DECISION AND ORDER I. Background and Procedural History By indictment filed November 15, 2023, defendant is charged with two counts of criminal possession of a weapon in the second degree (PL §265.03 [1] [b] and [3]), both class C violent felonies, criminal possession of a weapon in the third degree (PL §265.02 [1]), a class D felony, criminal possession of a firearm (PL §265.01-b [1]), a class E felony, menacing in the second degree (PL §120.14 [1]), criminal mischief (PL §145.00 [1]) and endangering the welfare of a child (PL §260.11 [1]). These charges stem from events alleged to have occurred on November 2, 2023, at approximately 7:20 p.m., in the vicinity of 110th Avenue and Guy R. Brewer Boulevard in Queens County. Defendant moves to suppress a Diamond-back .380 caliber pistol, a cartridge of ammunition, a safe, and a prescription receipt bearing his name and date of birth on the grounds they were obtained without requisite probable cause and, therefore, are the fruits of an unlawful search. By decision and order dated July 2, 2024, this Court ordered that a Mapp/Dunaway hearing be conducted, which commenced on October 9, 2024, continued on October 23, 2024, and concluded on November 1, 2024. After receiving robust oral arguments, this Court reserved its decision. Defendant subsequently filed a supplemental memorandum of law, dated December 16, 2024, made part of the record before this Court. Based upon the evidence presented, the parties’ arguments, prior court proceedings, and documents on file with the court, defendant’s motion to suppress is GRANTED. II. Findings of Fact At the hearing, the People called two witnesses: New York City Police Department (NYPD) Police Officer Kevin Donato (PO Donato), assigned to the 103 Precinct, and NYPD Police Officer Vincent D’Andraia (PO D’Andraia), also with the 103 Precinct. Defendant called one witness: Karline Ramsey (Mrs. Ramsey). This Court finds the testimony of all witnesses credible to the extent indicated and is summarized as follows. Though not exhaustively reflective of the full hearing record, this Court summarizes its findings of fact and conclusions of law as noted. Issues necessitating suppression are decided as a matter of law. PO Donato, a five-year-and-three-month veteran of the NYPD, testified that on November 2, 2023, at approximately 7:40 p.m., he and his partner, PO D’Andraia, responded to a radio run involving an individual with a firearm, who had engaged in criminal mischief before fleeing in a black sedan in the vicinity of 110th Avenue and Brewer Boulevard. Upon arriving at 171-17 107th Avenue, PO Donato canvassed the area. While doing so, he observed two officers in an unmarked police vehicle performing a traffic-related stop of a black sedan Tesla with a New Jersey plate and arresting defendant. Upon speaking with Detective Contee (Det Contee), one of the arresting officers, PO Donato learned defendant had exited the residence at 171-17 107th Avenue, entered the vehicle, and traveled westbound on 107th Avenue before stopping the vehicle. PO Donato and Det Contee knocked on the door to 171-17 107th Avenue. Defendant’s father, Mr. Ramsey, opened the door and said he lived there with his wife. PO Donato asked if they could speak inside because of the freezing temperatures. Once inside, they followed Mr. Ramsey to the upstairs apartment. PO Donato entered with two other officers. There, PO Donato met defendant’s mother, Karline Ramsey (Mrs. Ramsey), who appeared to be in her late fifties or early sixties. PO Donato engaged Mrs. Ramsey in conversation and explained that the police had reason to believe a firearm was inside the apartment. Mrs. Ramsey indicated that defendant had just come upstairs for money before leaving and that he occasionally stayed in the back room. PO Donato told Mrs. Ramsey he could obtain a search warrant but added that if he did, everyone residing there would need to leave until the process concludes. He further told her that if he had to get a warrant and discovered a firearm, anyone registered to live there could be arrested and charged with its unlawful possession. Alternatively, he said, she had the right to provide officers with her consent to search the apartment, in which case she and her family could remain. PO D’Andraia, a ten-year veteran of the NYPD, testified that on November 2, 2023, at approximately 7:40 p.m., he and his partner, PO Donato, responded to a radio run involving an individual with a firearm, who had engaged in criminal mischief before fleeing in a black sedan in the vicinity of 110th Avenue and Brewer Boulevard. Later, while at 171-17 107th Avenue, PO Donato asked him to bring a consent to search form to the apartment. Upon entering, PO D’Andraia observed multiple officers, including PO Donato. There, he assisted PO Donato in explaining to Mrs. Ramsey that if they had to obtain a search warrant, they would be required to “freeze” the location, everyone would need to leave, and, once issued, if they discovered anything illegal, everyone in the apartment could be arrested. PO D’Andraia also specifically testified that Mrs. Ramsey hesitated to sign the consent to search form, asking officers