[*1]

On October 23, 2007, by indictment 4355/2007, filed on November 2, 2007, the Bronx County Grand Jury charged the defendant with committing the crimes of Attempted Murder in the Second Degree (1 Count), Burglary in the First Degree (2 Counts), Burglary in the Second Degree (3 Counts), Burglary in the Third Degree (1 Count), Assault in the First Degree (1 Count), Assault in the Second Degree (2 Counts), Attempted Robbery in the First, Second and Third Degrees (1 Count each), Assault in the Third Degree (1 Count), Criminal Possession of a Weapon in the Fourth Degree (1 Count), and Criminal Trespass in the Second Degree (1 Count). A combined Huntley/Dunaway/Payton/Wade hearing commenced on July 1, 2009. Prior to calling any witnesses the People withdrew their intention to use any in-court and pre-trial identifications. The People offered the testimonies of Assistant District Attorney Kaplan, Detective McCready, Detective McCarron and Detective Cruz. The Defense called Lloyd Farquharson, Jr. and Lloyd Farquharson, Sr. This Court finds the testimonies of Det. McCready, Det. McCarron, Det. Cruz and Lloyd Farquharson, Jr. credible in part and credits their testimonies in part. This Court finds the testimonies of both A.D.A. Kaplan and Lloyd Farquharson, Sr. credible and credits their testimonies. The suppression hearing concluded on July 20, 2009, after the People and the Defense made oral legal arguments.

The matter arises out of an alleged burglary that took place on October 19, 2006, at the home of the complainant at 1502 East 222 Street, Bronx County, at approximately 11:25AM. An earring was found at said address and given to one Det. Tveter, the initial detective assigned to the case. Det. Tveter vouchered the earring and submitted it for forensic testing with the New York City Medical Examiner. Subsequently, the case was reassigned to one Det. McCready [*2][hererinafter "McCready"], and on October 1, 2007, McCready was notified by the Office of Forensic Services that DNA from said earring positively matched that of the defendant, Lloyd Farquharson, Jr. McCready then asked the complainant to participate in a photo array identification on October 9, 2007, during which the complainant identified Lloyd Farquharson, Jr. McCready determined there was probable cause for the arrest of Lloyd Farquharson, Jr. and issued an I-card ^[FN1] for apprehension.

On October 10, 2007, officers ^[FN2] from the Wanted Apprehension Team for the Detective Borough Bronx, led by Det. McCarron [hereinafter "McCarron"], arrived at the home of Lloyd Farquharson, Jr. at 1267 East 222 Street, Bronx County, at approximately 5:15AM and aggressively knocked on the front entry door on three occasions. At least two officers identified themselves to the defendant through his bedroom window on the second floor at the front of the house, indicating that he was wanted at the 47th Precinct. At least two officers also identified themselves to the defendant's father, Lloyd Farquharson, Sr. [hereinafter "Farquharson, Sr."], through his bedroom window on the second floor at the back of the house, indicating that the defendant was wanted at the 47th Precinct.

Farquharson, Sr. went downstairs to the front entry door and observed through a "peephole" that the officers were on the opposite side of the entry door holding open the screen door. A brief exchange occurred through the closed entry door between Farquharson, Sr. and the officers, where the officers again identified themselves and indicated that the defendant was wanted for questioning. The officers told Farquharson, Sr. to "open the door" (Transcript 7/9/09; P. 304; L. 16-17). Farquharson, Sr. responded by unlocking and opening the entry door enough so that an adult male could come though (Transcript 7/9/09; P. 306; L. 14-16). As Farquharson, Sr. opened the door, the officers contemporaneously walked through and, without hesitation, continued straight up one set of stairs. The officers confronted Lloyd Farquharson, Jr., and he agreed to go with the officers. The officers allowed the defendant to change his clothes, after which one Det. Cruz [hereinafter "Cruz"] handcuffed Lloyd Farquharson, Jr. and escorted him from his home.

McCready assumed custody of the defendant at approximately 8:00AM at the 47th Precinct and had "some sort of conversation" with the defendant "in general, about the incident itself" (Transcript 7/7/09; P. 99; L. 8-17) where he mentioned "the earring and the three witnesses" (Transcript 7/9/09; P. 262; L. 9-10). McCready also elicited a debriefing statement from the defendant prior to 10:05AM. After offering the defendant food, a cigarette and a trip to the restroom, at approximately 10:05AM, McCready administered Miranda warnings to the [*3]defendant and questioned him until 10:25AM. The defendant indicated that he understood the warnings, conversed with McCready and wrote out a statement affirming that on the day in question he was in the home of the complainant and engaged in a physical altercation with her.

