People v. Carey

Decision and Order Defendant is charged with one count of criminal possession of a weapon in the first degree, eighteen counts of criminal possession of a weapon in the second degree, thirty-six counts of criminal possession of a weapon in the third degree, eighteen counts of criminal possession of a firearm, and one count of menacing in the second degree. The People allege that on February 16, 2022, defendant possessed eighteen assault weapons, ammunition and various gun parts. The weapons were initially discovered during a warrantless search of defendant’s house at 4 Riviera Drive East, Massapequa, New York. The People further allege that defendant intentionally placed or attempted to place another person in reasonable fear of physical injury, serious physical injury, or death, by displaying to another person what appeared to be a firearm. Defendant filed an omnibus motion seeking suppression of the evidence obtained from his house and other relief. The court granted defendant’s motion to the limited extent that it ordered a Mapp hearing to determine whether the police lawfully entered and searched defendant’s house before obtaining a search warrant. The court conducted that hearing and received memoranda of law from the parties. For the reasons set forth below, defendant’s motion to suppress physical evidence seized from his house is granted. In sum, this court finds that the People failed to establish that the initial warrantless entry into the house was justified by an emergency, that the police reasonably relied on the apparent authority of defendant’s wife to consent to a search of the house, or that her consent was given voluntarily. Procedural History Defendant filed an omnibus motion seeking the suppression of evidence obtained from defendant’s house, among other things. In his motion, defendant argued that all of the evidence recovered from his house should be suppressed because the police unlawfully entered and searched the house without a search warrant, valid consent, or any exigent need to conduct a warrantless search. Defendant also argued that even if the police did obtain valid consent from defendant’s wife to search the house, it was not obtained until after they had already searched it unlawfully. Defendant further argued that any evidence obtained pursuant to the subsequent search warrants must be suppressed as the fruit of the poisonous tree. The People opposed the motion and argued, among other things, that defendant’s wife gave the police her consent — verbally and in writing — to enter and search the house, and that the police reasonably relied on her apparent authority to consent, notwithstanding that she told the police that she and defendant were separated, she had moved out of the house, and defendant had removed at least some of her belongings from the house. In his reply, defendant contended that the police officers’ initial entry into his house was not a lawful protective sweep and that any consent given by defendant’s wife did not attenuate the taint of an initial unlawful entry. A Mapp hearing was held on April 14, 2023, May 15, 2023, and June 12, 2023, to determine whether the police lawfully entered and searched defendant’s home without a search warrant. The People called Police Officers Daniel Randazzo and Christopher Lamonica, Detective Matthew Sutch, and Lieutenant Daniel Delargy to testify. Defendant called Jason Zimmerman and Darlene Carey to testify. At the conclusion of the hearing, the parties submitted memoranda of law. Findings of Fact On February 16, 2022, at approximately 12:00 noon, Veronica Vasold arrived at work at 4 East Riviera Drive in Massapequa, where she worked as defendant’s office manager. Defendant, a dentist, lived and worked out of his home at that address. When Vasold arrived, defendant was talking with an information technology technician. She spoke with defendant and noticed that he smelled of alcohol. Vasold knew that defendant had recently been suffering from health issues and that he and his wife were having marital troubles. She was also aware that defendant manufactured illegal firearms and kept them inside the house. At approximately 1:00 p.m., while Vasold was talking to a patient on the phone, she heard defendant yell her name. After she finished her phone call, she yelled back to defendant but heard no answer. Shortly thereafter, she was speaking to another patient on the phone when she again heard defendant yell her name. Vasold placed the call on hold and walked out of the office to find defendant. She heard what she believed to be the sound of a firearm being cocked and saw defendant on a staircase holding what appeared to be a firearm. She asked defendant why he was holding a firearm and he responded “oh, I almost shot you,” and laughed. Vasold left the house in fear for her safety. She called her father and defendant’s wife, Darlene Carey, and told them what had happened. At approximately 2:00 p.m., Officer Lamonica was assigned to investigate a report that a person had been menaced with a firearm at 4 Riviera Drive East. Lamonica was aware of a prior incident at that address involving a firearm. When Lamonica arrived he directed other officers to create a perimeter around the house for the safety of any other responding officers and established a staging area approximately one block away from the house. Darlene Carey drove up to the staging area and began speaking with Lamonica at approximately 2:12 p.m. She told the police that defendant had firearms inside the house. The police asked her to try to call defendant and ask him to come out of the house and she complied. Lamonica testified that a recording from his body-worn camera, which was entered into evidence at the hearing, accurately depicted what transpired at the staging area, including his interactions with Ms. Carey. That recording began at approximately 2:07 p.m. and ended at approximately 2:49 p.m. Officer Randazzo spoke to Vasold at her father’s house at approximately 2:13 p.m. Vasold told Randazzo that defendant did not discharge any firearms, did not point any firearms at her, and did not threaten her. She also told Randazzo that there was no one other than defendant inside the house when she left. Randazzo recorded his conversation with Vasold on his body-worn camera, which was entered into evidence at the hearing. At approximately 2:18 p.m., Randazzo called Lamonica and gave him the information he received from Vasold. Sergeant Gary Ruggerio was also present for that conversation. Lamonica told other officers at the staging area that defendant had a firearm and cocked it but did not point it at Vasold. Lieutenant Delargy, of the Nassau County Police Department’s Bureau of Special Operations (“BSO”), was also notified of the incident at 4 Riviera Drive East and that the suspect was still inside the house. Despite that Vasold told Randazzo that defendant had not threatened her or pointed a firearm at her, and Randazzo had relayed that information to Lamonica and Ruggerio, Delargy testified that he received information that a person at that address had been threatened with a firearm. Delargy also testified that he heard a transmission