Amended Decision This came on for a separate pre-trial suppression hearing pursuant to Mapp v. Ohio, 367 US 643 (1961).Mr. Jones seeks the suppression of the clothing items seized by the police as being violative of the constitutional protections of Mapp v. Ohio, particularly challenging the consent to search and the search of the plastic bags of clothing in the closet of the apartment of Ms. Tayese Diaz. Ms. Diaz provided consent to the police which excepted the search from the warrant requirement so as to permit the search of her apartment. The Court finds that the defendant has standing to make the claim, that Ms. Diaz’s consent to search was fully voluntary and that the search of the plastic bags in the closet of her apartment from which she unsuccessfully banished Mr. Jones a week or so previously was properly the subject of the search pursuant to consent because such items were neither locked nor closed nor otherwise demonstrating any indicia of exclusivity or privacy. As such the items of clothing, the hooded sweatshirt, the sneakers and the jacket, were legally and properly seized and may be admitted into evidence.FINDINGS OF FACT AND CONCLUSIONS OF LAWMr. Jones has established, and the Court finds, that he has standing based upon a legitimate expectation of privacy regarding the clothing in the closet and their location in the closet. It appears that the items were left in the custody of Tayese predicated upon the relationship between the defendant and Tayese. While the defendant in the instant matter can get over the requirement of standing, his application to suppress the items proffered by the People: a black jacket, a red hooded sweatshirt and red sneakers depends upon whether or not the items were obtained lawfully.Detective Diaz, (hereinafter “the Detective”), testified that he obtained the three items from one Tayese Diaz (hereinafter “Tayese” to differentiate between the persons named Diaz). Tayese was the mother of the defendant’s child (Tr 169). The Detective testified that the 41st Precinct received a phone call from Tayese asking to speak to the detective running the homicide investigation (Tr 159). When the Detective came into work, he received that message and returned the call to Tayese. Tayese told the Detective that she had information regarding the homicide and gave him the date that the homicide took place. She also said that she had evidence for them (Tr 162). The Detective along with his partner Detective Orlando went to Tayese’s address. They knocked on the door and she let them both inside. She told them what she knew of the homicide and that she saw it on the news. She said she had information and mentioned the defendant, Mr. Jones (Tr 160).Tayese told the Detective that she had the clothes that Mr. Jones wore, as captured by the photo on television and the video of the homicide. She related that after the incident he came to her home. She told the detectives that he was nervous and excited. He said something had happened and he had to go away for a while. He changed his clothes and put the discarded clothes in the closet. He then left for North Carolina. After a few days, he came back. He was violent with her and threatening according to her statement to the detectives.At this point she opened the closet and showed the detectives what she said that the defendant came home with and left with her. When she showed the detectives the clothes, the Detective provided her with a Consent to Search form (PX 6). She executed the form by signing it. After she signed it the Detective put the form away (Tr 173). She then went into the closet and pulled out the clothes: the jacket, the hooded sweatshirt and the sneakers (PX 7,8,9). She had said that she had evidence and she gave the three items to the Detective. The Detective told her to put them in the brown paper evidence bag and she complied (Tr 162). The Detective noted that there was no indication that any male lived at the address. The apartment was quite bare. There was no indication of any male clothing in the apartment (Tr 163).The Detective believed that the visit to Tayese’s apartment was on or about June 7th. He believed it was done at that time because it was Tayese’s information that led them to obtain a photo of Mr. Jones and place it in a photo array shown the eyewitness Zorillo on June 7th (Tr 165). Although the Consent to Search form bears the date June 13th, the Detective believed that he later noted that it was undated and having observed this omission rectified the error by placing the date of the correction rather than the date of the actual signing on the document.The defense called Detective Orlando, Detective Diaz’s