DECISION & ORDER The Court commenced a Dunaway/Mapp/Huntley hearing on February 24, 2022 and concluded the hearing on May 11, 2022. Police Officer Ismael Diaz and Sergeant Sean Tiernan of the New York City Police Department (NYPD) testified on behalf of the People. I find them to be credible witnesses. STATEMENT OF FACTS Police Officer Ismael Diaz has been employed by the NYPD for four and a half years. He has been a patrol officer with the 121 Precinct for the last four years. On July 26, 2021, Officer Diaz was working with his partner, Officer Shawn Nola. Officer Diaz’s tour began at 11:15 p.m. on July 25, 2021. He and Officer Nola were working routine patrol, which included responding to 911 calls. At approximately 12:50 a.m. on the morning of July 26, Officer Diaz received a radio run for a robbery in progress at 52 Andrea Place, Staten Island. Upon arriving at that location, Officer Diaz observed a group of other police officers, already at the location, speaking with a female named Nephatiara Sease. Officer Diaz heard Ms. Sease repeatedly tell the officers that she was just shot at inside of 52 Andrea Place, 2nd floor apartment. Ms. Sease further told officers that the individual who shot at her was defendant, Andrew Henry. Ms. Sease also told police that defendant stole her Air Pods. Officer Diaz testified that after listening to Ms. Sease, he, Officer Nola, and Sgt. Tiernan began to walk in the direction of 52 Andrea Place. Approximately three houses down from the location, the officers encountered defendant. Officer Diaz asked defendant what was going on and conducted a brief frisk of defendant for his safety. Officer Diaz did not feel any weapons. Defendant calmly spoke with the officers and told them that he had Ms. Sease’s Air Pods. Officer Diaz described defendant’s demeanor as calm, respectful, and cooperative. Officer Diaz also noticed blood coming from defendant’s shoe and offered him medical treatment, which he refused. Defendant told the officers that he and Ms. Sease had been in an argument because she wanted to go to the ferry, and he said no. This argument turned into an altercation wherein a table was broken, and glass was shattered in defendant’s apartment. Defendant further told police that Ms. Sease trashed his apartment and he wanted her out. After hearing this, Sgt. Tiernan went back to speak with Ms. Sease once again. When he returned, Sgt. Tiernan instructed Officer Diaz to place defendant under arrest. Officer Diaz placed defendant under arrest without incident. Defendant did not resist, and the use of physical force was not necessary to place defendant in handcuffs. Once defendant was handcuffed, Officer Diaz frisked him more thoroughly. Officer Diaz recovered one 9mm bullet from defendant’s pocket. When Officer Diaz asked defendant what it was, defendant responded “it’s hers.” Officers Diaz and Nola transported defendant back to the 121 Precinct. Officer Diaz noticed during transport, and when back at the precinct, that defendant’s demeanor had changed. Defendant, who once appeared very calm, now appeared nervous and was sweating profusely. Once back at the 121 Precinct, Officer Diaz brought defendant before his desk sergeant, asked his pedigree information, and searched him again. An ambulance was called, and defendant was brought to Richmond University Medical Center due to the injuries to his foot. When defendant was brought back from the hospital, he was placed in the 121 holding cells. The People offered Officer Diaz’s body worn camera footage into evidence as People’s Exhibit 1 at the hearing. The footage corroborates the series of events as testified to by Officer Diaz. After placing defendant under arrest, Officer Diaz applied for a search warrant for 52 Andrea Place, 2nd floor apartment. The People offered the search warrant and search warrant application into evidence at the hearing as People’s Exhibit 3. The application in support of the warrant is based on conversations had with defendant, conversations had with Nephatiara Sease, the bullet found in defendant’s pocket, and a “wellness check” conducted by Sgt. Tiernan, which will be discussed more fully below. The warrant was issued by Hon. Rajeswari at 2:26 p.m. on July 26, 2021. Officer Diaz and his team executed the warrant around 5 p.m. that same day. Although not subject of the hearing, a firearm was recovered in the target location during the execution of the search warrant. At approximately 12:30 a.m. on July 27, 2021, Officer Diaz spoke with Nephatiara Sease, who had also been placed under arrest. During this conversation, Ms. Sease