The Defendant, David K. Reese, is charged with Harassment in the Second Degree in violation of PL §240.26(1) and with Resisting Arrest in violation of PL §205.30. In a decision dated September 9, 2004, the charge of Obstructing Governmental Administration in the Second Degree in violation of PL §195.05 was dismissed, the People consenting thereto.

The Defendant had also moved to suppress his arrest and to dismiss the remaining charges for the lack of probable cause. The Defendant's motion was granted to the extent that a Payton hearing was ordered to be held before trial to determine the propriety of the police officer's entry into the Defendant's home and his arrest. Likewise, a Dunaway hearing was ordered to address the issue of whether there was probable cause to arrest the Defendant. The hearings were held on November 3, 2004, and the decision was reserved. The parties submitted post-hearing memoranda of law. At the hearings, one witness was called, Police Officer Francis Rendon of the Suffolk County Police Department. He testified on direct examination for the People, and was cross-examined by the defense.

Police Officer Rendon testified on direct examination that on February 2, 2004, he was working with his partner in a marked unit, and at approximately 6:10 he received a radio dispatch to go to McArthur Avenue and Montgomery Street in Brentwood. When Officer Rendon arrived at the location, he came upon the victim of a stabbing, John Denny. Mr. Denny told Officer Rendon that he had been stabbed by a man named Roland and that he had been [*2]stabbed at 76 Eisenhower Avenue in Brentwood. Mr. Denny also gave the officer a description of the alleged assailant. Officer Rendon waited with the victim until the emergency services arrived, and then he proceeded to 76 Eisenhower Avenue at approximately 6:30.

Officer Rendon testified that his purpose in going to 76 Eisenhower Avenue in Brentwood was to locate the alleged assailant Roland. While other officers positioned themselves around the house, Officer Rendon testified that he went to the front door and knocked. He stated that he observed a male coming to the front door who fit the description of Roland. When this individual opened the front door, Officer Rendon testified that "I stepped into the threshold of the door with my right foot and asked the gentleman if he was Roland." (In the courtroom Police Officer Rendon identified the individual who came to the door as the Defendant David K. Reese.) Officer Rendon testified that the Defendant then attempted to close the door stating, "Get the fuck out of here." The officer then pushed the door completely open, and admittedly stepped further into the house. The officer and the Defendant scuffled inside the front door of the house, and the Defendant allegedly threw a punch in the officer's direction, at which time the officer attempted to place the Defendant under arrest. The Defendant started to run towards the rear of the house, and Police Officer Rendon tackled him from behind. The officer testified that the Defendant had a hold of the officer's right leg and, after other officers entered the house, they were able to place him under arrest and put him in handcuffs. He was charged with Harassment in the Second Degree, Obstructing Governmental Administration and Resisting Arrest.

On cross-examination Officer Rendon testified that he went to 76 Eisenhower Street in Brentwood without a warrant, and admitted that he was not in hot pursuit. Officer Rendon also reiterated that as soon as the Defendant opened the door, he placed his foot in the doorway in order to prevent the Defendant from closing the door. If asked whether he entered the Defendant's home without his consent, Police Officer Rendon said that the only words that the Defendant said to him were, "Fuck you, get out of here."

On redirect, when asked if a warrant would have been practical, Officer Rendon stated that he believed the circumstances were exigent. The officer testified that, "I didn't know if he was going to stab somebody else at the house, I didn't know if he was going to try to get rid of the knife, if he had blood on his clothes."

[*3]CONCLUSIONS OF LAW

The Court will consider first the propriety of Police Officer Rendon's entry into the Defendant's home under Payton v. New York (445 US 573), and then determine whether the officer had probable cause to arrest the Defendant for Harassment in the Second Degree and Resisting Arrest. The United States Supreme Court has repeatedly stated a strong preference for search warrants, and has found it is "a basic principle of Fourth Amendment Law that searches and seizures inside a home without a warrant are presumptively unreasonable" (Payton v. New York, supra). Under Payton v. New York, it is clear that, absent consent or exigent circumstances, no private home may be entered by the police to arrest an occupant if an arrest warrant has not been obtained, even if they have probable cause to make the arrest (see, Kirk v. Louisiana, 536 US 635). " At the very core [of the Fourth Amendment] stands the right of a man to retreat into his home and there be free from unreasonable governmental intrusion... [t]he Fourth Amendment has drawn a firm line at the entrance of the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant" (Payton v. New York, supra). The proscription against entry of a home is the key to Payton. "Because physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed (United Stated v. United States District Court., 407 US 297, 313, 92 S.Ct. 2125, 32 L.Ed. 2d 752), the Defendant has no burden to show he had an expectation of privacy in his apartment. Both the Fourth Amendment to the United States Constitution and section 12 of article I of the New York State Constitution expressly provide that the right of the People to be secure in their... houses... shall not be violated" (People v. Levan, 62 NY2d 139). Consequently, the courts have drawn a line for purposes of Payton violations at the entrance to an individual's house (see, People v. Robert, 156 AD2d 730). What must be remembered, therefore, is that Payton prohibits the police from physically entering a person's home.

