        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

600
KA 13-00465
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARRION B. FREEMAN, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John L.
DeMarco, J.), rendered January 16, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree (two counts) and criminal possession of marihuana
in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of two counts of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [1] [b]; [3]) and one count of
criminal possession of marihuana in the third degree (§ 221.20),
defendant contends that County Court erred in denying that part of his
omnibus motion seeking to suppress tangible property and statements
obtained by the police following their warrantless entry into his
home. We reject that contention and affirm the judgment.

     “Where, as here, the People contend that a suspect gave his or
her consent to the police to enter the suspect’s home, ‘the burden of
proof rests heavily upon the People to establish the voluntariness of
that waiver of a constitutional right’ ” (People v Forbes, 71 AD3d
1519, 1520, lv denied 15 NY3d 773, quoting People v Whitehurst, 25
NY2d 389, 391). Based on the totality of the circumstances
surrounding defendant’s consent to enter his home, we conclude that
the consent was voluntary (see People v McCray, 96 AD3d 1480, 1481, lv
denied 19 NY3d 1104). Testimony at the suppression hearing
established that, although defendant was in custody at the time he
gave consent, he cooperated with the police and assisted them in
gaining entry by indicating which of his keys opened the front door
(see People v Nance, 132 AD3d 1389, 1389, lv denied 26 NY3d 1091;
McCray, 96 AD3d at 1481). Once inside the home, the police observed
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                                                         KA 13-00465

marihuana in plain view and immediately read defendant his Miranda
rights. After defendant waived those rights, he voluntarily
consented, both verbally and in writing, to a search of the premises.

     We reject defendant’s further contention that any voluntary
consent he may have given did not encompass a search of a duffel bag
inside of his closet. “The standard for measuring the scope of a
suspect’s consent under the Fourth Amendment is that of objective
reasonableness—what would the typical reasonable person have
understood by the exchange between the officer and the suspect?”
(People v Gomez, 5 NY3d 416, 419 [internal quotation marks omitted];
see Florida v Jimeno, 500 US 248, 251). Where an officer informs a
suspect of the specific items the officer is searching for, “ ‘[t]he
scope of a search is generally defined by its expressed object’ ”
(Gomez, 5 NY3d at 420, quoting Jimeno, 500 US at 251). Here,
defendant responded affirmatively when the officer asked him whether
he “could have permission to search both the room and the house for
drugs or any other weapons or illegal contraband in the house.”
Additionally, defendant signed a written consent that included the
“premises” and his “personal property.” We therefore conclude that
defendant’s consent encompassed the duffel bag. “It was objectively
reasonable for the police to conclude that the consent to search the
apartment . . . encompassed a thorough search of any location where a
gun [or narcotics] might have been secreted” (People v Bruno, 294 AD2d
179, 179-180, lv denied 99 NY2d 533).

     All concur except WHALEN, P.J., and TROUTMAN, J., who dissent and
vote to reverse in accordance with the following memorandum: We
respectfully dissent. In our view, the People failed to meet their
burden at the suppression hearing of establishing that defendant
voluntarily consented to the police officers’ entry into and search of
his residence. We would therefore reverse the judgment, vacate the
plea, grant that part of defendant’s omnibus motion seeking
suppression of tangible property and statements obtained following the
entry into defendant’s residence, dismiss the first and second counts
of the indictment, and remit the matter to County Court for further
proceedings on the third count of the indictment.

     The record of the suppression hearing establishes that two
Rochester police officers were on routine patrol in a marked patrol
vehicle when they noticed a vehicle operated by defendant. They
followed his vehicle a short distance. When defendant turned into the
driveway of his residence, one of the officers observed that the
windows were excessively tinted in violation of Vehicle and Traffic
Law § 375 (12-a) (b) (3). As defendant exited his vehicle, the
officers approached him on foot. One of the officers detected the
odor of marihuana and observed that defendant appeared to be nervous.
Defendant disclosed to the officer that he was on probation. When he
was unable to produce a license or other identification in response to
the officer’s request, defendant was frisked and, during the frisk,
defendant’s keys fell to the ground. The officer seized them and
placed them on the trunk of the vehicle defendant had been driving.
He then handcuffed defendant, escorted him to the patrol car and
locked him in the backseat. Inside the patrol car, defendant provided
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                                                         KA 13-00465

his name and date of birth and a record check disclosed that
defendant’s driver’s license had been suspended. At that point
defendant was under arrest for aggravated unlicensed operation of a
motor vehicle.

