Defendant is charged by the above-referenced indictment with criminal possession of a controlled substance in the second degree (Penal Law §220.18 [2]), criminal possession of a controlled substance in the fifth degree (Penal Law §220.06 [1]), two counts of criminal possession of a controlled substance in the third degree (Penal Law §§220.16 [1] and [12] respectively) and three counts of criminally using drug paraphernalia in the second degree (Penal Law §§220.50 [1], [2] and [3] respectively) all in conjunction with events occurring on or about January 21, 2019 in the County of Monroe, State of New York. On or about August 6, 2019 defendant moved this Court pursuant to Criminal Procedure Law §710.60 seeking to suppress the tangible evidence obtained as a result of a search of his residence which constitutes the basis of the seven-count indictment. The People oppose. As a threshold matter, the People conceded the truth of the allegations as set forth in defendant’s papers which duly comply with the statutory requirements relative to suppression of evidence (see generally Criminal Procedure Law §710.60 [1] et seq.;). To be certain, during court proceedings conducted on or about September 25, 2019, the People, by way of oral stipulation in response to the Court’s inquiry, indicated in sum and substance that the defendant’s papers accurately, thoroughly and completely constitute the facts of the matter.1 Accordingly, based upon the People’s concession, the Court considered the merits of defendant’s papers — including the attached exhibits — based upon the facts asserted therein. Now, upon due consideration of the evidence before this Court and the parties’ arguments with respect thereto, the following constitutes its findings of fact and conclusions of law. A. Findings of Fact On or about January 21, 2019 at approximately 9:30 a.m., Officer Grabowski responded to the area of 152 Barrington Street in the City of Rochester for the report of a possible domestic incident wherein the victim was being held captive by her abusive boyfriend. Upon arrival, Officer Grabowski met and spoke with the victim’s family members (mother, father and sister) and ultimately learned through their representations that the victim’s father was contacted by an unknown individual who informed him that the victim had reached out to an online Facebook forum intended to assist battered women and reported that her boyfriend abused her was holding her against her will. The victim’s sister thereafter tracked the victim’s phone location to the area of 152 Barrington in an attempt to locate and assist the victim. The victim’s father further reported that the defendant may have a firearm because the defendant “sells heroin” and the “[victim] told him in the past that [defendant] had a gun.” At approximately 9:50 a.m., while inside of the apartment lobby and attempting to locate both the victim and defendant, Officer Grabowski was joined by Officer Jonhston to aid in the investigation. Shortly thereafter, Officer Grabowski spoke with the property manager and learned that the defendant’s name is not on any lease for the property within 152 Barrington Street. Near contemporaneously, the victim’s sister contacted the victim by way of her cell phone. Minutes later both the victim and defendant emerged from apartment 103 where, haphazardly, both officers and the victim’s family were standing nearby. Officer Grabowski quickly directed the victim into the arms of her father and immediately began questioning the defendant in the doorway of the apartment. The defendant indicated that another individual named T.W. resides in the apartment, and he further indicated that no one else was inside the apartment at that time. Officer Grabowski ordered defendant to step into the hallway and he immediately handcuffed the defendant and began to further question defendant about his relationship with the victim and the alleged abuse which led to the instant investigation. After approximately 90 seconds, Officer Grabowski directed defendant back into his apartment so as to not “carry [his] business all over the freakin’ neighborhood.” Once inside the foyer of the apartment, Officer Grabowski again inquired as to whether or not there was anyone else inside the apartment, and defendant again indicated in the negative. Nevertheless, Officer Grabowski peered into a few of the rooms within the small apartment while the defendant remained handcuffed in the foyer. With respect to the bedroom, the shades were drawn and it was relatively dark. The bed was located