82 A.D.2d 34 | N.Y. App. Div. | 1981
OPINION OF THE COURT
This appeal by the People from a suppression order presents yet another example of the endless varieties of factual patterns which mandate interpretation of the Fourth Amendment. Despite the People’s belated effort to justify the challenged police conduct on a theory not raised during the suppression hearing, we believe the only real issue is probable cause to arrest.
On December 20, 1977 Dino Frisone met with an undercover police officer at the latter’s Queens apartment to negotiate the sale of one eighth of an ounce of cocaine. When the negotiations concluded and while still in the apartment, Frisone, who had been given a portion of the purchase price with which to obtain the narcotics, made a telephone call, but no part of the conversation was overheard. When he left the apartment, Frisone was followed by a police “tail” to a building in the vicinity of 75-10 Grand Central Parkway, which it was thought he entered. Shortly afterwards, Frisone returned to the officer’s apartment with the drugs and received the balance of the price. A police check revealed that Frisone’s call had been made to telephone located in apartment 2A at 76-35 113th Street. Utility records revealed that one of the two names listed for the apartment was that of Gus Laskaris, the defendant.
Nine days later—on December 29,1977—the same undercover officer again contacted Frisone, this time proposing to purchase four ounces of cocaine for $6,000. The ensuing negotiations resulted in an agreement for a further transaction ; Frisone was to receive an advance on the purchase price for which he was to return with two ounces of cocaine; at that point he was to be given the balance of the price and was to depart again and return with the other two ounces. In accordance with this arrangement, Frisone went
At approximately 9:00 p.m. Frisone emerged from the building—where two officers continued to maintain constant observation of apartment 2A—entered his car and drove toward Queens Boulevard where a backup police unit blocked his vehicle and placed him under arrest. An immediate search turned up approximately two ounces of cocaine on Frisone’s person and two tinfoil packets of cocaine and a quantity of marihuana in the car. The recorded purchase money was not found, however, and at this point the police did not know whether Frisone had the cocaine on his person or in his car before he entered apartment 2A or whether he had obtained the drugs in the apartment.
■ At approximately 9:25 p.m. four of the police officers who had participated in Frisone’s arrest joined the two officers who were stationed in the hallway near apartment 2A and were informed that no one had entered or left it since Frisone’s departure. The supervising officer then instructed the officers to enter the apartment for the purpose of arresting Frisone’s “connection”. The officers gathered at the front of the apartment door, one of them knocked, and without any words being spoken, the door was opened by the defendant. The officers announced themselves as police, and with shields displayed—and in some cases with guns drawn—rushed in and secured defendant and a
Following his indictment on a variety of drug-related charges, defendant moved to suppress his statement and all physical evidence on the ground that the search of the apartment was without probable cause, consent, warrant, or other justification. The suppression hearing, however, quickly focused upon whether probable cause to arrest existed at the time of the police entry. Although defendant did not take the stand, the hearing court granted suppression, finding that the police had forcibly entered the apartment and effectuated an immediate seizure of the individuals inside without probable cause. The court concluded that defendant’s statements were the direct result of unlawful police conduct and that the causal connection between the conduct and the statements had not been sufficiently attenuated so as to dissipate the taint. The items seized both before and after issuance of the search warrant also were suppressed as fruits of the initial illegality. On their appeal, the People, for the first time, raise the contention that exigent circumstances justified the warrantless entry because there was a need to make an immediate search.
It scarcely bears repetition that, in the absence of exigent circumstances, the warrantless entry of a felony suspect’s home for the purpose of arresting him is unconstitutional (Payton v New York, 445 US 573, on remand 51 NY2d 169; People v Riddick, 51 NY2d 764; see, also, Steagald v United States, 451 US 204; cf. Michigan v Summers, 452 US —, 49 USLW 4776). Nevertheless, this court has declared that the Supreme Court’s ruling in Payton is not retroactive (see People v Whitaker,
It is fundamental to Fourth Amendment jurisprudence that probable cause is that quantum of evidence which would warrant a person of reasonable caution in believing that the suspect had committed or was committing an offense (Gerstein v Pugh, 420 US 103; Wong Sun v United States, 371 US 471; Henry v United States, 361 US 98; Draper v United States, 358 US 307). “In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act” (Brinegar v United States, 338 US 160, 175). Probable cause to make an arrest requires far less proof than is required for conviction (People v Miner, 42 NY2d 937;
Under the current circumstances, the first prong of the probable cause test has been met: the sale of cocaine by Frisone to the undercover officer makes it obvious that a crime was committed. The issue is with the second prong: whether there was sufficient cause to believe the defendant was involved in the sale. Since probable cause must be determined from the sum of the information known to the police at the time of the warrantless arrest and without the benefit of hindsight (Beck v Ohio, supra; Wong Sun v United States, supra; Rios v United States, 364 US 253; Henry v United States, supra; see, also, Whiteley v Warden, 401 US 560), the dispositive question is what the police knew when they entered the premises and seized the defendant.
The hearing court found, and we agree, that the only information the police had at the time of the entry to connect Frisone with the defendant’s apartment derived from Frisone’s December 20 telephone call which was subsequently traced to the apartment and his visit there on
As to Frisone’s visit to the apartment that day, the police knew only that he entered the apartment with marked money and departed without it, but they did not know whether he obtained the drugs found on him or in the car at the time of arrest from the apartment or whether he had the drugs before entering the apartment. The two officers stationed near the apartment door from the time of Frisone’s arrival until the time of the challenged entry saw no one enter or leave, nor did they hear any noise or voices emanating from it. The officers admitted that prior to entering the apartment they had no idea as to what Frisone had done while there; how many individuals, if any, were inside,- who Frisone’s connection was, if any; whether the defendant was in the apartment or actually
Finally, our conclusion for Fourth Amendment purposes that upon entry the police immediately seized the defendant, dispenses with the need to give serious consideration to the People’s newly raised contention that the existence of exigent circumstances justified a warrantless search. According to this theory, the defendant had not been seized impermissibly when he made his statement and it was induced by the mere fact of police presence rather than in response to their subjective intent to arrest him. Seized or not, however, at the suppression hearing the People shunned justification of the entry on the basis of probable cause to search
Because the entry and seizure of the individuals were illegal, the defendant’s statements and the physical evidence were properly suppressed (see Wong Sun v United States, 371 US 471, supra). Furthermore, under the circumstances, we cannot conclude that the defendant’s statements constituted a valid consent to search the premises (People v Gonzalez, 39 NY2d 122; People v Kuhn, 33 NY2d 203). Accordingly, the order must be affirmed insofar as appealed from.
Hopkins, J. P., Gibbons and Gulotta, JJ., concur.
Order of the Supreme Court, Queens County, dated February 7, 1980, affirmed insofar as appealed from.
. Interestingly, the People do not assert that Frisone was let into the apartment by someone inside. It is entirely possible that Frisone had his own key and let himself in.
. That the entry was not for the purpose of search is further borne out by the testimony that after the entry and arrest of the individuals was accomplished, the next step would be to obtain a search warrant prior to conducting any search. Subsequent events verified this procedure since after the initial seizure of the narcotics in the bedroom was made, a search warrant in fact was sought and obtained.