to wait because she was doing research. In fact, at one point, the body-worn camera captures Mrs. Ramsey on the phone with an unknown individual asking about signing the form. Eventually, she signed it. Later, while searching the premises, PO D’Andraia recovered a black firearm. Mrs. Ramsey testified that on November 2, 2023, at approximately 7:30 p.m., defendant called her to the window and asked her to send money through the window. Since she was not feeling well, she asked him to come upstairs so she could hand it to him at the door. He did, and after handing him the money, defendant went back downstairs. Soon after, police officers arrived and entered the apartment, explained they were there in response to allegations involving her son and a firearm, and asked for her consent to search the apartment. Mrs. Ramsey clearly and specifically testified that she wanted to consult with an attorney or someone else before signing the consent to search form. At that point, officers told her that if she did not sign the consent form, they would be required to “freeze” the location, which entailed everyone residing there to leave. Officers also told her if they obtained a search warrant, they would “ransack the entire house while searching it.” Worse, Mrs. Ramsey testified, was that officers told her if they found contraband, they would arrest everyone in the house. Upon hearing everything, Mrs. Ramsey testified that she felt pressured and coerced to sign the consent to search form. Eventually, she did. Mrs. Ramsey explained that she could not afford the house to be “frozen” and needed to go to work, especially after being out of work for four months. DVDs of PO Donato’s and PO D’Andraia’s body-worn camera footage and a copy of the consent to search form were received in evidence. Portions of the body-worn camera footage were played in open court. III. Conclusions of Law A. Probable Cause Initially, the People have the burden of commencing a suppression hearing by presenting evidence of probable, or reasonable, cause to show the legality of the police conduct (People v. Baldwin, 25 NY2d 66 [1969]; People v. Malinsky, 15 NY2d 86 [1965]). Once the People have met this burden, it is the defendant that bears the burden of proving any illegality of the police conduct (People v. Berrios, 28 NY2d 361 [1971]; People v. Baldwin, 25 NY2d 66 [1969]). In sustaining their burden of establishing reasonable cause, the People must demonstrate that the attendant circumstances, coupled with the defendant’s behavior, justified the arresting officers’ intrusion. Such intrusion, of course, must comport with the four-tier approach articulated in People v. DeBour (40 NY2d 210, 223 [1976]). DeBour’s first level of intrusion permits a law enforcement officer to approach a citizen and request information provided that an objective, credible, and articulable reason exists, not necessarily indicative of criminality. The second level, the common-law right of inquiry, permits a momentary stop when there is a “founded suspicion that criminal activity is afoot” (DeBour, 40 NY2d at 223). Under the third level, an officer may forcibly stop and detain a person when there is reasonable suspicion that the individual has been involved in criminal activity. Finally, an officer may affect a full-blown arrest when there is probable cause to believe that an individual has, is, or is about to commit a crime (DeBour at 223). When the police arrest an individual without a warrant, the People bear the burden of providing the court with demonstrable facts sufficient to show probable cause existed for that individual’s arrest (People v. Dodt, 61 NY2d 408, 415 [1984]; see also People v. Guthrie, 25 NY3d 130, 133 [2015]). However, a defendant has the ultimate burden to establish the illegality of the police conduct and to demonstrate that the evidence should not be used against them (see Berrios, 28 NY2d at 367). Probable cause exists if a reasonable person who possesses the same expertise as the arresting officer would conclude that the defendant is or was committing a crime (see Guthrie, 25 NY3d at 133, quoting People v. Bigelow, 66 NY2d 417, 423 [1985] [explaining probable cause requires "merely information sufficient to support a reasonable belief that an offense is being committed"], and citing Ornelas v. United States, 517 US 690, 696 [1996]). Here, probable cause to arrest defendant was based on several factors, most notably that the firearm was discovered in defendant’s residence, from which he was observed leaving minutes earlier. But more significantly, a 911 caller reported that her car had been vandalized by a “male black” who displayed a firearm. Interestingly, this allegation, by itself, would only provide sufficient probable cause if linked to him. And to be clear, nothing in the record connects him with the commission of criminal mischief, let alone displaying a firearm. While POs Donato and D’Andraia noted that a “male black” was seen driving in a black Tesla Sedan bearing New Jersey plates, the record lacks any specificity regarding him or his vehicle. Thus, irrespective of whether sufficient information existed regarding the vehicle justifying