partner. While he disagreed with the date and time of the obtaining of the consent form and with the description of the barrenness of the apartment, he testified that Tayese voluntarily obtained the clothes of Mr. Jones from the closet and turned them over to the police, placing them in the paper bag brought for that purpose by the detectives. The paper bag appears in the People’s exhibits with the items. Detective Orlando corroborated on the key issues of consent and who actually provided the clothing to Detective Diaz.The defense also called Tayese Diaz. She admitted that she signed the Consent to Search form. She claimed, however, that the police searched the apartment including the closet and that it was the police who pulled out which clothing they wanted to seize while she and her child watched. In what the detectives described as a routine encounter with a cooperating civilian, Ms. Diaz claimed that the encounter was extensive and melodramatic, and suggested that she was helpless about all of this but for the consent to search. She stated that she willingly signed the Consent to Search form because she believed that nothing of Mr. Jones was in the apartment. Thus, she never looked in the closet. She also claimed that she did not know until then that the defendant was still living in her apartment after she put him out, using his key and sleeping there at night.Ms. Diaz was frankly incredible in all respects. She attempted to eel away from her prior felony conviction, claiming that every one of her open cases was a mistake by others including the police. She treated the reduction of a felony charge to a misdemeanor as if it were a moral victory. Taking only her answers to the variety of cross examination questions asked, and not accepting any answer that was a denial, Ms. Diaz demonstrated a reckless disregard for the truth. The Court, in assessing the credibility of the witness notes that the bare record fails to capture her different demeanor when questioned by the defense as opposed by the prosecution. She demonstrated how street wise she was but she denied, dodged, or defied any attempt to pin her down to any prior statement or bad act. Her convoluted evasions and elaborate self exculpations made it impossible to credit her testimony. She did, however, admit to conspiring, but not substantively committing, credit card fraud at the time she needed to raise money to pay the defendant’s attorney fees. In short, she made it functionally impossible to credit her testimony, without abdicating a standard of truth of the facts and circumstances.A. STANDINGTo have standing to challenge a search, a defendant must have a legitimate expectation of privacy in the area where the evidence was seized. See People v. Ramirez-Portoreal, 88 NY2d 99, 109 (1996). Defendant has the burden of establishing standing, and is entitled to rely on evidence elicited during the People’s direct case. See People v. Burton, 6 NY3d 584, 587-588 (2006); People v. Gonzalez, 68 NY2d 950, 951 (1986). “The number of times a person stays in a particular place, the length and nature of the stay, [and] indicia of connectedness and privacy, like change of clothes or sharing expenses or household burdens, are all factors…[to] support a reasonable expectation of privacy.” People v. Rodriguez, 69 NY2d 159, 163 (1987).B. THE CONSENT TO SEARCHThe People bear the “heavy burden of proving the voluntariness” of a consent to search (People v. Gonzalez, 39 NY2d 122, 128 [1976]), since such consent “must be a free and unconstrained choice[,] [and] [o]fficial coercion, even if deviously subtle, nullifies apparent consent.” Id. at 124. Whether a defendant’s consent to search was voluntary is determined based on the totality of the circumstances with no one factor being determinative. Id. at 128. Factors for the court to consider include: (1) whether consent was given while the individual was in police custody, how many officers were present on the scene, and whether the individual was handcuffed; (2) the personal background of the individual, including his or her age and prior experience with the law; (3) whether the individual offered resistance or was cooperative; and (4) whether the police advised the individual of his or her right to refuse consent. Id. at 128-130; People v. Hill, 260 AD2d 216 (1st Dept), lv denied 93 NY2d 972 (1999). The burden of establishing the actual or apparent authority rests with the People who must prove by a preponderance of the evidence that Tayese in giving consent has the actual or apparent authority to do so. People v. Gonzalez, 88 NY2d 289, 295 (1996). Further, the People bear the burden of proving that the police entered the