Thereafter, the defendant was transported to Bronx Central Booking and the District Attorney's Office. He was held until approximately 5:30PM when he was brought to a video interview room. Assistant District Attorney Kaplan [hereinafter "Kaplan"] began a videotaped interview during which McCready was present and the written statement was shown to the defendant. Kaplan administered Miranda warnings to the defendant prior to questioning and discussion. The defendant indicated that he understood his rights and made a statement reiterating in essence what he wrote in the police statement.

ARGUMENTS

People

The People contend that on October 10, 2007, McCarron, Cruz and the I-card team did not violate Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371 (1980) because the defendant's father invited the officers into the home, and the defendant without incident submitted to the officers' request to accompany them to the precinct.

Such facts are predicated on the testimonies of McCarron and Cruz who both testified to having no independent recollection of the day in question, but could testify to what they do in their normal course of business and what they wrote on any DD5 reports. The DD5 report, drafted by Cruz, and entered into evidence as People's No.4 as past recollection recorded, detailed the defendant's parents invited the detectives into the home, and the defendant was apprehended without incident. The People challenge the credibility and testimonies of both the defendant and Farquharson, Sr., detailing discrepancies concerning each party's location when the police were at the door and what was said. The People contend that given the discrepant testimonies, there is no reason to doubt the DD5 evidence of consent to entry.

In the alternative, the People argue that if the Court finds there was a Payton violation, then both the statement given to McCready and the statement given Kaplan are sufficiently attenuated from the initial taint of the illegal arrest.

With respect to the verbal and written statement obtained by McCready, the People contend that there is a sufficient temporal proximity of four hours and forty-five minutes, during which time he was offered food, cigarettes and a trip to the bathroom. The defendant was then given proper Miranda warnings, and he waived his rights. Further, the People assert that the I-card team neither acted with improper motive nor flagrantly. [*4]

Similarly, the People argue that there is sufficient temporal proximity between the video statement and both the illegal arrest (over twelve hours) and first statement (over seven hours). Also, the video statement was taken at a different location by a different interviewer after a rereading of Miranda warnings.

Defense

The defense argues that in the instant matter there is a violation of Payton because the police gained entry to the defendant's home by ordering Farquharson, Sr. to open the door and entering without invitation, then arresting the defendant in his home.

Further, the defense argues that the illegal arrest and the statements given to both McCready and Kaplan are not attenuated due to a lack of sufficient intervening events. Additionally, with respect to the video statement, McCready's presence and the defendant being shown the written statement during the videotaped interview should preclude a finding of attenuation.

DISCUSSION AND DECISION

Payton

"To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is clearly present." Payton, 445 U.S. at 588-589 citing United States v. Reed, 572 F.2d 412, 423 (1978), cert. denied, sub nom. Goldsmith v. United States, 439 U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d 259. Additionally, the threshold of the door may not reasonably be crossed without a warrant. Payton, 455 U.S. at 590.

Voluntariness of Consent

The question before the Court is whether Farquharson, Sr. voluntarily consented to the police entering when he opened the door. It has been heldwhen a search and seizure of person or property is allegedly based on consent, the People have the heavy burden of showing the voluntariness of the consent and the waiver of Fourth Amendment rights, People v. Whitehurst, 25 NY2d 389, 306 NYS2d 673, 254 NE2d 905 (1969), People v. Rodriguez, 11 NY2d 279, 229 NYS2d 353, 183 NE2d 651 (1962); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), People v. Gonzalez, 39 NY2d 122, 128, 383 NYS2d 215, 219, 347 NE2d 575, 579 (1976); Bumper v. North Carolina, 391 U.S. 543, 548-549, 88 S.Ct. 1788, 1791-1792, 20 L.Ed.2d 797 (1968). When examining the legitimacy of the consent, the " courts [must] indulge every reasonable presumption against waiver' of fundamental constitutional rights." See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023. Further, the voluntariness of the [*5]consent must be evaluated under the "totality of the circumstances," People v. Gonzalez, supra.

