CONCLUSIONS OF LAW

At issue initially is the legality of the police conduct in entering the subject location without a warrant, and detaining the suspects found within for a showup identification.

The Court notes that as a general rule, police officers may not, absent consent or exigent circumstances, effect a warrantless arrest of a suspect while the suspect is within the confines of his own home. (see, Payton v. New York, 445 U.S. 573; People v. Schiavo, 212 A.D.2d 816 [2d Dept. 1995]). A warrantless search of a suspect's residence is similarly presumptively unreasonable, except under narrowly-defined circumstances. (see, Payton, supra; People v. Williams, 181 A.D.2d 474, 475 [1^st Dept. 1992]). For Payton purposes, there was only evidence adduced at the hearing that defendant Williams resided within the subject premises (Hearing Tr. P. 13). Accordingly, only defendant Williams possesses standing to invoke the exclusionary rule to challenge the warrantless entry by the police into his home. (see, e.g., People v. Hernandez, 218 A.D.2d 167 [2d Dept. 1996]). As to defendant Williams, it is the finding of this Court that, for the following reasons, the entry and detention of the defendant in the case at bar was proper, insofar as the warrantless police entry upon the premises was justified by both consent and exigent circumstances.

The right to be secure against warrantless arrests as expressed in Payton v. New York, 445 U.S. 573 is not violated, where, as here, a person with ostensible authority consents to police presence on the premises, either explicitly or tacitly. (see, People v. Russo, 243 A.D.2d 658, 659 [2d Dept. 1997]; People v. Thomas, 223 A.D.2d 612 [2d Dept. 1996]). Said consent may be established by conduct as well as words. (see, People v. Smith, 239 A.D.2d 219 [1^st Dept. 1997]; People v. Gonzalez, 222 A.D.2d 453 [2d Dept. 1995]). Here, the evidence adduced establishes that the police were admitted to the premises by a person who had ostensible authority to consent, and did in fact consent, whether explicitly or tacitly, to such entry for the following reasons: (a) the individual admitting the police to the premises was identified as APatricia@, coincidentally the same name as defendant's aunt, (who testified that she resided at the premises, but denied being present at the time of the police entry), (b) the individual appeared to be carrying grocery bags, told police when asked that her father owned the vehicle which was identified as having been involved in this incident, and which was registered at the premises address and parked in front, (c) the individual told police when asked that her father was inside the premises, (d) when asked if the police could speak to her father, the individual unlocked the door with her key, admitted the officers to the premises and directed them right to her father's room, and (e) there was no evidence that the individual ever objected to the police presence at the subject premises. The Court finds that the testimony of Patricia Williams, who averred that she was not present at the time of the police entry into the premises, even if fully credited, does not controvert the People's showing that such entry was consensual.

Accordingly, defendant Williams= Payton rights were not violated.

The case at bar is somewhat unique insofar as there was no evidence in the extensive hearing record that the initial police entry was for the sole and express purpose of effectuating the arrest of the suspected perpetrators of the robbery inside the premises. The record does not disclose any evidence that Captain D=Alassandro entered the subject location with the express intention of arresting anyone. It is readily apparent that the police reasonably believed, based upon the fact that the vehicle allegedly used in the robbery was parked outside the premises where it was registered, and the fact that the motor was still warm, that the perpetrators of the robbery might have been secreting themselves inside the subject premises. Notwithstanding that belief, the tenor of the initial police contact with the occupants of the residence was investigatory, and in reasonable proportion to the information which was available to them at the time. The standard to be applied in weighing the defendant's right to be free from arbitrary searches and seizures against the enforcement duties of police officers is one of reasonableness, which Acontemplates and permits a flexible set of escalating police responses, provided only that they remain reasonably related in scope and intensity to the information the officer initially has@. (see, People v. Finlayson, 76 A.D.2d 670 [2d Dept. 1978], appeal denied 51 N.Y.2d 1011 [1980], cert. denied 450 U.S. 931 [1981]). There was no police action taken within the premises until Captain D=Alassandro discovered, contrary to what he had just been told by the father of Patricia Williams, that there were other individuals present. In fact, no one was apprehended or even detained inside the premises until Captain D=Alassandro observed someone moving around in the basement. Evidence of a third party presence was inconsistent with the information Captain D=Alassandro had received from the father of Patricia Williams that no one else was present in the house, and was consistent with his own prior observations through the basement window that someone was moving around in the basement of the premises. Captain D=Alassandro's observations, along with the inconsistent response he received from the father of Patricia Williams, properly elevated his level of knowledge and correspondingly, provided him with reasonable suspicion, thereby justifying a greater degree of police action in detaining the suspect in the basement. To hold otherwise would be to require an officer, once having properly gained admittance to a premises, to blind himself to common sense and what his own senses perceive. At that point, Captain D=Alassandro could reasonably believe, particularly given that he was investigating an armed robbery, that there might be other individuals present that might pose a danger to the officers or any occupants, thereby justifying the protective sweep which was undertaken. (see, People v. Harley, 188 A.D.2d 422, 423 [1^st Dept. 1992]; People v. Bost, 693 N.Y.S.2d 235 [2d Dept. 1999]; People v. Kelly, 689 N.Y.S.2d 470 [1^st Dept. 1999]). This was followed by a brief detention of possible suspects, for a showup identification by an eyewitness moments later.

