The opinion of the court was delivered by: Mercure, J.P.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Calendar Date: September 3, 2008
Before: Mercure, J.P., Peters, Rose, Lahtinen and Kane, JJ.
Appeal from an order of the County Court of Tompkins County (Rowley, J.), entered February 15, 2008, which granted defendant's motion to suppress certain evidence and dismissed the indictment.
Following her arrest in the City of Ithaca, Tompkins County, for possession of narcotics, the then 16-year-old defendant was charged in an indictment with criminal possession of a controlled substance in the third degree and false personation. She thereafter moved to suppress evidence obtained when three police officers, acting on an anonymous tip, searched her hotel room, revealing two small bags of marihuana, 12 individually wrapped pieces of crack cocaine, and a school identification card. Testimony during the suppression hearing revealed that upon receiving the anonymous tip, three officers proceeded to defendant's hotel room at approximately 1:15 A.M., without conducting a preliminary investigation regarding the alleged drug activity at the hotel. The officers knocked on the door and, when defendant who was alone in the room and wearing sleeping attire answered, one of the officers informed her that they had "received a call about drug dealing." After defendant denied possession or having any knowledge of drugs and gave the officers a name that later proved false, one of the officers asked defendant "if she minded that we come inside the room to look around," and defendant agreed.
Although the officers did not observe any criminal activity or drugs in plain view, one officer searched defendant's purse allegedly upon consent. The search revealed two small bags of marihuana and a school identification card with defendant's picture and real name. The officers then allegedly handcuffed defendant and threatened to bring dogs to search the room if she did not sign a consent-to-search form. Defendant signed the form, and a further search revealed the 12 pieces of crack cocaine.
Relying on People v De Bour (40 NY2d 210 ), County Court concluded that the officers lacked a founded suspicion to ask permission to look around the hotel room and search defendant's purse, and, thus, the subsequent search of the room was illegal. The court declined to resolve "defendant's claim of involuntariness with regard to her consent to the search," granted defendant's motion to suppress the evidence, and dismissed the indictment. The People appeal, and we now reverse and remit.
County Court erred in applying the level 2 common-law right to inquire standard set forth in People v De Bour (40 NY2d 210 , supra) in resolving defendant's suppression motion. As the Court of Appeals has repeatedly explained, the "purpose [of] De Bour was to provide clear guidance for police officers seeking to act lawfully in what may be fast-moving street encounters and a cohesive framework for courts reviewing the propriety of police conduct in these situations" (People v Moore, 6 NY3d 496, 499  [emphasis added]; see People v Turriago, 90 NY2d 77, 83 ; People v De Bour, 40 NY2d at 223; see generally People v Dunbar, 5 NY3d 834, 835 ). Here, in contrast, the search took place in a hotel room and, thus, the issue is whether the warrantless search of defendant's hotel room was lawful (see e.g. People v Oldacre, 53 AD3d 675, 677 ; People v Gittens, 34 AD3d 693, 694 , lv denied 8 NY3d 880 ; People v D'Antuono, 306 AD2d 890, 890 , lv denied 100 NY2d 593 , cert denied 541 US 994 ). That is, the critical question is not whether the police had a founded suspicion that justified their knocking on defendant's door and asking her whether they could look around her hotel room; the concept of founded suspicion is irrelevant here. Rather, the relevant question to be resolved is whether "[o]ne of the limited exceptions to the warrant requirement and, indeed, to the requirement of probable cause, [applies ] voluntary consent to the search" (People v Gonzalez, 39 NY2d 122, 127  [emphasis added]; see People v Oldacre, 53 AD3d at 677; People v Gittens, 34 AD3d at 694; People v D'Antuono, 306 AD2d at 890; see also People v Johnson, 17 AD3d 932, 934 , lv denied 5 NY3d 790 ; People v Fells, 279 AD2d 706, 709 , lv denied 96 NY2d 758 ; People v McKenzie, 263 AD2d 778, 779 , lv denied 93 NY2d 1045 ; cf. People v Dunbar, 5 NY3d at 835; People v Boyea, 44 AD3d 1093, 1094-1095 ; but see People v Marshall, 5 AD3d 42, 45-46 , lv denied 2 NY3d 802 ; People v Cesar, 111 AD2d 707, 711 , appeal dismissed 67 NY2d 752 ).
In response to the concurrence, we note that citizens in their homes are, in fact, entitled to greater protection than those on the street. "Governmental intrusion into the privacy of the home is, with limited exceptions, prohibited by constitutional limitations in the absence of a valid search warrant" (People v Gonzalez, 39 NY2d at 127 [citation omitted]). As noted, a De Bour-type analysis was never intended to apply and may not properly be applied to criminal investigations at a residence. Rather, a warrant supported by probable cause a more exacting standard than founded suspicion is required before such investigations will be permitted; in the absence of a warrant, governmental intrusion into the privacy of the home will not be permitted unless an exception to the warrant requirement applies (see People v Gonzalez, 39 NY2d at 127).
As the People assert, County Court expressly declined to reach the issue of whether consent was voluntarily given, such that the consent exception to the warrant requirement was applicable here. Accordingly, we reverse and remit this matter to County Court for a determination of whether defendant voluntarily admitted the officers into the hotel room and consented to any of the searches thereafter performed. In that regard, the circumstances of the initial police intrusion here that trouble the concurring justices in addition to, among other things, defendant's age, prior contact with police, and whether she was adequately advised of her right to refuse consent are factors to be considered in determining the voluntariness of the consent (see id. at 128-130).
Peters and Lahtinen, JJ., ...