on his police radio that BSO officers had responded to that address on a prior date for an incident involving the defendant and a “barricade situation.” Delargy joined BSO officers who were heading to 4 Riviera Drive East in the BearCat, an armored police truck. Inside the BearCat, Delargy and the other BSO officers proceeded to the staging area, and then parked in front of 4 Riviera Drive East. Delargy assumed responsibility as the entry team leader and oversaw the BSO officers who would later enter the house. Detective Sutch also responded to 4 Riviera Drive East. He spoke to Lamonica and learned that defendant was still inside the house and that the police and Darlene Carey were attempting to persuade defendant to come out. The police used a loudspeaker on the BearCat to ask defendant to exit the house. Sutch and Delargy both characterized this as a “barricade situation,” meaning that the suspect was inside the house and not obeying commands to exit. As borne out by Lamonica’s body camera video, at approximately 2:22 p.m., Ms. Carey told Lamonica that defendant had been drinking, was an alcoholic, and had been regularly drinking as much as a liter of vodka every day. She had a phone conversation with a friend of hers, who was an attorney, and he told her to show to the police photographs of firearms defendant had built and kept in the house. She told Lamonica that her friend told her to leave the scene but Lamonica responded that she needed to stay until further notice. During a later phone conversation, while Ms. Carey was asking another person to call and ask defendant to surrender, she referred to that location as “home.” During this period, Ms. Carey told Lamonica about the layout of the house and stated that she had keys to the house and could open the garage. She showed Lamonica and Ruggerio her key to the house and offered to use the garage door opener in her car to open the garage for the police. She also told them that a back door to the house might be open. She later stated, “I know it needs to be done.” Lamonica testified that he believed Ms. Carey was giving the police permission to enter the house but acknowledged that he never directly asked her for her consent and she did not explicitly give verbal consent. He testified on direct examination that his understanding of their conversation was that Ms. Carey was giving the police permission to enter the house and remove the weapons that she had shown him, but on cross examination he stated that his understanding of that same conversation was that Ms. Carey was only giving the police permission to enter the house to remove defendant, not to search it. Lamonica’s body camera further showed that at approximately 2:35 p.m., Ruggerio asked Ms. Carey to sit in a police car and she complied. At approximately 2:41 p.m., Ms. Carey was outside the police car speaking with defendant by phone and asking him to come outside. She then told the police that defendant was in bed in an upstairs bedroom, intoxicated, and would come outside. At approximately 2:44 p.m., Inspector Alan Hirsch, the highest-ranking police officer at the scene, discussed with Ruggerio a 2001 incident involving defendant. Ms. Carey stated that defendant was intoxicated during that incident as well. Ruggerio stated to Ms. Carey that he gave her “a lot of credit” for “dealing with this for a really long time” and she responded that she had started a separation of their marriage. Ruggerio and Hirsch suggested to Ms. Carey that maybe that separation triggered this incident and she confirmed that when defendant received notice of the separation he threw all of her clothes out of the house, and that since then he had been “unhinged.” She also told them that she was at the house that morning because defendant was not feeling well and she was going to take him to a doctor. She brought him medicine, told him to go back to bed, and left. She also said that she had a further conversation with defendant by phone at around 12:00 noon, that he sounded intoxicated, and that she was aware that an information technology technician had been at the house. At approximately 2:46 p.m., after defendant had still not come out of the house, Lamonica asked her to call him again and ask him to come outside. She did, but defendant did not answer. At approximately 2:48 p.m., defendant voluntarily exited the front door of the house and was placed under arrest. At approximately 3:00 p.m., after defendant’s arrest, approximately fifteen BSO officers, led by Lieutenant Delargy, entered defendant’s house and began to search it. Delargy testified that prior to entering the house, he had been informed by Sergeant Barsch, also with BSO, that defendant’s wife had given the police consent to enter the house. Detective Sutch testified that he was informed by Sergeant Ruggerio that before Sutch arrived Ms. Carey had given the police consent to enter the house before any officers entered. However, Sergeant Barsch, Sergeant Ruggerio, and Inspector Hirsch did not testify at the hearing. Moreover, there was no evidence presented at the hearing to establish that Ms. Carey gave express verbal or written consent to enter and search the house before BSO officers entered. Notwithstanding that Vasold told Randazzo that defendant had not threatened her with a firearm and that defendant was the only person inside the house when she left, and that Randazzo relayed that information to Lamonica, Delargy testified that he believed there was an “ongoing emergency situation” in the house because someone had been threatened by a firearm and other persons could have been inside. When asked to clarify his testimony that other persons could have been in danger or would need to be taken from the house by police, Delargy stated: “You never know. Maybe someone witnesses the threatening with the firearm, might have hid. We don’t know, so we had to make sure that, you know, that they’re safe within the house.” During cross examination, Delargy acknowledged that he was merely speculating that someone else could have been inside the house. Delargy also testified that he did not speak with Lamonica, Sutch, or Ruggerio, and could not identify anyone other than Barsch who had relayed information to him prior to entering the house. Delargy also acknowledged that any threat posed by defendant ended after he was arrested and that he had received no information or indication that there were any other persons or potential threats inside the house before BSO officers entered. Based on his belief that that there was an emergent need to conduct a sweep of the house, and his belief that Ms. Carey had consented to the police entering, Delargy decided to conduct a “sweep” of the house to ensure that there was no one inside who needed medical attention or who posed a danger to the police or others. The scope of this sweep included anywhere a person could be hiding but did not include small spaces like drawers or cabinets, where contraband but not a person could be found. As seen from body camera video, the officers searched the house in a cautious and methodical manner more consistent with a search for threats to safety than a search for