Defense counsel contends that the application of handcuffs during the brief detention preceding the identification procedure de facto resulted in a full-blown arrest, (Hearing Tr. P. 236), thereby mandating a finding that the suspects were arrested within the premises prior to the identification by the witness. Counsel's statement flies in the face of all existing case authority. It is well-settled that an arrest does not automatically commence upon the Alocking click@ of a set of handcuffs applied to a suspect's wrists. In People v. Allen, 73 N.Y.2d 378, 380 (1989), the Court of Appeals made this abundantly apparent in stating that Anothing in our precedents establishes a rule that the application of handcuffs will always be dispositive of whether the detention of a suspect on reasonable suspicion has been elevated to a full-blown arrest@. In addition, when armed with sufficient information of the type the police had in the instant case, it is permissible for the police to conduct a brief, minimally-intrusive detention of the defendant until the witness could arrive at the showup and possibly identify the defendant as the perpetrator. (see, People v. Rowe, 236 A.D.2d 637, 638 [2d Dept. 1997]; People v. Gordon, 193 A.D.2d 694 [2d Dept. 1993]). In People v. Evans, 237 A.D.2d 458, 459 [2d Dept. 1997], a case in which a procedure similar to that at bar was utilized, the Second Department stated

Contrary to the defendant's contention, the use of handcuffs in transporting him to the patrol car did not transform the detention into a full-blown arrest requiring probable cause. (see, People v. Allen, 73 NY2d 378, People v. Carney, 212 A.D.2d 721). Probable cause to arrest the defendant was established after the victim unequivocally identified him as one of the perpetrators ...

The Court notes that the hearing testimony on whether or not the suspects were handcuffed was equivocal. However, the detention of the suspects in the instant case, if any, lasted only a few minutes until the police could bring the suspects outside, so that the witness, who was waiting in the patrol car, had a chance to view and to identify them.

Based upon the foregoing, the Court finds that the defendants were validly detained and that the arrests of the defendants did not transpire until after the defendants were positively identified by the civilian witness, at which point the police had probable cause to arrest. (see, e.g., People v. Jean-Charles, 226 A.D.2d 395 [2d Dept. 1996]; People v. Evans, supra at 459).

This Court is of the opinion that the police entry into the Williams residence can also be justified by the exigent circumstances which were attendant in this matter.

The Court recognizes that the police bear a heavy burden of establishing exigent circumstances that might justify warrantless searches or arrests. (see, People v. Mason, 248 A.D.2d 751754 [3d Dept. 1998]). The factors to be considered in determining whether exigent circumstances exist include (1) the gravity or violent nature of the offense with which the suspect is to be charged, (2) whether the suspect is reasonably believed to be armed, (3) a clear showing of probable cause to believe that the suspect committed the crime, (4) strong reason to believe that the suspect is in the premises being entered, (5) a likelihood that the suspect will escape if not swiftly apprehended, and (6) the peaceful circumstances of the entry. (see, e.g., People v. Bossett, 124 A.D.2d 740, 742 [2d Dept. 1986]); People v. Williams, 181 A.D.2d 474, 475-476 [1^st Dept. 1992]; People v. Hallman, 237 A.D.2d 17, 21 [1^st Dept. 1997]; People v. Mason, supra at 754; People v. Mealer, 57 N.Y.2d 214, 219 [1982]).

