People v. ScottPeople v. Scott
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Modica, J.), rendered January 9, 2013, convicting him of criminal possession of a controlled substance in the seventh degree, resisting arrest, and criminal possession of marijuana in the fifth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review so much of an order of the same court (Kron, J.) dated September 5, 2012, as, after a hearing, denied, in part, that branch of the defendant‘s omnibus motion which was to suppress physical evidence.
At a suppression hearing, the People‘s evidence established that on September 13, 2011, New York City Police Officers Patrick Nozdrovicky and James Zozzaro were on anti-crime patrol, in plainclothes, with their sergeant, when they observed the defendant walking in the middle of a street in Queens speaking irately on a cell phone. The officers approached in their vehicle and asked the defendant to explain what was going on. The defendant explained that he was having an argument with his girlfriend. When Officer Nozdrovicky and his sergeant began to exit the police vehicle, the defendant turned and ran. As the defendant turned to run, Officer Zozzaro, who was driving the police vehicle, saw what appeared to be the handle of a gun under the defendant‘s jacket in the rear of his waistband or belt. He yelled “gun” to Officer Nozdrovicky and their sergeant, who had already commenced pursuit. The defendant ran through a backyard and then through a hole in a fence. He was carrying a knapsack that got caught on the fence, but he left it behind and continued to run through the next yard and entered a house through a rear door. The officers who were chasing him on foot grabbed the bag and attempted to follow the defendant into the house, but the door was locked and they were unable to force it open. They called the Emergency Services Unit (hereinafter ESU) and set up a perimeter around the house, which they later learned belonged to the defendant.
Eventually there were 20 to 25 officers at the scene. The ESU officers put on heavy protective vests and helmets, and some carried bunker shields and a sub-machine gun. The ESU officers entered the defendant‘s house and cleared the basement and the first floor, finding no persons on either floor. Before they ascended to the second floor, the defendant appeared at the top of the staircase and surrendered. He came down the stairs and was searched, arrested, and removed from the house. No weapon was recovered from his person. The ESU officers then searched the second floor for other persons, and
After a suppression hearing, the Supreme Court suppressed the gun, but otherwise denied that branch of the defendant‘s omnibus motion which was to suppress the physical evidence. With respect to the drugs recovered in the defendant‘s home, the court held that the initial warrantless entry into the house was justified under the emergency exception to the warrant requirement because the police had seen what appeared to be a gun in the defendant‘s waistband and they did not know whether there were any civilians present in the home. Although the court recognized that any emergency had abated and the ESU officers had secured the house before the patrol officers conducted the search that led to the discovery of the drugs, the court held that because the police had maintained a continued presence at the house and the items were in plain view, the patrol officers’ search was lawful.
It is a fundamental principle of the
Under the emergency exception, the police may make a warrantless entry into a protected area if (1) they have reasonable grounds to believe that there was an emergency at hand and an immediate need for their assistance for the protection of life or property, (2) the search was not primarily motivated by an intent to arrest and seize evidence, and (3) there was some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched (see People v Mitchell, 39 NY2d 173, 177-178 [1976]). Although the United
Furthermore, even where exigent circumstances justify the warrantless entry into a protected area, the scope and duration of the warrantless search must be limited by and reasonably related to the exigencies of the situation (see Mincey v Arizona, 437 US 385, 393 [1978]; People v Knapp, 52 NY2d at 696). Here, the subject drugs were not discovered by the ESU officers during their protective sweep. Rather, they were discovered by the patrol officers, who conducted an evidentiary search after the ESU officers had secured the house and removed the defendant, who was the only occupant. At the time of the patrol officers’ search, any purported exigency had abated, the police were in complete control of the house, and there was no danger that the defendant, who was in custody, would dispose of or destroy the weapon. Accordingly, the police were required to obtain a warrant prior to conducting the evidentiary search (see People v Jenkins, 24 NY3d 62, 64-65 [2014]; People v Knapp, 52 NY2d at 696-698). Moreover, contrary to the suppression court‘s findings, it is of no avail that the contraband was found in plain view, since the patrol officers’ warrantless entry was illegal (see People v Knapp, 52 NY2d at 697; compare People v Stanislaus-Blache, 93 AD3d 740 [2012]; People v George, 7 AD3d 810 [2004]).
As an alternative ground for upholding the suppression ruling, the People argue that the initial entry to the defendant‘s home was justified because the police were in “hot pursuit” of a fleeing suspect (see United States v Santana, 427 US 38, 42-43 [1976]). Because the suppression court did not decide that issue adversely to the defendant, this Court is precluded from reviewing that issue on the defendant‘s appeal (see
The defendant‘s remaining contentions either need not be reached in light of our determination or are without merit.
Mastro, J.P., Austin, Maltese and Barros, JJ., concur.