evidence. They wore tactical gear and helmets, carried shields, and had their weapons drawn. Delargy testified that he did not recall whether the front door was still open, whether the police were given a key to the front door, or whether the police had to break down the front door to enter the house. He acknowledged that BSO officers would be equipped with a battering ram to open doors, and that it was possible that the BSO officers forcibly breached the door, but did not recall that happening. However, photographs entered into evidence at the hearing established that the front door of the house had been damaged, and Lamonica testified during cross examination that the front door had been damaged when it was breached by BSO officers. Once inside, Delargy and other BSO officers conducted “a slow and deliberate search” of the entire house. Delargy testified that during this search he and other BSO officers found multiple firearms in plain view in the basement and in the bedroom area on the second floor of the house. They found no one else inside the house. Delargy testified that part of the search of the house was recorded on the body-worn camera of Police Officer Cimino — another BSO officer who participated in searching the house — and that the recording from that camera, which was entered into evidence at the hearing, accurately reflected the search and was representative of how the other BSO officers searched the house. That recording begins at approximately 2:59 p.m. and ends at approximately 3:47 p.m. However, Officer Cimino did not enter the house until approximately 3:12 p.m. — twelve minutes after the other BSO officers first entered the house — and he remained by the front door and did not join the officers in searching the house until approximately 3:33 p.m. Delargy testified that he and all of the other BSO officers were also equipped with body-worn cameras but that all of those recordings had been deleted by the time they were requested. Thus, this was the only recording from any of the BSO officers’ body-worn cameras that had been preserved and entered into evidence at the hearing. After BSO officers entered the house, Detective Sutch spoke with Ms. Carey, who informed him that she was still married to defendant but that she no longer lived at 4 Riviera Drive East and was living in an apartment. He testified that she told him that there were firearms inside the house, showed him pictures of firearms on her phone, explained where firearms could be found, and offered to enter the house and show the police where to find them. He also testified that she told him that she had taken ammunition from defendant and hid it in the trunk of a vehicle in the garage attached to the house and offered to give the key to that vehicle to the police. Consistent with that testimony, at approximately 3:41 p.m., on the recording from Officer Cimino’s body-worn camera, an officer states that he was informed that there was a vehicle of interest in the garage. Sutch further testified that Ms. Carey told him that she had personal possessions inside the house, a key to the house, was able to come and go from the house as she pleased, and was at the house earlier that day while defendant was there. Ms. Carey was cooperative during this conversation, knew the police were searching the house, and never objected to the police being inside. After BSO officers declared the home safe, Delargy brought Sutch into the house to show him the firearms that they found. Lamonica testified that he was present for some of the conversation between Detective Sutch and Ms. Carey and that she remained cooperative and did not object to police officers entering the house. At approximately 3:48 p.m., Ms. Carey asked him to go into the house and locate her cat to make sure it was safe and had not run out. At approximately 3:50 p.m., Lamonica entered the house to look for the cat. Other officers were also inside the house at that time. Sutch testified that after he observed firearms inside the house he exited and spoke with Ms. Carey again. During that conversation, Ms. Carey signed two documents: a statement and a search of premises consent form. The statement, which was entered into evidence at the hearing, states that Ms. Carey was giving the police consent to search the house at 4 Riviera Drive East, that she remained married to defendant, that she still had personal property inside the house, that she had permission to come and go from the house as she pleased, and that defendant had been assembling firearms inside. The search of premises consent form, which was also entered into evidence at the hearing, states that Ms. Carey owned the house, had been informed of her right to refuse to consent to a search, and was freely and voluntarily giving her consent to search the house for weapons and contraband. Ms. Carey signed the statement and the search of premises consent form at 4:20 p.m. Sutch was not wearing a body-worn camera and his conversations with Ms. Carey were not recorded. After Ms. Carey signed the statement and a search of premises consent form the police re-entered the house to conduct a further search. Ms. Carey went into the house with the police and showed them where she believed they would find firearms. She also went with the police into the garage, unlocked a vehicle, and showed the police the ammunition she had placed in the trunk. Sutch testified that Ms. Carey never objected to the police being inside the house or removing firearms from the house. Sutch testified that she told him she was uncomfortable with the firearms being there and was pleased that the officers were removing them. Sutch then asked her to leave the house so the police could secure and remove any firearms or contraband from the house. The police located and invoiced numerous firearms found throughout the house, including firearms, rifles, assault weapons, large capacity magazines, shotguns, and various parts and attachments for firearms. Lamonica testified that he observed multiple firearms, which he believed to be assault rifles, in a room in the basement. The People entered into evidence photographs of the firearms recovered from the house. No one else was found inside the house after defendant exited it and was taken into custody. Jason Zimmerman, a retired attorney, testified that he was acquainted with Ms. Carey prior to February 16, 2022. That day, sometime between 4:00 p.m. and 4:30 p.m., she called him and told him that the police wanted her to sign a form giving them consent to search the house in which defendant resided and she used to reside. He testified that she told him that she had not been in the house for several months. Zimmerman advised her not to sign the consent form and told her that since she did not live in that house she did not have the authority to consent to a search. Zimmerman asked to speak with the police by phone. He testified that he did not remember the name of the detective he spoke with, but Ms. Carey testified that she put Zimmerman on the phone with Detective Sutch. Zimmerman testified that he told the detective not to ask Ms. Carey to sign the consent form, that she did not live there and did not have