New York Law Review

Tag: consent search

  • People v. Fermin, 20 N.Y.3d 414 (2013): Limits on Consent Searches of Vehicles

    People v. Fermin, 20 N.Y.3d 414 (2013)

    A general consent to search a vehicle does not authorize law enforcement to damage the vehicle’s structural integrity without explicit consent or probable cause.

    Summary

    This case addresses the scope of a consent search of a vehicle under the Fourth Amendment. The New York Court of Appeals held that a general consent to search a car does not allow officers to cause structural damage to the vehicle, such as prying open a gas tank with a crowbar, without specific consent or probable cause. The Court reasoned that a reasonable person would not expect a general consent to include destructive actions that fundamentally alter the vehicle’s condition. The case was remitted to determine if probable cause existed to justify the search.

    Facts

    Police officers stopped a vehicle driven by Fermin for excessively tinted windows. During the stop, officers observed a fresh undercoating near the gas tank and discovered a tampered registration card. Suspecting drug activity, an officer asked Fermin if he had any drugs or weapons and then requested consent to search the vehicle, which Fermin granted. The officer then proceeded to remove the rear seat, pull up the carpet, cut into the floorboard, and ultimately use a crowbar to pry open the gas tank, where they found seven bags of cocaine.

    Procedural History

    Fermin was arrested and indicted on drug possession charges. He moved to suppress the evidence, arguing the search exceeded the scope of his consent. The Supreme Court denied the motion, finding voluntary consent and probable cause as alternative justifications. Fermin was convicted after a guilty plea. The Appellate Division affirmed, holding the consent was voluntary and the search was within its scope due to Fermin’s failure to object. The New York Court of Appeals reversed and remitted the case.

    Issue(s)

    Whether a general consent to search a vehicle authorizes law enforcement officers to cause structural damage to the vehicle without specific consent or probable cause.

    Holding

    No, because a reasonable person would not understand a general consent to search a vehicle to include actions that impair the structural integrity of the vehicle, such as using a crowbar to damage the gas tank, without specific consent or probable cause.

    Court’s Reasoning

    The court applied an objective reasonableness standard to determine the scope of consent, asking what a typical reasonable person would have understood by the exchange between the officer and the suspect. Citing Florida v. Jimeno, the court acknowledged that a general consent to search a car for narcotics includes opening containers within the car that might contain drugs. However, the court distinguished this case, stating, “In the absence of other circumstances indicating that defendant authorized the actions taken by police, a general consent to search alone cannot justify a search that impairs the structural integrity of a vehicle or that results in the vehicle being returned in a materially different manner than it was found.” The court emphasized that the officer’s actions went beyond examining readily accessible containers and caused damage to the vehicle. The court stated: “Once a search exceeds the objectively reasonable scope of a voluntary consent, a more specific request or grant of permission is needed, in the absence of probable cause, in order to justify damage to the searched area or item sufficient to require its repair.” The Court reversed because the Appellate Division did not address the issue of probable cause. The dissent argued that the majority created a “bright-line rule” that is contrary to Fourth Amendment jurisprudence and that the totality of the circumstances indicated that Fermin’s consent extended to the search as conducted, especially since Fermin was present and did not object during the search.

  • People v. McIntosh, 96 N.Y.2d 521 (2001): Search Consent Requires Founded Suspicion

    People v. McIntosh, 96 N.Y.2d 521 (2001)

    A request to search, and any subsequent consent, is invalid unless supported by a founded suspicion of criminality.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s suppression order, holding that the police lacked a founded suspicion of criminal activity to justify their extended questioning of the defendant. The Court reiterated that consent to search is invalid unless the police have a founded suspicion of criminality prior to requesting the search. Because the lower courts found that the defendant only granted permission to search after being questioned in a manner that suggested he was suspected of a crime without any founded suspicion, the evidence obtained from the search was suppressed.

    Facts

    The police questioned the defendant in circumstances that led him to believe he was suspected of criminal activity. After this questioning, the defendant granted the police permission to search his person and his car. The suppression court found that the police lacked a founded suspicion of criminal activity at the time of the questioning and the request for consent.

    Procedural History

    The suppression court ruled that the evidence obtained from the search should be suppressed. The Appellate Division affirmed this ruling. The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.

    Issue(s)

    Whether a consent to search is valid when the request to search is not supported by a founded suspicion of criminality.

