Supreme Court, Queens County, December 9, 2022

The Queens Defenders (David Byrne of counsel) for defendant.

Melinda Katz, District Attorney (Brendan Quinones of counsel), for plaintiff.

By indictment filed February 9, 2022, defendant is charged with criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]), a class C violent felony, and criminal possession of a firearm (Penal Law § 265.01-b [1]), a class E felony.

These charges stem from events alleged to have occurred January 13, 2022, at approximately 9:00 p.m., inside 568 Barbados Drive, in Queens County.

Defendant moves to suppress a loaded 9 millimeter Hi-Point, C9 firearm, papers and personal effects recovered from a safe located inside of a closet on the grounds they were obtained without requisite probable cause and in violation of Payton, and, therefore, are the fruits of an unlawful search.

By decision and order dated August 30, 2022, this court ordered that a Mapp/Dunaway/Payton hearing be conducted, which commenced on September 21, 2022, and [*2]concluded on October 20, 2022. After receiving robust oral arguments, this court reserved decision. The parties subsequently filed supplemental memoranda of law, which are made a part of the record before this court. Based upon the evidence presented, the parties' arguments, prior court proceedings and documents on file with the court, defendant's motion to suppress is denied.

At the hearing, the People called two witnesses: New York City Police Department (NYPD) Police Officer Casey Shamloo{**77 Misc 3d at 976} (PO Shamloo) assigned to the 100th Precinct, and NYPD Police Officer Michael Rogers (PO Rogers), also with the 100th Precinct. This court finds the testimony of these officers credible to the extent indicated herein, and no issues necessitating suppression were raised. Though not exhaustively reflective of the entire hearing record, this court summarizes its findings of fact and conclusions of law as noted.

PO Rogers, a 4½-year veteran of the NYPD, testified that on January 13, 2022, at approximately 9:18 p.m., he and his partner, NYPD Police Officer McCloud (PO McCloud), responded to a radio run involving an assault at 568 Barbados Drive, in Queens County (tr at 41, lines 15-25). Upon arriving, PO Rogers knocked on the front door but received no response. Michelle Quinones approached officers from the driveway and informed them that defendant had groped^[FN*] her daughter (tr at 42, lines 17-25; at 43, lines 1-12). Michelle Quinones then opened the door to the residence and directed the officers to the second floor of 568 Barbados Drive, where she informed officers that her big dogs were locked in cages. In addition to observing those dogs, PO Rogers also observed Michelle Quinones' children (tr at 47, lines 21-25; at 48, lines 1-23; at 49, lines 10-21).

PO Shamloo, a 6½-year veteran of the NYPD, testified that he responded to 568 Barbados Drive, in Queens County, at approximately 9:18 p.m. on January 13, 2022, responding to a radio run for an assault in progress involving a firearm (tr at 8, lines 13-14). Upon arriving, PO Shamloo observed defendant outside of the residence and proceeded to the second floor where he spoke with Michelle Quinones, defendant's wife, who had called 911 (tr at 12, lines 1-22; at 34, lines 1-6). Michelle then reported to PO Shamloo that inside her bedroom was a safe containing a handgun, which belonged to defendant, and that other than the gun, nothing else in the apartment belonged to him (tr at 14, lines 10-14; at 18, lines 14-7). She further indicated to PO Shamloo that she had access to the safe and provided him with the key to open it. After obtaining both verbal and written consent, PO Shamloo opened the safe and{**77 Misc 3d at 977} observed a black handgun at the bottom of it (tr at 14, lines 15-24; at 17, lines 2-4). PO Shamloo stated he also recovered mail and miscellaneous paper work belonging to both defendant and Michelle Quinones from inside the safe (tr at 17, lines 6-13).

DVDs of the radio run, PO Shamloo's body worn camera footage and PO Rogers' body worn camera footage were received in evidence without objection and played in open court. A [*3]USB drive containing NYPD Police Officer Cormier's (PO Cormier) body worn camera footage was also received in evidence without objection and played in open court.

A. Probable Cause

Initially, the People have the burden of commencing a suppression hearing by presenting evidence of probable, or reasonable, cause to show the legality of the police conduct (People v Baldwin, 25 NY2d 66 [1969]; People v Malinsky, 15 NY2d 86 [1965]). Once the People have met this burden, it is the defendant that bears the burden of proving any illegality of the police conduct (People v Berrios, 28 NY2d 361 [1971]; People v Baldwin, 25 NY2d 66 [1969]).

