Motion granted. The warrantless search of Mr. Harris' home was not based on the officers' reasonable good faith belief that the person consenting to the search had actual authority. The physical evidence and statements made by the defendant are fruits of the poisonous tree. The defendant's arrest was not supported by probable cause since it was the direct result of the illegally obtained evidence.

On January 16, 2009, the defendant was arraigned and charged with [*2]

PL 265.01 [1]Criminal Possession Of A Weapon In the Fourth Degree ^[FN1]

AC 10-131 [1] [3]Possession Of Pistol Ammunition

On March 9, 2010 and April 15, 2010, the court held a Huntley/Mapp/Dunaway

hearing.

The witnesses at the hearing were Police Officer Lynwood Pleasant, Shield No. 20488, and Police Officer Victor Troiana, Shield No. 2392, both assigned to Police Service Area 2 (PSA-2), New York City Police Department.

On January 14, 2009, while working in plainclothes, in an unmarked vehicle, Officer Pleasant obtained information from a street-level informant that the defendant who resided at 1474 Lincoln Place, Kings County, New York, may possess guns inside of the bedroom at Apartment Number 2. In addition to identifying the defendant by name, the informant gave a description of the defendant and told the officers he saw two guns "over there." After receiving the tip, and before going to the apartment, Officer Pleasant testified he and his partner went to the police precinct and did a communication check of Mr. Harris to verify his address and to see what his criminal record was. Officer Pleasant testified that two or three hours past from the time they received the tip and the time they went to the apartment.

At approximately, 11:00 p.m., Officers Pleasant and Troiana, and a third officer, Sergeant Nolan, went to the 1474 Lincoln Place, Brooklyn, New York. When they arrived at Apartment No. 2, a female opened the door. Officer Pleasant testified they identified themselves, and asked to enter. Once inside the apartment, Officer Pleasant testified that he and Sergeant Nolan spoke to the female in the kitchen area while Officer Troiana went into the livingroom where the defendant and another person were playing video games. After explaining to the female why they were there, Officer Pleasant testified she stated it was her apartment and she lived there with her nephew and gave them her consent to search the apartment. The officer testified that this female never gave her name or any identification.

Officer Troiana testified after arriving in the livingroom where the defendant and another individual were playing video games, he asked both individuals for identification. Upon establishing that the other person did not reside in the apartment, Officer Troiana testified he told the person he could leave. Officer Troiana testified that as he started explaining to the defendant why he was there, Officer Pleasant walked into the livingroom. Officer Troiana asked the defendant if there were any guns in the apartment to which the defendant answered yes. The officer asked where were the guns. Mr. Harris then pointed to his bedroom and said it is in the dresser in the his bedroom. Officer Pleasant testified after Mr. Harris identified the bedroom, he went into the bedroom and opened the dresser and found the two guns. Officer Troiana testified that at the point of being questioned, the defendant was neither handcuffed nor under arrest. [*3]However, Officer Troiana also testified that the defendant was not free to leave. The officer also testified that Mr. Harris did not give his consent to search his room or the apartment.

After Officer Pleasant returned from the defendant's bedroom and indicated to his partner he had retrieved two weapons. Mr. Harris was then placed under arrest.

In applying these principles to this case, the female opened the door, told the officers'she lived there with her nephew, and gave them consent to search the apartment. The defendant, Mr. Harris, did not give the officers consent to search the apartment. While an inference could have been made that the female in fact lived in the apartment with Mr. Harris and possessed the requisite authority, it is equally possible that she neither lived there nor had authority to consent to the search. Faced with an ambiguous situation of this type, it was incumbent upon the officers to ask the woman to identify herself or show identification to determine whether or not she in fact resided in the apartment and had authority to consent to the search.

Furthermore, since there was no evidence of exigent circumstances, no testimony as to when the informant saw the guns, or how long the guns had been in the apartment and two or three hours past before they went to the apartment, there was enough time for the officers to have gone to court to get a search warrant.

Since the officers failed to make an inquiry as to whether the female in fact had authority to consent to the search, the search of the premises without a search warrant was not supported by reasonable voluntary consent. Based on the fact the officers did not establish who this woman was that answered the door, it is unreasonable to assume she had the required authority to [*4]voluntarily consent to the warrantless search of the apartment. The physical evidence recovered and the statements made by the defendant are suppressed as fruit of the poisonous tree (see People v Andrades, 219 AD2d 656, 657 [2nd Dept. 1998]; see generally Wong Sun v United States, 371 U.S. 471 [1963])). Accordingly, the defendant's motion is granted in its entirety.

The foregoing constitutes the decision and order of the court.

________________________________Gerri PickettJudge of the Criminal Court

Dated: Brooklyn, New YorkJuly 15, 2010