    Holding

    No, because a consent to search will not be upheld unless the request to search is supported by a founded suspicion of criminality.

    Court’s Reasoning

    The Court of Appeals relied on its prior holding in People v. Hollman, stating that a consent to search will not be upheld unless the request to search is supported by a founded suspicion of criminality. The Court emphasized that the lower courts had determined that the defendant only gave permission to search after questioning that reasonably led him to believe he was suspected of criminality, and that this questioning was not based on any founded suspicion. The Court stated, “When, as here, there is support in the record for the lower courts’ undisturbed finding as to the lack of a founded suspicion of criminality, our review is at an end.” The Court effectively deferred to the factual findings of the lower courts regarding the absence of founded suspicion.

  • People v. Hale, 93 N.Y.2d 454 (1999): Enforceability of Consent-Based Probation Search Conditions

    People v. Hale, 93 N.Y.2d 454 (1999)

    A probationer’s written consent to searches of their vehicle and residence, given as a condition of probation in a negotiated plea agreement, is enforceable and provides a lawful basis for a search, provided the search is conducted by a probation officer within the scope of their supervisory duty and in the context of the probationary goal of rehabilitation.

    Summary

    Hale pleaded guilty to criminally negligent homicide and operating a vessel while impaired, causing a death. As part of a negotiated plea to avoid imprisonment, he consented to probation terms, including searches of his vehicle and residence by a probation officer for drugs. After testing positive for drugs multiple times, and following a tip that Hale was selling drugs, his probation officer searched his home, finding drugs and weapons. Hale moved to suppress the evidence, arguing the search was unlawful. The Court of Appeals held that the consent-based search provision was enforceable, justifying the search because it was part of a negotiated plea, related to rehabilitation, and conducted by a probation officer.

    Facts

    Defendant Hale was convicted of criminally negligent homicide and operating a boat while impaired, resulting in a death.
    To avoid a potential prison sentence, Hale entered a negotiated plea agreement.
    As a condition of probation, Hale signed a written consent form allowing probation officers to search his vehicle and residence for illegal drugs and related items.
    After several months on probation, Hale tested positive for drugs multiple times.
    The probation officer received a tip that Hale was selling drugs from his residence.
    Based on the consent provision and the drug-selling tip, the probation officer, accompanied by police, searched Hale’s residence.
    The search revealed rifles, shotguns, illicit drugs, and a scale.

    Procedural History

    Hale was indicted on drug and weapon charges based on the evidence found during the search.
    The Supreme Court granted Hale’s motion to suppress the evidence, finding the search unlawful.
    The Appellate Division reversed the Supreme Court’s suppression order.
    The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a consent search provision, agreed to as a condition of probation in a negotiated plea agreement, is a valid basis for a search of a probationer’s residence.

    Holding

    Yes, because the condition was part of a negotiated plea agreement, the consent was knowing and voluntary, and the search was conducted by a probation officer within the scope of their supervisory duties and related to Hale’s rehabilitation.

    Court’s Reasoning

    The Court recognized that while probationers have diminished privacy expectations, their homes are still protected by the Fourth Amendment’s reasonableness requirement. Citing Griffin v. Wisconsin, the Court acknowledged that probation creates “special needs” allowing for departures from standard warrant and probable cause requirements. Unlike Griffin, where a state regulation authorized the search, here, the search was based on a court-ordered probation condition stemming from a negotiated sentence with Hale’s written consent. The Court emphasized that Hale voluntarily agreed to the search condition to avoid imprisonment. “A defendant’s offer to surrender a measure of liberty or privacy cannot be considered voluntary in every sense of the word, but it is not involuntary as a matter of law.” The Court distinguished People v. Jackson, where the search was based solely on an anonymous tip without a prior consent provision or court order. The condition was rehabilitative, tailored to address Hale’s drug abuse, and the probation officer initiated the search as part of his supervisory duties, making the search reasonable. The court emphasized that the conditions were “calculatedly included among the terms of probation because all parties were ostensibly seeking the same objective: that defendant refrain from abusing drugs.”

  • People v. Bradshaw, 68 N.Y.2d 1032 (1986): Determining Attenuation Between Illegal Arrest and Consent to Search

    People v. Bradshaw, 68 N.Y.2d 1032 (1986)

    When evidence is obtained through a consensual search following an illegal arrest, the prosecution must demonstrate that the consent was sufficiently independent of the illegal arrest to be considered a product of free will, considering factors such as temporal proximity, intervening circumstances, and the purpose and flagrancy of the official misconduct.

