MEMORANDUMMOTION TO SUPPRESS: GRANTED Defendant is charged in the accusatory instrument with Criminal Possession of a Weapon in the Fourth Degree [PL §265.01(1)] and Torturing and Injuring Animals (AML §353).On March 15, 2017 defendant moved for an order pursuant to CPL §710.20(1) suppressing any tangible property seized by means of an illegal search and seizure or in the alternative, a Mapp/Dunaway hearing. Defendant further moved for an order suppressing statements made by defendant to law enforcement officials, or in the alternative, a Huntley/Dunaway hearing. On March 29, 2017 the People submitted their response in opposition to defendant’s motion. On June 9, 2017 the court granted a Mapp/Huntley/Dunaway hearing.On April 4, 2018 and April 20, 2018, this Court held a Mapp/Huntley/Dunaway hearing. The People called Police Officer Brad Scala as their only witness at the hearing. Defendant did not present any witnesses. The Court finds P.O. Scala’s testimony to be candid and credible in all relevant and pertinent aspects.FINDINGS OF FACTOn December 21, 2016 at approximately 9:48 A.M. P.O. Brad Scala was conducting patrol with his partner, P.O. Alloy, when they received a “1068″ radio transmission for “assistance needed” at 765 East 232nd Street. P.O. Scala explained that “1068″ is the code for “see complainant” and is used when a person requests NYPD assistance in a non-emergency situation. When P.O. Scala arrived at the location, a single family home, he testified that an ACS worker approached his vehicle and presented him with a family court order, admitted into evidence as People’s Exhibit “1″, which indicated:“Upon the application of the Commissioner for the Administration for Children’s Services and upon information presented in support thereof, the Court finds that there is probable cause to believe that abused or neglected children may be at the premises known to ACS, and it is ORDERED that the parent or other person legally responsible MUST permit ACS to enter the home located at 765 EAST 232 STREET, BRONX, NY 10467 between the hours of 6 A.M. and 9 P.M. in order to determine whether an abused or neglected child or children is/are present and conduct a home study to evaluate the home environment of the child or children, AND it is ORDERED that the subject children be produced by KENRICK DAYE and NAKIA INGRAM at the ACS Field Office at 1200 Waters Place, 3rd Floor, Bronx NY 10461 for observation and interviews. NYPD is to assist with entering the home if needed.”P.O. Scala testified that although he spoke with the ACS worker about a prior incident at the location, he did not specify what specifically happened during that visit. P.O. Scala spent a total of approximately five (5) to seven (7) minutes reading the family court order and speaking to the ACS worker. During their entire conversation, P.O. Scala testified that the ACS worker never indicated there was any sort of emergency situation at the location or that she needed to gain immediate access to the home in order to prevent an emergency.At some point during P.O. Scala’s interaction with the ACS worker, Sergeant Hue and P.O. Tavares arrived on the scene. P.O. Scala testified that the ACS worker never asked him or any of the other officers present to do anything specific to gain access to the home. P.O. Scala asserted that he and his fellow officers “took over” the situation and proceeded to knock at the front door of the residence. P.O. Scala indicated that he knocked at the front door of the residence for approximately five (5) minutes while he called out “Police, is anyone home?.” During this time, P.O. Scala stated that he did not hear any footsteps, screams, yelling or any noises of any kind emanating from the residence. Additionally, P.O. Scala stated that he did not hear a dog barking.After approximately five (5) minutes at the front door, P.O. Scala testified that he “took it upon himself” to begin walk around defendant’s home to attempt to find a back door entrance. On direct examination P.O. Scala testified that he took such action because he”felt” it was necessary to gain access to the home. On cross-examination P.O. Scala conceded that prior to entering the backyard he was not aware of any emergency situation. P.O. Scala further testified that the ACS worker did not ask him to go to the backyard of the house, there was no factual basis for him to believe that anyone was present in the residence and nothing further transpired that elevated the necessity of his involvement.P.O. Scala stated that in order to gain access to defendant’s backyard from the front door of the house he first walked down a flight of stairs; turned left to walk around a car that was parked on the driveway of the residence and made a left turn to walk down an alleyway