SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS: CRIMINAL TERM: PART K-5

THE PEOPLE OF THE STATE OF NEW YORK                       BY: DANIEL LEWIS,
                                                                                                               : Justice
                                                                                                               :
                 -against-
                                                                                             MOTION: To Suppress The
                                                                                                                 Arrest for Lack of Probable
                                                                                                                 Cause, Statements and
                                                                                                                 Tangible Evidence

CLIVE TUCKER,                                                                INDICTMENT NO:908/99

Thus matter was set down for Dunaway, Mapp and Huntley hearings. The hearings were held and testimony was taken from Police Officer David Carman and Sylvia Tucker on November 9, l999. Defense counsels and the People submitted memoranda of law in this matter on December l0 and 29, l999 respectively.

Based upon the testimony taken and the aforementioned memorandum of law, the Court finds that the motions to suppress the arrest for lack of probable cause and tangible evidence are denied and the motion to suppress statements is granted for the reasons set forth below.

MOTION TO SUPPRESS THE ARREST FOR LACK OF PROBABLE CAUSE

The defense has challenged the arrest of the defendant in the Tucker home as violative of his constitutional rights due to lack of consent and absence of exigent circumstances.

The People have agreed that the arrest of the defendant was justified based upon exigent circumstances. The law is well established that the Police may not cross the threshold of a suspect's home to make a warrantless arrest absent consent or the existence of exigent circumstances. Payton v New York, 445 U.S. 573, 590 (l980); see People v Levan, 62 NY2d l39, l44 (l984).

The courts have held that whether exigent circumstances exist to justify such an entry is to be determined from the following factors:

(l) The gravity of violent nature of the offense with which the suspect is to be charged;

(2) whether there is reason to believe that the suspect is armed;

(3) whether there is reasonably trustworthy information or clear showing of probable cause to believe that the suspect committed a crime;

(4) whether there is strong reason to believe that the suspect is in the premises being entered;

(5) the likelihood that the suspect will escape if not swiftly apprehended; and

(6) the time of day of the entry and whether the entry was peaceful in nature.

See Dorman v United States, 435 F2d 385,392-393 (D.C. Cir. l970; People v Bero, l39 Ad2d 58l, 584-585 (2nd Dept., l988); People v Gordon, ll0 Ad2d 778,780 (2d Dept.l985);People v Azouna, -AD2d- (2nd Dept., 5/17/99) NYLJ, May 24, l999 at p.33 , col.3(2nd Dept).,

This Court finds that on March 29, 1999, Police Officers David Carman and Jacqueline Rodriguez-Marrero went to l07-6l l55 Street, in Queens, in response to a radio run of an assault in progress. Officer Carman spoke to a teenager, who was in front of the house and whose brother had just been stabbed and was inside. The officer walked through the open front door and to the top of the staircase, where he saw a person lying on his back, who was holding his stomach and being comforted by another person. The man (Gerard Shambu) with the stab wound, told Officer Carman that his Uncle Poppy has stabbed him and he was inside the house.

Next, the officer stated that he alone proceeded to enter the second floor apartment yelling "Poppy, Poppy." The officer claims the door was open and unlocked, while Mrs. Sylvia Tucker testified she opened the door in response to the police knocking on the door and four uniformed officers then entered. Both witnesses concur that the police did not have any weapon(s) drawn. Then, the defendant came out of the back bedroom with his hands up. Officer Carman placed Mr. Tucker under arrest and handcuffed him. The knife was seized and vouchered.

In this matter, this court finds that there is sufficient evidence to find that the officer had sufficient reason to believe the defendant had committed a violent crime, was armed and was inside. Under these circumstances , there was an urgent need for the peaceful warrantless entry therein. While the police had no knowledge of whether the suspect could or would escape, this court finds that the absence of this one factor, does not negate the determination that the action taken was justified by the exigent circumstances demonstrated in this matter. Note: Dorman v United States, supra at p.39l. The circumstances herein were not such that the police had the opportunity to obtain a warrant before the arrest of this armed defendant. Note: People v Burr, 70 NY2d 354, 360,cert denied, 485 U.S. 989; People v Mealer, 57 NY2d 2l4, 2l9, cert. denied.,460 U.S. l024; People v Azouna, supra; People v Levine, l74 Ad2d 757,759; People v Bero, supra at 584.

