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Court Determines Admissibility of Evidence


A patrolman was on patrol one evening when he was ordered to investigate a complaint regarding abandoned automobiles in the vicinity of 24 Max Avenue, Hicksville, New York. A New York Criminal Lawyer the building located at that address contains two factory establishments and an apartment on the first floor.

In the course of the investigation, the patrolman knocked on the front door of the apartment at about 9:15 that evening. In response he heard the voice of a very young child whom he later ascertained to be two years of age. He asked through the door if child’s father or mother is at home. The child answered in the negative. He then again asked whether anyone else was home and again the child replied in the negative. The door was not opened. It was locked. He peered through the curtained window and saw the lights on and a television set in operation. At this point, the police officer made a radio call for assistance from the Juvenile Aid Bureau of the Nassau County Police Department. Following the call, a detective of the Juvenile Aid Bureau along with a Sergeant and another Patrolman, operating a police ambulance, convened at the premises. They all approached the apartment. The Patrolman knocked on the door, and on this occasion, a different young voice answered. The patrolman requested the child to open the door. The door was opened and he was met by a five year old female. Thereafter, the police officer questioned the little girl as to the whereabouts of her parents. She told him that there was no one else in the apartment besides the two children. The officer ascertained at that time that the young girl was five years old, and that the child who first answered his knocking was a little boy two years of age.

In the course of being questioned the young girl admired the service revolver belonging to the patrolman and said, “defendant-man has a gun like that”. The girl then turned around and walked over to a cabinet and said, “See, here it is”. She had picked a loaded .38 caliber Smith & Wesson revolver out of the top drawer and the police officers immediately took the gun from her before anything happened. The police asked her, “Has defendant-man any more guns?”, and she replied, “Yes, he has a lot of guns and he also has pot and speed”. She then went back to the same drawer and picked out a plastic bag which contained marijuana and also gave it to the police officers.

The officers then proceeded to search the apartment for other guns and narcotics. They found another bag containing marijuana and several empty glassine bags, and full glassine bags, which seemed to contain heroin, in the drawer of the cabinet from which the child retrieved the pistol and the first bag of marijuana.

As they proceeded to the apartment which contained a foyer, living room, bedroom and kitchenette, they also found more marijuana in a carved bowl in open view on top of a cabinet which was located on the side of the room opposite the safe. It also contained several glassine bags containing what appeared to be heroin.

At 1:15 A.M., the defendants (defendant-man and defendant-woman) entered the apartment. The police introduced themselves and then the Sergeant Carey asked them if they lived there, and they replied “Yes, we do”.

The defendants were then given their Miranda warnings, were informed that they were under arrest, and handcuffed the defendant-man.

Subsequently, the detective questioned the defendants was asked to open the safe. At first, the defendants refused but the police officers told them that they can get the safe while they get a warrant, thus, they opened it. A large plastic bag containing two pounds of marijuana, as well as several boxes of ammunition, was found in the safe. Bronx Criminal Lawyer under a table in the corner of the room in open view, there was a set of antique scales. They also found an old pepper box antique pistol hanging on the wall. It was stipulated by the People that this antique pistol will not be offered in evidence at the trial. There was no other conversation with the defendant-man.

The children were later found to be of defendant-women’s and that she is not married to defendant-man.

The Juvenile Aid Bureau had taken the two children to Meadowbrook Hospital at about 10 P.M. of the evening of the arrest.

Defendants are charged with the crimes of Criminal Possession of a Dangerous Drug in the Third Degree involving marijuana and hashish under the first count; Criminal Possession of a Dangerous Drug in the Fourth Degree involving cocaine and heroin under the second count (drug possession); Criminal Possession of a Dangerous Drug in the Sixth Degree involving methamphetamine under the third count; and Possession of a Weapon (gun crime), Dangerous Instrument and Appliance as a Misdemeanor involving a pistol loaded with ammunition, under the Fourth Count.

Are all the seized items admissible in evidence?