recanted her earlier statements about defendant having fired a gun at her. At no point prior to the issuance and execution of the search warrant had Ms. Sease recanted. After speaking to Ms. Sease, Officer Diaz spoke to defendant, in the company of Detective Colon, close to 1 a.m. on July 27, 2021. Officer Diaz explained that the approximate 23-hour delay in speaking with defendant was due to his doing paperwork and applying for the above-referenced search warrant. Officer Diaz brought defendant from the holding cells into the 121 detective squad interview room. Officer Diaz testified that he did not have to use any physical force to get defendant to the interview room, he did not promise him anything, nor did defendant ask for anything. Defendant’s handcuffs were removed upon entering the room, and his demeanor appeared calm. Detective Colon advised defendant of his Miranda rights, having read them from a pre-printed card. Defendant answered that he understood his rights and was willing to speak to the police. The interview with defendant was recorded. The People entered the recording into evidence at the hearing as People’s Exhibit 2. Sgt. Tiernan has been employed by the NYPD for approximately ten years and has been assigned to the 121 Precinct for the last three years. Sgt. Tiernan is a squad sergeant whose duties include responding to radio runs, assigning radio runs, deploying personnel, supervising crime scenes, and verifying arrests. Sgt Tiernan was working the night of July 25, 2022, into July 26, 2021, as a patrol supervisor. At approximately 12:50 a.m. on July 26, 2022, Sgt. Tiernan responded to 52 Andrea Place after receiving a radio run. After arriving at the location, Sgt. Tiernan spoke to Nephatiara Sease, who was outside on the corner of Briarwood Road and Birch Road, which is a couple hundred feet away from 52 Andrea Place. Ms. Sease told Sgt. Tiernan that defendant shot at her feet inside of 52 Andrea Place, and she wanted her Air Pods back. After speaking with Ms. Sease, Sgt. Tiernan walked over towards Andrea Place, and encountered defendant along the way. Sgt. Tiernan testified that they conducted a frisk for weapons, wherein he recovered defendant’s wallet. Sgt. Tiernan was also present when Officer Diaz placed defendant under arrest and recovered a bullet from his pocket. Sgt. Tiernan testified that once defendant was placed under arrest, he turned his body worn camera off and contacted his supervisors. Sgt. Tiernan told his supervisors about defendant’s arrest, Ms. Sease’s arrest, and his desire to conduct a “welfare protective sweep” of 52 Andrea Place, based on the allegation that shots were fired inside the location, and they did not know if anyone else was hurt or injured inside the location. It should be noted that, according to the testimony of Sgt. Tiernan, both defendant and Ms. Sease told the police that there was no one else present inside the apartment. Sgt. Tiernan and approximately six or seven other police officers conducted a welfare protective sweep at 52 Andrea Place. They entered the location using a key recovered from defendant’s person. They announced their presence as police officers and walked through the entire apartment, looking anywhere a person could be hurt or injured. They also looked for any signs of ballistics or shots fired that could require a further wellness check. Sgt. Tiernan went on to explain that, for example, if there was a bullet hole through a wall, and a house immediately next to it, they would have to check on the neighbors to make sure no one was injured. Sgt. Tiernan testified that while performing this sweep they did not open any drawers or look anywhere that wasn’t big enough for a human to fit. While conducting this sweep, Sgt. Tiernan’s attention was drawn to a shell casing on the floor, and a bullet hole in the floor. No one had to move anything out of the way in order to see the shell casing and bullet hole. At the hearing, the People entered photographs of the shell casing and bullet hole into evidence as People’s Exhibits 4 and 5. The People also entered two videos from Sgt. Tiernan’s body worn camera into evidence as People’s Exhibit 6. The first portion of the video depicts Sgt. Tiernan’s interactions with Nephatiara Sease and defendant on the street and is somewhat duplicative of Officer Diaz’s body worn camera footage. Sgt. Tiernan shut his camera off after defendant was placed under arrest. He testified that he did so because there were no longer any police/citizen encounters, and he was going to call his supervisors and did not want his