    Summary

    The New York Court of Appeals addressed whether a defendant’s consent to search his apartment was sufficiently attenuated from his illegal arrest. The Court held that while the voluntariness of the consent is important, it is not dispositive. The court emphasized that the prosecution must prove the consent was acquired independently of the illegal arrest, considering several factors to determine if the consent was a product of free will. Because the lower court only considered voluntariness, the case was remitted for further proceedings to determine if the consent was sufficiently attenuated from the illegal arrest.

    Facts

    The defendant, Bradshaw, was illegally arrested, a fact conceded by the prosecution on appeal. After the illegal arrest, Bradshaw consented to a search of his apartment. The suppression court determined Bradshaw’s consent was voluntary. However, Bradshaw argued that the consent was tainted by the illegal arrest and should not be admissible as evidence.

    Procedural History

    The suppression court focused solely on the voluntariness of Bradshaw’s consent to the search. The Appellate Division upheld the lower court’s decision. The New York Court of Appeals reviewed the case, finding that the lower courts applied an incorrect legal standard by not fully considering the attenuation between the illegal arrest and the consent to search. The Court of Appeals remitted the case to the Supreme Court for a proper determination.

    Issue(s)

    Whether the defendant’s consent to search his apartment, following an illegal arrest, was sufficiently attenuated from the illegal arrest to be admissible as evidence, considering factors beyond the mere voluntariness of the consent.

    Holding

    No, because the voluntariness of consent is not dispositive when the consent follows an illegal arrest; the prosecution must demonstrate that the consent was “acquired by means sufficiently distinguishable from the arrest to be purged of the illegality,” considering factors beyond mere voluntariness.

    Court’s Reasoning

    The Court of Appeals emphasized that when a consent to search follows an illegal arrest, the prosecution has a heightened burden to prove the consent was truly independent of the illegal police action. The court stated that “the burden rests on the People to demonstrate that the consent was ‘acquired by means sufficiently distinguishable from the arrest to be purged of the illegality’.” While voluntariness is a factor, it is not the only one. The Court outlined several factors to consider:

    • Temporal proximity of the consent to the arrest
    • Presence or absence of intervening circumstances
    • Whether the police purpose underlying the illegality was to obtain the consent or the fruits of the search
    • Whether the consent was volunteered or requested
    • Whether the defendant was aware he could decline to consent
    • The purpose and flagrancy of the official misconduct

    The Court cited Brown v. Illinois, 422 US 590, 603-604, emphasizing the need to examine the causal connection between the illegal arrest and the subsequent consent. The Court found that the suppression court erred by focusing solely on voluntariness and failing to consider these other factors. Because the lower court applied an incorrect legal standard, the Court of Appeals remitted the case for a new determination, instructing the suppression court to consider all relevant factors to determine if the consent was sufficiently an act of free will to purge the taint of the illegal arrest. The Court noted, “Of course, the relevant factors will vary from case to case and each case must be individually considered on the particular facts and circumstances presented and the determination made with due regard for the purposes sought to be served by the exclusionary rule.”

  • People v. Mejia, 69 N.Y.2d 853 (1987): Admissibility of Evidence Based on Reasonable Suspicion and Consent

    People v. Mejia, 69 N.Y.2d 853 (1987)

    Evidence obtained during a street detention is admissible if the police had reasonable suspicion to justify the detention, and evidence obtained from a search of a residence is admissible if consent to enter was freely given.

    Summary

    The New York Court of Appeals upheld the defendant’s conviction for robbery, finding that his initial street detention was justified by reasonable suspicion and that he consented to the police entry into his apartment. The court found no error in admitting testimony about a skirt the defendant discarded while fleeing, as it was relevant to identification.

    Facts

    In the early morning hours, police officers investigating another crime in an area of apartment buildings observed the defendant running. They noticed two other men nearby and suspected the defendant might be the victim of a crime. The police called to the defendant, who stopped, looked at them, and then ran away, discarding a black skirt as he fled. The police pursued and questioned him, and he gave his name and address, which they verified. Later, the police entered the defendant’s apartment, where they arrested him and seized a blue jacket.

