Defendant is charged with criminal possession of marijuana in the second degree [Penal Law §221.25]. On September 2, 2008 the court conducted a hearing at which the defense asked the court to suppress tangible property (marijuana) seized in defendant's home by police officers. Testimony was given by Det. Sgt. William Carlisle, Special Agent Tim Sinnigen, and defendant. The hearing presents factual issues involving consent to a warrantless entry of defendant's home, consent to search the home, and the scope of any consent to search.

D.E.A. Special Agent Tim Sinnigen testified as follows. He has been an agent for 17 years, and was working in St. Lawrence County on August 1, 2007. At 8:20 a.m. he was in a vehicle on US Route 11 between Gouverneur and DeKalb Junction, where he was conducting routine surveillance on passing vehicles. In particular he was watching for people who might be drug or drug money couriers. His attention was drawn to a particular car with two people inside. He watched and followed them as the car turned onto a dirt road near the Hermon - DeKalb School, and then parked behind some bushes. When the occupants got out of their car, Sinnigen saw that the driver was female and the passenger male. Conversation between Sinnigen and the car's occupants led to his discovery of $22,900 in U.S. currency inside a speaker box in their vehicle. The male was named Chris Zeiler-Ersing, and he told Sinnigen that he was on the way to meet his connection, a man named John, who lived in Massena near a flower shop. $7,500 of the money was to be used to buy additional marijuana, and $15,000 was to pay off an old debt.

Sinnigen escorted the man and woman to the Sheriff's office in Canton, where the two were de-briefed by Det. Sgt. Carlisle. As a result of these interviews, the woman's name was checked with various offices, leading to the identification of the woman's boyfriend in Massena.

At 11:00 a.m. Sinnigen and other officers left Canton, and went to the home of defendant, Johan Kaskela, at 126 W. Hatfield St. in Massena. They noted that a flower shop was located approximately 40 or 50 yards away from the residence. At 11:40 a.m. Sinnigen, Det. Sgt. Carlisle, Sgt. Jenks and Patrolman Sweet went to the door of defendant's residence. Sweet was in [*2]uniform; the other three were in plain clothes, and were carrying concealed weapons, none of which were drawn. The three officers in plain clothes were not displaying police badges. Sinnigen and Carlisle went first, followed by Jenks and Sweet.

The four police officers approached the residence. One officer knocked on defendant's screen/storm door, and defendant opened the interior door. Defendant was alone at the door. Carlisle identified the officers and asked permission for them to come inside and talk with defendant. Defendant said yes,' and opened the door for the police to enter. Defendant backed up into the narrow foyer just inside the front door, and went up a partial flight of stairs to a landing at the level of the first floor of the residence. Sinnigen told defendant that they were there to pick up the dope in his house. Defendant did not respond. Sinnigen then said to defendant, "We are here for the marijuana; will you show us the marijuana?" Defendant said, "Yes," then started what Sinnigen called a tour of the house, taking Sinnigen and Carlisle with him. Sinnigen testified that Jenks and Sweet conducted a "protective search" to insure officer safety while defendant escorted Sinnigen and Carlisle around the house.

In the living room defendant moved aside a few items, which Sinnigen interpreted to be non-verbal communication that there was nothing of interest in that room. Passing from the living room back to the foyer, Sinnigen noted a ceiling trap door or portal which was open but too far up to reach. The three then continued to the other bedroom, where nothing of interest was seen. Defendant, Sinnigen and Carlisle continued on to the kitchen, at the far left of the apartment, then went to the master bedroom, across from the kitchen, with defendant leading the way.

In the master bedroom defendant went to the closet, followed by Sinnigen. Defendant stepped over the bed, and on the way kicked a cardboard box on the floor at the right front area of the room, causing the box to move 6 or 8 inches. The box was approximately 2 feet high, 2 or 3 feet wide and 2 feet long. After stepping over the bed, defendant opened the closet door. Sinnigen was standing near the box. As it moved, from being kicked by defendant, Sinnigen saw through a gap between interleaved flaps of the top, and noticed bags of marijuana inside the box. The officers then seized the marijuana and arrested defendant for its possession.

On cross-examination Sinnigen acknowledged that he had no warrant. He also said that when he was observing the box in the master bedroom, Sweet was to his rear. The box flaps were closed, but loose, leaving a gap of approximately 6 inches square. Sinnigen said that Jenks had done a protective sweep that included that room, and that Jenks saw the marijuana in the box, and signaled to Sinnigen to indicate what he had seen. All four officers left the residence with defendant and the drugs, closing and locking the door. Sinnigen acknowledged that he prepared DEA Form 6, identified in the hearing as defense Exhibit B, a few days after the arrest, and in that report identified the marijuana as having been found in an open cardboard box.