A search is reasonable if conducted pursuant to a legal search warrant, by consent, or incident to a lawful arrest. The instant case, however, presents a different dimension of the question of when and under what circumstances a police officer may legally enter a private residence.

Where danger, or even the possibility of danger exists, the finely honed rule of probable cause mandated by constitutional considerations, gives way to a rule of practical expediency which is demanded by the exigency of the conditions confronting the policeman.

The preservation of human life has been considered paramount to the constitutional demand of a search warrant as a condition precedent to the invasion of the privacy of a dwelling house.

It is of the greatest significance to this case that the police officer’s entry was pursuant to his general obligation to assist people in distress, a purpose often independent of considerations affecting the criminal law. Police are expected and often required to investigate the unquelled crying of babies, sounds and blows in what turn out to be matrimonial disputes, to assist in child deliveries, and to resolve the causes of unusual sounds suggesting harm to persons, animals and property. Their functions are just not confined to criminal law enforcement, a matter frequently of great concern to those seeking to make limited police resources more effective. In this context, it has been suggested that an officer’s entry is based neither on consent nor license and that even the refusal of consent may be of no avail.

It must be noted that when the patrolman knocked on the door for the first time and was informed from behind the closed door by the voice of a very young child that neither of his parents, nor anyone else was inside, he was justified in calling for aid. This justification is based on a possibility that the child might have been speaking the truth and was thus subject to injuries and dangers which might have befallen him when so unsupervised and unattended. In an emergency situation, a police officer need not patiently await definite proof of danger or peril. Where the possibility of danger or peril appears to exist, he may act. Under such circumstances, a reasonable possibility of injury to person or property invites the policeman’s investigation.

Here, a period of about three to four minutes passed between the time when the patrolman knocked on the door for the first time and was informed by the younger child that nobody was home, and when he knocked again the second time and was admitted by the five year old girl. During this period, he could reasonably assume that this child was alone, or that a person in charge of the child could be disabled and, therefore, unable to respond to his knock on the door.

An unattended child is prone to all manner of injury. Courts have ruled that more care must be exercised towards children than toward persons of mature age. Children of tender years are entitled to care proportioned to their inability to foresee and avoid the perils that they may encounter. The duty to avoid doing them an injury increases with their inability to protect themselves and with their childish indiscretion, instincts and impulses.

Leaving one’s child alone in the home or even on the streets unguarded, unattended and no provision made for its safety or protection is neglect.

Here, there was indeed more than sufficient justification not only to knock a second time but also to enter and investigate the situation when the five year old child later opened the door.

Following the disclosure of the loaded gun and the marijuana by the five year old child, the policemen went through the various rooms of the apartment, during the course of which, they saw in open view, the antique scales, the carved bowl containing marijuana and what appeared to be heroin, and, hanging on the wall, the antique pepper mill gun. They also found other narcotics in drawers, and when the safe was opened, they found two pounds of marijuana, and some ammunition.

Although the five year old child was legally incapable of giving the police consent to search the apartment for evidence of crime on behalf of the defendants, it is, however, the determination of the court that the loaded pistol and the plastic bag containing marijuana, which were taken from the cabinet, and brought into the view of the police officers by the child, is not the subject of a police search and seizure. These items comprising a weapon and contraband, insofar as the police were concerned, were in open view, and not the fruits of a search. The marijuana, and what appeared to be heroin observed by the police in the carved bowl, was in open view and, therefore, not the subject matter of an illegal search and seizure. It would have been necessary to go into the respective rooms to ascertain if there was anyone else in the apartment or a person in charge of the infants, and, if so, why such person had not responded to the knocking, and whether such person was incapacitated. In so doing, they had the right to seize any item in open view which may be contraband, or the paraphernalia utilized in the use or sale of narcotics, or a weapon.

The foregoing rule of law is based on the humane purposes sought to be effectuated by permitting the policemen to intrude into the privacy of a citizen’s home for the latter’s aid and protection.

However, when the errand of mercy is completed, the benevolent purpose of the intrusion may not be changed into one for a general exploratory search.

