DECISION AND ORDER On January 10, 2020, at approximately 1:00 a.m., police officers from the New York City Police Department (hereinafter NYPD) executed a search warrant of 181-07 144th Avenue, Queens County. Inside, the officers recovered two firearms and various drugs, and arrested all four defendants in that location. The defendants now move, through counsel, to controvert the search warrant, claiming that it was illegally issued, and therefore, all evidence obtained as a result of the warrant must be suppressed. For the reasons set forth below, the motion is granted. BACKGROUND In an affidavit dated January 9, 2020, Police Officer Frank Ryan described the subject of the search warrant, located at 181-07 144th Avenue in Jamaica, Queens, as a “two-story, two-family home with a brick first floor and a vinyl second floor.” He described the premises as having two entrances: a “right main entrance [which] opens up to a living room, a kitchen, and bedrooms” and a “left entrance” which similarly opened up to “a living room, a kitchen, and bedrooms at the rear of residence.” (Search Warrant Application). According to Officer Ryan, a confidential informant (hereinafter CI) told him that, on some previous occasion, the CI had visited the premises and was let in by defendant Jerry Hyman through one of the entrance doors.1 Defendant Hyman led the CI to the living room and showed the CI two firearms. Based on this information, Officer Ryan sought and procured a search warrant to search the entire premises at the above-mentioned address (Search Warrant Supporting Affidavit). In a motion dated August 18, 2020, defendant Tyquawn Capers, through counsel, moved to controvert the search warrant, claiming that, although the warrant described the premises as a two-unit premises, the warrant was overbroad in that it permitted search of both units without establishing probable cause as to both units. In a response dated August 27, 2020, the People opposed defendant Capers’s motion. First, they argued that Officer Ryan “had no reason to believe that the units were separate,” and that Officer Ryan learned that Jerry Hyman’s grandmother owned the entire premises. Officer Ryan had also learned that everybody in the home was able to access every portion of the house. The People also argued that the premises should not be considered a “multiple-unit building,” but rather, a “multiple-occupancy dwelling.” Under the latter characterization, the warrant would not be overbroad because each occupant would have access to the entire house. The People also pointed out that defendant Jerry Hyman was on parole for a weapons-related charge, and so he would likely hide evidence throughout the house. Finally, the People contended that, even if the warrant was overbroad, the offensive portions of the warrant should be severed. In a reply dated September 11, 2020, defendant Tyquawn Capers disputed the People’s characterization of the building as a “multiple-occupancy building,” pointing out that the warrant and the supporting affidavit both “accurately and specifically identified the premises as a ‘two-family’ home.” Additionally, defendant asserted that the People were not permitted to supplement their warrant application with additional facts in their response. Finally, he argued that severance was inappropriate in this case. On October 29, 2020, the parties appeared before this Court to argue their positions.2 Defendant reiterated that the warrant was improperly issued because the supporting affidavit had only established probable cause as to one of the units, but the warrant permitted search of the entire house. The People maintained that the warrant was not overbroad because the premises was, in fact, a multiple-occupant building and that each defendant had access to the entirety of the house. Defendant then replied that the People were not permitted to supplement their warrant application with facts and assertions not contained in the original warrant. Additionally, the other three co-defendants, Maurice Capers, Kareen Wynn and Jerry Hyman, joined in on defendant Tyquawn Capers’s motion to controvert the search warrant. ANALYSIS In determining this motion, the Court has reviewed and considered the search warrant application and supporting affidavit, the motion papers submitted from all parties, the court file, and oral arguments heard on October 29, 2020. Based on the foregoing, the motion is decided as follows: The Fourth Amendment of the United States Constitution states, “‘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.” “To establish probable cause, a search warrant application must provide sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place” (People v. Crupi, 172 AD3d 898, 898 [2d Dept. 2019]). “If a magistrate has already determined that probable cause existed, great deference will be accorded that finding” (People v. Griminger, 71 NY2d 635, 640 [1988]). Such deference, however, is not absolute (see People v. Hanlon, 36 NY2d 549 [1975]). In reviewing whether a warrant was validly supported by a showing of probable cause, “the critical facts and circumstances for the reviewing court are those which were made known to the issuing magistrate at the time the warrant application was determined” (People v. Nieves, 36 NY2d 396,402 [1975]). Finally, “[f]or purposes of satisfying the State and Federal constitutional requirements, the searching of two or more residential