against the wall opposite the entranceway thereto and there was a night stand located on the far side of the bed. Officer Grabowski took 1-2 steps into the bedroom and looked around for approximately 24 seconds. He thereafter returned to the foyer and began collecting pedigree information from the defendant. Ultimately, defendant was escorted out of the apartment building, still in handcuffs, and Officer Johnston placed him into the rear of Officer Grabowski’s police cruiser. Thereafter, Officer Grabowski returned to defendant’s apartment under the guise that he was “locking up” defendant’s apartment. However, he reentered, returned to the bedroom and began searching with a the assistance of a flashlight. He walked to the back corner of the bedroom and observed on top of the night stand some white powder mixed in with some empty plastic bags and folded playing cards. He thereafter called for police assistance, and a subsequent search and investigation yielded illicit narcotics and correlating paraphernalia. The items recovered from defendant’s residence — methamphetamine, cocaine, mixing agents, glassine envelopes and a scale — constitute the basis of the entire indictment. B. Conclusions of Law Defendant challenges the tangible evidence recovered from his residence as a result of a search pursuant to a protective sweep conducted as part of Officer Grabowski’s investigation into a possible domestic incident involving a captive victim. He contends, in the main, that the initial entry and subsequent search of his residence was unlawful inasmuch as Officer Grabowski lacked an objective basis to believe that another individual was secreted therein — a necessary predicate to the conduction of a protective sweep. The Court agrees. The motive force for the constitutional safeguards precluding unreasonable searches and seizures is protection against arbitrary governmental invasion of privacy (People v. Hodge, 44 NY2d 553, 557 [1978] [citations omitted]). The Supreme Court has explained that the “placement of [a warrant requirement is to serve as a] checkpoint between the Government and citizens [as it] implicitly acknowledges that an officer engaged in the often competitive enterprise of ferreting out crime may lack sufficient objectivity to weigh correctly the strength of the evidence supporting the contemplated action against the individual’s interests in protecting his own liberty and the privacy of his home.” (Steagald v. U.S., 451 US 204, 212 [1981].) Subject only to a few specifically established and well-delineated exceptions, warrantless searches and seizures are per se unreasonable (Payton v. New York, 445 US 573 n 25 [1980] [citations and quotations omitted]; Schneckloth v. Bustamonte, 412 US 218, 219 [1973]; Katz v. United States, 389 US 347, 356 [1967]; Coolidge v. New Hampshire, 403 US 433, 453 [1971]. One such exception is the protective sweep doctrine. There is an obvious and inherent need for police officers, if lawfully present inside a residence, to be given sufficient latitude to take reasonable steps in order to protect themselves from danger and/or to prevent the destruction of evidence. The Supreme Court first enunciated this principle in its seminal decision, Maryland v. Buie, 494 US 325 (1990), wherein it defined the constitution of a protective sweep and articulated the standard to justify employment thereof within the limited context of a search incident to lawful arrest. To wit, a protective sweep is intended to be a “quick limited pass through spaces immediately adjoining the place of arrest, to check for third persons who might destroy evidence or pose a threat to the officers or the public” (People v. Bost, 264 AD2d 425, 426 [2d Dept 1999] [citing Buie, 494 US 325]). Furthermore, in order to justify a protective sweep, it is incumbent upon the People to demonstrate “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” (Buie, 494 US at 334). In the progeny which followed in New York, the Buie rule has been extended to allow a protective sweep where the initial entry into a residence was made pursuant to a lawful process (see generally People Harris, 141 AD3d 1024 [3d Dept 2016] [exigent circumstances justified the officers' initial entry into the defendant's apartment]; People v. White, 259 AD2d 400 [1st Dept 1999], lv denied 93 NY2d 1029 [1999] [police lawfully entered apartment upon consent of the lessee and subsequently conducted protective sweep]). Likewise, the protective sweep doctrine has been extended to circumstances where a defendant is arrested outside of