    Procedural History

    The defendant was convicted of robbery in the first degree and sentenced as a persistent violent felony offender. He appealed, challenging the admission of statements made during the street detention, the observation of a fresh cut on his hand during the stop, and the seizure of a blue jacket from his apartment. The hearing court found the street detention justified and the apartment entry consensual. The Appellate Division upheld these findings.

    Issue(s)

    1. Whether the defendant’s statements, the police observations, and the discarded skirt should have been suppressed as products of an unlawful street detention.
    2. Whether the blue jacket should have been suppressed as the fruit of an unlawful warrantless arrest in his apartment.
    3. Whether testimony about the black skirt was improperly admitted.

    Holding

    1. No, because the police had an articulable reason for the initial attempt to talk with the defendant and reasonable suspicion to justify their detention while they questioned him.
    2. No, because the entry into the defendant’s apartment was made with his consent, rendering the subsequent warrantless arrest lawful, and the jacket was properly seized incident to that arrest.
    3. No, because the testimony concerning the skirt was relevant to the issue of identification.

    Court’s Reasoning

    The court reasoned that the police had an articulable reason to attempt to speak with the defendant and reasonable suspicion to detain him based on his running away after being called to, and discarding the skirt. Citing People v. Leung, 68 NY2d 734 and People v. Howard, 50 NY2d 583, the court emphasized the permissibility of brief detentions based on reasonable suspicion. The court also deferred to the lower courts’ finding of consent to enter the apartment, stating, “These determinations involved mixed questions of law and fact, and because there is evidence in the record to support the hearing court’s findings, undisturbed by the Appellate Division, our review process is at an end (see, People v Harrison, 57 NY2d 470, 477).” The court found the testimony about the skirt relevant for identification, as it linked the defendant to the crime through his possession of a similar item at a closely related time, noting the victim’s testimony that her attacker was carrying something black. The skirt itself was not admitted. The court emphasized that the evidence “helped to link him to the crime.”

  • People v. Gonzalez, 50 N.Y.2d 911 (1980): Consent to Search and Appellate Review of Factual Determinations

    People v. Gonzalez, 50 N.Y.2d 911 (1980)

    An appellate court’s determination that consent to a search was involuntary as a matter of law is a question of law reviewable by the Court of Appeals; however, the case must be remitted to the Appellate Division for determination of the facts if the Court of Appeals finds the legal determination to be in error.

    Summary

    The defendant was convicted based on evidence seized after police entered his apartment with his wife’s consent. The Appellate Division reversed, finding the wife’s consent involuntary as a matter of law and suppressing the evidence. The Court of Appeals reversed the Appellate Division’s order, holding that the determination of involuntariness as a matter of law was erroneous. Because the Appellate Division based its decision on a question of law, the Court of Appeals had jurisdiction to review it. The case was then remitted to the Appellate Division to determine the factual issues surrounding the consent.

    Facts

    The police entered the defendant’s apartment and seized a gun. The entry was based on the purported consent of the defendant’s wife. The suppression court made findings of fact related to the circumstances of the wife’s consent. At the suppression hearing, evidence was presented regarding the circumstances surrounding the wife’s consent to the police entry.

    Procedural History

    The trial court denied the motion to suppress the gun. The defendant was subsequently convicted. The Appellate Division reversed the trial court’s judgment, finding that the wife’s consent was involuntary as a matter of law and dismissing the indictment. The People appealed to the Court of Appeals.

    Issue(s)

    Whether the Appellate Division erred in determining that the defendant’s wife’s consent to the police entry was involuntary as a matter of law.

    Holding

    Yes, because the Appellate Division’s conclusion that the People failed to establish voluntary consent as a matter of law was erroneous.

    Court’s Reasoning

    The Court of Appeals found that the Appellate Division’s holding was based on an incorrect determination of law. The Appellate Division had concluded that, based on the record, no view of the evidence could support a finding of voluntary consent. The Court of Appeals disagreed, finding that this legal conclusion was in error. Because the Appellate Division’s order was based on a determination of law, the Court of Appeals had the power to review it. The Court emphasized that its power of review was limited to the question of law. Citing People v. Palumbo, 49 N.Y.2d 928 and People v. Cona, 49 N.Y.2d 26, the Court stated that it must remit the case to the Appellate Division for determination of the facts pursuant to CPL 470.40 (subd 2, par [b]). The court stated, “Although in doing so it made findings additional to those made by the suppression Judge, its holding was that the People had failed to meet their burden of establishing voluntary consent as a matter of law, that is to say, that under no view of the evidence in the record could it be found to be voluntary.”

