Lead Opinion
OPINION OF THE COURT
Dеfendant Warren Knapp was convicted, following a jury trial, of criminal possession and of criminal sale of a controlled substance, each in the sixth degree (Penal Law, §§ 220.06, 220.31). The Appellate Division having affirmed, the appeal is here by permission of a Judge of this court (CPL 460.20).
In the main, we are called upon to decide whether the
The recital of the facts, taken in a light most favorable to the People, may well begin with the role played by a 21-year-old biochemistry student, Frederick Allen Botway, who, in expeсtation that he would receive favorable consideration on an unrelated pending drug charge for which he was then under indictment, agreed to act as a police informer. In pursuit of that undertaking, and with the encouragement of Detective Robert Sievers, a Suffolk County undercover agent, Botway accepted an oрportunity offered by an acquaintance, the defendant Warren Knapp, to guide and assist the latter, who was relatively ignorant of chemistry, in a project to produce a quantity of the controlled drug methaqualone.
The work had already begun, and with Botway’s help, continued in the basement of the defendant’s house. When it had progressed to a point where the manufacture was almost complete, Knapp told Botway that he expected to effect a sale of the drugs to a third party. On learning of this development, Sievers instructed Botway to tell Knapp that he had a friend who was interested in buying it. After an interval during which the informer reported on some supposed discussions with his prospect, a “friend Bob”, Knapp expressed a willingness to make such a sale at a contemplated price in the range of seven to eight hundred dollars, to be shared between Knapp and Botway. A time was then fixed for Botway to bring “Bob” to the house where he could meet Knapp and make his plannеd purchase.
When early on the appointed day, Botway, “friend Bob” in the person of Sievers in tow, arrived at the house, they came to the back door where Knapp, still in a bathrobe, admitted them directly to the kitchen. Unbeknownst to Knapp, a back-up team of four other police officers was waiting nearby to assist Sievеrs and Botway. After the introduction, the defendant left for his personal bedroom, from whence he returned with two plates, each of which
At this point, the agreement to sell having been completed, as prearranged between Sievers and his informer, the latter was dispatched, ostensibly to get the money from a car, but in fact to signal thе waiting police reinforcements, who, also gaining access through the rear door, entered the kitchen, where Knapp was about to be arrested. The informer having previously alerted his cohorts to the fact that the defendant rented bedrooms to four individuals who at that hour might still be in the house, the police at once rounded up and secured all four. By then, Sievers and company had also taken possession of the drugs the defendant had brought into the kitchen.
It was only after they had assured themselves of complete control of the house and its occupants that the police took their next step, a warrantless entry into defendant’s bedroom. There they found and seized the capsules and the third plate of methaqualone of which Knapp had spoken to Sievers.
The final relevant police activity in the house was to search the basement. The testimony indicates that this they did not do until 45 minutes to an hour after the arrest. As a result of Sievers’ superintendence of the informer’s eаrlier activity, the police, of course, had known well in advance that this was the location of the defendant’s homemade laboratory. There, besides some electronic appliances, they seized Bunsen burners, test tubes, chemicals, “raw” methaqualone and assorted pills.
Following a pretrial hearing, an omnibus motion to suppress the objects seized in the defendant’s home was denied. County Court, without differentiating among its various phases, sweepingly held that the search and seizure. “was a reasonable and proper activity” “made during the course of and immediately following such arrest”.
In the evaluation of each of these episodes of the broader event, we start with the reminder that our Constitutions accord special protection to a person’s expectation of privacy in his own home (NY Const, art I, § 12; US Const, 4th, 14th Amdts; Steagald v United States, 451 US —,
We now turn to each phase of the search to determine whether the burden of proving that the fundamental and interrelated principles to which we have referred were respected in each instаnce.
The seizure of the two plates in the kitchen is easiest to justify because it was a search incident to arrest. Obviously, an arrest may provide a ready motive for a desperate suspect to attempt to offer resistance, with or without available weapons, or to destroy any incriminatory evidence that is within his reaсh. To guard against such eventuality, not the least of which is danger to the arresting officers themselves, the law, with sense and practicality, permits a
By this criterion, we cannot say that the kitchen search was unreаsonable as a matter of law. Targeted to the two plates alone, it involved no rummaging. Nor was it an independent investigative inquiry. In real perspective, the cautionary search for and assembling of the renters, the consummation of the arrest and the protective seizure of the two plates of contraband were going fоrward contemporaneously, the latter two in close proximity in the same room.