The privilege to enter to render aid does not, of course, justify a search of the premises for some other purpose. An arrest may not be used as a pretext to conduct a general search of one’s premises for incriminating evidence, and it has been repeatedly said that where the right to conduct a search is obtained ostensibly for one purpose it may not be used in reality for another.

Thus, the officers in the present case could properly make only that kind of search reasonably necessary to determine whether a person was actually in distress somewhere in the apartment. They could not, for example, ransack the premises or rummage through desk drawers. On the other hand, in the course of conducting a reasonable search they did not have to blind themselves to what was in plain sight simply because it was disconnected with the purpose for which they entered.

The court has held that where the entry and search are proper and there is presently no element of trespass or fraudulent invasion of the rights of the citizen, there is no reason for excluding evidence of crime discovered in the course of the search.

After the children had been removed to a safe place for proper care at about 10 P.M., when the officer took them to Meadowbrook Hospital, the only proper alternatives confronting the police officers were either, (1) to leave the apartment with a police guard outside and obtain a search warrant based on the probable cause based on what the child had shown to them and what they had seen in open view during the investigation, or (2) to await the return of the defendants and perform the permitted search of their persons contemporaneously with their arrest. Such search would, of course, be limited to a search of the arrestee’s person and the area within his immediate control, as mandated by the United States Supreme Court rulings, which construed that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

In this warrantless search, when the officers presumed to look into closed and hidden places in all parts of the apartment, they were not only clearly acting outside the scope of the original purpose of the police entry into the apartment, but also indulging in a general search of the entire house in violation of the defendant’s constitutional rights under the Fourth Amendment.

In addition, more than three hours elapsed from the time when the mission ended and the children were removed to a place of safety at 10 P.M., and when the defendants returned to the apartment at about 1:15 A.M. A search made over three hours before an arrest is not what is contemplated in law to be a search made contemporaneously with an arrest within the meaning of the rules.

Accordingly, the marijuana and the revolver removed from the cabinet and displayed to the police, the antique scale, the marijuana, and what appeared to be heroin in the carved bowl, which were all in open view, are admissible in evidence; there was a valid warrantless search and seizure.

However, on the other items of marijuana, and what appeared to be heroin, found as the result of opening drawers and the contents of the safe which included about two pounds of marijuana and ammunition, they are not admissible in evidence. When the defendant-woman opened the safe, it was while she was in custody, and under arrest. Such act on her part was not by consent and merely her submission to police authority.

Submission to authority is not consent and one faced with authority has the right to submit and reserve his defense for the Court.

On the question of standing on the part of the defendant-man, it is the court’s determination that inasmuch as he resided in the apartment, that he was present in the premises, and that he was charged with, and arrested in the apartment for possessory crimes involving cocaine, heroin, marijuana and a weapon, he has standing to contest the People’s right to search and seize such material.

With respect to the Huntley-Miranda aspect of this hearing, the court finds that shortly after the defendants entered the apartment and identified themselves as the persons who resided there, they were in police custody.

The four-fold Miranda warnings were properly stated to the defendants; however, they did not expressly waive their constitutional rights under the Fifth and Sixth Amendments which is a mandated condition precedent for the admissibility of a defendant’s statement under Miranda. In fact, they remained silent in this regard.

Consequently, none of the statements made by the defendants in answer to the detective’s interrogation may be used as evidence upon the trial hereof.

Only the words, “we do”, stated by defendants when they identified themselves as the occupants of the apartment as they entered are admissible as being threshold statements made before they were in police custody, and while in the identification process.

With respect to the oral statement made by defendant-man to defendant-woman, they are admissible for the reason that such words were not in response to police interrogation and were merely the spontaneous and volunteered utterances of the defendant-man.

Learn more of your rights. Consult with Stephen Bilkis & Associates. Whether you have been charged with a drug crime, theft crime or sex crimes, it is important to speak with legal counsel to ensure that your rights re protected. Talk to a Nassau County Criminal Lawyer from our firm to discuss a strong game plan for your defense. If the legality of an arrest is in issue, a Nassau County Arrest Lawyer is the competent person to advise you.

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