  • People v. Medina, 61 N.Y.2d 951 (1984): Duty to Inquire About Prior Representation

    People v. Medina, 61 N.Y.2d 951 (1984)

    When a police officer has actual knowledge that a suspect has been arrested on a prior charge, the officer has a duty to inquire whether the suspect was represented by counsel on that prior charge before questioning the suspect.

    Summary

    Medina was questioned regarding a crime. The questioning officer knew Medina had been arrested eight months prior for sodomy by the same police department and assumed Medina had an attorney for that charge. The New York Court of Appeals held that the officer had a duty to inquire whether Medina was represented by an attorney on the prior sodomy charge before questioning him. The court reversed the Appellate Division’s order, suppressed the statements obtained from Medina, and granted a new trial. The court also held that evidence obtained from a vehicle used by Medina was admissible because the registered owner consented to the search.

    Facts

    The defendant, Medina, was questioned by a police officer about a crime. The officer knew that Medina had been arrested eight months prior on a sodomy charge by the same police department. The officer also assumed that Medina had an attorney on the prior sodomy charge. During the questioning, Medina made statements that were later used against him.

    Procedural History

    The trial court admitted Medina’s statements into evidence. The Appellate Division affirmed the trial court’s decision. Medina appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether a police officer who knows that a defendant has been arrested on a prior charge by the same police department and assumes the defendant had an attorney on that prior charge is under an obligation to inquire whether the defendant was represented by an attorney on the earlier charge before questioning the defendant.
    2. Whether evidence obtained from a vehicle used by the defendant should be suppressed when the registered owner of the vehicle consented to the search, even though the police initially mentioned a search warrant (later found invalid) before obtaining consent.

    Holding

    1. Yes, because when a police officer has actual notice that a defendant was arrested on a prior charge and assumes that the defendant had an attorney, the officer is under an obligation to inquire whether the defendant was represented by an attorney on the earlier charge.
    2. No, because an affirmed finding of consent of the registered owner negates the claim that the consent was merely acquiescence to a search warrant.

    Court’s Reasoning

    The court reasoned that because the officer had actual knowledge of the prior arrest and assumed Medina had an attorney, the officer was obligated to inquire about the representation. The court relied on People v. Bartolomeo, 53 N.Y.2d 225, 232, stating that the officer was “under an obligation to inquire whether defendant was represented by an attorney” on the earlier charge. The court also cited People v. Ramos, 40 N.Y.2d 610, 617-618. This duty to inquire is triggered by the officer’s actual knowledge of the prior representation. If the officer had no such knowledge, the rule would not apply.

    Regarding the vehicle search, the court found that the woman with whom Medina was living, who was also the registered owner of the vehicle, consented to the search. The fact that the police mentioned a search warrant (later found invalid) before she consented did not automatically mean she was merely acquiescing to the warrant. The court found that her statement that “it wouldn’t be necessary, that she would cooperate and [the police] could look at the car, to do anything we want to do” indicated valid consent. The court emphasized that there was an “affirmed finding of consent of the registered owner.” This suggests a high level of deference given to the lower court’s factual finding on the consent issue.

  • People v. Knapp, 57 N.Y.2d 169 (1982): Consent to Search After Request for Counsel

    People v. Knapp, 57 N.Y.2d 169 (1982)

    Once a suspect in custody requests counsel, any subsequent consent to a warrantless search obtained in the absence of counsel is invalid, even if the consent appears voluntary.

    Summary

    Knapp was arrested for grand larceny, and after being read his Miranda rights, stated he would get a lawyer. The police ceased questioning about the crime but asked Knapp if they could look around his property. Knapp agreed and signed a consent form. The search revealed stolen materials. The New York Court of Appeals held that Knapp’s consent was invalid because it was obtained after he requested counsel but before he had the opportunity to consult with an attorney. The court reasoned that the right to counsel is just as important when police seek a waiver of the right to be secure against unreasonable searches as when they seek a waiver of the privilege against self-incrimination. The evidence obtained during the search was therefore suppressed.

