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The facts are essentially undisputed.

The court is called upon on this appeal to determine the constitutional validity of a seizure of physical evidence subsequent to a warrantless entry by police into a defendant’s furnished room based upon the homeowner’s representation that the defendant had therein a gun with which he had threatened her. At the time of the entry, the defendant was substantially in arrears in his weekly rental payments. Necessarily subsumed in analysis is the question of whether he had a legitimate expectation of privacy with respect to the room so as to entitle him to suppression of the physical evidence seized there from. The question must be answered in the affirmative. Inasmuch as the record reveals that the defendant was still legally a lessee of the subject premises, who thus had a reasonable expectation of privacy with regard to his living space, the police acted improperly in pursuing the course of action they did.

The facts are essentially undisputed. A Queens County Grand Jury charged the defendant with the crime of criminal possession of a weapon based upon the discovery by the police of an automatic handgun in a closet of his rented room. The complainant, the owner of the one-family home in which the defendant rented a room at the weekly rate of $50, summoned the police to her home on the evening of August 10, 1982, claiming that the defendant had threatened her with a gun. The altercation arose when the defendant offered her $60 in rent arrears. She complained that he had failed to pay her for 11 weeks and that she would deny him access to his room until he made a more substantial payment. The defendant thereupon demanded the return of his $60. When the complainant refused to comply, he began to swear and to make threatening gestures towards her. He declared that he would break down the door of the room and blow off her head with his gun.

The complainant knew that the defendant had a gun in his room since he had threatened her daughter with it some two weeks previously. The defendant’s girlfriend had, at that time, warned the complainant to call the police since the defendant was dangerous and had once shot a man. The complainant had seen the gun a second time as she was packing up the criminal defendant’s belongings because he had failed to pay his rent. On that occasion, she also saw bullets all over the room.

After the defendant threatened the complainant, she ran upstairs and telephoned the police. The police officer and his partner in a marked radio motor patrol car responded to the radio call. When they arrived at the location, the defendant was standing outside the house. The police did not at that point know if the defendant was involved in the reported incident. The police officer nevertheless directed the defendant to remain outside with his partner while he went into the house to speak with the complainant. The complainant revealed that the defendant had threatened her verbally and she repeated the substance of the threat to the police officer. After ascertaining that the altercation emanated from a landlord/tenant matter, he inquired concerning the gun. The complainant stated that the gun was not on the defendant’s person but that it was in his room. She then offered to show the officer where the gun was kept.

Upon finding the door to the defendant’s room locked, the complainant unlocked it with her key, and the police officer followed her into the room. The complainant indicated that the gun was in a box located on a shelf within a portable metal closet. The closet doors were open and the gun was visible inside an uncovered cardboard box. Also in the box were approximately 12 loose rounds of ammunition. The police officer took the gun, holster and ammunition and vouchered the said property. At no point had the police obtained a search warrant.

Criminal Term granted the defendant’s motion to suppress the use of the gun as physical evidence on the grounds that its seizure by the police was unreasonable, improper and in direct contravention of the Fourth Amendment of the United States Constitution. The People appeal from said order.

In the instant case, the complainant’s consent to the police officer’s entry into the defendant’s bedroom must be viewed as invalid inasmuch as it is clear from the record that the defendant was a lessee of the subject premises. As such, the complainant lacked the authority to consent to the police entry into the defendant’s private living space.

The prevailing rule in this and a number of other jurisdictions is that the lessor of real or personal property lacks the requisite authority to consent to a warrantless search of the leased property. There was thus no basis upon which the police officer could have reasonably believed that the complainant had validly consented to a search of the defendant’s room inasmuch as she at all times represented herself as the landlady rather than as a co-occupant of the room. Moreover, courts are required to indulge every reasonable presumption against the waiver of constitutional rights guaranteed by the Fourth Amendment.

Notwithstanding the fact that the defendant was in arrears in his rental payments, he had not yet been evicted. Even where an eviction warrant has been issued and a tenant is about to be removed, that tenant still retains a reasonable expectation of privacy with respect to the leased premises inasmuch as the single fact of nonpayment of rent should not result in the forfeiture of one’s Fourth Amendment rights. A tenant about to be evicted does not reasonably anticipate that police officers will be present to conduct a general search for contraband on the pretense of insuring the total removal of his belongings.

In the instant case, the complainant conceded that although she had a key to the defendant’s room, which had its own separate lock, she was not free to just walk in and out of it at will. The fact that she had a spare key to the lock is merely consistent with her position as landlady and did not give her any greater rights than that status affords her.

Although the police had the defendant well under control, they did not attempt to obtain either his consent to enter his room or a search warrant. Inasmuch as the defendant was standing outside the house when the police arrived, there was no danger of his attempting to destroy evidence within his immediate control. Absent any exigencies compelling an instantaneous police response, the warrantless entry and seizure were improper.

Neither does the court adhere to the People’s argument that the seizure was the work of a private citizen rather than of the government, thus placing the instant situation outside the ambit of the Fourth Amendment. Where, as here, there has been affirmative participation by government officials in obtaining evidence, the police cannot avoid the constitutional limitations imposed upon them by claiming that the acts of a private party are also involved.

The court’s decision herein in no way contravenes to its holding in a similar case where a hotel guest was deemed to have lost his reasonable expectation of privacy with regard to his room upon the expiration of the rental period. The court in the mentioned similar case emphasized the fact that no conventional landlord-tenant relationship is involved in the ordinary rental of hotel rooms, labeling the difference between these two types of rental arrangements a highly relevant factor for determining the legitimacy of a defendant’s privacy interest.

In this case, the defendant had been residing in the room for approximately six to seven months at the time of the incident. This implies a tenancy somewhat more substantial than the mere transitory occupancy generally associated with hotel guests. Accordingly, the defendant retained a legitimate expectation of privacy in his room and his challenge to the police action must be upheld. The order of Criminal Term suppressing the physical evidence seized should be affirmed.

Every person deserves to be treated equally. If you are being accused of gun possession and you believe that your rights were violated, consult a Queens County Possession of a Weapon Lawyer. If you want to pursue a legal action for you illegal arrest, you can speak with the Queens County Criminal Attorney together with the Queens County Arrest Attorney from Stephen Bilkis and Associates.

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