                            State of New York
                     Supreme Court, Appellate Division
                         Third Judicial Department
Decided and Entered: July 28, 2016                       106323
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

MICHAEL L. HARRIS,
                    Appellant.
________________________________


Calendar Date:    May 26, 2016

Before:    Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.

                               __________


     David M. Kaplan, Penfield, for appellant.

      Weeden A. Wetmore, District Attorney, Elmira (Sophie J.
Marmor of counsel), for respondent.

                               __________


Rose, J.

      Appeal from a judgment of the County Court of Chemung
County (Keene, J.), rendered October 21, 2013, convicting
defendant upon his plea of guilty of the crime of criminal
possession of a controlled substance in the third degree.

      When police officers responded to a call regarding a
disturbance at an apartment, they arrived at the door and heard
the sounds of a physical altercation inside. The officers opened
the unlocked door, entered the apartment and broke up a fight
between two male residents. The perceived aggressor was
restrained, handcuffed and placed in a sitting position on the
floor in the hallway next to the living room while the apparent
victim was asked to sit on the couch while both were questioned.
Defendant emerged from the bathroom and also sat on the couch at
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the request of the officers, who continued their questioning
regarding the incident. The officers then heard the sounds of
another person and, when asked, defendant indicated that his wife
was in the back bedroom, which the victim said was rented to
defendant. While the other officers remained in the living room,
one of the officers conducted a sweep of the apartment. After
looking in the bedrooms that opened directly into the living
room, the officer proceeded into the kitchen where he knocked on
defendant's locked bedroom door and directed defendant's wife to
"open the door." After indicating that she had to get dressed,
she emerged and complied with the officer's request to go into
the living room to join her husband and the victim on the couch.
At that point, the officer smelled a chemical odor that he did
not recognize emanating from the bedroom. He then entered the
bedroom and saw bottles of rubbing alcohol and a gallon jug of
distilled water. Seeing a shirt covering something up on the
floor, he lifted it up and observed a pot of liquid on a hotplate
that he believed to be used to make methamphetamine (hereinafter
the meth lab). Only then was everyone present frisked for
weapons. Investigators were called and, while still inside the
apartment, defendant was questioned by investigators who elicited
incriminating admissions. He was then removed from the apartment
and taken to a police station where he signed a written
statement. Based upon the officer's observations inside the back
bedroom, a search warrant was issued and executed, and a quantity
of methamphetamine together with the equipment and materials used
to produce it were seized.

      Defendant was indicted on charges of criminal possession of
a controlled substance in the second degree, unlawful manufacture
of methamphetamine in the third degree and criminal possession of
a controlled substance in the seventh degree. Following a
suppression hearing, County Court (Hayden, J.) denied defendant's
motion to suppress both the physical evidence and his statements
to police. Defendant thereafter accepted a plea agreement
pursuant to which he pleaded guilty under the top count of the
indictment to the lesser included offense of criminal possession
of a controlled substance in the third degree, and he was
sentenced, as a second felony offender, to the agreed-upon prison
term of 3½ years with three years of postrelease supervision.
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      On appeal, defendant contends that County Court erred in
denying his motion to suppress the physical evidence and his
statements to police. Specifically, with regard to the evidence
recovered from his bedroom, defendant argues that the entry into
and search of his bedroom were illegal and, thus, the police were
not lawfully in his bedroom when they made the observations that
formed the basis for the search warrant application, requiring
that the evidence be suppressed. We agree.