which was approximately seventy (70) to one hundred (100) feet in length. P.O, Scala stated that the alleyway ran adjacent to the right side of defendant’s house and led directly to defendant’s backyard. Before P.O. Scala could enter defendant’s backyard he testified that he approached a deteriorated fence which he described as “rolled up into a ball” at the side of the home. P.O. Scala specified that although he did not have to open a gate to access the backyard he did need to “blade his shoulder” and walk around the fence. P.O. Scala testified that Sergeant Hue, P.O. Tavares, P.O. Alloy and the ACS worker also entered the backyard with him at this time.P.O. Scala described defendant’s backyard as a small slab of concrete enclosed on all sides. Immediately to the left of the concrete was defendant’s home and a back door. Before P.O. Scala could knock at the back door he testified that he observed a dog chained to a metal bar in the middle of the concrete. According to P.O. Scala, the dog was emaciated, its ribs and spine protruded, there were bowls without food or water and the dog was surrounded by its own feces. P.O. Scala knocked at defendant’s back door and did not receive an answer. He testified that he then conferred with his fellow officers about the condition of the dog and, based on their observations of the dog, they decided to take the dog to the ASPCA for medical treatment. P.O. Alloy led the dog to the front of the residence and all of the officers and the ACS worker followed.P.O. Scala testified that soon thereafter he alone returned from the front of the house to defendant’s backyard to photograph the living conditions of the dog. He was in the backyard for approximately five (5) minutes when he heard a voice from the front of the house say “What are y’all doing with my dog,” which prompted him to head back towards the front of the home. P.O. Scala testified that at the point he heard this statement he did not know who made it but he did hear Sergeant Hue speaking about the family court order. P.O. Scala approximated that it took him about one (1) minute to reach the front of the home and when he arrived he observed defendant in handcuffs and in the custody of the other police officers. P.O. Tavares informed P.O. Scala that he had asked defendant if he was in possession of any weapons and defendant stated that he had a knife. P.O. Tavares gave P.O. Scala a gravity knife and told him that he recovered it from defendant’s “front right pocket.” P.O. Scala testified that he was not present for defendant’s arrest, the events leading up to it or the recovery of the knife. Further, P.O. Scala stated that he did not hear any officers at any time give defendant his Miranda warnings. P.O. Scala also testified that he did not ask Officer Tavares the reason why he placed defendant under arrest. P.O. Scala testified that while defendant was in handcuffs he repeatedly asked the officers “What are y’all doing with my dog” and inquired as to the reason for his arrest. P.O. Scala stated that he transported defendant back to the precinct and that Officer Alloy took the dog to the ASPCA.DEFENDANT’S CLAIMSDefendant claims that police officers entered his backyard, which is the curtilage of his home, without a search warrant or exigent circumstances in violation of his Fourth Amendment constitutional right to be free from illegal searches and seizures. Defendant further claims that the People failed to satisfy their initial burden in establishing that the police had probable cause to arrest him since P.O. Scala, the prosecution’s sole witness at the hearing, was not present when defendant was placed into custody by P.O. Tavares. Additionally, defendant argues that his statements “What are y’all doing with my dog” and “I have a knife in my pocket” should be suppressed since the People did not meet their burden in proving beyond a reasonable doubt that defendant’s statements were made voluntarily inasmuch as P.O. Scala was not the officer who was present when defendant made those statements. Defendant further contends that the statement “I have a knife in my pocket” was the product of custodial interrogation without Miranda warnings administered to him. Finally, defendant asserts that his statement “I have a knife in my pocket” should be precluded because the People’s CPL §710.30(1)(a) notice inaccurately indicated that it was made to P.O. Scala instead of P.O. Tavares.THE PEOPLE’S CONTENTIONSThe People, in opposition to defendant’s motion, contend that the family court order was equivalent to a warrant which gave the police the authority to enter defendant’s backyard. The People further claim that inasmuch as the dog was in “plain view” in defendant’s backyard the officers had the authority to seize it. With respect