    Facts

    Deputy Sheriff Price arrested Knapp for grand larceny based on information about ongoing thefts.

    Price advised Knapp of his Miranda rights, and Knapp indicated he understood them.

    Another officer testified that Knapp stated, “You’re damn right, I’m going to have a lawyer.”

    Sergeant Fikar arrived and, after confirming Knapp was advised of his rights, asked about building materials on the property.

    Knapp stated he wanted to speak to his attorney before making any statement.

    Fikar then asked if Knapp minded if he looked around, and Knapp said “no” and signed a consent to search form after being told he had the right to refuse.

    A search of the property revealed stolen building materials.

    After the initial search, Knapp again requested his attorney and was allowed to call him. The attorney arrived but did not object to the search.

    Procedural History

    The County Court denied Knapp’s motion to suppress the evidence, finding the consent was voluntary based on People v. Gonzalez.

    Knapp pleaded guilty to grand larceny in the second degree.

    The Appellate Division affirmed the conviction without opinion.

    The New York Court of Appeals reversed the Appellate Division’s order.

    Issue(s)

    Whether a consent to a warrantless search is valid when obtained after a suspect in custody has requested counsel but before counsel is provided.

    Holding

    No, because once a suspect requests counsel, the police cannot seek a waiver of the right to be secure against unreasonable searches and seizures until the suspect has been permitted access to counsel, and any consent obtained before then is legally ineffectual.

    Court’s Reasoning

    The Court of Appeals found no basis to distinguish between obtaining a statement and obtaining consent to a search after a defendant’s request for an attorney. Quoting Miranda v. Arizona, the court emphasized that “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.”

    The court reasoned that the right to counsel is just as important when police seek a relinquishment of the constitutional right to be secure against unreasonable searches and seizures as when they seek a waiver of the privilege against self-incrimination.

    The court found that the police did not “scrupulously honor” Knapp’s request for counsel. Instead, they merely shifted their focus from obtaining oral statements to eliciting consent to search. Because the defendant had requested counsel twice, the police were constitutionally prohibited from seeking his consent to the search before he had access to counsel.

    The court rejected the argument that the attorney’s later arrival and failure to object validated the search, stating the attorney “could not then undo what had already been accomplished”. The court reasoned that there was no evidence to support the claim that the defendant, on advice of counsel, retroactively validated the earlier unconstitutional search.

    The court cited People v. Grant, 45 N.Y.2d 366 and People v. Buxton, 44 N.Y.2d 33 in support of their holding.

  • People v. Cosme, 48 N.Y.2d 286 (1979): Consent to Search by Co-Occupant

    48 N.Y.2d 286 (1979)

    When premises are jointly occupied, one co-occupant can consent to a search of the shared areas, and that consent is valid even if another co-occupant is present and objects to the search.

    Summary

    Cosme was convicted of criminal possession of a controlled substance. The police searched his apartment based on his fiancée’s consent, who also lived there, even though Cosme objected. The New York Court of Appeals affirmed the conviction, holding that when two individuals share a common right of access to property, either can consent to a search, and the other’s objection does not invalidate that consent. The court reasoned that co-occupants assume the risk that one of them might permit the common area to be searched.

    Facts

    Meyrle Hennessey, Cosme’s fiancée, called the police and reported that Cosme was storing a gun and cocaine in their shared apartment. Hennessey, who had been drinking, met the police outside the apartment, gave them a key, and explained how to disable the alarm. Upon entering, the police found Cosme and a companion. Despite Cosme’s protests, the police searched the apartment, finding a gun and cocaine in a bedroom closet shared by Cosme and Hennessey.

    Procedural History

    Cosme moved to suppress the evidence, arguing the search was illegal because it lacked probable cause and his consent. The trial court denied the motion, finding Hennessey had the authority to consent based on her joint occupancy and access. Cosme pleaded guilty to a reduced charge after the denial of his suppression motion. The Appellate Division affirmed his conviction, leading to this appeal to the New York Court of Appeals.

    Issue(s)

    Whether a co-occupant’s consent to a search of jointly occupied premises is valid when another co-occupant is present and expressly refuses to consent to the search.

    Holding

    Yes, because when individuals share common authority over premises, any one of them has the right to permit a search, and the others assume the risk that this might occur.