conversations recorded. Sgt. Tiernan turned his camera back on immediately prior to conducting the protective sweep, which is depicted on the second portion of video. The second video contained on People’s Exhibit 6 shows approximately six or seven officers conducting a “welfare protective sweep” of 52 Andrea Place. Although Sgt. Tiernan can be heard repeatedly instructing his team not to open any drawers until they get a warrant, the officers can be seen shining flashlights underneath dressers and beds, checking closets, the bathtub, lifting a rug, and checking behind toilet bowls and a television set. Further, when the shell casing and bullet hole are found, officers all remain in the apartment for a short period of time, talking with one another. CONCLUSIONS OF LAW Defendant moves to suppress all statements made by him to the police and the bullet recovered from his person on the basis that there was no probable cause to apprehend and arrest him. Defendant moves to suppress the shell casing and observation of a bullet hole in his apartment on the grounds that the “welfare protective sweep” was an unlawful search. Further, defendant, in his omnibus motion, moves to suppress the firearm recovered pursuant to the execution of the search warrant, on the grounds that the search warrant application included unlawfully acquired information due to the illegal search and as such the property recovered must be suppressed. Defendant’s Arrest and Statements to Police An identified citizen’s accusation against an individual accusing them of a specific crime is legally sufficient to provide the police with probable cause to arrest. See, People v. Martin, 221 A.D.2d 568, 634 N.Y.S.2d 147 [2d Dept., 1995]. Here, Nephatiara Sease alleged to the police that defendant shot at her feet inside of 52 Andrea Place and stole her Air Pods. Her statements provided police with probable cause to apprehend and arrest defendant. Based upon this lawful arrest, the police searched defendant’s person and recovered a bullet in his pocket. This item was recovered pursuant to a search incident to lawful arrest, and as such will not be subject to suppression (see People v. Hall, 10 N.Y.3d 303 [Ct. App. 2008], citing United States v. Robinson, 414 U.S. 28 [1973]). As the stop and seizure of defendant was legal, the Court must next determine whether defendant’s initial statements to the police were voluntary. The People have the burden of proof regarding statement suppression and the People must prove beyond a reasonable doubt the voluntariness of the statements. People v. Huntley, 15 N.Y.2d 72 [Ct. App. 1965]; People v. Holland, 48 N.Y.2d 861 [Ct. App. 1979]. However, although the People have the initial burden of proving a defendant’s statements were voluntary beyond a reasonable doubt, “the defendant bears the ultimate burden of proving that the statements were obtained in violation of his or her right to counsel or in some other illegal manner.” See, People v. Brown, 46 A.D.3d 1128, 1129 [3rd Dept., 2007]. Partly at issue in this case is whether the defendant was in custody at the time of the initial encounter on Birch Road, near his residence at 52 Andrea Place, when police asked, in sum and substance, what was going on. The Court finds that these statements, which were captured on body worn camera, were in response to police questions that were investigatory in nature. A police officer having reasonable suspicion that a person has committed a crime may stop and detain such person for the purpose of ascertaining his identity and an explanation of his conduct. These questions were permissible threshold crime scene inquiries and need not have been preceded by Miranda warnings (see People v. Pileggi, 141 A.D.2d 866 [2d Dept. 1988]; People v. Walker, 267 AD2d 778 [3d Dept 1999]). When a person is taken into custody or significantly deprived of freedom, the Fifth Amendment requires that the police administer Miranda warnings. Miranda v. Arizona, 384 U.S. 436, [1966]. Detective Colon read Miranda warnings to defendant from a pre-printed Miranda card. Defendant answered, on video, that he understood his rights and was willing to answer questions. Defendant’s actions in acknowledging the waiver of his Miranda rights before giving his statement indicates that his conduct was voluntary beyond a reasonable doubt. Based on the above, defendant’s motion to suppress his statements is denied. Protective Sweep and Search Warrant Police officers are permitted to conduct a precautionary “protective sweep,” 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 A.D.2d 425 [2d