apartments in the same building is no different from searching two or more separate residential houses [and] probable cause must be shown in each instance” (People v. Rainey, 14 NY2d 35, 37 [1964]). Based on the foregoing, defendant’s motion to controvert the search warrant is granted because there was an insufficient showing of probable cause as to the entire premises. Both the warrant application and warrant itself described 181-07 144th Avenue as a “two-story, two-family home,” with two entrances — a right side entrance and left side entrance — that each led to their own living rooms, kitchen, and bedrooms. There is obviously no serious dispute that probable cause was shown as to the entrance door that the CI entered. According to Officer Ryan, defendant Hyman opened the that specific door, let the CI inside, and showed him the two firearms. Critically, however, there were no facts or circumstances suggesting that the premises entered through the unused entrance door, or its occupants, were involved in any crimes. In People v. Rainey, 14 NY2d 35 (1964), for example, the Court of Appeals similarly struck down a search warrant as invalid because it permitted the search of two connected apartments at one address, despite probable cause only existing as to one. Absent any showing that the premises made available by the unused door, or its occupants, were involved in the crimes sought to be investigated, the warrant was overbroad in its inception. The People’s responses are disposed of for the reasons set forth. First, they contend that Officer Ryan “had no reason to believe that the units were separate,” and that the CI had told him that defendant Hyman’s grandmother owned the entire home (People’s Response at 2). The People continue that the CI had informed Officer Ryan that “everyone living inside of the location was related and that each member of the family was able to access every portion of the house.” The People point out, as an example, that defendant Capers was “found in the upstairs apartment, while his personal items were found in the basement.” (People’s Response at 2). While this information may have established probable cause to search the entire premises, it was never presented to the issuing court at the time of the application, which is the relevant inquiry (see Nieves, 36 NY2d at 402 [for purposes of reviewing the validity of a search warrant, "the critical facts and circumstances for the reviewing court are those which were made known to the issuing magistrate at the time the warrant application was determined."]); see also Rainey, 14 NY2d at 39 ["The paramount concern, then, is what transpires at the issuance of the warrant and not what occurs thereafter."]). Since this information was never presented before the issuing court, it would be improper for this Court to consider it in upholding the validity of the warrant. Next, the People, citing People v. Santana, 154 Misc.2d 994 (Sup. Ct., Westchester Co., 1992), also argue that this Court should view the premises as a “multiple-occupant” building, rather than a “multiple-unit” building. In Santana, the court defined “multiple-occupant” buildings to those situations “where several persons or families occupy the premises in common rather than individually, as where they share common living quarters but have separate bedrooms” (Santana, supra at 995 [citing State v. Alexander, 41 Wash.App. 152, 154-55 (Court of Appeals of Washington, Division 2, 1985)]). Under this definition, however, the target house here is better characterized as a “multiple-unit” building. The warrant application described the left and right entrance both leading separate living rooms and kitchens, as well as their own set of bedrooms. Thus, unlike a “multiple-occupant” building, the premises did not share common living quarters, but appeared to be separate units. Finally, the People, relying on People v. Hansen, 38 NY2d 17 (1975), contend that, should the warrant be overbroad as to the premises enterable though the left door, that portion should be severed and the remainder of the warrant should stand. This reliance, however, is misplaced. In Hansen, the Court of Appeals specifically stated that this defect could not be remedied by severance: We do not say that invalid portions of a warrant may be treated as severable in all or even most circumstances. We distinguish, for instance, those cases in which, in consequence of overbreadth of a single described area of search, the warrant must be struck down (e.g. People v. Rainey, 14 NY2d 35). In such cases, the courts may not by retrospective surgery, dehors the language of the warrant, cut away the illegal portions of the area to be searched and by judicially revised description save evidence recovered from a more narrowly limited area. (Hansen, 38 NY2d at 21). Thus, Hansen specifically states that this type of illegality, as was found in Rainey, may not be severed. Contrary to the People’s position, the warrant was void at its inception and the illegal portions of the warrant may not be severed. Accordingly, defendants’ motion to controvert the search warrant is granted and the indictment is dismissed in its entirety. This constitutes the decision and order of the Court. The Clerk of the Court is directed to distribute copies of this decision and order to counsels for the defendants and to the Queens County District Attorney’s Office. Dated: December 1, 2020