to defendant’s motion to suppress statements, the People argue that they were not involuntarily made or the product of custodial interrogation.CONCLUSIONS OF LAWMapp/Dunaway IssuesAt a Mapp hearing the People have the burden, in the first instance, of going forward to show the legality of the conduct of the police. The defendant, however, bears the ultimate burden of proving that the evidence should be suppressed (see People v. Berrios, 28 NY2d 361).In order to seek suppression of physical evidence defendant must first establish standing, that “…he has a legitimate expectation of privacy in the place or item that was searched. The suppression court must identify the object of defendant’s expectation of privacy, determine whether defendant exhibited an expectation of privacy in it and evaluate whether the circumstances would lead society to regard defendant’s expectation of privacy as reasonable. If the court determines that defendant had a legitimate expectation of privacy in the item searched, standing to challenge the legality of the police conduct is established”, People v. Ramirez-Portoreal, 88 NY2d 99.Here, with respect to the knife, defendant clearly had a legitimate expectation of privacy since it was recovered from his person, specifically, his “front right pocket” of an unidentified piece of clothing he was wearing (see People v. Burton, 6 NY3d 584). With respect to the house located at 765 East 232nd Street and the dog, defendant also had a legitimate expectation of privacy since there is no factual dispute that defendant resided at this house and was the owner of the canine.Moreover, defendant had a legitimate expectation of privacy with respect to the backyard of the house inasmuch as it constituted the “curtilage” of the premises. “Curtilage” is defined as the open space situated within a common enclosure belonging to a dwelling house that is necessarily, conveniently and habitually used for family purposes and the carrying on of domestic employments (see People v. Muller, 71 Misc2d 654); (see also Florida v. Jardines, 569 US 1; U.S. v. Dunn, 480 US 294; People v. Doerbecker, 39 NY2d 448; People v. Avinger, 140 AD3d 895; People v. Morris, 126 AD3d 813; People v. Theodore, 114 AD3d 814; People v. Saurini, 201 AD2d 869; People v. Juliano, 54 Misc3d 629; People v. Vernon B., 38 Misc3d 343). “The curtilage of the home will ordinarily be construed to include at least the yard around the house,” 31 Carmody-Wait 2d §173.67; (see also People v. Muller, supra; People v. Vernon B., supra). Thus, “the curtilage of the home is…part of the home itself,” (People v. Theodore, supra) and is within the protection of the Fourth Amendment prohibition against unreasonable searches and seizures (see U.S. v. Dunn, supra; Oliver v. U.S., 466 U.S. 170; People v. Muller, supra).In United States v. Dunn, supra, the United States Supreme Court developed the following four factors to determine whether a particular area constitutes “curtilage”: (1) the proximity of the area claimed to be curtilage to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the uses to which the area is put and (4) the steps taken by the resident to protect the area from observation by people who pass by.In the instant case, the backyard was the “curtilage” to defendant’s home inasmuch as P.O. Scala testified that (1) it ran adjacent to the side of the house (2) it was entirely fenced in and although the fence was deteriorating and rolled up, he needed to get around it to gain access to the backyard (see People v. Vernon B., supra); (3) the backyard was being utilized for a “family purpose” inasmuch as it was apparently serving as a place to house defendant’s dog and (4) based on photographs of the house and backyard (People’s Exhibits “2″ and “3″ in evidence), the backyard is not visible from the public sidewalk or the street in front of the property (see Florida v. Jardines, supra; U.S. v. Dunn, supra; People v. Doerbecker, supra; People v. Avinger, supra; People v. Morris, supra; People v. Theodore, supra; People v. Saurini, supra; People v. Juliano, supra; People v. Vernon B., supra).As such, the central issue before the Court is whether P. O. Scala had the requisite legal authority to enter the backyard, i.e., the “curtilage,” of defendant’s home without a warrant. It is axiomatic that “‘[o]ne of the basic rights and values of our society is the right of a free individual to be secure in his or her privacy from unwarranted governmental intrusion,’” Matter of B.T. Prods v. Barr, 44 NY2d 226. The Fourth Amendment of the United States Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” The Fourth Amendment thus gives concrete expression to a right of the people which is “‘basic to a free society,’” Camara v. Municipal Court of City and County of San Francisco, 387 US 523, quoting Wolf v. Colorado, 338 US 25. “‘When it comes to the Fourth Amendment, the home is first among equals…’”, Florida v. Jardines, supra quoting Silverman v. United States, 365 US 505 (see also People v. Ringel, 145 AD3d 1041) Additionally, ‘the safeguards afforded by the Fourth amendment and [the] State Constitution extend beyond searches motivated by reasonable suspicion of criminal behavior…[the] constitutional concern for an individual’s interest in privacy also encompasses arbitrary invasion by government officials who function in the areas of public health and safety,” People v. Calhoun, 49 NY2d 398.