NY4: Officers rearranged things to photograph them during a consent entry and plain view didn’t vitiate the PC

Defendant’s wife called 911 to report a possible burglary, and police were invited in. In the house they did a protective sweep, and they saw likely evidence of dogfighting: a caged injured dog, a treadmill modified for dogs “and apparent dogfighting paraphernalia.” They called a superior officer and an SPCA person who confirmed it. She rearranged some dog vitamins and other things to photograph them. The photograph was used for a search warrant to come back to seize the dogfighting evidence. That didn’t justify suppressing the evidence as fruit of the poisonous tree. People v. Richardson, 2017 NY Slip Op 07857, 2017 N.Y. App. Div. LEXIS 7913 (4th Dept. Nov. 9, 2017):

We reject defendant’s contention that the court erred in refusing to suppress all of the physical evidence that was recovered from his home as fruit of the poisonous tree. The plain view observations of dogfighting paraphernalia were properly made by the responding police officers from a lawful vantage point (see e.g. People v Woods, 93 AD3d 1287, 1288, 940 N.Y.S.2d 747 [4th Dept 2012], lv denied 19 N.Y.3d 969, 973 N.E.2d 219, 950 N.Y.S.2d 121 [2012]), and those observations preceded any unlawful conduct on the part of the SPCA officer, and provided probable cause for a search warrant. The items that were photographed and manipulated by the SPCA officer, after the observations of the responding officers and prior to the issuance of the warrant, were properly suppressed prior to trial and “those items are no longer in issue” (People v Burr, 70 NY2d 354, 359-360, 514 N.E.2d 1363, 520 N.Y.S.2d 739 [1987], cert denied 485 U.S. 989, 108 S. Ct. 1294, 99 L. Ed. 2d 505 [1988]). The SPCA officer’s unlawful conduct did not, however, vitiate the probable cause that flowed from the police officers’ plain view observations.

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