In sustaining their burden of establishing reasonable cause, the People must demonstrate that the attendant circumstances, coupled with defendant's behavior, justified the arresting officers' intrusion. Such intrusion, of course, must comport with the four-tier approach articulated in People v De Bour (40 NY2d 210, 223 [1976]). De Bour's first level of intrusion permits a law enforcement officer to approach a citizen and request information provided there is an objective, credible, and articulable reason to do so, not necessarily indicative of criminality. The second level, the common-law right of inquiry, permits a momentary stop when there is a "founded suspicion that criminal activity is afoot" (De Bour, 40 NY2d at 223). Under the third level, an officer may forcibly stop and detain a person when such officer has a reasonable suspicion that the individual has been involved in criminal activity. Finally, an officer may effect a full-blown arrest when there is probable cause to believe that an individual has, is or is about to commit a crime (De Bour at 223).

When the police arrest an individual without a warrant, the People bear the burden of providing the court with demonstrable facts that are sufficient to show that probable cause existed for that individual's arrest (People v Dodt, 61 NY2d{**77 Misc 3d at 978}408, 415 [1984]; see also People v Guthrie, 25 NY3d 130, 133 [2015]). However, a defendant has the ultimate burden to establish the illegality of the police conduct and to demonstrate that the evidence should not be used against them (see Berrios, 28 NY2d at 367).

Probable cause exists if a reasonable person who possesses the same expertise as the arresting officer would conclude that the defendant is or was committing a crime (see Guthrie, 25 NY3d at 133, quoting People v Bigelow, 66 NY2d 417, 423 [1985] [explaining probable cause requires "merely information sufficient to support a reasonable belief that an offense . . . is being committed" (emphasis omitted)], and citing Ornelas v United States, 517 US 690, 696 [1996]).

Here, probable cause was based upon several factors. But among the most notable was Michelle Quinones' 15-year-old daughter informing officers that defendant touched her breasts and buttocks on multiple occasions. This allegation, by itself, provided probable cause to arrest defendant.

B. Consent

a. Warrantless Entry

The Supreme Court has long held that the Fourth Amendment "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest" (Payton v New York, 445 US 573, 576 [1980]). Thus, physical evidence seized pursuant to such a warrantless arrest will ordinarily be suppressed. This is because the seizure of evidence typically follows so closely in time from the illegal entry it is impossible for any attenuation to cure the taint (People v Soto, 96 AD2d 741 [4th Dept 1983]). Consent to enter a home, however, provides an exception to the warrant requirement (see People v Garvin, 30 [*4]NY3d 174, 180 [2017]). "[W]hether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances" (Schneckloth v Bustamonte, 412 US 218, 227 [1973]).

And, notably, a third party who possesses an adequate degree of authority and control over the premises, such as a defendant's spouse, has the authority to consent to the entry by police (People v Moore, 183 AD3d 592 [2d Dept 2020]; People v Burnett, 270 AD2d 901 [4th Dept 2000]; People v Harper, 119 AD2d 587 [2d Dept 1986]). Thus, if the People demonstrate they properly obtained consent to enter a premises, there is no Payton{**77 Misc 3d at 979}violation. Here, they did. PO Rogers testified that defendant's wife, Michelle Quinones, called 911 and upon responding, encountered Ms. Quinones outside the premises. She then granted him permission to enter by opening the door and escorting him inside. Once inside, PO Rogers observed Ms. Quinones' children, as well as her dogs locked in cages inside the residence. As such, the record supports a finding that Michelle Quinones, the leaseholder and co-resident, granted officers permission to enter (see People v Major, 215 AD2d 779, 780 [2d Dept 1995]).

b. Exception to the Warrant Requirement

Once valid consent to search a person, object or premises is given, officers need not first obtain probable cause to conduct a search (People v Hodge, 44 NY2d 553 [1978]; People v Campbell, 271 AD2d 693 [2d Dept 2000]). And, not surprisingly, in relying on consent as an exception to the warrant requirement, the People have the heavy burden of proving voluntariness of such consent (People v Whitehurst, 25 NY2d 389, 391 [1969]; People v Poinvil, 47 Misc 3d 79 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consent to search is considered voluntarily "when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice" (People v Gonzalez, 39 NY2d 122, 128 [1976]).