the authority to sign it, and that he had advised her not to sign it. The detective said “okay” and ended the call. At approximately 5:00 p.m., Ms. Carey called Zimmerman back. He testified that she sounded upset and complained that the police would not let her into the house to get her cats and she was concerned that the cats would run away. The court credits Zimmerman’s testimony. Darlene Carey testified at the hearing that she and defendant had been married for 27 years. She said they began the process of separating in January of 2022, and she moved out of the house at 4 Riviera Drive East on January 6, 2022. Although she lived there with defendant for the entirety of their marriage until that date, the house belonged to defendant; it was his childhood home, he inherited it from his father, and she was not listed as an owner on the deed. She testified that she moved all her possessions out of the house on January 6th and had no property inside the house on February 16th. She testified that this incident was the third time during her marriage that the police had been called to the house to arrest defendant, but she claimed she did not know that it was unlawful for defendant to possess firearms. Ms. Carey stated that on February 16, 2022, she received a phone call from Veronica Vasold, who said there had been an incident at the house and she was going to call 911. Ms. Carey asked her not to call 911 and drove to 4 Riviera Drive East. Numerous police officers were already in the area when she arrived, including Lamonica. She testified that she was cooperative with the police and answered their questions but claimed that she did so only to get defendant safely out of the house. She also testified that Lamonica never asked her for consent to search the house and she never gave him consent. She further testified that she did not tell Lamonica that she had any personal property left in the house. She testified that she wanted to leave but Lamonica said she had to stay there. The court credits these portions of her testimony because they are generally consistent with Lamonica’s testimony and the recording from Lamonica’s body-worn camera. Ms. Carey also testified that after defendant exited the house and was arrested Lamonica told her she could not leave but allowed her to drive her car closer to the house. She saw that the front door had been broken and approximately fifteen officers wearing tactical gear were coming in and out of the house. She was worried that her cats might run away and that the police might “ransack the house.” Ms. Carey acknowledged that she offered to enter the house with the police to show them where they could find firearms and eventually did so. Ms. Carey further acknowledged that she never asked the police to leave or to stop searching the house. She acknowledged during her testimony that she stated “I know it needs to be done” to Lamonica but claimed that she meant that the police needed to get defendant out of the house, not that she was giving the police her consent to search the house. The court credits these portions of Ms. Carey’s testimony. The court also credits her testimony that Detective Sutch told her that the police would remain at the house and get a search warrant if she would not consent to a search. However, other testimony given by Ms. Carey was not credible. Portions of her testimony were inconsistent with testimony given by Lamonica and Sutch and were contradicted by the recording from Lamonica’s body-worn camera. For example, Ms. Carey testified that she was not free to come and go from the house, that she told Detective Sutch that she was “locked out of the house,” and that defendant “didn’t want [her] anywhere near the house.” But the recording from Lamonica’s body-worn camera established that Ms. Carey possessed keys to the house, offered to open the garage door for the police, and told them that a back door to the house might be open. She also told Lamonica she had been to the house earlier that day to bring defendant medicine and to take him to the doctor but instead told him to go to bed and she rescheduled his doctor’s appointment. Ms. Carey also claimed she told Lamonica that she did not own the house, but that too is not reflected in his body camera recording. Ms. Carey further testified that although she went to the house earlier that day, she did not go inside, and only went around to the back of the house to check on and feed her cat and a feral cat, but that testimony was contradicted by the recording, which established that she told the police she was at the house that morning because defendant was not feeling well and she was going to take him to the doctor, that she had brought him medicine, told him to go back to bed, rescheduled a doctor’s appointment for him, and then left the house. Ms. Carey also denied telling Sutch that she hid ammunition from defendant in a car in the garage. That testimony was incredible in light of Sutch’s testimony to the contrary. Moreover, Ms. Carey acknowledged that she gave the police the key to the car so they could search it without breaking into it. Additionally, the recording from Officer Cimino’s body-worn camera establishes that at approximately 3:41 p.m., an officer reported that he was informed that there was a vehicle of interest in the garage. Ms. Carey also testified that although she signed the consent form, she never read it and was not permitted to read it. That, too, was incredible. It is evident that she was aware of the contents of the form because she called Zimmerman for advice and he advised her not to sign it, and then Zimmerman spoke with Sutch and told him that he was advising her not to sign it. Accordingly, the court does not credit those portions of her testimony. Conclusions of Law I. THE PEOPLE FAILED TO ESTABLISH THAT THE POLICE OFFICERS’ WARRANTLESS ENTRY INTO DEFENDANT’S HOUSE WAS JUSTIFIED BY AN EMERGENCY, A THREAT TO THEIR SAFETY, OR A NEED TO PRESERVE EVIDENCE The People argue that the police lawfully entered defendant’s house because there was an ongoing emergency, even after defendant was arrested, and the police did not know if there was anyone else inside the house and possibly in danger. The People further argue that the police lawfully conducted a protective sweep of the house to ensure the safety of the police and any persons in the area. Defendant argues that any emergency had abated after defendant was arrested and the police lacked articulable facts sufficient to justify entering the house pursuant to either the emergency doctrine or the protective sweep doctrine. A warrantless entry into a house is “presumptively unreasonable.” Payton v. New York, 445 US 573, 586 (1980). However, emergency circumstances, such as an immediate need for the police to protect the life of another person, may justify a warrantless entry into a house. See Brigham City v. Stuart, 547 US 398, 403 (2006). To justify police conduct under the emergency exception, three elements must be met: “(1) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property and this belief must be grounded in empirical facts; (2) the search must not be primarily motivated by an intent to arrest and seize evidence; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.” People v. Doll, 21 NY3d 665, 670-71 (2013). The People have the burden of proving that emergency circumstances justified a warrantless search of a person’s home. See People v. Scott, 133 AD3d 794, 796 (2d Dept 2015). In addition, police officers effecting an arrest may be permitted to enter a house without a warrant and conduct a protective sweep “to ensure their safety and any evidence discovered in plain view may be seized.” People v. Harrell, 208 AD2d 647, 647 (2d Dept 1994); see also People v. Harris, 96 AD3d 502, 503 (1st Dept 2012); People v. McAllister, 35 AD3d 300 (1st Dept 2006); People v. Febus, 157 AD2d 380, 383-385 (1st Dept 1990). The protective sweep doctrine has been extended to circumstances where a defendant is arrested outside of his home where specific, articulable facts supported police officers’ concerns that other persons may be present within the home who could pose a threat to safety or destroy evidence. See e.g. People v. Lasso-Reina, 305 AD2d 121 (1st Dept 2003), lv denied 100 NY2d 595 (2003) (the need for a protective sweep of the house “was not diminished by the fact that defendant was arrested in his backyard”); People v. Andino, 256 AD2d 153, 154 (1st Dept 1998) (police properly conducted a “limited and swift security check of the apartment” immediately following defendant’s lawful arrest in the doorway of that apartment, to determine if there were any individuals present who might destroy evidence or pose a threat to the officers). However, courts have found that a protective sweep is not justified where there are no exigent circumstances justifying a warrantless search or where there is no reasonable belief based on specific and articulable facts that the area to be swept harbors a danger to the police officers affecting an arrest. See e.g. People v. Sears, 165 AD3d 1482 (3d Dept 2018); People v. Harper, 100 AD3d 772 (2d Dept 2012); People v. Bost, 264 AD2d 425 (2d Dept 1999). Here, the evidence at the hearing established that any emergency abated once defendant exited the house and was taken into custody, and the police lacked any specific and articulable facts to suggest either that other persons were present within the house or that it harbored any danger to the officers. There are no facts in the hearing record from which the court could conclude that the police had a founded concern that other persons were present in the house who could have posed a threat to their safety or destroy evidence. Vasold told the police that when she left the house defendant was the only other person there and that an information technology technician who had been working there earlier in the day had left. Moreover, there was no indication from the hearing record that the police or anyone else in or around the house were in danger after defendant voluntarily exited it and surrendered to the police. Although the police had received information that defendant was intoxicated and possessed numerous firearms, there was no evidence that he had threatened anyone with or without a firearm, had discharged any firearm, or that there was even anyone inside the house after defendant exited, much less any person in danger. Notably, Lieutenant Delargy testified that at the time he led the BSO officers for the initial entry to the house he was merely speculating that someone else could have been inside. After defendant voluntarily exited the house he was taken into custody without further incident and there was no testimony that defendant said or did anything to suggest that there was an ongoing emergency inside. See People v. Harper, 100 AD3d 772, 773-774 (2d Dept 2012) (emergency exception did not apply where perpetrators had been apprehended and the police did not have reasonable grounds to believe that any victims were inside the defendant’s apartment, and protective sweep doctrine did not apply because the police did not have facts from which they could reasonably believe that the apartment contained any persons who might post a threat or destroy evidence). Contrary to the People’s arguments, there mere possibility that a person could have entered the house after Vasold left but before the police arrived does not justify their warrantless entry and search of the entire house. The emergency exception “must be narrowly construed because it is susceptible of abuse and may be used to validate an otherwise unlawful arrest or seizure.” People v. Williams, 146 AD3d 906, 908 (2d Dept 2017). If the emergency exception were to be applied so broadly as to encompass the mere possibility of an emergency, rather than requiring some specific and articulable facts establishing an actual emergency or threat to public safety, then the exception would swallow the rule that a warrantless entry into a home is presumptively unreasonable. Moreover, the cases upon which the People rely in support of their argument are readily distinguishable from the instant case because in each of those cases the police conduct was justified by an ongoing emergency. In People v. Richards, 186 AD3d 1720 (2d Dept 2020), the police had rescued a woman and child who had been held at gunpoint inside the house and multiple people exited thereafter so it was unclear whether other persons or armed perpetrators were still inside. In People v. Stanislaus-Blache, 93 AD3d 740 (2d Dept 2012), multiple people exited a basement from which gunshots had been fired. Here, however, prior to entering the house, the police received information that defendant had not threatened anyone with a firearm, was the only person inside the house, and had voluntarily exited the house and was arrested. They received no information that any firearms had been discharged or any persons had been hurt or that anyone else was inside the house. Although defendant clearly presented a significant threat to public safety when he was armed and intoxicated, that threat was neutralized once he voluntarily exited the house and was arrested. Lieutenant Delargy acknowledged as much in his testimony. Accordingly, any fear of an ongoing threat or emergency was based on nothing more than mere speculation and conjecture, which cannot justify a warrantless entry into a home. Furthermore, the People’s reliance on People v. Scott, 133 AD3d 794, is misplaced. In that case, the appellate court held that evidence recovered from the house should have been suppressed because after the police entered the home and arrested the defendant there was no basis for the police to believe that there was an ongoing emergency, even though they had not yet found the firearm they believed the defendant had been carrying. Id. at 797. The court noted that the emergency had ended not only because the police were “in complete control of the house,” but also because the defendant, the sole occupant of the house, who was already in custody, no longer posed a threat to persons or evidence. Id. Here, the police did not need to enter the house to arrest defendant because he voluntarily exited and was taken into custody. Under these circumstances, the emergency ended there, not when the police finally had “complete control” of the house by searching it and determining that there was no one in danger inside. Accordingly, the police officers’ first entry into defendant’s house was not justified by either the emergency doctrine or the protective sweep doctrine. II. THE PEOPLE FAILED TO ESTABLISH THAT THE POLICE REASONABLY RELIED ON THE APPARENT OR ACTUAL AUTHORITY OF DEFENDANT’S WIFE TO CONSENT TO A SEARCH OF DEFENDANT’S HOUSE When the People seek to justify a warrantless search by proof of voluntary consent obtained from a third party, they must establish that that the third party “possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 US 164, 171 (1974); see also People v. Cuencas, _ NY3d _, *4 (2023). Whether a third party has the authority to permit a search of another person’s property depends on whether that third party enjoys “mutual use of the property,” and “access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants 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.” Matlock, 415 US at 171, n. 7. It is the People’s burden to prove, by a preponderance of the evidence, that the facts available to the police would permit a person of reasonable caution to believe that the consenting party possessed sufficient authority and control over the place to be searched. See Illinois v. Rodriguez, 497 US 177, 181 (1990); Cuencas, _ NY3d at *4; People v. Gonzalez, 88 NY2d 289, 295 (1996). If the police could not have reasonably believed that the person had the authority to consent to a search, then “warrantless entry without further inquiry is unlawful unless authority actually exists.” Gonzalez, 88 NY2d at 295, quoting Rodriguez, 497 US 177 at 188-189. If the person’s authority is ambiguous, the police may not reasonably rely on that person’s consent to search without conducting a further inquiry. Gonzalez, 88 NY2d at 296. Generally, the police may reasonably rely on a spouse’s consent to search a defendant’s home where the circumstances reasonably indicate that the spouse lives in the home and has the authority to consent. See e.g. People v. Perulli, 217 AD3d 1133 (3d Dept 2023); People v. D’Attore, 151 AD3d 548 (1st Dept 2017); People v. Britton, 113 AD3d 1101 (4th Dept 2014); People v. Kelly, 58 AD3d 868 (2d Dept 2009). However, it may not be reasonable for the police to rely on a spouse’s consent where the circumstances suggest that the spouse does not live in the home or has been excluded from the home. See e.g. People v. Borrell, 49 AD3d 890 (2d Dept 2008), revd in part on other grounds, 12 NY3d 365 (2009); People v. Yalti, 76 AD2d 847 (2d Dept 1980). On that issue, People v. Adams, 53 NY2d 1 (1981) is instructive. In Adams, the Court of Appeals held that the police reasonably relied on the defendant’s girlfriend’s request and consent to search his apartment under the specific circumstances that existed when they entered the apartment. Id. at 10-11. Similar to the present case, the defendant’s girlfriend had a key to the defendant’s apartment and showed the police a closet where the weapons could be found. Id. at 5. Unlike the present case, however, the girlfriend’s consent was obtained shortly after a police officer saw the defendant holding a gun to a woman’s head, the defendant fired multiple gunshots at the police officer before fleeing into a nearby wooded area, the defendant’s apartment was in the immediate vicinity of the shooting, the defendant remained unapprehended, and the police did not learn that the girlfriend did not live in the apartment until after they searched it. Id. at 5-6, 10-11. In Adams, the court held that the information the girlfriend provided to the police could have created an inference that she lived there, but because it was equally possible that she did not possess the requisite authority and control over the premises to consent to a search, under ordinary circumstances, faced with that ambiguity, the police should have inquired of her further. Id. at 10. It was only because of the exigent circumstances confronting the police that the court reasoned that it was reasonable for them to rely on her apparent authority to consent to a search without conducting a further inquiry. Id.; see Gonzalez, 88 NY2d at 297 (noting that it was only the exigent circumstances in Adams that “excused the failure of the police to make further inquiry into the girlfriend’s authority to consent to the search of the closet in defendant’s apartment.”). Here, the People failed to establish that the information available to the police would permit a person of reasonable caution to believe that Darlene Carey possessed sufficient authority and control over defendant’s house to permit them to search it. Before BSO officers entered defendant’s house, Ms. Carey told the police that she was married to defendant, gave the police information about the layout of the house, stated that she had keys to the house and could open the garage, had at least some access to the house to feed her cat, had been at the house earlier that day, and referred to the house in passing as “home.” However, Ms. Carey also told the police that she and defendant were separated and that when defendant received notice of the separation he threw all of her clothes out of the house. The police were therefore faced with some ambiguity surrounding the extent of Ms. Carey’s authority and control over defendant’s house before they initially entered it, and should have inquired further before relying on her ability to consent to enter and search it. As discussed in section III, supra, Ms. Carey never consented to a search of the house before the BSO officers entered. Although Ms. Carey signed a written consent form afterwards, the information that the police learned from Ms. Carey between the BSO entry and her written consent created further ambiguity about whether she had the authority to consent to a search of the house. In the People’s favor, Ms. Carey told Detective Sutch that she was still married to defendant, had some personal possessions inside the house, had a key to the house, was able to come and go from the house as she pleased, and had been at the house earlier that day. She also told Sutch where firearms could be found inside the house, offered to enter the house and show the police where to find them, and said that she had taken ammunition from defendant and hid it in the trunk of a vehicle in the garage and offered to give the key to that vehicle to the police. However, she also told him that she no longer lived at the house and was instead living in an apartment. Ms. Carey’s statements to the police up to that point — that she no longer lived in the house, that she and defendant were separating, and that defendant had thrown her clothes out of the house — suggested that her authority and control over the house was limited and conditional. Even Ms. Carey seemed uncertain about whether she had the authority to consent to a search, as evidenced by the fact that she called an attorney, Jason Zimmerman, who told her and the police that she did not have the authority to consent to a search of the house. Accordingly, the circumstances surrounding the extent of Ms. Carey’s authority and control over defendant’s house remained