them to conduct a level-two inquiry, the record is devoid of anything that would have entitled officers to arrest defendant. B. Consent to Search a. Exception to the Warrant Requirement Once valid consent to search a person, object, or premises is given, probable cause to search is not required (People v. Hodge, 44 NY2d 553 [1978]; People v. Campbell, 271 AD2d 693 [2nd Dept 2000]). And, not surprisingly, in relying on consent as an exception to the warrant requirement, the People bear the heavy burden of proving the voluntariness of such consent (People v. Whitehurst, 25 NY2d 389, 391 [1969]; People v. Poinvil, 47 Misc 3d 79 [App Term, 2d Dept, 11th & 13th Jud Dists 2015]). Consent to search is considered voluntarily “when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice” (People v. Gonzalez, 39 NY2d 122, 128 [1976]). Although there is no bright-line voluntariness test, its determination is a question of fact that must be based on the totality of circumstances present (United States v. Isiofia, 370 F3d 226 [2nd Cir 2004]; People v. Muhammad, 181 AD3d 1182 [4th Dept 2020]). In determining a suspect’s voluntary consent, factors courts have considered are: (1) whether defendant was under arrest or in custody at the time consent was given (Gonzalez, 39 NY2d 122 [1976]; People v. McKenzie, 263 AD2d 778 [3rd Dept 1999]; People v. Chou, 203 AD2d 299 [2nd Dept 1994]); (2) threats or coercive actions by police (People v. Loria, 10 NY2d 368 [1961]; People v. Basden, 286 AD2d 1011 [2nd Dept 2001]); (3) the background of the suspect (Gonzalez, 39 NY2d 122 [1976]); Matter of Daijah D., 86 AD3d 521 [1st Dept 2011]); (4) deception by police (People v. Matta, 76 AD2d 844 [2nd Dept 1980]); and (5) the scope and objective reasonableness of the consent (People v. Gomez, 5 NY3d 416 [2005]). In some cases, however, such as here, consent is given by a third party who shares authority or access over the premises with the defendant, not by the defendant himself. b. Third Parties While a co-occupant of a premises may provide police with consent to search for evidence, such consent will be invalid when the co-occupant defendant is physically present and refuses to consent (Georgia v. Randolph, 547 US 103 [2006]). But the onus is on such co-occupant to unequivocally object; police have no affirmative duty to inquire (United States v. Lopez, 547 F3d 397 [2nd Cir 2008]; People v. Watson, 101 AD3d 913 [2nd Dept 2012]). Consent from one occupant will even be sufficient when a non-consenting defendant occupant has been removed from the premises for an objectively reasonable purpose (Fernandez v. California, 571 US 292 [2014]). If, however, the non-consenting occupant voluntarily leaves the premises, such refusal is effectively withdrawn, and the remaining occupant’s consent will be deemed valid (People v. Grillo, 128 AD3d 1103 [3rd Dept 2015]). Thus, where, as here, a defendant shares common authority, access, and control with a family member or spouse, such individual may consent to a search of the shared premises unless that defendant is physically present and refuses consent (People v. Carter, 30 NY2d 279 [1972]). Here, Det Contee informed his fellow officers that he observed defendant leave Mrs. Ramsey’s residence before entering the black Tesla. This led officers to go there. When they did, defendant was neither physically present nor observed entering. Notwithstanding the record’s absence that the defendant lived there, Mrs. Ramsey testified that he occasionally stays there and has a bedroom there. In the context of parental authority, parents may generally consent to searches of their child’s room even if both the room and its contents were used exclusively by the child. This is based on a parent’s superior right to maintain order and protect the family home from criminal activity. But a non-parental family member’s authority to consent is significantly more limited than a search of a defendant’s common access and use areas. When a non-parent family member exclusively uses a room in a residence, another family member has no authority to consent to a search of that room — even if that family member is a defendant’s spouse (People v. Jackson, 105 AD3d 866 [2nd Dept 2013]; People v. Bran, 82 AD3d 1000 [2nd Dept 2011]; People v. Daniels, 22 AD3d 678 [2nd Dept 2005]). When two individuals share a bedroom or closet, however, either party has the authority to consent to the search (People v. Loomis, 17 AD3d 1019 [4th Dept 2005]; People v. Castillo, 131 AD2d 495 [2nd Dept 1987]). This is particularly true regarding spouses because even if one spouse exclusively uses an object, it cannot be concluded that there is no risk the other spouse will not make use of it. As such, one spouse can consent to a search of the other spouse’s dresser drawers (People v. Jackson, 170 Misc. 2d 478 [Crim Ct. NY County 1996]; see also People v. Kelly, 58 AD3d 868 [2nd Dept 2009]). c. Apparent Authority Where a third party ostensibly has the requisite degree of access and control over the premises to be searched, an officer may reasonably rely on such consent — even if they lack actual authority (Illinois v. Rodriguez, 497 US 177 [1990]; People v. Adams, 