Dept. 1999], citing Maryland v. Buie, 494 U.S. 325 [1990]. The Supreme Court in Buie went on to state that a protective sweep, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep should last no longer than is necessary to dispel the reasonable suspicion of danger, and in any event no longer that it takes to complete the arrest and depart the premises. Id. at 335-336. To justify entry into an apartment, an officer must possess “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonable prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. Bost at 426. Here, police responded to a radio run for a robbery in progress, which was the result of a domestic dispute. Both parties were outside when police arrived at the location, a block or so away from 52 Andrea Place. Both defendant and Nephatiara Sease had been placed under arrest outside of the location and were in the custody of the NYPD at the time Sgt. Tiernan conducted his protective sweep. Although there were allegations of shots fired inside the location, both defendant and Ms. Sease told officers that no one else was present inside the location. Upon arriving at the location, the house appeared dark, and the door was locked. There was no indication that anyone was inside. This warrantless entry was not justified in the absence of a factual predicate from which the officers could reasonably infer that the apartment contained a third person. Id. Even assuming that the warrantless entry was justified for the purposes of conducting a protective sweep, the sweep turned into a full-on search of the premises when officers began looking under dressers, behind toilet bowls, and lifting a rug. It is clear from a review of Sgt. Tiernan’s body worn camera that the “protective sweep” extended way beyond a cursory inspection of only those spaces where a person may be found, and lasted longer than was necessary to dispel the reasonable suspicion of danger. For these reasons, defendant’s motion to suppress the shell casing and observation of a bullet hole recovered during the protective sweep is granted. This does not, however, invalidate the search of the location pursuant to the subsequent search warrant. A review of the search warrant application, People’s Exhibit 3, shows that the observations made during the protective sweep did not stand alone to enable the issuing magistrate to determine that probable cause existed for the warrant’s issuance. Officer Diaz was in receipt of information provided by defendant that he lived at 52 Andrea Place, Nephatiara Sease was his girlfriend, and she had been staying with him for the past ten days. A search of NYPD records also indicated that defendant resided at that location. Officer Diaz was informed by Nephatiara Sease that while inside the target location, defendant pointed a firearm at her and shot at her feet. She also complained that the defendant stole her headphones. While speaking with defendant, he told Officer Diaz that he did, in fact, have her headphones. After placing defendant under arrest, Officer Diaz recovered one 9mm bullet from defendant’s pocket. This information was lawfully acquired during a police investigation. These facts alone, without taking the protective sweep into consideration, would have provided a magistrate with probable cause to issue a search warrant. A sworn statement of an identified member of the community attesting to facts directly and personally observed by him is in and of itself sufficient to support the issuance of a search warrant (People v. David, 234 A.D.2d 787 [3rd Dept 1996], citing People v. Hicks, 38 N.Y.2d 90 [Ct. App. 1975]). Here, the warrant is based upon statements and observations made by a named individual, and as such is sufficient to support the issuance of a search warrant. The validity of the warrant to search the apartment based upon this properly obtained information, would not be tainted even if the same application contained unlawfully acquired information; provided, of course, that the lawfully acquired information is sufficient to provide probable cause for the search. People v. Harris, 62 N.Y.2d 706 [Ct. App 1984]; People v. Arnau, 58 N.Y.2d 27 [Ct. App 1982]. Moreover, since the information provided in the application for the search warrant, which was obtained before the officer’s initial entry into the house, justified the issuance of the warrant, defendant’s motion to suppress the physical evidence seized pursuant to said search warrant is denied. See People v. Clark, 194 A.D.3d 948 [2d Dept 2021]. This constitutes the decision and order of the Court. Dated: June 2, 2022