ambiguous, at best, up to the point when she signed the consent form, and a person of reasonable caution would not have believed that Ms. Carey possessed sufficient authority and control over defendant’s house to consent to a search. Moreover, unlike in Adams, no exigent circumstances existed to excuse the failure of the police to clarify the situation before entering the house. Here, prior to entering defendant’s house, the police learned that defendant had not threatened anyone with a firearm, that he was the only person inside the house, and that defendant had already exited the house and was under arrest. Under these circumstances, the police should have applied for a search warrant rather than relying on Ms. Carey’s uncertain authority to consent to search defendant’s house, where she no longer lived. At the very least, they should have sought further clarification about the terms and conditions of her access to the house. Finally, the evidence at the hearing did not establish that Ms. Carey had the actual authority to consent to a search of defendant’s house. Ms. Carey testified that the house belonged to defendant, it was his childhood home, he inherited it from his father, and she was not listed as an owner on the deed to the house. In addition, the evidence at the hearing established that Ms. Carey and defendant were separated, that when defendant received notice of the separation he threw all her clothes out of the house, and that she no longer lived there. Although the testimony established that she had at least some access to some areas of the house, there was insufficient evidence to establish that she enjoyed “mutual use” of the house and “access or control for most purposes,” so that it would be reasonable to recognize she had the right to consent to a search of the house and that defendant assumed the risk that she permit a search. See Matlock, 415 US at 171, n. 7; see also Gonzalez, 88 NY2d at 293; People v. Holmes, 89 AD3d 1491, 1492 (4th Dept 2011). III. EVEN IF DEFENDANT’S WIFE HAD APPARENT OR ACTUAL AUTHORITY TO CONSENT TO A SEARCH OF DEFENDANT’S HOUSE, THE PEOPLE FAILED TO ESTABLISH THAT HER CONSENT WAS VOLUNTARY A warrantless search is valid if it is conducted with voluntary consent. See Katz v. United States, 389 US 347, 358 n 22 (1967) (“A search to which an individual consents meets Fourth Amendment requirements…”); People v. Gonzalez, 39 NY2d 122, 127 (1976) (“One of the limited exceptions to the warrant requirement and, indeed, to the requirement of probable cause, is voluntary consent to the search.”). It is the People’s burden to establish that a person’s consent to search was given voluntarily. Gonzalez, 39 NY2d at 128. A consent to search is voluntary when “it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice.” Id. “Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle.” Id. The People cannot satisfy their burden of proving voluntariness merely by showing “capitulation to authority” (Id. at 129) or “acquiescence to a claim of lawful authority” (Bumper v. North Carolina, 391 US 543, 548-549 [1968]). Whether the consent is voluntary or is the product of coercion must be determined from the totality of the circumstances, including whether the alleged consent was given when the person was in police custody, the number of officers present, the extent to which the police restrained the consenting person, the person’s prior experience with law enforcement, whether the person offered resistance or assistance to the police, and whether the police advised the person of the right to refuse consent. See Gonzalez, 39 NY2d at 129. Consent to enter a home, however, is not the same as consent to search it. See People v. Love, 273 AD2d 842, 842 (4th Dept 2000) (consent to enter and “check” a residence did not authorize police to conduct a full search of it); People v. Flores, 181 AD2d 570, 571 (1st Dept 1992) (consent to enter a residence “cannot reasonably be construed as a broad consent for the police to wander at will throughout the entire dwelling.”); see also People v. Gomez, 5 NY3d 416, 419 (2005) (holding that the standard for measuring the scope of a person’s consent to search is one of objective reasonableness). Accordingly, it is the People’s burden in this case to establish that the police obtained voluntary consent not only to enter defendant’s house, but also to search it. Here, even if the People had established that Darlene Carey possessed sufficient authority and control over defendant’s house to permit a search of it, or that the police reasonably relied on her apparent authority to do so, they failed to establish that she voluntarily consented to a search of the house. Before defendant exited his house and surrendered to the police, Ms. Carey never consented to a search of the house; at most, she consented to allow the police to enter the house to arrest defendant. There is no evidence in the hearing record that Ms. Carey explicitly permitted the police to enter the house to conduct a search. Ms. Carey told Lamonica that she had a key to the house and could open the garage door, and discussed with him how they could enter the house and where they could find weapons inside, but that conversation occurred while defendant was still inside the house and had not yet surrendered. Ms. Carey also told Lamonica “I know it needs to be done,” but she testified that she meant that the police needed to get defendant out of the house, not that she was giving the police her consent to search the house. Significantly, despite Lamonica’s testimony that he believed she was giving the police permission to enter the house, he also testified he never directly asked her for her consent and that she did not explicitly give verbal consent. Furthermore, although Lamonica initially testified that his understanding of their conversation was that she was giving the police permission to enter the house and remove the weapons, he later testified that his understanding of that same conversation was that she was only giving the police permission to enter the house to remove defendant from the house, and not to search the house. Under these circumstances, even if it was reasonable for the police to construe Ms. Carey’s statements to permit them to enter the house to arrest defendant and end the standoff, it was not reasonable to construe them as giving permission to search it. Similarly, the mere fact that she later asked Lamonica to enter the house to get her cat cannot be reasonably construed as giving the police permission to search the entire house for weapons. See Love, 273 AD2d at 842; Flores, 181 AD2d at 571. Moreover, the manner in which the police first entered the house is inconsistent with a belief that they had Ms. Carey’s permission to even enter it. Although the video recordings of the BSO officers’ body-worn cameras were not preserved for the hearing, other evidence established that after defendant exited the house and was arrested the police forcibly breached the front door to enter the house and search it. Lieutenant Delargy testified that the officers entering the house would have been equipped with a battering ram, photographs entered into evidence at the hearing