Defendant, indicted for one count of assault in the second degree in violation of PL §120.05(2), moved by Omnibus motion to suppress her arrest as unconstitutional and without a warrant and suppress all fruits therefrom, including any statements made to law enforcement.

This Court held a suppression hearing on May 30, 2007 which concluded on June 22, 2007. Following said hearings submissions were ordered by this Court and both the defendant and the People submitted a memorandum of law and written arguments. This matter is fully submitted.

In the late evening hours of August 4, 2006 Sullivan County Sheriff's Deputies responded to a report of an assault with serious injuries to Lander's Campground^[FN1] in the Town of Tusten, County of Sullivan. [*2]

On the weekend of August 4, 2006 the defendant, Catalina Domingo, a 17 year old female, was camping with her family and friends, enjoying the rural beauty of Sullivan County away from her home in Long Island. During the evening hours, as smoke from a hundred campfires filled the air, the defendant, along with other campers, was participating in activities at the campground pavilion when an argument turned into a riverside brawl where, it is alleged, the young defendant struck another woman in the face with a beer bottle causing serious physical injury.

After initial investigation the police left the campground but returned at about 5:00 am on August 5, 2006 to continue their investigation and question the defendant. Two uniformed Sullivan County Deputies and one plain clothes Sheriff's Investigator waited at the campground until after dawn and at first light approached the defendant's tent and arrested the defendant for assault in the second degree.

The issue herein is whether the warrantless seizure of the defendant from her tent was unconstitutional under the Fourth Amendment of the United States Constitution and the corresponding New York State Constitution, Art. I, Section 12 and against the proscription of Payton v New York, 445 US 573 (1980) and its progeny? And, if the initial arrest is constitutionally invalid, all fruits of the illegality, including the defendant's alleged admissions, must be suppressed under Wong Sun v United States, 371 US 471 (1963) and Dunaway v New York, 442 US 200 (1979).

Whether the "Fourth Amendment" protects a person's privacy interests in a canvas and portable tent located at a public campground is a first impression case in the State of New York.

In New York a person has a constitutional right, both federal and state, to be secure in his person and his home against unreasonable searches and seizures and, absent exigent circumstances, a warrantless and non-consensual entry into a person's home to search, seize or arrest is illegal. Payton V New York, Supra.

New York State courts have generally found that a "home" is a structure or building built or used for habitation. See, People v Herner, 156 Misc 2d 735 (Sup. Ct., Monroe Cty., 1993), aff'd 212 AD2d 1042 (App. Div. 4th Dept., 1995) appeal denied 85 NY2d 974 (1995).

The Payton rule strictly prohibits the police from crossing the threshold of a suspect's home to effect a warrantless arrest in the absence of exigent circumstances, People v Minley, 68 NY2d 952 (1986).

"The test is whether the defendant exhibited an actual (subjective) expectation of privacy and whether that expectation is one that society is prepared to recognize as reasonable. People v Lehinan, 90 Ad2d 74 (App. Div. 2nd Dept., 1982); See, also United States v Gooch, 6 F3d 673 [*3]( Ct. Appls. 9th Circuit, 1993).

The expectation of privacy in a person's home is the hallmark of the Fourth Amendment and the Payton protection and such privacy has been extended to hotel rooms, People v Bossett, 124 AD2d 740 (2nd Dept., 1986), lv denied, 70 NY2d 643 (1987), and rooming houses, People v Lott, 102 AD2d 506 (App. Div. 4th Dept., 1989) because of society's expectation of privacy in a dwelling or structure or even a single room. The size, cost or manner of construction is immaterial to the legal analysis of protecting a citizen's privacy in one's own "home."

Fourth Amendment protection in a tent in a public campground has been extended by federal courts, See, ie, United States v Gooch, Supra, and a myriad of courts in sister states, See, Whiting v State, 389 Md 334 (Md. Ct. Appls., 2005); Float-Rite Park v Somerset, 2001 WI. App. 113 (Wis. Ct. Apps., 2001); Haley v State, 696 NE2d 98 (Ind. Ct. App., 1998); Alward v State, 112 Nev 141 (Nev Sup. Ct., 1996); People v Thomas, 38 Cal. App. 4th 1331 (1995); People v Schafer, 946 P2d 938 (Colo. Sup. Ct., 1991); Kelly v State, 146 Ga App. 179 (1978); Blakemore v Stanley, 159 Mass 6 (Mass. Sup. Ct., 1893).

By analogy herein, the definition of "home," "dwelling" or "building" has long been defined and analyzed by the Legislature and Courts in New York Statein regard the crime of burglary.

"Building," in addition to its ordinary meaning, includes any structure...used for overnight lodging of persons, Penal Law §140.00(2); and "dwelling" means any building which is usually occupied by a person lodging therein at night. Penal Law §140.00 (3).

For burglary purposes, New York Courts have applied "building" to "...a house boat, a horse trailer, a tent used for the overnight lodging of people, a mobile field office, and vans used in business to transport workers and materials." Penal Law, McKinney's Commentaries, William C. Donnino, §140.00, p.7 (emphasis added).

This Court finds as a matter of law that a tent lawfully erected in a public campground is entitled to constitutional and Payton protections. Certainly the lawful occupants of the tent expect privacy from other campers and the police and our society reasonably expects that same privacy inside the tent.

In the case at bar, there is conflicting testimony at the suppression hearing regarding the effectuation of the arrest by the Sullivan County Sheriff's Department. [*4]

The defendant's boyfriend testified that one of the Deputies unzipped the closed flap^[FN2] of her tent, entered the tent and demanded that she come outside and then arrested her for assault.

However, the credible testimony shows that the police never crossed the threshold of the tent. Sheriff's Department personnel approached the defendant's tent and from the public area of the campsite on August 5, 2006, soon after dawn at about 5:30 in the morning, requested the defendant to come out of the tent. The defendant unzipped the tent flap from the inside and stepped out of the tent into the public area of Lander's Campground^[FN3], having voluntarily left the privacy of her tent. After brief questioning, was arrested for assault in the second degree.

As discussed by our Courts, privacy issues arise when the police cross the threshold of a person's home to effect a warrantless arrest absent exigent circumstances.

However, the Fourth Amendment and Payton have no application if a defendant is outside her home, even if she left at the request of the police. People v Minley, 68 NY2d 952 (1986);

People v Herner, 156 Misc 2d 735, Supra.

This is so whether the defendant voluntarily left her home and was arrested on a porch, People v. Keller, 148 Ad2d 958 (App. Div 4th Dept., 1989), in a driveway, People v Valenti, 143 Ad2d 955 (App. Div. 2nd Dept., 1988) or in a public area of a campground as in the case herein.

This Court finds that the defendant's arrest herein was fully lawful and not in violation of any constitutional or Payton

mandates.

Based upon the above, it is

ORDERED, that defendant's motion to suppress her arrest and any fruits therefrom is denied, and it further

ORDERED, all statements made to law enforcement authorities by the defendant were voluntary and admissible herein.

This shall constitutes the Decision and Order of this Court. [*5]

DATED: August 16, 2007

Monticello, NY

__________________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate