76 A.D.2d 847 | N.Y. App. Div. | 1980
Appeal by the People from an order of the Supreme Court, Queens County, dated July 31, 1979, which, after a hearing, granted defendant’s motion to suppress physical evidence. Order affirmed. Assuming, arguendo, that the officers’ reasonable belief in the authority of the defendant’s estranged husband to consent to a search of her apartment would be sufficient for purposes of the Fourth Amendment (see, generally, 2 La Fave, Search and Seizure, A Treatise on the Fourth Amendment, § 8.3, pp 716-725 and the cases cited therein; but see United States v Matlock, 415 US 164, 171, n 7; People v Cosme, 48 NY2d 286, 293, n 2), it is our belief that the evidence at bar precluded the officers from reasonably so concluding, especially in view of the representation by defendant’s husband that he needed the officers’ assistance in gaining admittance to the apartment in question because his wife, who was not at home at the time, had proceeded to change the locks in an apparent attempt to exclude him from the premises (cf. People v Deborah J. AA, 63 AD2d 808). Gulotta, J. P., Cohalan, Margett and O’Connor, JJ., concur.