premises only after obtaining voluntary consent to enter. People v. Gonzalez, 39 NY2d 122, 128 (1976).Consent is “voluntary when it is a true act of the will, ‘an unequivocal product of an essentially free and unconstrained choice’.” People v. Richardson, 229 AD2d 316 (1996), appeal dismissed 89 NY2d 933 (1997), quoting People v. Gonzalez, 39 NY2d at 128. Voluntariness is incompatible with official coercion, actual or implied, overt or subtle. Gonzalez, id. It is from a consideration of the totality of the circumstances that the hearing court must determine whether consent is voluntarily given or is only yielding to overbearing official pressure. See People v. Entzminger, 163 AD2d 138, 141 (1st Dept), lv denied 76 NY2d 939 (1990).Although it is clear that Mr. Jones had nothing but bare standing regarding the clothes in the apartment, the People must establish, by the preponderance of the evidence, that the consenting party, Tayese, had either actual or apparent authority to consent to the search. People v. Gonzalez, 88 NY2d 289, 295 (1996). “[T]he police may lawfully conduct a warrantless search when they have obtained the voluntary consent of a party who possesses the requisite degree of authority and control over the premises or personal property in question.” People v. Cosme, 48 NY2d 286, 290 (1979); see Payton v. New York, 445 US 573, 576 (1980). Here, the police reasonably relied upon the girlfriend’s apparent authority to consent to the search of the shared premises, including the closet. See People v. Cosme, 48 NY2d 286, 292-293 (1979). “Even in the absence of a warrant, police may lawfully search a residence where an inhabitant with apparent authority to consent to the search freely and voluntarily does so.” People v. Grillo, 128 AD3d 1103, 1104 (3rd Dept 2015)(citations omitted). The written consent form did not advise the girlfriend that she had the right to refuse consent. However, neither the failure to give such advice nor any other fact without more, necessarily rendered her consent involuntary (see People v. Curtis, 144 AD3d 1199, 1200 (3rd Dept 2016); People v. Williford, 124 AD3d 1076, 1078 (3rd Dept), lv denied 25 NY3d 1209 (2015).In addition, the People must establish from the totality of the circumstances by clear and convincing evidence that the consent was freely given. People v. Zimmerman, 101 AD2d 294, 295 (2nd Dept 1984). Both on the testimony of the Detective, the testimony of Detective Orlando and the testimony of Tayese Diaz, the evidence is that the Consent to Search form was signed by Ms. Diaz. She acknowledged signing the form and recognized her signature. She testified that she agreed to sign the form because she believed that none of Mr. Jones’s personal items were in the apartment because she threw him out the week before. She claimed that he was in effect trespassing in the apartment by using the key he still had and sleeping there when she was working nights. It was clear that he was present without her permission.C. ITEMS IN THE PLASTIC BAGSGiven that the Court does not credit Tayese Diaz’s version of her encounter with the two detectives, both of whom the Court found to be far more credible that Ms. Diaz on each issue, there is no basis to presume that the police searched the bags, as claimed by Tayese.The credible testimony is that Ms. Diaz handed over to the police the evidence that she told them she had regarding the murder and Mr. Jones, to wit, the clothing and sneakers. Because there was, the Court finds, no police activity regarding the search of the plastic bags, and no credible evidence that the police ever conducted any search of the apartment, the Court need not consider the closed container issue raised by the defense given that it is based upon the wholly incredible testimony of Ms. Diaz.Were the Court to consider it, the plastic bags in the closet were not of the kind of containers that would require a separate warrant or otherwise act to deny the police officers a reasonable belief in Ms. Diaz’s apparent and actual authority to consent to the search of the plastic bags.It is well established that the police need not procure a warrant in order to conduct a lawful search when they have obtained the voluntary consent of a party possessing the requisite authority over the premises. It is equally clear that these permissive searches are not limited to those instances where the permission is provided by the defendant. A lawful search may be conducted without a warrant where the permission to search was obtained from a third party who possessed common authority over the premises or had such other relationship to the premises sufficient to justify the apparent authority to