Although there is no bright-line voluntariness test, its determination is a question of fact that must be based on the totality of circumstances present (United States v Isiofia, 370 F3d 226 [2d Cir 2004]; People v Muhammad, 181 AD3d 1182 [4th Dept 2020]). Factors courts have considered in determining the voluntariness of a suspect's consent are: (1) whether defendant was under arrest or in custody at the time consent was given (Gonzalez, 39 NY2d 122; People v McKenzie, 263 AD2d 778 [3d Dept 1999]; People v Chou, 203 AD2d 299 [2d Dept 1994]); (2) threats or coercive actions by police (People v Loria, 10 NY2d 368 [1961]; People v Basden, 286 AD2d 1011 [2d Dept 2001]); (3) the background of the suspect (Gonzalez, 39 NY2d 122; Matter of Daijah D., 86 AD3d 521 [1st Dept 2011]); (4) deception by police (People v Matta, 76 AD2d 844 [2d Dept 1980]); and (5) the scope and objective reasonableness of the consent (People v Gomez, 5 NY3d 416 [2005]). In many cases, however, such as here, consent is given by third parties who share authority or access over the premises with a defendant, not by the defendant himself.{**77 Misc 3d at 980}

c. Third Parties

While a co-occupant of a premises may provide police with consent to search for evidence, such consent will be invalid when the co-occupant defendant is physically present and refuses to consent (Georgia v Randolph, 547 US 103 [2006]). But the onus is on such co-occupant to unequivocally object; police have no affirmative duty to inquire (United States v Lopez, 547 F3d 397 [2d Cir 2008]; People v Watson, 101 AD3d 913 [2d Dept 2012]). Consent from one occupant will even be sufficient when a non-consenting defendant occupant has been removed from the premises for an objectively reasonable purpose (Fernandez v California, 571 US 292 [2014]). If, however, the non-consenting occupant voluntarily leaves the premises, such refusal is effectively withdrawn and the remaining occupant's consent will be deemed valid (People v Grillo, 128 AD3d 1103 [3d Dept 2015]). Thus, where, as here, a defendant shares common authority, access, and control with a family member or spouse, such individual may consent to a search of the shared premises unless that defendant is physically present and refuses consent (People v Carter, 30 NY2d 279 [1972]). Here, when officers arrived on scene, defendant was not physically present inside the residence and never entered while officers were there. Rather, they reasonably kept him outside while investigating the 15-year-old complainant's allegations of sexual abuse, who also lived there.

In the context of parental authority, parents may generally consent to searches of their child's room even if both the room and its contents were used exclusively by the child. This, however, is based on a parent's superior right to maintain order and protect the family home from criminal activity. But a non-parental family member's authority to such consent is significantly more limited than a search of a defendant's areas of common access and use. In fact, when a non-parent family member exclusively uses a room in a residence, another family member has no authority to consent to a search of that room—even if that family member is a defendant's spouse (People v Jackson, 105 AD3d 866 [2d Dept 2013]; People v Bran, 82 AD3d 1000 [2d Dept 2011]; People v Daniels, 22 AD3d 678 [2d Dept 2005]).

When a bedroom or closet is shared by two individuals, however, either party has authority to consent to the search (People v Loomis, 17 AD3d 1019 [4th Dept 2005]; People v Castillo, 131 AD2d 495 [2d Dept 1987]). This is particularly true regarding spouses because even if one spouse exclusively uses{**77 Misc 3d at 981} an object, it cannot be concluded that there is no risk the other spouse will not make use of it. As such, one spouse can consent to a search of the other spouse's dresser drawers (People v Jackson, 170 Misc 2d 478 [Crim Ct, NY County 1996]; see also People v Kelly, 58 AD3d 868 [2d Dept 2009]).

d. Apparent Authority

Where a third party ostensibly appears to have the requisite degree of access and control over the premises to be searched, an officer may reasonably rely on such consent—even if they lack actual authority (Illinois v Rodriguez, 497 US 177 [1990]; People v Adams, 53 NY2d 1 [1981]). Such reasonable belief must be based on an objective view of the circumstances, and the officer must make some inquiry into the consenting party's control over the premises or property to be inspected (People v Russo, 201 AD2d 940 [4th Dept 1994]). Nevertheless, this aptly named "apparent authority doctrine" applies only when those circumstances, if true, would justify the search as a matter of law. In other words, if that which the officer relied on regarding a person's authority to consent were true but would not grant them an actual right to consent, then such consent is invalid.

