People v. Johnson

OPINION OF THE COURT

Rosenberger, J.

The defendant was indicted for criminal possession of a controlled substance in the third and fourth degrees. In response to his motion to suppress physical evidence, a hearing was conducted at which Detectives John Barrett and Edward Clifford testified that they arrived at apartment 61 at 2400 Seventh Avenue on February 20, 1991, in response to an anonymous call informing the police that Michael Thomas, who was known as "Lukeman”, a suspect in a shooting, would be found at that location.

As Barrett and Clifford walked toward apartment 61, the door to that apartment opened and Lukeman, whom the detectives knew by sight, began to walk out. The detectives called out "Police. Don’t move”. The suspect ran back into the apartment and tried to close the door behind him. The detectives ran in after him, and placed him under arrest.

Barrett then noticed the defendant, who was standing in the bedroom doorway. The defendant went into the bedroom, got down on the floor and reached under a baby’s crib. Barrett recovered a plastic bag containing 99 vials of cocaine on which the defendant had his hand under the crib. Four hundred and forty-nine dollars was later recovered from the defendant’s pocket.

The defendant testified that the detectives pushed the front door of his apartment in, grabbed Lukeman and threw him to the floor. When the defendant came out of a bedroom holding his baby niece, a detective grabbed him and told him to get down on the floor. The defendant first put the baby on a bed and as he turned around, one of the detectives hit him on the head with a gun and threw him on the floor between the bedroom and a hallway. This detective then searched the apartment and returned from the living room with a bag of cocaine. The defendant added that he knew nothing about the drugs, that Lukeman, a friend of his brother, had been in the living room with his brother and other friends while the *37defendant remained in a bedroom, and that he was carrying the large sum of money because he was going to enroll in a modelling agency.

The hearing court found the only issue in the case to be the credibility of the defendant’s testimony that he did not have his hand on the narcotics. The court stated that "If he didn’t have the hand on the narcotics and these narcotics were found in the apartment, I don’t think there’s any case against this defendant.” After noting that the defendant was only 21 or 22 years of age, lived with his parents and other family members in the apartment, and, after twice pointing out that this was the defendant’s first arrest, the court, while crediting the detectives’ testimony as to the arrest of Lukeman, found the defendant’s testimony that he did not actually possess the narcotics credible and granted his motion to suppress.

We reverse. In his pretrial omnibus motion, the defendant sought suppression alleging that "certain property was recovered from the defendant which the People intend to introduce at trial” (emphasis added). He contended that the property was seized illegally because the police entered his apartment to make an arrest (of Lukeman) without a warrant, without consent and in the absence of exigent circumstances. In his brief on appeal, defense counsel alleged that the police were required to have a search warrant, in addition to an arrest warrant, to search for their suspect in the apartment and that exigent circumstances did not exist to justify the search. He maintained that the Supreme Court therefore properly granted the defendant’s motion to suppress.

Despite the limited nature of the grounds raised in support of suppression, the Supreme Court determined the ultimate factual issue in the case, appropriate only to a finding that the defendant was guilty or not guilty. Whether or not the defendant possessed the cocaine was the issue that was for the jury, not the court, to resolve (see, People v Washington, 51 NY2d 214; People v Daniels, 37 NY2d 624). By fully crediting the defendant’s testimony at the hearing and focusing on the location in which the contraband was found, the dissent ignores the defendant’s claim, in his motion to suppress, that the contraband was seized from him, and then proceeds to raise and resolve an issue that was not raised by the defendant in either his motion to suppress or in his brief on appeal. The defendant never contested the propriety of the seizure on the grounds that he was somehow framed by the police nor did he seek resolution of the ultimate issue in the case. Yet, *38the Supreme Court, and now the dissent, resolve the issue in his favor.

The record, however, supports the Supreme Court’s conclusion that contrary to the defendant’s contention, the detectives properly entered the apartment in pursuit of the suspect in a shooting, who was known to them by sight (see, People v Burr, 70 NY2d 354, cert denied 485 US 989; People v Williams, 181 AD2d 474, lv denied 79 NY2d 1055; People v Cartier, 149 AD2d 524, lv denied 74 NY2d 737, cert denied 495 US 906). Once that suspect was lawfully apprehended, the only issue contested by the defendant, the police were further justified in conducting a security check of the apartment (see, Maryland v Buie, 494 US 325; People v Smith, 179 AD2d 597, lv denied 79 NY2d 1008; and see, People v Febus, 157 AD2d 380, appeal dismissed 77 NY2d 835). That check was reasonable and necessary to dispel the detectives’ concern for their safety. Again, neither in his motion in support of suppression nor on appeal did the defendant contest the authority for the security check or the extent to which it was conducted. The only issue raised by the defendant was the legality of the police entry into the apartment.

Accordingly, the order of the Supreme Court, New York County (Jerome Marks, J.), entered December 16, 1991, which granted the defendant’s motion to suppress certain physical evidence should be reversed, on the law, the motion should be denied, and the matter is remitted to the Supreme Court for further proceedings.