In this temporal and spatial immediacy, it could have needed no more than the movements of an unsuccessful struggle to reach and scatter the plates, whose uncapsulated contents were later to be described as mucous-like in consistency. Moreover, it was too early to reliably appraise defendant’s penchant for resistance or destruction, if any, or his ability, at all odds, to essay either. Under these circumstances, the affirmed findings upholding the reasonableness of this judgment in the “field” may not be disturbed (see People v Alexander,
In contrast, the subsequent searches of the bedrooms аnd the basement give us more than pause. To justify these, the People place primary reliance upon the exception carved out for “exigent circumstances” and, alternatively, upon the one for “plain view”. And, as an ultimate resort, after candidly recognizing that the 45 minute to an hour hiatus between the arrest and the search of the basement made that one in particular difficult, if not impossible, to defend, the People also urge us to sustain that seizure, as well as the one in the bedroom, either on a theory of inevitable discovery or on its pragmatically related cousin, harmless error.
The “exigent circumstances” doctrine, which allows for broader application of much of the logic which permeates the search-incident-to-arrest exception, is said to exist
These cautions in mind, before the police here undertook their search of either the bedroom or the basement, it is clear that any urgency was gone. Since the arrival of Sievеrs and Botway on the morning of the arrest was pursuant to appointment, made on a previous day, there had long been more than ample time in which to have applied for a warrant so that a Judge could objectively pass on the justification for the contemplated intrusion. Nothing about the entry onto the premises was left tо spontaneity or opportunism. Not even a shift in the target time was to be anticipated. The climax of the investigation was well planned. Knapp had not been apprehensive. There was every reason to believe circumstances would not change.
Furthermore, if anything, there was even less uncertainty after the arrest. Indеed, the suppression court made no finding of any kind of emergency (cf. People v Clements,
As alreаdy indicated, by the time the police took it upon themselves to invade the bedroom, they were in complete
There was therefore no excuse for proceeding without a warrant, unless it was the personal impatience or inconvenience of the police, considerations which never may be permitted to outweigh thе constitutional interests at stake (Steagald v United States, 451 US —,
Similarly unavailing was “plain view”. This exception is premised on the rationale that what a person exposes to the public eye cannot be the subject of a legitimate expectation of privacy (People v Spinelli,
“Inevitable discovery” is of no greater help to the People. That doctrine, logically somewhat akin, for instance, to the “independent source” on which the acceptance of many disputed criminal identifications depends (Gilbert v California,
But here the “inevitable discovery” was not of something the police in any event would have obtained through an independent untainted source (cf. People v Fitzpatrick,
Finally, we cannot say that the erroneously unsuppressed products of the bedroom and basement searches were harmless. The defendant took the stand to testify to an exculpatory version of the events and apparently enough of the jurors were sufficiently impressed by his defense that, before the ultimate verdict brought their lengthy deliberations to an end, they had reported that they were at an impasse. This hardly supports the contention that there was “no reasonable possibility” that the errors contributed to the conviction (People v Almestica,
For all these reasons, the order of the Appellate Division should be reversed, the motion to suppress granted to the extent indicated in this opinion, and the matter remitted to the Suffolk County Court fоr further proceedings on the indictment.
Notes
The defendant also seeks to vitiate the indictment on the ground that the People, through their agent Botway, had deprived him of due process by
Concurrence Opinion
(conсurring). I agree with the majority that the laboratory equipment seized in the basement of defendant’s house should have been suppressed. In regard to the third plate of methaqualone and the gelatin capsules obtained from defendant’s bedroom, the People assert that defendant, by informing Detective Sievers of the presence of this contraband in the bedroom, abandoned his expectation of privacy in that room as to those items and, therefore, the warrantless search of the bedroom was proper. (See United States v Candella, 469 F2d 173, 175.) Inasmuch as the People failed to raise this contention at the suppression hearing despite having had a full opportunity to do so, they may not now raise it on appeal as an alternative theory to sustain the warrantless search of the bedroom. (People v Payton,
Chief Judge Cooke and Judges Jones, Wachtler and Meyer concur with Judge Fuchsberg; Judge Jasen concurs in a separate opinion in which Judge Gabrielli concurs.
Order reversed, etc.