MOTION TO SUPPRESS TANGIBLE EVIDENCE

The defendant contends that the evidence seized is inadmissible because the seizure was unconstitutional.

The People argue that the seizure was justified pursuant to a lawful arrest.

The law is clear that the seizure of tangible evidence incidental to an arrest is permissible where limited to "grabbable" area (i.e. person and area of control). See Chimel v California, 395 U.S. 752; People v Fitzpatrick, 32 NY2d 499, cert denied, 414 U.S.l033. Cf. People v Williams,37 NY2d 206.

Police Officer Carman learned of the knife from the stabbing victim and the defendant pointed to the knife on the sink corner in the kitchen before he was handcuffed. The recovery was not pursuant to a "protective sweep" but its discovery and recovery were inevitable and incidental to the warrantless entry and arrest herein. See Nix v Williams, l04 U.S. 250l (l984). People v Fitzpatrick, supra. Cf. People v Sciacca., 45 NY2d 122 (l978).

The court concludes that there was no violation of the defendant's constitutional rights in the warrantless seizure of the knife.

MOTION TO SUPPRESS STATEMENTS

The defense has moved to suppress the statements allegedly made by the defendant on the ground that his constitutional rights were violated since he was questioned without Miranda warnings.

The People argue that the defendant was not in custody at the time the officer made his inquiry and that the police did so to clarify the situation at the scene of a crime.

In Miranda v Arizona, 384 U.S. 438, the Supreme Court ruled that the product of custodial interrogation by law enforcement officials is inadmissible unless, before the interrogation, the suspect is advised of his constitutional rights and voluntarily, knowingly and intelligently waives them. See also People v Huntley, l5 NY2d, l5 NY2d 72 (l968); CPL '60.45(2)(a),(b)(l). The Supreme Court held that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. The Court has held that custodial interrogation includes "not only express questioning, but also .....any words or actions on the part of the police...that the police should know are reasonably likely to elicit an incriminating response from the suspect." See Rhode Island v Innes, 446 U.S. 291, 301, l00 S.Ct. 1682, l689. (l980); People v Chambers, l84 AD2d 7l6,7l7.(2d Dept. l992).

In New York, The Court of Appeals has held in People v Yukl, 25 NY2d 585 (l969), that the determination of whether a person is in custody in an objective test based upon what a reasonable person, innocent of any crime, would have thought in the defendant's position.

In this matter, the Court found that Police Officer Carman ascertained the requisite information to constitute probable cause from his questioning of the teenager brother of the victim and from the wounded victim prior to entering into the second floor apartment. Upon his entry in the premises, he called the defendant's name and positioned himself in a manner to prevent the defendant's leaving the apartment. The defendant responded to the officer's call with his hands held up. Officer Carman testified that the defendant was not free to leave.

`This Court finds that this was a forcible seizure which curtailed the defendant's freedom of action to the degree associated with a formal arrest, See People v Morales, 65 NY2d 997. (l985). The inquiry by the officer of "What happened?" was not an investigative inquiry or an effort to clarify the situation. The cases cited by the People are distinguishable in that this was not a stop and frisk inquiry but questioning after the defendant was seized and restrained. Note: People v Morales, supra, People v Davis, 70 NY2d 891 (l987), People v Davis, l66 Ad2d 338 (lst Dept. l990).

Therefore, this Court concludes that the defendant's constitutional rights were violated since the inquiry was made while the defendant was already in custody and without the giving of Miranda warnings.

Accordingly, for the reasons stated, the defendant's motion to suppress his statements is granted. However, the defense motions to suppress the tangible evidence and the challenge the arrest for lack of probable cause are denied.