     While defendant remained in the backseat of the patrol car, the
officer asked him whether there was anything illegal in the vehicle,
and defendant responded that the vehicle did not belong to him, and to
his knowledge there was nothing illegal in the vehicle. The officer
requested to search the vehicle, and defendant said that he “d[id]n’t
have a problem with that.” The officer unlocked the vehicle and found
a small quantity of marihuana in the pocket of defendant’s sweatshirt
and a larger quantity of marihuana under the driver’s seat.

     The officer returned to the patrol car and advised defendant that
marihuana possession was not “that serious of a charge,” but that
defendant must produce identification “if there was any chance for him
to bail out on the charge.” The officer asked if defendant would
accompany him inside the residence to retrieve defendant’s
identification, and defendant agreed to do so. As they approached the
rooming house where defendant resided, defendant specified which keys
opened the main door to the building and the door to his room. Once
inside defendant’s room, the officer saw a digital scale and a small
quantity of marihuana in an open cigar box. Defendant advised the
officer that his identification was in his dresser and he began to
walk toward the dresser, but the officer stopped him and directed him
to sit on the bed. Defendant complied, and the officer advised him
that he was under arrest on drug charges. The officer pointed out
that there were drugs and paraphernalia in plain sight, but “it really
wasn’t a big deal and [the officer] would like [defendant’s]
cooperation.” The officer then advised defendant of his Miranda
rights, and defendant agreed to speak to him. When asked whether he
had any marihuana in the house, defendant responded that it was all in
the basement. The officer asked defendant whether he could have
“permission to search both the room and the basement for marijuana,”
and defendant replied affirmatively.

     Before conducting the proposed search, the officer prepared a
written consent to search form. The form misspelled defendant’s name,
and misidentified the place to be searched and the person giving
consent. The officer acknowledged in his testimony at the suppression
hearing that he did not read the form to defendant and did not know
whether defendant read the form himself. Nevertheless, while
defendant’s hands remained handcuffed behind his back, defendant
signed the form card. The officer searched the room and found a
handgun and a large quantity of marihuana in a duffel bag inside a
closet next to the bed.

     At the outset, we agree with the majority that the People bear a
heavy burden of proving that defendant consented to the entry into his
home (see People v Gonzalez, 39 NY2d 122, 128; People v Forbes, 71
AD3d 1519, 1520, lv denied 15 NY3d 773), and whether such consent was
voluntary must be determined from the totality of the circumstances
(see Schneckloth v Bustamonte, 412 US 218, 227; Gonzalez, 39 NY2d at
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                                                         KA 13-00465

128; People v Harper, 100 AD3d 772, 774, lv denied 21 NY3d 943). We
add that we are “required to indulge every reasonable presumption
against the waiver of constitutional rights guaranteed by the Fourth
Amendment” (People v McNeeley, 77 AD2d 205, 209; see Johnson v Zerbst,
304 US 458, 464). With those principles in mind, we cannot agree with
the majority that defendant’s consent to enter and search his home was
voluntarily given. “Submission to authority is not consent”
(Gonzalez, 39 NY2d at 129) and, here, the circumstances support a
finding that defendant’s “apparent consent was but a capitulation to
authority” (id.).