his home where specific, articubale facts supported law enforcements’ belief that other persons may be present within the residence who could pose a threat to safety or destroy evidence (see generally People v. Evans, 267 AD2d 14 [1st Dept 1999], lv denied 94 NY2d 903 [2000]; People v. Lasso-Reina, 305 AD2d 121 [1st Dept 2003], lv denied 100 NY2d 595 [2003]). In other words, it is the evidence relative to the presence or absence of third parties which properly invokes the conduction of a protective sweep. Yet, in determining whether a search is reasonable, “courts must undertake a dual inquiry: ‘whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place’” (People v. William “II”, 98 NY2d 93, 98 [2002] citing Terry v. Ohio, 392 US 1, 20 [1968], People v. De Bour, 40 NY2d 210, 215 [1976]). Accordingly, assuming arguendo the justification of a protective sweep, the scope of the search must be limited to effectuating the limited purpose thereof (compare People v. Boyland, 79 AD3d 1658 [4th Dept 2010] [protective sweep properly encompassed walkin closet] with People v. Harris, 141 AD3d 1024 [3d Dept 2016] [officers were not entitled to look beneath clothing in defendant's bedroom as part of a protective sweep]; People v. Isaacs, 101 AD3d 1152 [2d Dept 2012] [search of purse was outside scope of protective sweep]). In the instant case, Officer Grabowski was not justified in conducting a protective sweep of defendant’s residence based upon his rank conjecture that there may be another person present therein (see Bost, 264 AD2d 425; see also People v. Sears, 165 AD3d 1482 [3d Dept 2018]). To be certain, there was not a scintilla of evidence — direct observation or obtained witness statements — to suggest that a third party was secreted within defendant’s residence. Significantly, there were no observed auditory or visual indicators consistent with the presence of a harbored individual within defendant’s residence (see generally Boyland, 79 AD3d 1568 [officers heard voices upstairs]; In re Bryant C., Jr., 104 AD3d 594 [1st Dept 2013], lv denied 21 NY3d 860 [2013] [police observed suspects and third person enter building]; People v. McAllister, 35 AD3d 300 [1st Dept 2006], lv denied 8 NY3d 925 [2007] [officers observed furtive movements of persons running toward back room and defendant indicated to police that a third person was inside residence]). Furthermore, no information was conveyed to law enforcement indicating that any other persons remained inside defendant’s residence (see generally People v. Bryant, 91 AD3d 558 [1st Dept 2012], lv denied 20 NY3d 1009 [2013] [robbery victim provided information warranting a reasonable belief that other participants might be present inside the apartment]). Of particular concern, notwithstanding how aptly positioned the victim was to offer crucial information to law enforcement regarding the presence or absence of third parties within the defendant’s residence, no efforts were made to obtain information from her prior to Officer Grabowski entering defendant’s apartment. The People have to failed to identify any evidence from which a reasonable police officer could have inferred that there was a specific danger of unknown third-parties hiding in defendant’s apartment. Accordingly, in the absence of a factual predicate upon which Officer Grabowski could reasonably conclude that defendant’s apartment concealed a third person, such a warrantless entry and subsequent search cannot be justified. Furthermore, the extent to which the People allude to officers’ belief that defendant may be in possession of a gun, the warrantless entry into defendant’s residence and ensuing search thereof were conducted after a minimal police investigation which failed to establish the existence of any exigency justifying the invocation of the emergency doctrine. That exception applies only where the police (1) have “reasonable grounds to believe there is an emergency at hand and an immediate need for their assistance for the protection of life or property,” (2) are “not…primarily motivated by intent to arrest and seize evidence,” and (3) have a “reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched” (People v. Mitchell, 39 NY2d 173, 177 — 178 [1976] cert denied 426 US 953 [1976]). Here, the police were informed that the defendant had physically abused the victim and was holding her captive. The victim’s father also advised police that the defendant may have a gun within his residence. However, any concerns relative to the safety and wellbeing of the victim or any ongoing crime