consent to the search. People v. Adams, 53 NY2d 1 (1981). Here, the defendant had a common authority with Tayese, thereby providing Tayese with the common authority to consent to a search. In fact, Tayese’s claim to the dominion and control over the subject premises is far greater than that of the defendant. In the instant matter the defendant left his clothing with Tayese and left the state. Thus, when he transferred the possession of the clothing from himself by changing his clothes and leaving them with Tayese without taking precautions to maintain his privacy interest in the items, the transferee, Tayese, was endowed with the authority to consent to the search of that property. People v. Keegan, 213 AD2d 282 (1st Dept), appeal denied 86 NY2d 737 (1995).The defense cited two cases to the Court, People v. Gonzalez, supra, and People v. Snipe, 17 Misc 3d 571 (Sup Ct, Bronx County 2007). The defense seeks to invoke the closed container rule, positing that the plastic bags containing Mr. Jones’s clothing could not be searched by the police. The Court superficially finds Tayese Diaz incredible in her claim that the police conducted the search. It is far more credible that the police asked for the consent and that Ms. Diaz, who initially called the police by her own admission due to the defendant’s domestic violence, signed the consent form and provided the clothing to the detectives. Although the detectives differ on the timing and sequence of events and the date and time that the form was executed, Ms. Diaz confirmed the form and her signature thereon. Further, it is clear that even if one were to credit her version of events that the detective looked in the closet and opened the bags of clothing, selecting the items that matched the description of the clothing of the perpetrator, they acted within the scope of the consent form. Ms. Diaz’s credibility is further undermined by her claim that the consent form listed the items the detectives seized which it patently did not.Neither Gonzalez nor Snipe are applicable herein. Unlike Gonzalez, in this case the items seized were not stored in a locked place, nor were the bags of clothing in a concealed or closed “duffle bag”. While the defense claim might be valid if the area searched was a valise, suitcase, footlocker, strong box or the like, a plastic bag in a closet is not the type of item which has the highest privacy expectations attached to it. Here, the People established by a preponderance of the evidence that Ms. Diaz had actual and apparent authority to permit the search of the apartment, the closet and the bags in it. Indeed, her belief that Mr. Jones did not have any items there implies the fact that she believed all the items were hers and free to be searched. Her belief that the closet was hers and the items in it were not Mr. Jones leads to the conclusion that the police could rely upon her apparent authority. Under her version of events the plastic bags would not contain Mr. Jones’s items and thus were within the scope of the consent and the detectives were entitled to rely upon that belief even if it is shown to be mistaken. See Gonzalez, id. at 326-327. Snipe is not to the contrary. Again, the People in this case established that Ms. Diaz had at least common authority over the closet in her apartment and the items in it. In Snipe the Court held that the authority of the mother to search the apartment did not extend to a locked bedroom but did extend to an unlocked room. Snipe, 17 Misc 3d 571, 577-578, citing People v. Williams, 278 AD2d 150 (1st Dept 2000), lv denied 96 NY2d 764 (2001). Indeed Snipe finds that the mother would have actual such “common authority.” Courts should look to whether the evidence shows “‘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 [such persons] 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.’” People v. Gonzalez, 88 NY2d at 293 (quoting U.S. v. Matlock, 415 US 164, 171 at n 7 (1973) (emphasis in original). The plastic bag of the clothes in the common closet does not indicate a specific carved out area for his own exclusive use. Cosme, supra 48 NY2d at 293, n 7. Similarly, unlike the situation in Snipe, Ms. Diaz had open access to the closet and the items in it. Further, it appeared that the sneakers were not in any sort of container, under anyone’s version of events.Finally, the police had no reason to question Ms Diaz’s authority to allow the search of the plastic bags. She was obviously the tenant in residence, she stated that she had thrown Mr. Jones out the week or so before and she and her child were present in the apartment. One detective described the apartment as bare, one described it as having items in it