The Court of Appeals made clear in Gonzalez several factors to consider when evaluating the voluntariness of consent including the background of the consenter and whether he was advised of his right to refuse consent. Farquharson, Sr. was not shown to have had any previous experience with the criminal justice system, and testified specifically, that in 30 years at his residence, "the cops never [came] to [his] house" (Transcript 7/9/09; P. 307; L. 7-8). Then, at approximately 5:15AM, October 19, 2006, the police aggressively knocked on the door of the defendant's home, not only awakening the unsuspecting defendant but also his mother, father, sister and niece. Amidst the fear and confusion of police surrounding his home, waking him up, and banging on the door, the defendant's father met the police at the entry door to his home. The police told him to open the door and that his son was wanted at the 47th Precinct. Farquharson, Sr. testified repeatedly that, after seeing officers in the rear of his home and knowing them to be at the front of his home as well, he was scared (Transcript 7/9/09; P. 287; L. 4, P. 290; L. 21-24, P. 307; L. 8).

Further, when Farquharson, Sr. went to the door, he was alone and confronted by at least two officers. The police neither presented him with a warrant nor advised him that he had the choice to preclude their entry. They simply demanded that he open the door. Although the consenter need not be advised of his or her right to refuse (People v. Kuhn, 33 NY2d 203, 306 NE2d 777) such failure to advise may be considered in a determination of voluntariness (Schneckloth v. Bustamonte, 412 U.S. 218, 227). Farquharson Sr. testified that even though he opened the door, the police did not have his permission to enter ^[FN3] (Transcript 7/9/09; P. 306; L. 21 — P. 307; L. 5). It is this Court's firm opinion that Farquharson, Sr. succumbed to the officers' order not as an act of unconstrained choice, but rather a submission to authority. See People v. Benitez, 76 AD2d 196, 430 NYS2d 287 (1st Dept.1980). Therefore, in considering the totality of the circumstances, this Court finds that the police crossed the threshold of the entry door into the defendant's home without consent.

In this Court's opinion, the events surrounding the arrest were so conspicuously offensive as to be a flouting of law. At 5:15AM, the I-card team positioned themselves atthe front and rear of the defendant's home flashing lights and shouting through bedroom windows, aggressively knocking on the door and awakening the defendant's entire family. The I-card team's tactics at the Farquharson home in their entirety give the "appearance of having been calculated to cause surprise, fright, and confusion" (Brown v. Illinois, 422 U.S. 590, 605). Moreover, after demanding the defendant's father to open the door, they entered the without a warrant and without consent, continuing up a flight of stairs in search of the defendant. This Court believes the I-card team's conduct to be so obviously inconsistent with what is right or proper to find them flagrant.

Further, McCready issued the I-card with the purpose of the defendant beingarrested and questioned. He left the I-card team to their own devices in choosing how to apprehend the defendant. And, that was a risk McCready was willing to take. The fact that McCready was not the arresting officer does not remove the motive behind the arrest; McCready's obtaining of a suspect and eliciting information from him. As true as it may be that McCarron and Cruz arrested the defendant with no personal intentions to question or obtain information from him, such does not alleviate McCready of any responsibility of the illegal arrest. "The police illegality was knowing and intentional it had a quality of purposefulness', and the linkage between the illegality and confession is clearly established." Brown, 422 U.S. at 605.

The district attorney's partial reliance on People v. Beltran, 201 AD2d 307, 607 NYS2d 294 is misplaced and inconsistent with the facts and totality of the circumstances in the present case. In Beltran, which did not consider a Payton issue, the court found thepolice did not demonstrate improper motivation. However, in our case, the motivation behind the I-card team's tactics is clearly to create an environment of surprise and confusion, where the defendant would be likely to submit to them. Further, the People, relying on Beltran, assert that any congenial treatment on behalf of the police (an intervening event) provided to the defendant diminishes the flagrancy of their actions. However, this Court does not agree. Flagrancy must be considered in the time frame during which the conduct in question took place.

Intervening Factors

The defendant in Beltran "was permitted to return to his home and eat a meal cooked by his mother as the officers waited patiently nearby, [and] he was not restrained." In the instant matter the defendant was permitted to change from sleepwear to street clothes before being taken to the precinct, however with an officer physically present. Such is not congenial. Moreover, in Beltran, the defendant was not restrained, while Lloyd Farquharson, Jr. was in fact handcuffed. This Court does not accept the contention that the police's allowing of the defendant to change his clothes somehow diminishes the flagrant conduct; surrounding the house, shining lights and shouting through windows, waking up the defendant's entire household and demanding the door to be opened at 5:15AM.