“Subject to only carefully drawn and narrow exceptions, a warrantless search of a home is per se unreasonable and hence unconstitutional,” People v. Jenkins, 24 NY3d 62 quoting People v. Knapp, 52 NY2d 689. One of those exceptions is the “emergency doctrine” (see People v. Dallas, 8 NY3d 890). Under that doctrine police officers “‘may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury,’” People v. Ringel, supra quoting Brigham City Utah v. Stuart, 547 US 398.The emergency doctrine exception allows law enforcement to enter a premises without a warrant in circumstances where there is an immediate danger to life, health or property (see People v. Calhoun, 49 NY2d 398; People v. Hodge, 44 NY2d 553). Police officers are justified in entering a home without a search warrant when they reasonably believe they need to “assist persons who are seriously injured or threatened with such injury,” Brigham City Utah v. Stuart, supra.“‘In the evaluation of whether a warrantless entry was justified under the ‘emergency doctrine,’ the evidence must establish as a threshold matter that the police officer had ‘an objectively reasonable basis for believing that a person within [the house] is in need of immediate aid,’” People v. Ringel, supra quoting Michigan v. Fisher, 558 US 45 (see also Brigham City Utah v. Stuart, supra; People v. Rodriguez, 77 AD3d 280). “Under the Fourth Amendment, the police [officer's] subjective belief is irrelevant: ‘[a]n action is reasonable under the Fourth Amendment regardless of the individual officer’s state of mind ‘as long as the circumstances viewed objectively justify [the action]‘”, People v. Ringel, supra quoting Brigham City Utah v. Stuart, supra quoting Scott v. United States, 436 US 128; (see also People v. Scott, 133 AD3d 784; People v. Desmarat, 38 AD3d 913).Pursuant to the “exclusionary rule” evidence obtained as a direct result of an unlawful search or seizure must be suppressed as fruit of the underlying illegality, unless certain exceptions to it have been sufficiency demonstrated (see Wong Sun v. United States, 371 US 471). This “exclusionary rule” applies to tangible, physical evidence as well as intangible evidence such as verbal statements or any observations made during the unlawful intrusion (see Traub v. Connecticut, 374 US 493; Wong Sun v. United States, supra; Nardone v. United States, 308 US 338; People v. Gethers, 86 NY2d 159). Further, the exclusionary rule applies not only to primary evidence obtained as a direct result of an illegal search or seizure but also as to evidence later discovered to be derivative of the illegality (see Segura v. United States, 468 US 796 quoting Nardone v. United States, supra).Here, when applying the relevant law to the evidence adduced at the hearing, the Court concludes that P.O. Scala’s warrantless entry into defendant’s backyard violated his federal and state constitutional rights (see U.S. Const, Fourth Amend; NY Const art I §12). The Court rejects the People’s contention that the family court order was essentially the equivalent of a search warrant which gave the police the legal authority to enter defendant’s backyard. Firstly, it is clear from a plain inspection of the family court order (People’s Exhibit “1″) that it granted authority to the ACS worker to enter defendant’s home but specifically limited the role of the police by stating: “NYPD is to assist with entering the home if needed” (emphasis added). This restrictive language with respect to the police is consistent with the principle that the family court, when issuing such orders, authorize actions which are the least intrusive to the family [see FCA §1034(2)(e)]. Thus, although the family court order permitted the police to “assist” ACS in gaining access to the home, it clearly did not authorize the NYPD to actually enter the home once ACS had access to it.In contrast, a search warrant specifically authorizes law enforcement officials to enter, search and seize property at a particular location (see CPL §690.05; CPL §690.40; CPL §690.45). Thus, although the family court order allowed the police to assist the ACS worker with entering the