During the trial, NYPD officers revealed they were in the premises and conducted plain views during a walk around as a protective sweep and then sought a search warrant . It was also revealed that they routinely left information about these prior entries out of affidavits for warrants. The state also argued that the defendant was aware of the police being there, but the court declines to credit that theory unless she was well versed in criminal procedure to know its significance to tell her lawyers. The trial court erred in denying the motion with no hearing at all on an inevitable discovery theory. People v. Esperanza, 2022 NY Slip Op 00383, 2022 N.Y. App. Div. LEXIS 368 (1st Dept. Jan. 25, 2022):
After conducting the sweep, Detective Vazquez then left the apartment and went to request a search warrant. The affidavit in support of the search warrant, however, did not mention that officers were already inside defendant’s apartment or that heroin had been found. The search warrant was granted two hours later, and, as indicated in the complaint, the officers recovered the bag of heroin from the bathroom floor. Tests later confirmed that the bag contained heroin. The bag was not tested for DNA or fingerprints. Defendant was subsequently arrested. Finally, a search of defendant’s person revealed the $40 pre-recorded buy money that the undercover officer had given Calderone earlier that day.
Although ultimately revealed at trial, the People, in the prosecution of this case, had a pattern of omitting these key pieces of information concerning the pre-warrant police entry into defendant’s apartment. Namely, neither the application for a search warrant, the criminal complaint, nor the People’s opposition to defendant’s omnibus motion mentioned that the search warrant was requested only after officers had already been inside defendant’s apartment and had conducted a protective sweep of the premises.
For example, the complaint states that Vazquez “obtained a search warrant . . . to search [defendant’s apartment] . . . Upon execution of the search warrant on that same date, at approximately 20:30hrs, I observed [defendant] inside the apartment. A quantity of heroin . . . was recovered in [her] possession.” Clearly, no pre-warrant entry or search can be deduced from these facts.
Similarly, the affidavit in support of the search warrant reads: “[a]lthough the location is currently frozen, one individual present inside the apartment when members of NYPD knocked on the door [sic]. Either she or another individual may attempt to destroy the property which is sought inside the target premises.” Again, this statement suggests that the police are outside defendant’s apartment. After all, it is unlawful for officers to enter a suspect’s home, even to freeze it, absent exigent circumstances (see People v Lee, 83 AD2d 311, 314 [1st Dept 1981] [holding “the mere presence of narcotics, without more, is not such an exigent circumstance as would permit entry into private premises without a proper warrant”], affd 58 NY2d 771 [1982], cert denied 460 U.S. 1044 [1983]). The affidavit does nothing to clarify the matter, as it does not indicate that exigent circumstances existed and does not definitively state that the officers had already entered defendant’s apartment. Finally, the People’s opposition to defendant’s omnibus motion describes what transpired “[u]pon entry into the target location.” Nowhere does the response mention a second entry. These papers are particularly deceptive considering they state that defendant “was observed by detectives with wet hands.” However, as it was later revealed, defendant was first noticed to have wet hands upon the initial, warrantless entry into defendant’s apartment, which occurred two hours prior.
. . .
Here, in contrast, no hearing was held. Furthermore, both defendant and the motion court were without knowledge of the fact that the police had entered defendant’s apartment and found the baggie of heroin prior to obtaining and executing the search warrant. This was of course due to glaring omissions in the criminal complaint, affidavit in support of the search warrant, and the People’s response to the omnibus motion. Thus, the People erroneously rely on Burr for the proposition that defendant’s failure to specifically cite the warrantless entry and alleged unlawful search “not only deprived the People of any opportunity to rebut such a contention but also left an inconclusive record on the issue” …. Had defendant failed at making this argument at a suppression hearing, as was the case in Burr, a denial of the motion to suppress would be proper and the People’s argument might suffice (see id). However, it would be manifestly unfair and against the legislative intent of CPL article 710 to hold that defendant should have raised this issue at the motion stage, when it was the People’s papers that obscured facts necessary for defendant to even be aware that such an argument should have been made ….
In any event, the People’s arguments pertaining to the potential legality of the warrantless search are unavailing as “the propriety of the denial of a suppression motion must be judged on the evidence before the suppression court and [ ] evidence subsequently admitted at the trial cannot be used to support the suppression court’s denial” ….
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)