and Ms. Diaz claimed that Mr. Jones had a lot of his clothing in the closet. Her contention that she did not know what was in her closet is not credible in light of the testimony that the detectives went to her apartment in response to her call about Mr. Jones and her signing the consent form. The apparent authority of a third party to consent to the search of a suspect’s personal effects must rest on the police officer’s reasonably held factual interpretation of the circumstances. In the instant matter the plastic bag in the closet was occasioned by a consent to search and upon the detectives reasonably held factual interpretation of the circumstances, including the belief that the items in the plastic bag were not exclusively Mr. Jones.The People met their burden of showing that Tayese’s consent was voluntary. First, at no time was she ever placed in police custody or restrained in any way. The detective testified that no weapons were drawn when they approached her or the apartment. She had called the police to her residence to give them evidence and information pertaining to the homicide. She immediately agreed to let the police into the apartment. Most importantly, it is uncontested that she signed a written form permitting the search. Defendant can point to no evidence that Ms. Diaz hesitated or initially refused to sign the consent form, and the detective denied threatening or coercing her into signing the form.It is required that the hearing court make credibility findings. The testimony offered by the People in seeking to meet their burden of proof must be credible. People v. Berrios, 28 NY2d 361, 368 (1971). As the fact finder it is within the province of the Court to evaluate the credibility of the witnesses. If the Court finds that a witness testified falsely it may disregard all or part of the witness’ testimony, accepting the part that is found credible and rejecting any portion of the testimony found not to be credible. People v. Frazier, 86 AD2d 557 (1st Dept), lv denied 56 NY2d 651 (1982). The hearing court in making its assessment must use notions of common sense and knowledge and consider the totality of the circumstances surrounding the occupancy in issue in the weighing of the probability of a fact in issue. See Matter of Carl W., 174 AD2d 678 (2nd Dept 1991). Where testimony from either side has all the appearance of having been patently tailored to nullify constitutional objections, then the Court must resolve the issue contrary to the tailoring side.With regard to the defense witness, where this Court has noted that the testimony of the defense witness is contradictory to the People’s witnesses, this Court specifically determines that: (1) she was clearly an interested witness; and (2) her claims as to the manner in which the search was executed were false. Furthermore, the defense witnesses all demonstrated highly selective and very incomplete memory of the events in issue.CONCLUSIONThis Court concludes that the People established, by clear and convincing evidence, that the police entered the house after obtaining the voluntary consent of Tayese, the tenant. See, People v. McClain, 61 AD3d 416 (1st Dept), lv denied 13 NY3d (2009). The situation herein is similar to McClain where the court held that “[t[he atmosphere was not unduly coercive, and the tenant was cooperative with the police. Moreover, the tenant later gave written consent to a further search in the document that also confirmed the voluntariness of [his] initial consent.” McClain at 416. Furthermore, there was an atmosphere of cooperation. No guns were ever drawn. See e.g. People v. Muldrow, 273 AD2d 814 (4th Dept), lv denied 95 NY2d 891 (2000). The record establishes that no fraud or deception was employed when the officer asked Tayese if she would consent to a search. People v. Williams, 278 AD2d 150, 151 (1st Dept 2000), lv denied 26 NY2d 764 (2001). Tayese reasonably appeared to have authority to consent to the search and to turn over the clothes to the detectives. Based on all the facts and circumstances of this case, this Court concludes that the People established that, under the totality of circumstances, the written consent to search, signed by Tayese, was freely given and not the product of any unlawful police conduct. People v. Hill, 260 AD2d 216 (1st Dept), lv denied 93 NY2d 972 (1999). As such, the physical evidence recovered was lawfully obtained following the initial consent to enter the house, the subsequent written consent to search the premises, and the voluntary production of the items. Accordingly, the motion to suppress is denied.This constitutes the decision and order of the Court.Dated: September 17, 2018