      While warrantless searches of a home are presumptively
unreasonable under the Fourth Amendment (see US Const 4th Amend;
Kentucky v King, 563 US 452, 459 [2011]), defendant does not
dispute that exigent circumstances justified the officers'
initial entry into the apartment without a warrant, as they had
reasonable grounds to believe that there was an altercation
occurring and, thus, an immediate need to render assistance
inside the apartment (see People v Musto, 106 AD3d 1380, 1381
[2013], lv denied 21 NY3d 1007 [2013]; see also Brigham City v
Stuart, 547 US 398, 403-404 [2006]; United States v Simmons, 661
F3d 151, 157 [2d Cir 2011]). Rather, the question is whether, on
these facts, the officers were entitled to enter and look under
clothing in defendant's bedroom as part of a protective sweep,
which "is a quick and limited search of premises . . . conducted
to protect the safety of police officers or others. It is
narrowly confined to a cursory visual inspection of those places
in which a person might be hiding" (Maryland v Buie, 494 US 325,
327 [1990]; see United States v Hassock, 631 F3d 79, 86-88 [2d
Cir 2011] [collecting cases]; see also People v White, 259 AD2d
400, 401 [1999], lv denied 93 NY2d 1029 [1999]). Recognizing the
dangers faced by police officers who enter homes, the Supreme
Court of the United States has held that officers may, "as a
precautionary matter and without probable cause or reasonable
suspicion, look in closets and other spaces immediately adjoining
the place of arrest from which an attack could be immediately
launched" (Maryland v Buie, 494 US at 334). Beyond that
precautionary measure, the Court held that, to conduct a further
protective sweep, "there must be articulable facts which, taken
together with the rational inferences from those facts, would
warrant a reasonably prudent officer in believing that the area
to be swept harbors an individual posing a danger to those on the
arrest scene" (id. at 334).
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      Here, the suppression testimony established that the
officers responded to a general disturbance call at 7:30 a.m. and
immediately stopped a fist fight between two male roommates. The
officers subdued and cuffed the aggressor and placed the victim
on the couch, bringing the situation under their control. While
the two continued to argue, they made no further aggressive
moves. No guns or weapons were observed, no blood or serious
injuries were noted and no one was seen or heard fleeing when
police entered the apartment. When asked at the outset, the
victim asserted only that the aggressor had hit him and should be
arrested. When defendant exited the adjacent bathroom, he did
not run out of the apartment or to his bedroom but, rather, he
was compliant, provided his name and did as requested. When
asked, defendant disclosed that his wife was in his bedroom. No
one present reported that others had been involved in the
altercation and no facts were alleged by the officers to support
a belief that a third person had been involved or was hiding in
the apartment and posed a danger to those present.
Significantly, no one was patted down for weapons until after the
search of defendant's bedroom.

      Although the officers were informed that defendant's wife
was in the back bedroom, there was no basis upon which to believe
that she had been involved in or was a witness to the
altercation, that she posed a threat to them or that there were
weapons in that or any other room (compare People v Kims, 24 NY3d
422, 427, 439-440 [2014]; People v Gibson, 117 AD3d 1317, 1319-
1320 [2014], affd 24 NY3d 1125 [2015]; People v Musto, 106 AD3d
at 1382; People v Lasso-Reina, 305 AD2d 121, 122 [2003], lv
denied 100 NY2d 595 [2003]). The officers never testified that
they asked those present any questions to ascertain if there were
other witnesses or participants. While police officers are
understandably concerned about the presence of any person in a
home where they are involved in an ongoing investigation of a
crime, they are not entitled to expand the scope of a protective
sweep – which is a limited, "cursory inspection" of "immediately
adjoining" areas – unless they have "articulable facts" upon
which to believe that there is a person present who may pose a
danger to those on the scene (Maryland v Buie, 494 US at 334-
335).
                              -5-                106323

      The concurrence notes that, in gauging the safety of the
situation, the officer who conducted the protective sweep was not
limited to information provided by the occupants of the
apartment, but could make his own assessment based on the
totality of the circumstances. While we agree with this as a
general statement, we cannot agree with the suggestion that the
officer's observation of a glass pipe and suspected narcotics in
the aggressor's bedroom provided articulable facts that warranted
the belief that an individual in the back bedroom posed a danger
to those in the living room. In our view, the facts known to the
officer – prior to the entry and search of defendant's bedroom –
do not support a belief that there was any such threat. Rather,
the altercation had been subdued and the situation was no longer
volatile. In short, the record lacks the requisite articulable
facts that would lead a reasonably prudent officer to believe
that, once defendant's wife had exited the bedroom and prior to
the officer's entry into it, there was anything within that posed
a danger to the others at the scene so as to justify a protective
sweep of that room (see id. at 334; People v Harper, 100 AD3d
772, 773-774 [2012], lv denied 21 NY3d 943 [2013]; compare People
v Bryant, 91 AD3d 558, 558 [2012], lv denied 20 NY3d 1009 [2013];
People v McAllister, 35 AD3d 300, 300 [2006], lv denied 8 NY3d
925 [2007]; People v Garcia, 27 AD3d 307, 307 [2006], lv denied 6
NY3d 894 [2006]; People v White, 259 AD2d at 400-401 [1999];
People v Rivera, 257 AD2d 425, 426 [1999], lv denied 93 NY2d 901
[1999]).

      Accordingly, we must agree with defendant that his motion
to suppress the physical evidence found in his bedroom should
have been granted and that this evidence should not have formed
the basis for the issuance of a search warrant. Because
defendant did not waive his right to appeal and the erroneous
denial of his suppression motion may have influenced his decision
to enter a guilty plea, to which harmless error analysis does not
apply, he is entitled to have his plea vacated and to be restored
to his prepleading status (see People v Coles, 62 NY2d 908, 910
[1984]; People v King, 137 AD3d 1424, 1425 [2016], lv denied 27
NY3d 1070 [2016]; People v Hope, 284 AD2d 560, 562 [2001]; People
v Samuels, 270 AD2d 779, 781 [2000]; see also CPL 470.55 [2]).

