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Fourth Amendment issues


While on patrol in a marked radio car with a fellow officer, a police officer received a radio run reporting shots fired in the vicinity of 142nd Street and Rockaway Boulevard. Arriving at the scene within approximately two minutes, the police were waved down by a man. The latter reported that a friend had attempted to shoot him three times but the gun failed to fire. The police were directed to what was apparently the only apartment on the second floor of a building located at 142-90 Rockaway Boulevard.

A Queens County Gun Crime attorney said that the officer and other officers went to the apartment on the second floor, and upon discovering the door partly open, the officer, with gun drawn, announced that the police were there and were coming in. Upon entering the apartment, the officer observed an older woman in the living room, and he observed criminal defendant and another man emerge from a bedroom, approximately 12 to 15 feet away from the point of the officer’s entrance into the premises. Both men were put up against a wall and frisked. Neither was found to be in possession of a weapon. The man, having entered the apartment, identified defendant as the person who had attempted to shoot him. Defendant was arrested and handcuffed, and the second person who had emerged from the bedroom was released.

The Criminal Term concluded that the warrantless entry into the subject premises violated defendant’s constitutional rights pursuant to the dictates of a jurisprudence. The gun and the statements were suppressed as “Fruits of the Poisoned Tree”. The gun was also suppressed on the independent ground that “the defendant and the premises were secured at the time by four armed police officers who had ample opportunity to obtain a search warrant. “

When the police want to enter a private dwelling to effect an arrest, they are generally required to obtain an arrest warrant, but a warrant is not required if exigent circumstances exist. In determining whether exigent circumstances exist, the courts consider a number of factors, including, inter alia, (1) the gravity or violent nature of the offense; (2) whether the suspect is reasonably believed to be armed; (3) whether there is a reliable basis for believing the person being sought is in the premises in issue; (4) the possibility the suspect will escape; (5) whether there has been a clear demonstration of the existence of probable cause to make an arrest; and (6) the time of day of the entry and whether the entry was peaceful in nature.

The information indicated that the grave and potentially violent crime of attempted murder had just occurred. The defendant was believed to be armed, and based upon the man’s allegations, there was probable cause to make an arrest. The man’s recent and detailed information provided a basis for believing defendant was in the specific apartment entered, and the entry was made in the afternoon through the relatively peaceful means of pushing the partially opened door to the apartment fully open. Although there is no indication that defendant was aware of the presence of the police or was otherwise seeking to escape, there is no indication that he was not seeking to escape or that he felt free to simply proceed with his daily routine after having attempted to shoot somebody. Under the totality of the circumstances, we conclude that the warrantless entry into defendant’s apartment was proper because of the existence of exigent circumstances.

“the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action”.

“The general rule of course is that a warrantless search of a dwelling or, as in this case, a hotel room, is constitutionally prohibited, even though there may be probable cause for the search. Under certain circumstances, however, immediately following an arrest, law enforcement officers without a warrant may be permitted to conduct a security check–a very quick and limited pass through the premises to check for third persons who may destroy evidence or pose a threat to the officers.

“The reasonableness of a security check is simple and straightforward. From the standpoint of the individual, the intrusion on his privacy is slight; the search is cursory in nature and is intended to uncover only ‘persons, not things.’ Once the security check has been completed and the premises secured, no further search–be it extended or limited–is permitted until a warrant is obtained. From the standpoint of the public, its interest in a security check is weighty.

The delay attendant upon obtaining a criminal warrant could enable accomplices lurking in another room to destroy evidence. More important, the safety of the arresting officers or members of the public may be jeopardized. Weighing the public interest against the modest intrusion on the privacy of the individual, a security check conducted under the circumstances stated above satisfies the reasonableness requirement of the Fourth Amendment”

It has been stated that “a police officer’s safety is an important consideration in the resolution of Fourth Amendment issues” and determinations of reasonableness should not be based upon “abstract or illusory” concepts of police-citizen encounters, but rather upon the realities of a world in which attacks on the police are almost commonplace. The consequences of the Officer, not knowing what happened to defendant’s gun, simply turning his back to the room defendant had emerged from, without ascertaining who else might be lurking in the room, could have been lethal. It was therefore perfectly proper for the officer to enter the room as part of a limited security check of the premises. The limited intrusion upon defendant’s reasonable expectations of privacy were far outweighed by the need to make certain that a potentially volatile situation was not ignored while a search warrant was obtained.

“The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape”.

The record on appeal contains no basis for suppressing the statements made by defendant following his arrest and the giving of Miranda warnings. Accordingly, criminal defendant’s motion to suppress evidence should be denied in its entirety, and the matter remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.

In case of invalid arrests, you can consult our Queens County Criminal lawyers here in Stephen Bilkis and Associates. We will file a case against the police operatives conducting the arrest. For crimes related to the use of a gun, our Queens County Gun Crime attorneys are here to serve you. Call us now, we will be glad to hear and help you with your problems.

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