     The factors guiding our assessment of the voluntariness of
defendant’s consent include whether defendant was: (1) in custody or
under arrest; (2) handcuffed; (3) evasive or cooperative; (4) advised
of his right to refuse consent; and (5) experienced in dealing with
the police (see id. at 128-130; Matter of Daijah D., 86 AD3d 521, 521-
522). None of those factors weighs in favor of a finding of
voluntariness in this case. Rather, the evidence establishes that,
from the outset, the encounter between defendant and the officer
“included highly intrusive police conduct[,] the coercive effect of
which could not have abated when . . . defendant consented to the”
entry and search of his room (People v Packer, 49 AD3d 184, 187, affd
10 NY3d 915). Within two minutes of the officers’ approach of
defendant based upon a minor Vehicle and Traffic Law violation, he was
frisked, handcuffed, arrested, and placed in the backseat of a locked
patrol vehicle. While defendant was thus confined, the officer asked
defendant whether he would agree to accompany him into defendant’s
residence, suggesting that he intended to enter regardless of whether
defendant granted or withheld his consent. Under the circumstances,
defendant had no reason to suppose that his consent was required or
even sought by the officer and, indeed, defendant was never advised
that he had a right to refuse consent (see People v Flores, 181 AD2d
570, 572; People v Guzman, 153 AD2d 320, 324; cf. People v Green, 104
AD3d 126, 132). Rather, defendant was persuaded to accompany the
officer into his residence by the officer’s misleading assurances that
his identification was the practical equivalent of the keys to the
jail (see generally People v Skardinski, 24 AD3d 1207, 1208; People v
Cioffi, 55 AD2d 682, 682). No evidence was presented at the
suppression hearing that defendant was “a case-hardened sophisticate
in crime, calloused in dealing with the police,” and thus resistant to
coercive police tactics (Gonzalez, 39 NY2d at 129). Indeed, the only
evidence of other bad acts or criminality at the hearing was that
defendant was on probation as the result of a Vehicle and Traffic Law
offense. We conclude that the totality of those circumstances weighs
heavily against a determination that defendant’s consent to the
officer’s entry into the residence was voluntary (see id. at 128-129;
Harper, 100 AD3d at 774).

     Contrary to the conclusion of the suppression court and the
majority, moreover, we cannot conclude that defendant’s conduct in
pointing out the keys that opened the doors to the rooming house and
his room evinced a desire to be cooperative (cf. People v McCray, 96
AD3d 1480, 1481, lv denied 19 NY3d 1104; People v Abrams, 95 AD2d 155,
157). The officer had seized defendant’s keys at the beginning of the
                                 -5-                           600
                                                         KA 13-00465

encounter, and defendant merely facilitated what he must have
perceived to be the officers’ inevitable entry into his residence.
Nor did the remainder of defendant’s actions indicate cooperation with
the police. To the contrary, defendant was evasive during the
encounter, denying that there were drugs in the vehicle he was
driving, and falsely advising the officer that any drugs in the
rooming house would be found in the basement (cf. People v Yoneyama,
128 AD3d 616, 616, lv denied 26 NY3d 937). In sum, therefore, we
conclude that the People failed to meet their burden of establishing
that defendant’s consent to the officer’s entry was “a true act of the
will, an unequivocal product of an essentially free and unconstrained
choice” (Gonzalez, 39 NY2d at 128). Inasmuch as the entry into
defendant’s residence was illegal, the People cannot rely on the plain
view doctrine to support the seizure of the marihuana and
paraphernalia that the officer saw upon entering the residence (see
People v Marcial, 109 AD3d 937, 938, lv denied 22 NY3d 1200).

     We further conclude that, apart from the illegal entry, the
People failed to establish that defendant voluntarily consented to the
search of his room. Defendant signed a written consent form that was
nonsensical as completed, and the officer who prepared it testified
that he “presented” it to defendant but neither read it aloud nor
sought any assurance from defendant that he had read it (see
Skardinski, 24 AD3d at 1208). Further, defendant signed the form
while his hands were handcuffed behind his back, as they had been
almost from the inception of the encounter. In our view, “the
coercive logic of the situation would have been obvious to any
reasonable, innocent person in defendant’s place” (Packer, 49 AD3d at
188-189). “Voluntariness is incompatible with official coercion,
actual or implicit, overt or subtle” (Gonzalez, 39 NY2d at 128).
Here, the totality of the circumstances compel the conclusion that
defendant’s consent to the search of his residence, like his consent
to the entry, was the product of coercion rather than his free and
unconstrained choice.

     We would therefore grant defendant’s omnibus motion to the extent
that it sought suppression of physical evidence and statements
obtained following the entry, which includes the weapon seized from
the duffel bag. Suppression of the weapon would eliminate the
evidence supporting the first and second counts of the indictment, and
those counts should therefore be dismissed. Inasmuch as it is unclear
from the record whether the evidence supporting the third count of the
indictment charging criminal possession of marihuana was obtained from
the vehicle or the residence, we would remit the matter to County
Court for further proceedings on that count.




Entered:   July 8, 2016                         Frances E. Cafarell
                                                Clerk of the Court