established that the front door of the house had been damaged, and Lamonica testified during cross examination that the front door had been damaged when it was breached by BSO officers. In addition, for the reasons discussed in section IV, the court infers from the lost body-worn camera recordings that they would have shown a forcible entry. If the police believed that Ms. Carey had given her consent to enter and search the house, they would not have broken the door. Even if the door was locked, Ms. Carey had a key and a forcible entry would have been unnecessary. In addition, although Ms. Carey later signed a form giving the police consent to search the home, which on its face appeared to be strong evidence of consent, she signed the form after the police had already forcibly entered the house. That fact, and other facts discussed below, established that her consent was not voluntary. Rather, it was the product of submission to police authority. Ms. Carey voluntarily went to defendant’s house and spoke with the police and was generally cooperative and forthcoming throughout her interactions with the police, but most of her conversations with the police came after she indicated to Lamonica that she wanted to leave and Lamonica told her that she needed to stay until further notice. While Ms. Carey was not restrained, she was told that she could not leave, and was confronted with a significant display of force by the police, which included officers wearing tactical gear, a sergeant, an inspector, and a detective, in addition to the numerous armed BSO officers who entered the house and the BearCat parked in front of it. She also saw that the police had forcibly entered the house and broken the front door. Although the search of premises consent form advised Ms. Carey that she had the right to refuse to consent, it was evident that she signed it reluctantly. She called Jason Zimmerman, a friend and retired attorney, to discuss whether she could or should sign that form. He told her that she should not sign it, and spoke to Sutch on her behalf, telling the detective that she could not give consent, but his concerns were ignored. Sutch told Ms. Carey that the police would remain at the house and get a search warrant if she would not consent to a search. Although Ms. Carey ultimately signed the form, and assisted the police with locating firearms inside the house, she did so after the police had already searched the house and found numerous firearms. Ms. Carey was also anxious about her cat and concerned that it would get out of the house while the police were conducting their search. She was also concerned that the police would “ransack the house” during their search. Finally, even though Ms. Carey was aware of a prior incident involving the police and defendant at the house, there was no evidence that she had significant prior experience with law enforcement. Under the totality of these circumstances, the People failed to establish that Ms. Carey’s consent was more consistent with being “a true act of the will, an unequivocal product of an essentially free and unconstrained choice,” than with the result of her “capitulation to authority.” See Gonzalez, 39 NY2d at 128-129; see also People v. Springer, 92 AD2d 209, 214 (2d Dept 1983) (defendant’s consent was not voluntary despite his cooperation with the police because the cooperation was the product of the pressures of law enforcement). IV. THE LOST RECORDINGS FROM THE BODY-WORN CAMERAS OF THE BSO OFFICERS MAY HAVE CONTAINED INFORMATION RELEVANT TO A CONTESTED ISSUE AT THE HEARING; THEREFORE, THE COURT HAS DRAWN AN ADVERSE INFERENCE THAT HAD THE EVIDENCE BEEN PRESERVED, IT WOULD HAVE BEEN FAVORABLE TO THE DEFENSE When material is discoverable under Article 245 of the Criminal Procedure Law but cannot be disclosed because it has been lost or destroyed, “the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that the lost or destroyed material may have contained some information relevant to a contested issue.” CPL §245.80 (l)(b). The remedy or sanction must be “proportionate to the potential ways in which the lost or destroyed material reasonably could have been helpful to the party entitled to disclosure.” Id. Appropriate remedies and sanctions include an order for further discovery, a continuance, reopening a hearing, recalling a witness, instructing the jury that it may draw an adverse inference from the discovery violation, precluding or striking testimony, admitting or excluding evidence, ordering a mistrial, and dismissing charges. CPL §245.80 (2). The court may also issue any other order it deems appropriate under the circumstances. Id. The court does not need to find that the People acted in bad faith to impose an appropriate remedy or sanction. See CPL §245.80 (1), (2). Here, it is undisputed that body-worn camera recordings related to this case have been lost and cannot be recovered or disclosed. Lieutenant Delargy testified that he and all the other BSO officers were also equipped with body-worn cameras but all those recordings had been deleted by the time they were requested. The sole exception was the recording from Officer Cimino’s body-worn camera, which the police department provided to the District Attorney’s Office. The court accepts the explanation provided by the People in their motion papers that the police department inadvertently failed to provide the other recordings to the District Attorney’s Office and those recordings were then automatically deleted by the police department one year from the date of this incident pursuant to their regular protocols. Accordingly, the court finds that although discoverable material has been lost, the People have not acted in bad faith. However, the court finds that the lost recordings would have contained information relevant to a contested issue — the manner in which the police entered and searched the house. Since all the other BSO officers were wearing body cameras, those cameras would have recorded the entry into and search of the house in its entirety. The recording from Officer Cimino’s body-worn camera begins at approximately 2:59 p.m. and ends at approximately 3:47 p.m., but does not depict the initial entry into the house by Delargy or other BSO officers, nor does it depict how those officers searched the rest of the house, or anything that occurred after 3:47 p.m. Cimino did not enter the house until approximately 3:12 p.m. — twelve minutes after the other BSO officers first entered the house — and he remained by the front door and did not join the officers in searching the house until approximately 3:33 p.m. Under these circumstances, the most appropriate sanction is for the court to infer that the lost evidence would have been favorable to the defense for purposes of this hearing. See People v. Viruet, 29NY3d 527, 532-533 (2017) (an adverse inference instruction was appropriate where the evidence at trial demonstrated that lost video recordings could have recorded events relevant to the alleged incident). Accordingly, defendant’s motion to suppress physical evidence seized from his house is granted. This constitutes the decision and order of the court. Dated: December 11, 2023