wherein she was subjected to abuse and/or captivity at the hands of the defendant were vitiated at the moment she exited defendant’s residence and was reunited with her family. Furthermore, any ongoing emergency and danger that the defendant may have posed was likewise extinguished by virtue of his detention and physical restraint by Officer Grabowski. (See generally People v. Harper, 100 AD3d 772 [2d Dept 2012], lv denied 21 NY3d 943 [2013] [no exigency where altercation ended upon police arrival, the complainant had been identified, the assailant apprehended and no reason to believe another victim was inside defendant's residence].) Finally, that the defendant may have been harboring a firearm within his residence did not constitute a valid basis to justify a warrantless entry therein. While the Court is acutely aware that some brethren states have further expanded the Buie rule to apply to a weapons search (Com. v. Bui, 419 Mass 392 [Sup Jud Ct, Middlesex 1995], cert denied 516 US 861 [1995]; State v. Lacy, 196 W Va 104 [Sup Ct of Appeals 1996]), New York, emphatically, has not (People v. Lott, 102 AD2d 506, 509 [4th Dept 1984] ["[t]he mere fact that police have information that a weapon is located within a suspect’s apartment, however, does not justify a warrantless entry”]). It further cannot be said, and the People do not contend, that defendant consented to the warrantless entry and subsequent search of his residence. When consent is the justification for a warrantless search, the People bear a heavy burden of proving, by clear and convincing evidence (People v. Zimmerman, 101 AD2d 294 [2d Dept 1984]), the consent was voluntarily obtained (People v. Whitehurst, 25 NY2d 389 [1969]) and courts should indulge every reasonable presumption against waiver (People v. Guzman, 153 AD2d 320 [4th Dept 1990] granting appeal 75 NY2d 926 [1990] citing Johnson v. Zerbst, 304 US 458 [1938]). Consent to search is voluntary only when it is a true act of the will, and an unequivocal product of an essentially free and unconstrained choice (People v. Kuhn, 33 NY2d 203 [1973]; People v. Gonzalez, 39 NY2d 122, 128 [1976] [citations omitted]; see People v. Kendrick, 147 AD3d 1419 [4th Dept 2017]; People v. Rose, 122 AD2d 484 [2d Dept 1986]). “Voluntariness is incompatible with official coercion, whether actual or implicit, overt or subtle. No one circumstance is determinative of the voluntariness of consent. Whether consent has been voluntarily given or is only a yielding to overbearing pressure must be determined from the circumstances.” (Gonzalez, 39 NY2d at 128.) To be certain, submission to lawful authority is not the equivalent to voluntary consent (Bumper v. North Carolina, 391 US 543 n 14 [1968] [citations and quotations omitted]). Here, it is abundantly clear that Officer Grabowski did not make any requests of defendant; rather, he handcuffed, detained, questioned and thereafter ordered defendant back into his apartment in order to continue his investigation. In the alternative, assuming arguendo a lawful entry into defendant’s residence, Officer Grabowski exceeded the scope of a protective sweep — which is a limited “cursory inspection” of “immediately adjoining areas” (Buie 494 US at 326) — by engaging in a protracted and moderately comprehensive search of defendant’s residence. As evidenced primarily by the body camera footage obtained from Officer Grabowski’s person, he unhurriedly enters certain rooms — seemingly at random — spending upwards of 30 seconds at a time visually inspecting the entire room and much of its contents. In this Court’s view, to employ such a lackadaisical search method is wholly inconsistent with the principles of Buie, which recognizes the requisite haste of identifying and neutralizing concealed danger. It appears as though Officer Grabowski’s investigatory technique is likened more to that of a pretexual search based upon nothing more than a hunch as opposed to a legitimate concern that a third person may be secreted within the premises and posing a viable danger. In light of the foregoing, the Court need not opine as to the application of the plain view doctrine as the validity of the protective sweep is a condition precedent thereto (see generally People v. Rivera, 172 AD2d 1059 [4th Dept 1991]). Accordingly, it is hereby ORDERED that defendant’s motion seeking to suppress the tangible evidence obtained as a result of an unlawful search of his residence is granted in its entirety (see Criminal Procedure Law 710.60 [2] [a]). Dated: December 20, 2019 Rochester, New York