When a person has actual authority to consent to a search, however, it is unnecessary to determine whether sufficient objective indicia of apparent authority existed and whether the officer possessed a reasonable belief and made an inquiry (People v Lopez, 291 AD2d 279 [1st Dept 2002]). But if a defendant challenges the consenting party's actual authority, then the doctrine of apparent authority may still be invoked (People v Toro, 198 AD2d 532 [2d Dept 1993]).

Here, defendant alleges Michelle Quinones did not have actual authority to consent to the search of the locked safe inside their shared bedroom. Defendant further contends that officers, knowing that Michelle Quinones had no authority to consent, extracted it in an unscrupulous and [*5]conspiratorial manner. In support, defendant points to a conversation between Michelle Quinones and PO Cormier captured on PO Cormier's body worn camera where PO Cormier asked Michelle Quinones about the safe:

"PO Cormier: Is that your safe?

"Michelle Quinones: No, it's his safe. It got all his papers in it, documents, stuff like that

"PO Cormier: So you have no control over that safe?{**77 Misc 3d at 982}

"Michelle Quinones: No, I have the key, I took the key from him

"PO Cormier: Legally it's his safe? It does not belong to you . . .

"Michelle Quinones: It does not belong to me at all." (See defense exhibit A at 21:21:29.)

Moments later, Michelle Quinones signed a written form consenting to search the safe (see People's exhibit 1), which defendant asserts was nothing more than a conspiratorially fabricated "wink and nod." But this is nothing more than a speculative assumption based on a salacious conclusion absent substance or evidence. It is, as they say, pure conjecture.

The evidence adduced is that Michelle Quinones had access to and used the safe. This is demonstrated in her conversation with officers where she explains that the safe is in her bedroom, that there is one set of keys for everything in the house, and that she took the key from "the one keyring that has all of the keys to the house and car" (see People's exhibit 1 at 21:22:15-22:22:31). Michelle Quinones also tells officers that she keeps some of her papers in it as well (id. at 21:24:26).

It is well recognized that a person enjoys an expectation of privacy in a locked safe (People v Santiago, 176 AD3d 744, 745 [2d Dept 2019]). And defendant is correct that in Gonzalez, the Court of Appeals recognized the distinct expectation of privacy by utilizing a locked container even amongst another party's belongings. (Gonzalez, 39 NY2d 122.) Defendant also cites the weight that the Gonzalez Court gave to the use of a lock on a barn in determining the property inside was not subject to common authority with defendant's spouse. But Gonzalez is meaningfully distinguishable. In addition to using a lock, the defendant's wife had never entered, been inside of, or used the barn. And strikingly unlike here, the defendant in Gonzalez maintained sole possession and control of the only available key to open the lock; his spouse had no access to it—a far cry from keeping the safe's key on a shared keychain in a place that both he and Michelle Quinones could access and use at any time. As if that was not sufficient, which it certainly is, Michelle Quinones also stored her documents in it for safekeeping.

It is tenuous at best for defendant to claim an exclusive privacy interest inside the safe when his spouse not only used it but had access to its key. As such, Michelle Quinones had actual authority to consent to its search. But even if she was{**77 Misc 3d at 983} without actual authority, there was apparent authority. The circumstances presented to and reasonably relied on by officers (the safe was located inside the shared spousal bedroom, Michelle Quinones kept documents in it, and both she and defendant had access to its key that was on a shared key ring) were objectively reasonable to conclude that Michelle Quinones had authority to consent to the search of the safe.

Yes, Michelle Quinones initially said the safe belonged to defendant. But officers did precisely what is required: made an inquiry into Michelle Quinones' authority, access, and control over it. To accept defendant's theory, though, this court would need to ignore their shared use of it. In other words, for this court to grant suppression, it would need to entirely disregard Michelle Quinones' actual authority. True, unlike many of the cases cited by the [*6]People, defendant here may indeed have intended to invoke an expectation of privacy in the items contained in his safe. But by enabling Michelle Quinones to access and utilize it, he effectively enabled her to exercise actual authority over it. Her consent to search it was therefore valid.

Accordingly, this court finds that viewing the evidence in the light most favorable to the People (see People v Williams, 84 NY2d 925 [1994]; see also People v Contes, 60 NY2d 620 [1983]), they have satisfied their burden of demonstrating that defendant's arrest and the recovery of physical property were lawful. Defendant's motion to suppress is therefore denied in its entirety.