The district attorney asserts as an additional intervening event, that McCready offered the defendant food, a cigarette and a trip to the restroom. The defendant in this case was detained for approximately five hours by the time such offerings were made tohim, far removed from the flagrancy of the arrest. Developing a rapport with a suspect through kindness is an effective tool used by detectives to make a suspect more comfortable in speaking with them. McCready offered the defendant or at the very least never denied the defendant such amenities prior to questioning (Transcript 7/7/09; P. 259; L. 5-20). Clearly, treating the defendant like a human being is not a sufficient intervening event.

In People v. Byas, 172 AD2d 242 (1st Dept. 1991) the only intervening factorsubmitted for the court's consideration was the proper administering of Miranda warnings. The court held that Miranda warnings alone cannot be a basis for a finding of attenuation. In the instant matter, presented as an intervening factor, McCready properly administered Miranda warnings to the defendant before eliciting incriminating statements. Absent other intervening events, it cannot be said that the causal connection between the arrest and confession was broken.

C. Temporal Proximity

The court, in People v. Divine, 21 AD3d 767 (1st Dept. 2005), found there was attenuation between an illegal arrest and statements obtained in connection. The factors Divine considers are a temporal proximity of more than four hours, an intervening event in the form of a reliable statement by an accomplice implicating the defendant and providing probable cause for his arrest and no flagrant government conduct. Id. Similarly, in the instant matter, there are more than four hours separating the illegal arrest from thestatement obtained by McCready. However, the officers in Divine lacked the initial probable cause to arrest the defendant, where in our case, they had probable cause but made the arrest in violation of Payton. There is no such intervening event of an accomplice statement absolving an illegal arrest due to lack of probable cause. Further, the police's conduct in the instant matter was quite flagrant. Accordingly, this Court finds that the statements made to McCready, both verbal and written, by the defendant are not sufficiently attenuated from the illegal arrest so as to purge them of their "primary taint."

[*7]II.Video Statement

Both People v. Santos, 3 AD3d 317 (1st Dept. 2004) and People v. Chen Ren Jie, 280 AD2d 301, NYS2d 135 (1st Dept. 2001) involve warrantless arrests made in violation of Payton, after which separate interviews were conducted at the police station and the District Attorney's Office. In Santos, the statement given to the detective was suppressed, while a video statement taken by an assistant district attorney after Miranda warnings and waivers and about six hours after the arrest and three hours after the initial statement was not. Also, the court adds that the Payton violation was not flagrant. Similarly, in Chen Ren Jie, there was a significant "seven-hour lapse of time between the arrest and the interrogation at the District Attorney's office, as well as a substantial break of about three and a half hours between the initial statement at Police Headquarters, which the court suppressed." Chen Ren Jie, 280 AD2d 301, at 301. Additionally, the court detailed that the second interrogation took place at a different location and was conducted by different persons and translators. The Payton violation in Chen Ren Jie was also found not flagrant because "at the time of entry, the police were unaware, and had no reason to believe, that the defendant had an expectation of privacy in his girlfriend's apartment." Chen Ren Jie, 280 AD2d 301, at 302.

In the instant matter, the video statement is separated by a sizeable temporal proximity of more than twelve hours from the arrest and more than seven hours from the initial statement. McCready elicited the first statement at the 47th Precinct, while Kaplan obtained the video statement at the District Attorney's Office. The Court had an opportunity to view the videotaped interview, during which the defendant appeared composed and cognizant. Kaplan also properly administered Miranda warnings to the defendant which he acknowledged understanding and chose to waive.

Although the Payton violation in the instant matter is in fact flagrant, in weighing the substantial temporal proximity (twelve and seven hours) and the significant intervening factors (Miranda warnings, location of interview and different interviewer) against any adverse effect the flagrancy of the police conduct and McCready's presence during the interview might have on attenuation, this Court finds that there is sufficient attenuation to dissipate the taint from the initial police misconduct.

CONCLUSION

As Farquharson, Sr. did not consent to the police's entry, the arrest of Lloyd Farquharson, Jr. in his home is in violation of Payton. Further, defendant's motion to suppress the statements made to McCready is granted as they are not sufficiently attenuated from the taint of the initial [*8]police misconduct. However, defendant's motion to suppress the video statement made to Kaplan is denied as it is sufficiently attenuated.

This constitutes the decision and order of this Court.

Dated: August 6, 2009____________________________

Bronx, NYHon. Caesar Cirigliano, J.S.C.