home “if needed” there was no evidence presented at the hearing that the ACS worker ever requested any additional assistance from P.O. Scala after they knocked on the front door of the house. In this regard, P.O. Scala’s testimony indicated the following:MR GUARNERI: So I will ask you again. You had no facts before you after you knocked on the door that made it necessary for you to further provide any further assistance to ACS?P.O. SCALA: Okay. Nothing further transpired that elevated the necessity of my involvement.MR. GUARNERI: Isn’t it a fact that ACS did not ask you to further your involvement? An ACS worker didn’t say go in the back and check, go here and check, but just assist them with the front door knock, am I correct?P.O. SCALA: They didn’t specify how they wanted us to assist. She just called us, showed us the order and asked for our help. We kind of took over to attempt to gain entry with her presence. (Hearing Tr., April 4, 2018 p. 56, lines 4-14)(emphasis added).Based on the foregoing, it is clear that when P.O. Scala unilaterally decided to enter defendant’s backyard without a warrant, he was acting beyond the scope of his role which was specifically limited by the family court order and in doing so, violated defendant’s constitutional right to be free from unauthorized searches and seizures.Additionally, the “emergency exception” to the warrant requirement is not applicable here inasmuch as there was insufficient evidence of circumstances, when viewed objectively, which would have provided a reasonable basis for P.O. Scala to believe that there was an emergency at hand arising out of a need to render assistance to “persons who are seriously injured or threatened with such injury,” Brigham City Utah v. Stuart, supra; [see People v. Morris, 126 AD3d 813 (police warrantless entry into defendant's home after defendant was chased and dropped a bag that landed with a "heavy thud" and officer yelled "gun"-No emergency exception found); People v. Scott, 133 AD3d 794 (during police chase officers saw what appeared to be the handle of a gun in defendant's waistband. Defendant ran into his house and police shortly thereafter entered his house without a warrant-No emergency exception found); People v. Hammett, 126 AD3d 999 (mere sound of unspecified banging and a woman's voice coming from an apartment was insufficient to show that there was an emergency requiring immediate assistance of police to protect life or property); People v. Mormon, 100 AD3d 782 (warrantless entry into defendant's residence not justified under the emergency exception where entry occurred almost two hours after alleged shooting, minimal police investigation failed to establish any children were in imminent danger); People v. Fravel, 35 AD3d 1148 (warrantless search of defendant's truck not justified under emergency exception after police heard a 911 call regarding a car alarm and no sign of crime against person or property)].On the other hand, courts have applied the emergency exception to the warrant requirement only in limited situations where the police had an objectively reasonable basis to believe that persons inside of the house were “in need of immediate aid,” People v. Ringel, supra as indicated in the cases cited below:In People v. Molnar, 98 NY2d 328 police entered defendant’s apartment without a warrant after they received a 911 call that there was a strange odor coming from defendant’s apartment and upon arrival, defendant’s neighbor told the officers he had to vacate his own apartment because the smell was “unbearably putrid.” The police confirmed that the rotting smell “surely suggested” that it came from a rotting body that was emanating from defendant’s apartment. Further, upon entering the defendant’s apartment, the police discovered a decomposing corpse inside of a closet.In People v. Dixon, 281 AD2d 430 the police entered the defendant’s apartment without a warrant after receiving a radio transmission that the defendant had just killed his wife and was alone in the apartment with a baby.In People v. Adams, 236 AD2d 293, the police entered defendant’s home without a warrant after they had probable cause to believe that the defendant had left a loaded pistol in his apartment and there was immediate danger to the children currently located therein.In People v. Bruen, 119 AD2d 685 the police entered the defendant’s apartment without a warrant after the defendant brought her deceased child to the emergency department with bruising all over the child’s body and the police learned that defendant’s six year old twins were left alone in defendant’s apartment.In People v. Williams, 146 AD3d 906, the police entered the defendant’s apartment without a warrant after they responded to a report of an assault in progress with a