147 A.D.3d 793
N.Y. App. Div.2017Background
- At ~6:00 a.m. April 15, 2011, armed officers from a violent fugitive task force went to the defendant Omar Xochimitl’s family apartment to arrest him for illegal reentry; no arrest warrant for homicide and no warrant to enter the apartment were obtained.
- Detective Kelly and other officers knocked; an elderly female relative opened the door. Police testimony described her as stepping back (interpreted as consent); family testimony said officers entered after showing or saying they had a warrant.
- Officers entered, questioned the defendant in the kitchen, moved him into a hallway, and arrested him for illegal reentry; later he gave postarrest statements.
- At a suppression hearing the People relied on the elderly woman’s alleged consent to justify the warrantless entry; the defense argued the entry was nonconsensual and thus statements should be suppressed.
- The Supreme Court (Kings County) denied suppression after a hearing; a jury convicted Xochimitl of first‑degree manslaughter and he appealed raising suppression and sentencing/jury selection issues.
- The Appellate Division affirmed, holding the suppression denial proper and rejecting the other claims; Judge Barros dissented on the consent issue, finding the People failed as a matter of law to prove voluntary consent and voting to remit for reconsideration of attenuation if needed.
Issues
| Issue | People’s Argument | Xochimitl’s Argument | Held |
|---|---|---|---|
| Validity of warrantless entry / voluntariness of elderly woman’s consent | Elderly woman opened the door and stepped aside — this was voluntary consent to enter | Entry was nonconsensual: presence of many armed officers early morning, minimal/no verbal communication, language barrier, and family testimony that a warrant was demanded | Affirmed: court found hearing evidence supported voluntariness of consent; dissent would reverse on consent ground |
| Suppression of postarrest statements (attenuation) | Even if entry/arrest were questionable, postarrest statements were attenuated from any illegality | Statements flow directly from illegal entry/arrest and should be suppressed | Not reached by trial court; Appellate Division majority affirmed suppression denial on consent ground and did not resolve attenuation; dissent would remand to consider attenuation |
| Juror discharge for availability concerns | Trial court properly questioned availability and discharged venire members as appropriate for month‑long trial | Court discharged prospective jurors without adequate individualized inquiry | Unpreserved and without merit in any event; affirmed |
| Sentence based on acquitted conduct / excessiveness | Sentence was lawful and not based improperly on acquitted conduct; not excessive | Sentence improperly relied on conduct for which defendant was acquitted; excessive | Claim unpreserved and without merit; sentence not excessive; affirmed |
Key Cases Cited
- Payton v. New York, 445 U.S. 573 (U.S. 1980) (warrantless, nonconsensual home entry for routine felony arrest is unconstitutional)
- Bumper v. North Carolina, 391 U.S. 543 (U.S. 1968) (consent must be more than mere acquiescence to asserted authority)
- People v. Gonzalez, 39 N.Y.2d 122 (N.Y. 1976) (consent must be a free and unconstrained choice; totality of circumstances test)
- People v. Marcial, 109 A.D.3d 937 (2d Dep’t 2013) (People bear heavy burden to prove voluntariness of consent)
- People v. Bradford, 15 N.Y.3d 329 (N.Y. 2010) (attenuation doctrine for confessions after illegal police action)
- People v. Conyers, 68 N.Y.2d 982 (N.Y. 1986) (factors for determining attenuation of taint)
- People v. Lopez, 104 A.D.3d 876 (2d Dep’t 2013) (stepping aside after opening door can constitute consent to enter under certain facts)