained at the address).
Here, the Court finds credible police testimony that the SCU were attempting to execute some sort of warrant at 507 Second Street in the City of Troy. However, the People did not elicit testimony from the police witnesses to show that it was reasonable to believe that the unknown target resided at that address or that the target was present at the time of the execution of the warrant. There was no testimony regarding the age of the warrant, what, if any, database searches occurred to verify that the target still remained at that address, such as a check of the postal service, DMV or utility company.
In fact the candid and credible testimony of Officer Klein that the police had decided “to grab a bunch of jackets out of the desk and just go house to house to see what we would come up” (sic), supports the opposite conclusion that no such efforts were undertaken. Consequently, the People have failed to meet their burden of establishing that the police entry into Defendants' premises on the date of the execution of the warrant was reasonable. Accordingly, the information obtained from the illegal entry into Defendants' premises cannot serve as a basis of the search warrant ( see People v. Cirrincione, 207 A.D.2d 1031, 617 N.Y.S.2d 94[4th Dept 1994] ). The Court grants Defendants' motion to suppress in all respect.
This list is not exhaustive but illustrative.
This shall constitute the Decision and Order of the Court.
So ordered.