    Court’s Reasoning

    The Court of Appeals rejected the agency theory, which posits that one co-tenant can waive another’s constitutional rights solely because they share an interest in the property. Instead, the court relied on the principle that an individual lacking exclusive control over premises has no reasonable expectation of privacy there. Quoting United States v. Matlock, the court stated that the authority to consent “rests…on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” By giving Hennessey an unrestricted right to share the bedroom closet, Cosme assumed the risk that she would authorize a search. The court explicitly stated that a co-occupant has no constitutional ground for complaint when a co-occupant consents to a search. Since Hennessey had common authority over the apartment and voluntarily consented, Cosme’s objections were ineffective. The court did not address whether probable cause existed or if exigent circumstances were present, as Hennessey’s consent was sufficient to justify the search. The court also did not express an opinion on areas of exclusive use within a shared dwelling.

  • People v. Schmoll, 417 N.Y.S.2d 834 (1979): Marital Privilege and Exceptions for Threats; Probable Cause for Arrest

    People v. Schmoll, 417 N.Y.S.2d 834 (1979)

    The marital privilege, a testimonial privilege, does not prevent police from acting on information provided by a spouse, especially when it involves threats against the spouse and children; such information, coupled with a consensual house search, can establish probable cause for arrest.

    Summary

    In this case, the defendant was convicted of criminal possession of dangerous drugs (marijuana) and illegal possession of a sawed-off shotgun. The police acted on information from the defendant’s wife about threats he made against her and their children, along with her consent to search the house. The search revealed the shotgun. The Court of Appeals held that the marital privilege did not bar the police from acting on the wife’s information to protect herself and her children. The Court reversed the marijuana conviction because the wife’s testimony, which was barred by the marital privilege, was the only evidence supporting that charge. However, the shotgun conviction was upheld because there was independent credible evidence to support it.

    Facts

    The defendant’s wife informed the police about threats made by the defendant against her and their children. She also consented to a search of their home. During the search, police discovered a sawed-off shotgun. Based on the wife’s information and the discovery of the shotgun, the police arrested the defendant. A subsequent search of the defendant’s person revealed lysergic acid diethylamide (LSD).

    Procedural History

    The defendant was convicted in the trial court of criminal possession of dangerous drugs (marijuana) and illegal possession of a sawed-off shotgun. The Appellate Division affirmed the convictions. The case then went to the New York Court of Appeals.

    Issue(s)

    1. Whether the marital privilege precluded the police from acting on information provided by the defendant’s wife and conducting a search consented to by her.
    2. Whether the information provided by the wife and the subsequent house search provided probable cause for the defendant’s arrest.
    3. Whether there was sufficient evidence, independent of the wife’s testimony, to convict the defendant of the marijuana offense.

    Holding

    1. No, because the marital privilege is a testimonial privilege and does not prevent the police from acting on information provided by a spouse, especially when it involves threats.
    2. Yes, because the wife’s disclosures and the discovery of the sawed-off shotgun during the consensual search provided a reasonable belief that the defendant had committed a misdemeanor.
    3. No, because without the wife’s testimony, there was insufficient evidence to convict the defendant of the marijuana offense.

    Court’s Reasoning

    The Court of Appeals reasoned that the marital privilege, as codified in CPLR 4502(b), is a testimonial privilege, not a universal “gag” rule. The wife’s disclosures to the police were made to protect herself and her children from the defendant’s threats, creating an exception to the privilege. The court emphasized that the police had a duty to act on this information. While the threats alone might not have justified an arrest, the wife’s disclosures combined with the discovery of the illegal shotgun during the consented search provided probable cause to believe the defendant had committed a misdemeanor, namely illegal possession of the shotgun, under Penal Law § 265.05(3). This lawful arrest then justified the incidental search that revealed the LSD. The court explicitly stated the wife’s disclosures were “exceptions to the privilege, which in any event is a testimonial privilege and not a universal ‘gag’ rule.” Regarding the marijuana conviction, the court found that the only evidence supporting it was the wife’s testimony, which was inadmissible due to the marital privilege; therefore, that conviction could not stand. The court also noted that, despite imperfections in the trial, the irregularities were either not properly preserved or were harmless in light of the admissible evidence. The court found credible evidence from witnesses other than the wife that the defendant had possessed the shotgun, justifying the inference that he possessed it in the home he jointly occupied with his wife until two days before his arrest.