possible firearm; when the police arrived the defendant ran from the scene; the complainant told officers the defendant assaulted him and threatened him with a metal pipe and a gun and defendant’s mother informed officers that defendant was in his home with his wife and children. In People v. Hodge, 2 AD3d 1428 the police arrived at the defendant’s apartment to make a “mental health arrest” of the defendant’s girlfriend, the defendant was outside yelling in a loud manner and behaving wildly and a child inside of the house screamed to the police that the defendant was going crazy.In the instant matter, significantly, unlike the alarming events described in the above cases there were no circumstances to compel P.O. Scala to reasonably believe that there was an emergency at hand.At the outset, P.O. Scala testified that he went to the location pursuant to a “1068″ “nonemergency” request for NYPD assistance. As such, it is important to recognize that P.O. Scala was not responding to a “911″ emergency call for immediate police action or to conduct an investigation concerning the commission of a crime at 765 East 232nd Street. Indeed, when P.O. Scala arrived at the location the ACS worker never told him that there was an emergency at the location, as indicated by the following testimony;MR. GUARNERI: And she [the ACS worker] definitely never indicated to you while she was — before you started knocking on the door, that there was any kind of emergency situation at that location am I correct?P.O. SCALA: Correct (Hearing Tr., April 4, 2018, p. 33 lines 3-7).Additionally, P.O. Scala testified that before he entered the backyard he had no factual basis to believe that anyone was even inside of the house as indicated below;MR. GUARNERI: When you were knocking at the front door you had no basis to believe that anybody at the location was home…P.O. SCALA: Correct.MR. GUARNERI: You didn’t hear any noise, any footsteps, any yelling, any screaming, any attempt by anybody at that location to evade the police or the ACS worker, am I correct?P.O. SCALA: Correct. (Hearing Tr., April 20, 2018, p. 17 lines 11-25).Further, P.O. Scala who, again was only designated to be at the location to assist ACS with entering the house “if needed,” testified that the ACS worker never asked him to enter defendant’s backyard or further his involvement after they knocked on the front door, as indicated by the testimony below;MR. GUARNERI: At any time when you were at the location, did the ACS worker ask you to go into the back?P.O. SCALA: No.MR. GUARNERI: Did the ACS worker ask any of your fellow officers on the scene to go into the back?P.O. SCALA: No (Hearing Tr., p. 50 lines 22-25, p. 51 lines 1-2).Moreover, as conceded by P.O. Scala, after he knocked on the front door of the house, no events transpired that escalated the “1068″ request for “non-emergency” assistance to an “emergency:”MR. GUARNERI: So I will ask you again. Isn’t it a fact that you had no facts before or after you knocked on the door that made it necessary for you to further provide any further assistance to ACS?P.O. SCALA: Ok. Nothing further transpired that elevated the necessity of my involvement (Hearing Tr., April 4, 2018, p. 55 line 25, p. 56 lines 1-5).Thus, it is apparent to this Court that rather than staying within the boundaries of his assignment that day, P.O. Scala, as he candidly admitted, he “took over” (Hearing Tr., April 4, 2018, p. 56 line 12) the situation and “took it upon himself” (Hearing Tr., April 20, 2018, p. 11 line 24) to walk around the house into defendant’s private backyard without actually having any authority to do so. Additionally, the fact that the ACS worker was at the house to conduct a home study regarding allegations of child abuse or neglect from a non-criminal family court matter, standing alone, did not per se constitute an “emergency” as defined by the law. Therefore, being cognizant that the emergency doctrine must be “narrowly construed because it is susceptible of abuse and may be used to validate otherwise unlawful arrest or seizure,” People v. Guins, 165 AD2d 549, it cannot be said that P. O. Scala’s warrantless entry into defendant’s backyard was “objectively reasonable” (see People v. Knapp, supra; People v. Jenkins, supra; People v. Ringel, supra; People v. Scott, supra; People v. Hammett, supra; People v. Fravel, supra; People v. Mormon, supra).Thus, all evidence that flowed from P.O. Scala’s illegal entry into defendant’s backyard, including the dog, the police observations with respect to the condition of the canine, the photographs taken by the police, defendant’s statements “What are y’all doing with my dog” and “I have a knife in my pocket” and the knife recovered from his person following the arrest are “fruits of the poisonous