     Since we are vacating defendant's guilty plea and remitting
                              -6-                106323

for further proceedings, we address defendant's contention that
County Court also erred in denying his motion to suppress his
statements to police. Beginning with defendant's oral statements
to police in the apartment, the suppression testimony established
that, after the officer exited defendant's bedroom and reported
the discovery of the meth lab, police investigators were called
and the occupants were patted for weapons. One of the
investigators, who had been advised of the drug-related
discovery, questioned defendant in the living room about the meth
lab, eliciting incriminating admissions from him. No Miranda
warnings were provided. The questioning was not merely
investigatory but, rather, an interrogation designed and likely
to elicit an incriminating response (see People v Paulman, 5 NY3d
122, 129 [2005]). While defendant was not handcuffed or
restrained and the questioning lasted only a few minutes, given
the discovery of a meth lab in his bedroom and the police-
dominated atmosphere, we cannot conclude that "a reasonable
person in defendant's position would have believed that he or she
was free to leave" and, therefore, we find that the questioning
was custodial and Miranda warnings were required (People v Cade,
110 AD3d 1238, 1239 [2013], lv denied 22 NY3d 1155 [2014]; see
People v Paulman, 5 NY3d at 129). Thus, defendant's oral
statements should have been suppressed.

      Following those improper unwarned statements, defendant was
taken into custody and transported to the police station where he
signed a Mirandized written statement. To determine whether
those late Miranda warnings were effective in protecting
defendant's rights or whether the subsequent written statement
was part of a "single continuous chain of events" requiring its
suppression, courts look to numerous factors, "including the time
differential between the Miranda violation and the subsequent
admission; whether the same police personnel were present and
involved in eliciting each statement; whether there was a change
in the location or nature of the interrogation; the circumstances
surrounding the Miranda violation, such as the extent of the
improper questioning; and whether, prior to the Miranda
violation, [the] defendant had indicated a willingness to speak
to police" (People v Paulman, 5 NY3d at 130-131 [internal
quotation marks omitted]; accord People v White, 10 NY3d 286, 291
[2008], cert denied 555 US 897 [2008]; People v Cavanagh, 97 AD3d
                              -7-                106323

980, 982 [2012], lv denied 19 NY3d 1101 [2012]). "No one factor
is determinative and each case must be viewed on its unique
facts" (People v Paulman, 5 NY3d at 131).

      The testimony addressing the foregoing factors was cursory.
The second investigator to question defendant testified that he
provided Miranda warnings to defendant in an interview room at
the police station approximately three hours after police had
responded to the apartment. There was a change in the location
of the interrogation and the police personnel involved, defendant
was not placed in restraints and he had indicated some
willingness to speak with officers at the apartment prior to the
Miranda violation. However, the record is devoid of testimony
regarding the circumstances under which defendant was transported
to the police station, whether any questioning occurred during
his transport, or the nature, atmosphere or duration of the
questioning at the station. Given that defendant heavily
incriminated himself when questioned by the first investigator at
the apartment in violation of his Miranda rights, we do not find
that the People established at the hearing that there was a
"pronounced break in [the] interrogation adequate to justify a
finding that the defendant was no longer under the sway of the
prior [unwarned] questioning when the warnings were
[subsequently] given" (People v Guilford, 21 NY3d 205, 209 [2013]
[internal quotation marks and citation omitted]). As the People
failed to establish that defendant's post-Miranda statements were
attenuated from his earlier improper custodial, inculpatory
statements elicited in violation of Miranda, defendant was
likewise entitled to suppression of his written statement (see
People v White, 10 NY3d at 291). Defendant's remaining claims
either lack merit or are rendered academic by our determination.

     Lahtinen, J.P., and Aarons, J., concur.




Lynch, J. (concurring).

