People v O.X.
The court held that the Appellate Order should be affirmed in this case. The question of this case is whether a 4th amendment consent to search a premises is a question of law or fact (People v. McFarlane 21 NY 3d 1034). The court said that the voluntariness of the consent in this instance is up for dispute. Although the court’s power to review the affirmed findings of fact are limited. The findings of the trial court are supported by the record (People v Morales 42 NY2d 129, 138 ).
Judge Rivera stated that there was a home visit by law enforcement for the purposes of making a warrantless arrest. It is not justified by another exception of the warrant requirement.
In this case, the officers went to the defendant’s home intending on making an arrest based on the fact that he had been deported twice and was also a suspect for a homicide charge. They gained consent to entry from the mother, who didn’t speak English, but merely stepped away from the door and motioned the officers in.
The defendant was arrested outside the home. This type of activity conducted by police is intended to avoid the warrant requirement. The defendant, however, wasn’t challenging his arrest on the grounds that law enforcement intended on making a warrantless arrest, so the issue wasn’t preserved.
In a concurring opinion, the court cites People v Garvin, where the validity of a warrantless arrest was questioned, and no exigent circumstances were present (30 NY3d 174 ). This scenario illustrates why police should be required to obtain a warrant when they execute a home arrest.
The defendant was a homicide suspect. When they arrived at the home, the woman gestured to come in, but the exact nature of her actions became unclear at trial. A search that is issued without a warrant and upon probable cause is considered to be unreasonable unless it falls under one of several exceptions. One of these exceptions is consent. Consent is a question of fact that needs to be considered given the totality of the circumstances.
By transferring the rules of an outside the home search to a warrantless home arrest, we are asking too much. In this instance, the woman’s gesture-given the totality of the circumstances brings up many questions.
In the absence of exigent circumstances, requiring the police to obtain a warrant would have avoided this problem. Either way, the courts choose, there are many unanswered questions.
The presence of a warrant serves an important function. The 4th Amendment was created so that an objective mind might need to weigh the defendant’s privacy rights in order to enforce the law.
If you have been the subject of a search and seizure, it is important to ensure that your legal rights have been honored. This can be a complicated area of the law, and it is important to consult with legal counsel. Contact the law offices of Stephen Bilkis and Associates for guidance and a free consultation. They have offices throughout the New York area, including locations in Manhattan, Queens, Staten Island, the Bronx, Brooklyn, Nassau County, Suffolk County, and Westchester County. Call them today at 1-800-NYNYLAW.