Det. Sgt. William Carlisle was the second witness. He testified that he had been a police officer with the St. Lawrence County Sheriff's Department for 17 ½ years, and had worked with the drug task force for 9 ½ years. He stated that he met with Sinnigen under the circumstances described by Sinnigen, to gather information and then interdict a drug sale by John, on W. Hatfield St. in Massena, near the flower shop. He spoke with a Massena Police investigator and with A.D.A. Finnerty, from whom he learned the name of defendant. He, Sinnigen, Jenks and Sweet went together to defendant's residence. Sweet was in uniform, the others were in plain [*3]clothes. Carlisle said that he knocked on defendant's front door, Carlisle identified himself and told defendant that Carlisle wanted to speak to him. Defendant said yes' and opened the door.

They went upstairs to the foyer, all five men on the same level at that point. Sinnigen asked if defendant would cooperate and give the officers the marijuana. Defendant was initially silent. Sinnigen asked again, and defendant said, "yes," and led the officers to the living room, and then through four rooms including the bedroom on the same level. They went back to the foyer, noticed the attic opening, then went into another bedroom, then clockwise to the master bedroom on the back right portion of the premises. In the master bedroom there was a cardboard box close to the bed. Defendant walked in, looked around, started towards the closet, and kicked the cardboard box with his right leg.

On cross-examination, defense counsel established that Carlisle heard Sinnigen ask defendant if he would cooperate and give them the marijuana. Jenks nudged Carlisle while Sinnigen started to look in the attic opening, and said, "Don't look up there, it's not in there, it's in there," referring to the master bedroom. Carlisle then told Sinnigen, "Don't look in the attic." After defendant kicked the box, Sinnigen said, "Hey, what's this?" Defendant did not respond. Sinnigen then looked in the box and pulled out a bag of marijuana. Defendant was taken into custody, and the police officers continued their search. Carlisle and Sinnigen displayed their police badges to defendant at the door. The box containing marijuana was taken by the police for processing. Following the cross-examination of Carlisle, the People rested.

Defendant Johan Kaskela then testified. He said that he heard a knock at his front door, which consists of an outer screen door, and an inner ribbed glass door. He saw four men, one of whom was in uniform. He saw Sinnigen, who said, "You mind if we come in?" as he approached defendant. Kaskela testified that he answered by asking, "Do I have a choice," as he backed away from the door. He then turned around, and went up the stairs to the landing. Defendant identified, and the court received, Exhibit A, which is a combined mounted scale drawing of the floor plan for defendant's residence and 10 separately-numbered photographs of portions of the premises.

Defendant testified that Sinnigen asked him, "Where is the marijuana," and he answered, "I don't know." Kaskela said that he heard Sweet ask, "Do you think we need a warrant?" Sinnigen answered, "I don't think so." Defendant saw Jenks and Sweet go to the master bedroom, then come out and give Sinnigen a head nod. Sinnigen then asked, "Do you know where the marijuana is?" Defendant testified that he answered, "I don't know." Sinnigen then asked, "Do you mind if we search?" Defendant said he responded by answering, "Yes." The court understood defendant to be saying that he was objecting to the search. The police then began to search.

Defendant further testified that in the master bedroom, Sinnigen again asked him where the marijuana was, and defendant responded that he didn't know. Sinnigen then asked defendant what was in the box, and defendant says he asked, "What box, this one?" and that he then nudged the box on the floor. Defendant denies having kicked the box, saying that he merely nudged it.

On cross-examination by the prosecutor, defendant claimed that he never gave consent to enter or search the premises; that he was not expecting anyone to come that day, and that he never heard of Zeiler-Ersing. He also stated that none of the officers answered his question about whether or not he had a choice about letting them in.

In closing, defense counsel argued that the police activity amounted to a non-consensual [*4]warrantless search, and that the marijuana must be suppressed from use at trial, as the "fruit of the poisonous tree."^[FN1] In response the People assert that the evidence was properly obtained, and that the hearing testimony of the defendant cannot be reconciled with that of the police officers, presenting a credibility issue for the court to resolve.

The court finds that the credible testimony establishes the following facts. The police officers had enough specific information about criminal activity to justify their going to defendant's residence. Once there, one of them in the company of the others knocked on the door, and then asked for permission to enter in order to talk to defendant. There was at this point in time no request to search, and no initial statement that the police were looking for marijuana or "dope." Defendant's action in turning and going toward and up the stair to the foyer was consistent with his consent to let the officers enter for the purpose of talking to him. The entryway was too small to accommodate five people readily. As Sinnigen and Carlisle were talking with defendant, Jenks and Sweet went off to do a protective search of the residence. The defendant then accompanied Sinnigen and Carlisle through the premises. As Sinnigen was about to enter the attic entryway, Jenks signaled that he had found the marijuana before defendant did anything to disclose its whereabouts, and it was not in plain view. None of the witnesses mentioned any other occupants of the premises.