      We respectfully disagree only with respect to the
majority's determination to suppress all the physical evidence
                              -8-                106323

found in the bedroom. From our perspective, there were
articulable facts that would warrant a reasonably prudent officer
in believing that defendant's bedroom might harbor a dangerous
individual or a victim of the altercation. The majority has
accurately described the underlying event, but there are a few
additional factors of moment. There is no plausible dispute
that, for safety reasons, the officer was entitled to search the
bedrooms that opened directly into the living room (see Maryland
v Buie, 494 US 325, 336 [1990]). The officer explained, "[W]e've
been ambushed before. . . . And for our own safety and for
everyone else in the house, when we walk into a hostile situation
like that, our job is to make the scene safe." Notably, the
officer observed "a broken lamp and signs of a disturbance" in
the apparent victim's bedroom and "a glass pipe, and . . . a
small plastic container with some white chunky substance" in the
apparent aggressor's bedroom that the officer "suspected . . .
was narcotics." At this juncture, the officer heard someone
elsewhere in the apartment and, upon inquiry, was informed that
defendant's wife was in the back bedroom off the kitchen – a
distance of only 10 feet from the living room. The officer
explained that he was uncertain what the status of defendant's
wife was – whether she was a threat or even if she was safe.
When he knocked on her locked bedroom door, he "heard scuffling"
and "movement." The officer directed defendant's wife to open
the door. She responded, "Just a minute," and literally took
that long to open the door. The officer testified that, when she
did so, he "was hit with a chemical smell, [which] almost burned
[his] nose hairs a little bit." He explained that he then went
into the bedroom "to make sure there was no one else hiding in
there."

      In our view, the situation at hand, which had spilled into
several rooms, was volatile and aptly described by the officer as
"hostile." This context, coupled with the evidence of illegal
drugs and the proximity of the back bedroom, provided a
reasonable basis for the officer to extend the protective sweep
to that bedroom (see People v Gibson, 117 AD3d 1317, 1319-1320
[2014], affd 24 NY3d 1125 [2015]; People v Bryant, 91 AD3d 558,
558 [2012], lv denied 20 NY3d 1009 [2013]; People v Garrido, 34
AD3d 368, 369 [2006], lv denied 8 NY3d 880 [2007]; People v
Lasso-Reina, 305 AD2d 121, 122 [2003], lv denied 100 NY2d 595
                              -9-                106323

[2003]; People v Martinez, 187 AD2d 992, 992 [1992], lv denied 81
NY2d 888 [1993]). This is all the more so given the wife's
dilatory actions in exiting the bedroom and the strong chemical
odor that emanated from that room. Confronted with these
circumstances, the officer had a reasonable basis to check the
back bedroom to allay his safety concerns, even after the wife
had left the room. In gauging the safety of the situation, the
officer was not limited to the information provided by the
occupants of the apartment, but could make his own assessment
based on the totality of the circumstances. This case is
comparable to the situation in Maryland v Buie (supra), for when
that defendant emerged from the basement of the house being
searched pursuant to an arrest warrant and was placed under
arrest, a detective went into the basement "in case there was
someone else" (id. at 328 [internal quotation marks omitted]).

      While the protective sweep of the bedroom was justified, as
the majority explained, such a sweep is "narrowly confined to a
cursory visual inspection of those places in which a person might
be hiding" (id. at 327; see People v McAllister, 35 AD3d 300, 300
[2006], lv denied 8 NY3d 925 [2007]). Only items that are found
in plain view during a proper protective sweep can be seized or
used as the basis of a search warrant (see People v Boyland, 79
AD3d 1658, 1658-1659 [2010], affd 20 NY3d 879 [2012]; People v
Martinez, 187 AD2d at 992). Although the officer properly
discovered several items in plain view, including bottles of
rubbing alcohol, a jug of distilled water and a gallon jar with
white residue on the inside, his search exceeded its
constitutional limits when he lifted a shirt to discover a
hotplate and a cooking pot with liquid in it (see
People v Knapp, 52 NY2d 689, 697 [1981]; People v James, 27 AD3d
1089, 1090-1091 [2006], lv denied 6 NY3d 895 [2006]; People v
Johnson, 241 AD2d 527, 527-528 [1997], lv denied 90 NY2d 1012
[1997]; People v White, 188 AD2d 423, 423-424 [1992], lvs denied
81 NY2d 886, 894 [1993]; see also People v Goodwin, 286 AD2d 935,
935 [2001], lv denied 97 NY2d 682 [2001]). Therefore, County
Court should not have considered evidence of the hotplate and
cooking pot in resolving defendant's suppression motion. That
said, whether the remaining evidence provided an adequate basis
for the issuance of a search warrant should be addressed, in the
first instance, by the trial court (see People v Ingram, 18 NY3d
                              -10-                 106323

948, 949 [2012]; People v Sykes, 110 AD3d 1437, 1438 [2013]).   We
otherwise concur with the majority's decision.

     Clark, J., concurs.



      ORDERED that the judgment is reversed, on the law, grant
defendant's motion to suppress the physical evidence found in the
bedroom, the oral statements defendant made to police at the
apartment and defendant's written statement, and matter remitted
to the County Court of Chemung County for further proceedings not
inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