53 NY2d 1 [1981]). Such reasonable belief must be based on an objective view of the circumstances, and the officer must inquire into the consenting party’s control over the premises or property to be inspected (People v. Russo, 201 AD2d 940 [4th Dept 1994]). Nevertheless, this aptly named “apparent authority doctrine” applies only when those circumstances, if true, would justify the search as a matter of law. In other words, if that which the officer relied on regarding a person’s authority to consent were true but would not grant them an actual right to consent, then such consent is invalid. When a person has actual authority to consent to a search, however, it is unnecessary to determine whether sufficient objective indicia of apparent authority existed and whether the officer possessed a reasonable belief and made an inquiry (People v. Lopez, 291 AD2d 279 [1st Dept 2002]). But notably, if a defendant challenges the consenting party’s actual authority, the doctrine of apparent authority may still be invoked (People v. Toro, 198 AD2d 532 [2nd Dept 1993]). Here, defendant does not dispute that Mrs. Ramsey had actual authority to consent to the search of the apartment — including the bedroom. Indeed, Mrs. Ramsey signed a written form consenting to its search (see People’s Exhibit 3). It was, however, anything but an unequivocal product of an essentially free and unconstrained choice. True, some appellate courts have ruled that an officer may lawfully threaten a defendant or a family member with adverse legal consequences, provided the officer has a legal basis for such threats and does not vitiate the voluntariness of the defendant’s consent (People v. Rivera, 213 AD3d 420 [1st Dept 2023]; People v. Rodriquez, 189 AD3d 2122 [4th Dept 2020]; People v. Yoneyama, 128 AD3d 616 [1st Dept 2015]; People v. Storelli, 216 AD2d 891 [4th Dept 1995]). For instance, where a police officer threatens a defendant with obtaining a search warrant unless they consent to a search, such consent may be valid if they knowingly and intelligently decide to accept its consequences rather than face a search warrant’s broader implications (People v. Pagan, 134 AD3d 1232 [3rd Dept 2015]; People v. Yuruckso, 297 AD2d 299 [2nd Dept 2002]). But PO Donato’s and PO D’Andraia’s conduct went beyond simply threatening defendant with securing a warrant where he could knowingly and intelligently choose to accept the consequences of a consent search. Rather, their conduct — directed toward his mother, suspected of nothing — polluted any voluntariness to consent she ostensibly gave. While the record establishes defendant’s connection to the residence, it fails to link him to the 911 caller’s complaint that a black male possessed a firearm. Indeed, all it establishes is that he was observed driving a black Tesla with New Jersey license tags. Although an officer may threaten adverse legal consequences in certain situations, eliciting consent to a search is invalid if officers lack probable cause to obtain a warrant. (People v. Barner, 221 AD3d 1493 [4th Dept 2023]). Most strikingly, though, when PO Donato and PO D’Andraia told Mrs. Ramsey why they were there and attempted to elicit her consent to search, she expressed a desire to first consult with an attorney or someone else, even calling her sister in their presence. Yet, they persisted. They repeatedly insisted there was sufficient probable cause to obtain a warrant, which was not a foregone conclusion. They repeatedly let it be known that getting a warrant would require them to “freeze the scene,” effectively leaving her and her husband outside in the cold. And there is more. PO Donato admitted he explicitly told Mrs. Ramsey if they were to discover contraband during the warrant’s execution, he would search the NYPD databases for everyone connected to the residence, and all of whom, including her and her husband, would face arrest and prosecution. As if this insufficiently strong-armed her consent, Mrs. Ramsey testified that one of the reasons she felt compelled to sign the consent to search form was telling her if they had to get a warrant, they would “ransack the entire house while searching it.” Such unvarnished bullying axiomatically undermines the validity of her consent (People v. Goldsmith, 76 AD2d 843 [2nd Dept 1980]). This Court, having meticulously reviewed the credible testimony and viewed the body-worn camera footage capturing their indecorous conduct, finds it bespeaks volumes they effectively coerced Mrs. Ramsey into consenting to a search of her residence, thus rendering it involuntary. Consequently, all evidence obtained from the search warrant’s execution, including the firearm, must be suppressed. IV. Conclusion Accordingly, this court finds that by viewing the evidence in the light most favorable to the People (see People v. Williams, 84 NY2d 925 [1994]; see also People v. Contes, 60 NY2d 620 [1983]), they failed to satisfy their burden of demonstrating that defendant’s arrest and recovery of physical property, were lawful. The defendant’s motion to suppress is, therefore, GRANTED in its entirety. This constitutes the decision and order of the court. Dated: January 6, 2025