A warrantless search of an individual's home is per se unreasonable, and gives rise to a presumption that the search is therefore unconstitutional, unless the prosecution establishes that a recognized exception to the presumption applies. Payton v. New York, 445 US 573 [1980]; People v. Hodge, 44 NY2d 553 [1978]; People v. Pettinato, 69 NY2d 653 [1986]. When police obtain valid consent to a search, there is no requirement that the search be supported by probable cause. People v. Campbell, 271 AD2d 693 [2 Dept 2000]; People v. Boyea, 44 AD3d 1093 [3 Dept 2007]. In the present case, the People have made no claim that either the exigent circumstances/emergency doctrine ^[FN2] or the inevitable discovery rule ^[FN3] provides an independent legal basis for the warrantless search. Nor would the facts, as adduced at the hearing, have supported either such claim.

A search is "good or bad when it starts, and does not change character from its success." United States v. Di Re, 332 US 581 [1948]; People v. Sobotker, 43 NY2d 559 [1978].

Police deception can, in some circumstances, undermine otherwise valid consent to a search. For example, where the police were admitted to defendant's home without disclosing that they were police officers, and when the door was opened by defendant's friend, and where the officer, once inside, saw defendant in possession of a bag of marijuana, the search results were [*5]suppressed as the fruits of an improper search. The deception vitiated the consent by the friend who opened the door. People v. Matta, 76 AD2d 844 [2 Dept 1980]. Although there are some overtones of that type of conduct in the present situation, the case is distinguishable because here the police officers did announce and identify themselves as police officers.

In the present situation there were also overtones of police coercion of defendant, as arguably established by the fact that four officers went to the door simultaneously; they hurried inside while telling defendant that they wanted to come in to talk with him, and then, without verbal invitation, followed him up the stairs, followed by questions about the whereabouts of the marijuana, and sharp questions as to whether defendant would cooperate with the officers. These facts are part of the totality of circumstances of this situation, but do not, in this court's judgment, in and of themselves invalidate the search. A court will not find valid consent to a warrantless entry of defendant's home unless the People meet their heavy burden' of establishing that the consent was voluntarily given, and was not the product of either overt or subtle coercion. People v. Flores, 181 AD 570 [1 Dept 1992]; People v. Gonzalez, 39 NY2d 122 [1976]; People v. Jimenez, 163 Misc 2d 30 [Crim Ct Bronx County 1994].

However, the People are unable to overcome a bigger problem. A defendant's consent to let police enter his home is not the legal equivalent of a consent to search the entire premises. People v. Love, 273 AD2d 842 [4 Dept 2000]^[FN4]; People v. Rampersant, 1 AD3d 122 [1 Dept 2003]. In order to be authorized to conduct a warrantless search inside a box inside the home, the police would have needed not only consent to enter, but also consent to search for contraband. Otherwise, even consent to search would have been restricted in scope to what was reasonably searchable, as measured by the wording of the consent. Walter v. United States, 447 US 649 [1980]; People v. Gomez, 5 NY3d 416 [2005]; People v. Bruno, 294 AD2d 179 [1 Dept 2002]; People v. Jakubowski, 100 AD2d 112 [4 Dept 1984], lv denied 62 NY2d 807 [1984].

Since the police officers were in the residence with defendant's permission, they had no right or basis upon which to conduct a "protective search." As a result of this unjustified "protective search" Jenks discovered the sought-after marijuana. Here, defendant had given no consent to search the premises before the "protective search" occurred.

Further, the defendant never consented to allow the officers to search the residence. The testimony at the hearing failed to establish that the claimed consent of the defendant was "a true act of the will, an unequivocal product of an essentially free and unconstrained choice." People v. Gonzalez, 39 NY2d 122, 128. Even if the People had established that defendant gave a valid consent to search, any such consent could only have been found to have occurred after Jenks found the marijuana through his illegal "protective search."

Moreover, any consent allegedly given by defendant came after the police questions about "Will you show us the dope," and "Will you take us to the marijuana." It does not matter whether defendant answered "Yes" to these questions because Jenks' illegal "protective search" had already occurred, and therefore tainted any consent that defendant might be said to have given, [*6]either by words or conduct.

In any event, the court finds that defendant did not consent to a search. His actions demonstrate that he was not consenting to an unlimited search of his residence. Rather, in response to the officers' "Where?" questions, defendant was leading them around the residence in an effort to demonstrate that he did not have any marijuana.

Applying the exclusionary rule, the court finds that the marijuana seized as a result of a warrantless, non-consensual search of defendant's home must be suppressed. So ordered.

Enter.

Date: September 5, 2008

____________________________________

JEROME J. RICHARDS

Judge of County Court