In determining difficult legal issues, such as the ones in this case, it is necessary to weigh and analyze the specific facts at hand and the legal tenents involved, as each situation may not easily fit into a set mold. The Court also recognizes the unique nature of each crime investigation, the speed at which circumstances develop and that, after hearings, the Court has the benefit of hind-sight. In the matter sub judice, after considering the testimony of Police Officer Rendon, the memoranda of law and the applicable case law, the Court finds that there has been a Payton violation. [*4]

To establish that Officer Rendon had the right to enter the Defendant's home, the People were required to show that the entry did not offend the Fourth Amendment and New York's Constitution Article I, §12, that probable cause existed for entry and that one of the recognized exceptions (consent, exigent circumstances or hot pursuit) to the warrant requirement applied in the matter. Additionally, probable cause alone, no matter how incontrovertible, cannot support a warrantless seizure (see, Kirk v. Louisiana, supra; Horton v. California, 496 US 128; People v. Spinelli, 35 NY2d 77; People v. Saurini, 201 AD2d 869). Here, Police Officer Rendon, in search of another individual and admittedly without a warrant, knocked on the door of the Defendant's residence while other officers surrounded the house. Immediately upon the Defendant opening his front door, Officer Rendon, before even asking the Defendant a question, placed his foot and leg in the threshold of the door preventing the Defendant from closing it. When Officer Rendon asked the Defendant if he was Roland, the Defendant tried to close the front door, but the police officer admittedly pushed the door completely open, and stepped further into the house.

Clearly, the police officer did not have the Defendant's consent to enter his home, and the officer was not in hot pursuit of the Defendant. Further, the Court finds that the People did not meet their burden of proving exigent circumstances sufficient to permit a warrantless entry into the Defendant's dwelling. In fact, the People have failed to show that the police even discussed the possibility of obtaining a warrant before entering the Defendant's home, even though there was time to do so. It is unlikely exigent circumstances could be established given these facts (see, People v. Ramos, 206 AD2d 260; Kamins, New York Search & Seizure, p. 221 [2004 ed]). Moreover, Officer Rendon did not demonstrate to the Court that the warrantless entry was required on a theory of public safety. Although a serious crime had occurred, the police had no evidence that the suspect Roland was in the house at 76 Eisenhower Avenue, that he was armed and that there was a likelihood he would escape. Thus, exigent circumstances cannot be established. The Court concludes from the credible evidence adduced at the hearing that Police Officer Rendon made a warrantless and illegal entry into the Defendant's residence by physically crossing the threshold of the front door, and entering the Defendant's dwelling in violation of the Defendant's Federal and State constitutional rights to be secure from unreasonable searches and seizures.

In addition, the Court finds that Police Officer Rendon did not have probable cause to arrest the Defendant for Harassment in the Second Degree and, hence, there was no probable cause (an [*5]"authorized arrest") to charge the Defendant with Resisting Arrest (see, People v. Jensen, 86 NY2d 248; People v. Peacock, 68 NY2d 675). It is important to note that an individual who intentionally prevents an unauthorized arrest is not guilty of Resisting Arrest. The Defendant herein was charged with Harassment in the Second Degree in violation of PL §240.26(1). Police Officer Rendon alleges in the accusatory instrument that "the Defendant did shove the undersigned and closed a door on the undersigned's right leg. Subject then took an aggressive posture with both fists clenched and raised stating, 'get the fuck out of here or I'll punch you in the head'". The police officer, however, who had knocked on the Defendant's front door and, upon the Defendant's opening the door, put his right leg in the doorway, was not legally present in the Defendant's home. Police Officer Rendon, therefore, did not have probable cause to arrest the Defendant for Harassment in the Second Degree when the Defendant attempted to close the door to his dwelling. Consequently, the Defendant's arrest for Harassment was not lawful. Probable cause to arrest exists only where facts and circumstances within the police officer's knowledge warrant a man of reasonable caution to believe that an offense has been committed (see, Brinegar v. United States, 338 US 160). Here, the Court finds that the People have failed to demonstrate by any specific and articulable facts, which, along with any logical deductions, justify the arrest of the Defendant for Harassment in the Second Degree.

Further, under the Penal Law, an essential element of the offense of Resisting Arrest (PL §205.30) is the requirement that there be an "authorized" arrest. Thus, the arrest in issue must have been made in accordance with the law, including a finding that the arrest was premised on probable cause. If the arrest was not authorized, the person who intentionally prevented or attempted to prevent that arrest cannot be charged or convicted of Resisting Arrest (see, People v. Jensen, supra; People v. Peacock, supra). In the matter sub judice, the police were not authorized to enter the Defendant's home, and did not possess a reasonable suspicion that the Defendant was involved in any criminal activity, or that the Defendant was committing, had committed or was about to commit an offense (see, People v. Peacock, supra). In addition, as stated above, the police did not have a warrant, nor did the complainant police officer demonstrate facts establishing exigent circumstances, or any other exception justifying a warrantless entrance into the Defendant's home. Hence, Police Officer Rendon did not have probable cause to arrest the Defendant for Harassment in the Second Degree when the Defendant attempted to close the front door of his house. That being the case, the Defendant's arrest [*6]was not authorized, and the Defendant's attempts to resist being placed under arrest do not constitute a violation of PL §205.30. Since the Defendant's arrest for Harassment in the Second Degree was not "authorized", he cannot be charged with Resisting Arrest (see, People v. Peacock, supra).

The Court notes that the Defendant's memorandum of law renews the Defendant's application to dismiss the charges currently pending against the Defendant. It is the opinion of the Court, after considering the evidence presented at the hearings, as well as the arguments presented in the memoranda of law, that the police made a warrantless entry into the Defendant's home in violation of Payton v. New York, (supra), and that they lacked probable cause to arrest the Defendant for the remaining charges, Harassment in the Second Degree and Resisting Arrest. The Court, therefore, deems the Defendant's application to be a motion to dismiss the accusatory instruments herein on the ground that there exist legal impediments to the Defendant's convictions for the offenses charged (see, CPL §170.30[1][f]; People v. Swamp, 84 NY2d 725). The Court finds that such impediments exist. Accordingly, the Defendant's motion is granted, and the charges are dismissed.

_________________________

J.D.C.

/ds