tree” and must be suppressed (see Traub v. Connecticut, supra; Wong Sun v. United States, supra; Nardone v. United States, supra; People v. Gethers, supra; People v. Butterly, 25 NY2d 159; People v. Carr, 103 AD3d 1194; People v. Abruzzi, 52 AD2d 499)1.Huntley Hearing IssuesAt a Huntley hearing, the People have the burden of establishing, beyond a reasonable doubt, that statements made by a defendant to law enforcement authorities were made voluntarily (People v. Huntley, 14 NY2d 72).In Miranda v. Arizona, 384 US 436 the Supreme Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”Both the elements of police “custody” and police “interrogation” must be present before law enforcement officials are constitutionally obligated to provide the procedural safeguards imposed upon them by Miranda ( see People v. Huffman, 41 NY2d 29).“The burden is on the People to prove beyond a reasonable doubt that the [defendant] was not in custody before Miranda warnings were given,” People v. McCoy, 89 AD3d 1218 citing People v. Baggett, 57 AD3d 1093; (see also People v.Rodriguez, 35 Misc3d 12339A).In order to assess whether defendant’s statements were voluntarily made, the court must review the “totality of the circumstances” under which the statement was made, People v. Anderson, 42 NY2d 35 citing Clewis v. Texas, 386 US 707 (see also People v. Sullivan, 224 AD2d 46; People v. Mercado, 197 AD2d 898).“Although the People were not required to have every officer who came into contact with defendant testify at the hearing, it [is] necessary to call to the stand someone with knowledge of the circumstances surrounding defendant’s statements,” People v. Tony, 30 Misc3d 867 citing People v. Witherspoon, 66 NY2d 973.Here, as indicated below, the People failed to meet their burden in demonstrating that defendant’s statements were voluntarily made and not the product of custodial interrogation inasmuch as they did not present a witness at the hearing who had knowledge of the circumstances surrounding those statements.MR. GUARNERI: So at some point you are also walking along that path that you hear that statement, “What are y’all doing with my dog?”P.O. SCALA: I was still at the back of the residence. That statement prompted me to walk toward the front…(Hearing Tr., April 4, 2018, p. 23 lines 20-24)*** ***MR. GUARNERI: So at that point when you hear that statement, you didn’t know who was making the statement?P.O. SCALA: No, not at the time I heard it. No….MR. GUARNERI: When you heard the statement, what was Officer Tavares saying?P.O. SCALA: I didn’t hear what Officer Tavares said. (Hearing Tr., April 4, 2018, p. 24 lines 7-9, 13-15).*** ***MR. GUARNERI: You indicated at the time Mr. Daye made the statement “Yes, I have the knife in my pocket,” he was under arrest, correct?P.O. SCALA: Correct.MR. GUARNERI: He had handcuffs on?P.O. SCALA: Correct.MR. GUARNERI: The paperwork indicates you are the arresting officer, but it was really Officer Tavares that made the arrest?P.O. SCALA: Yes.MR. GUARNERI: Officer Tavares made the arrest while you were still in the back of the residence am I correct?P.O. SCALA: Correct…(Hearing Tr., April 4, 2018 p. 22 lines 22-25 p. 23 lines 1-11).*** ***MR. GUARNERI: Now, when you are in the back and you are hearing this, even when you are in the walkway, did you hear anybody read Mr. Daye his Miranda warnings?P.O. SCALA: No.MR. GUARNERI: At any time you are on the scene, did you hear anybody, you or any of the other officers, read him his Miranda warnings?P.O. SCALA: No.MR. GUARNERI: Prior to Officer Tavares asking him did he have a knife, did she [sic] read him his Miranda warnings?P.O. SCALA: Not as far as I know, no (Hearing Tr., April 4, 2018, p. 25 lines 13-25).Moreover, pursuant to the exclusionary rule, due to the warrantless entry of the police into defendant’s private backyard defendant’s statements must be suppressed as the “fruits of the poisonous tree” (see Traub v. Connecticut, supra; Wong Sun v. United States, supra; Nardone v. United States, supra; People v. Gethers, supra; People v. Butterly, supra; People v. Carr, supra; People v. Abruzzi, supra).2Accordingly, based on all the foregoing, defendant’s motion to suppress (1) the dog recovered from his backyard; (2) any police testimony regarding their observations with respect to the dog and his backyard; (3) the photographs of both defendant’s dog and backyard; (4) the knife recovered from defendant’s person and (5) defendant’s statements “I have a knife in my pocket” and “What are y’all doing with my dog” is granted.Order entered accordingly.This constitutes the decision and order of the Court. The Clerk of the Court is directed to forward a copy of this order and memorandum to the attorney for defendant and the District attorney.Dated: June 20, 2018