In the Court's opinion, all of the factors enumerated above, with the possible exception of the fifth (likelihood of escape), are established in this case. The defendants are charged with Robbery in the First Degree, a class AB@ violent felony offense, (see Penal Law Section 160.15), punishable by an indeterminate sentence with a maximum term between 6 and 25 years, and a minimum term of one-half the maximum term (PL 60.01[3][a], 70.00[1],[2][b],[3][b], 70.02[3][a],[4]), which is certainly regarded as a serious and violent crime. No weapon was recovered at the scene although the robbery allegedly occurred at gunpoint, thereby creating a reasonable inference that the suspects might be armed. The police had strong indications that the perpetrators of this robbery might be secreted within the subject location, based upon: (a) the fact that the robbery had occurred only a half hour earlier, in close proximity to the subject location; (b) information from an identified civilian who happened to be a retired state trooper, who had witnessed the perpetrators during the robbery and could identify them, (c) information regarding the alleged getaway vehicle provided by the same civilian, who had followed and identified the vehicle and provided police with the plate number and vehicle description, (d) the fact that there was a nexus between the vehicle and the subject premises, namely, that the vehicle was registered at the location, (e) the fact that the vehicle was parked in front of said location a short time after the robbery, and (f) the fact that, within a half hour after the robbery, in the dead of winter, the motor of the subject vehicle was still warm, indicating that it had been recently driven. Finally, there was uncontroverted evidence at the hearing that the initial police entry transpired under peaceful circumstances, having been admitted by one of the occupants of the premises, rather than by force. While there was no evidence that the suspects were seeking to escape, there was no indication to the contrary. AThe risk of flight is only one factor, and not an exclusive factor, in evaluating exigency.@ (People v. Hallman 237 A.D.2d 17 [1^st Dept. 1997]).

The police conduct in the case at bar consisted of an unbroken chain of events from the point at which police arrived at the scene of the robbery in response to a radio run, spoke to the civilian witness, received information regarding the vehicle allegedly used to flee the scene of the robbery, arrived at the address registered to said vehicle, noticed the vehicle parked outside with its motor still warm, and then asked an occupant if they could enter the subject premises to speak to the vehicle's owner. All of these events were part of one integral police procedure, which transpired within a half hour following the robbery at a location in close spatial proximity to the robbery scene. AFrom initial response to eventual apprehension, no gaps in time or in efforts broke the continuity of the fast-breaking investigation@. (People v. Hallman, supra at 23).

In conclusion, this Court finds that the record amply demonstrates the presence of probable cause, consensual entry and exigent circumstances sufficient to overcome the presumption of unreasonableness which normally attaches to the warrantless entry by the police to a suspect's home.

As to the showup identification of the defendants, the People bear the initial burden of going forward at a Wade hearing to demonstrate that the placing of the defendant in the identification procedure was lawful. (see, People v. Dodt, 61 N.Y.2d 408 [1984]). Once the People meet their burden of going forward, the burden then shifts to the defendants to establish that the identification procedure used was unduly suggestive. (see, e.g., People v. Rahming, 26 N.Y.2d 411 [1970]). If the defendants meet this burden of proof, the burden then shifts back to the People to establish that a basis for the in-court identification exists which is independent from the tainted identification procedure by clear and convincing evidence. (see, People v. Ballot, 20 N.Y.2d 600 [1967]; People v. Peterkin, 151 A.D.2d 407 [1st Dept 1989]).

The Court finds that the showup which transpired on the street outside the premises following the detention of the defendants inside the location, occurred in close temporal and spatial proximity to the offense and the apprehension of the suspects and is therefore permissible. (see, People v. Duuvon, 77 N.Y.2d 541 [1991]; People v. McCoy, 211 A.D.2d 732 [2d Dept. 1995]; People v. Johnson, 220 A.D.2d 775 [2d Dept. 1995]). Under the circumstances, considering the exigencies of the ongoing investigation into the recently-committed armed robbery, and the need to obtain a prompt identification, the Court finds that there was no undue degree of suggestiveness inherent in the procedure utilized. In People v. Attebery, 223 A.D.2d 714, 716 [2d Dept. 1996] the Second Department held that Aa showup procedure which is less than ideal may be acceptable in the interest of a prompt identification@. Defense counsel makes much of the fact that the suspects may have been handcuffed during the identification procedure. While the identification of the suspects while handcuffed and in the presence of police officers Apresses judicial tolerance to its limits@, a showup identification is permissible if it is not unduly suggestive and if exigent circumstances require immediate identification, or if the suspects are captured at or near the crime scene and can be viewed by the witness immediately. (see, People v. Blanche, 227 A.D.2d 935 [4^th Dept. 1996]; People v. Johnson, 81 N.Y.2d 828, 831 [1993]). The Court finds that the instant identification falls squarely within these parameters of permissible police procedure.

