NY1: Routine of leaving out of affidavit for SW that protective sweep saw drugs first revealed during trial required hearing

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” ….

This entry was posted in Inevitable discovery, Protective sweep. Bookmark the permalink.

Comments are closed.