Similarly without legal foundation is defense counsel's notion that the mere fact that the witness may have overheard police radio transmissions on the way to the showup, stating that a suspect or suspects were being held, creates an inference that the resulting identification may thereby be rendered unreliable. The Court finds absolutely no case authority for this proposition, which, if accepted, would render suspect every showup , street canvass, or other identification procedure simply because the police transport witnesses while in required radio contact with their peers. Nor has counsel demonstrated, other than through speculative rhetoric, that any taint in fact resulted from the fact that the police radio was turned on and could be overheard during the brief trip to the subject location. The possibility that the witness overheard that a suspect or suspects were being held cannot render the procedure unduly suggestive, since implicit in every showup is the fact that a person or persons has been detained for identification purposes. The only curative measure to prevent witnesses from overhearing radio calls would be to require police officers to render themselves incommunicado while transporting witnesses, severely undermining public safety as well as the safety of the officers themselves.

Thus, as to this procedure, the People have met their initial burden and the defendants have failed to establish any cogent evidence that the procedure was unduly suggestive. (see, e.g., People v. Bhuggo, 241 A.D.2d 301 [1^st Dept. 1997]; People v. Keller, 242 A.D.2d 735 [2d Dept. 1997]).

Accordingly, the defendants= motions to suppress identification testimony is denied in all respects.

As to the suppression of physical evidence, to wit, a gun recovered from under a bed in the basement of the subject premises, the Court finds that, other than defendant Williams, the remaining two defendants do not have standing to challenge the seizure of the weapon within the premises. Neither of the other defendants has any legitimate expectation of privacy in the home of defendant Williams sufficient to confer standing to challenge the seizure of the weapon as illegal. (see, People v. Hernandez, supra at 169). Accordingly, their motions to suppress physical evidence must be denied for lack of standing.

As to defendant Williams, the Court finds that suppression must also be denied. The People have met their burden of demonstrating the legality of the police conduct, since the weapon was unintentionally recovered during a permissible protective sweep for third persons who might destroy evidence, or pose a threat to the officers or the public. The Second Department has held that the police may conduct such a Aprotective sweep@, (a quick, limited pass through spaces immediately adjoining the place of arrest), to check for third persons, provided that they have a factual predicate upon which to reasonably infer that the location might contain a third person. (People v. Bost, 693 N.Y.S.2d at 236). The evidence adduced at the hearing established that the weapon was recovered, not during a purposeful search for weapons, or other pretextual search of the premises, but following the detention of one individual near a bed in the basement of the premises, when Captain D=Alassandro ordered Officer Schindler to check the area near the bed to make sure that there were no other individuals hiding underneath the bed. (Hearing Tr. P. 84, 103). Given the fact that the police had information that there were at least three suspected perpetrators of the offense in question, it was reasonable to conduct such a sweep following the discovery and detention of only one individual inside the premises for the protection of the occupants. At the time of the within seizure of the weapon, it could reasonably be inferred that all occupants of the premises had not yet been secured, and that the exigencies of the situation had not yet ceased. The Court also notes that the gun which was seized was in the Aplain view@ of Officer Schindler, who was, at the time, conducting a protective sweep and therefore, lawfully in the position from which the contraband was visible. (People v. Hernandez, supra at 173). Nor can it fairly be said upon this record that this is a situation in which Officer Schindler intentionally placed himself in a position to look into an area or container which was not readily visible, thereby constituting an intrusion unjustified by the exigent circumstances validating the initial warrantless entry upon the premises. (see, People v. Harley, 188 A.D.2d at 424).

Accordingly, the defendants= motions to suppression physical evidence is denied in all respects.

Order entered accordingly.

The Clerk of the Court is directed to forward a copy of this memorandum and order to the attorney for the defendant and to the District Attorney.

Date: September 29, 1999

ROGER N. ROSENGARTEN

J.S.C.