People v. Febus

157 A.D.2d 380, 556 N.Y.S.2d 1000, 1990 N.Y. App. Div. LEXIS 6969
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 7, 1990
StatusPublished
Cited by20 cases

This text of 157 A.D.2d 380 (People v. Febus) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Febus, 157 A.D.2d 380, 556 N.Y.S.2d 1000, 1990 N.Y. App. Div. LEXIS 6969 (N.Y. Ct. App. 1990).

Opinions

OPINION OF THE COURT

Kupferman, J. P.

Responding with other patrol cars to a radio call that there were three male whites and one male black with guns at a building on East First Street in Manhattan, two uniformed police officers entered the building and began checking the corridors on each floor for armed suspects.

When the officers reached the third floor, a young boy, who looked 13 but turned out to be 15, was seen coming out of an apartment and closing the door, but leaving it slightly ajar ("the door was touching the frame but it was opened”). The boy turned and faced the officers and was seen to be holding $20 and eight glassine envelopes containing a white powder.

Startled upon seeing the officers, the youth threw the envelopes to the floor while making a sudden move to reenter the apartment. Before he could do so, one of the officers, Joseph Parisella, grabbed him, threw him up against the wall and gave him a cursory frisk. Then, while the officer behind him picked up the glassine envelopes and grabbed the boy, Officer Parisella went to the door of the apartment to "see if there were any men with guns in there” and to "investigate why this young boy had drugs and money in his hands”. Unholstering his gun, the officer pushed or tapped at the door, which swung open revealing the defendant and one Michael Elias, who were standing in the corridor 5 to 6 feet from the door. Elias had a black object in his waistband and was holding a clear plastic bag with money and glassine envelopes containing a white powder. Defendant, who looked very nervous, started to approach the door, asking, "What are you doing here? Do you have a warrant?” At the same time, Elias ran into an adjoining room. Officer Parisella pursued him and observed him putting the black object into an open safe that contained several guns as well as additional drugs and drug paraphernalia. Based upon what was in plain sight, the defendant and Elias were arrested. Subsequently, after his suppression motion was denied for lack of standing, Elias pleaded guilty to criminal possession of a weapon in the third degree [382]*382and criminal possession of a controlled substance in the fourth degree.

Defendant’s suppression motion was granted and the indictment dismissed by the hearing court on the ground that, in addition to the absence of any reason for the officer to believe that there were persons inside the apartment, let alone anyone who might destroy evidence, escape or threaten the safety of the officer, there was no indication that any occupants knew of the youth’s arrest. In so ruling, the hearing court found United States v Viera (569 F Supp 1419), a case relied upon by the People, inapposite because, aside from the factual differences (there the officers had entered the apartment with the consent of its occupant), there was no reason for Officer Parisella to believe that there were persons inside the apartment.

Although there seems to be a dearth of case law directly on point in our State courts, a line of cases on the subject has developed in the Federal courts in the Second Circuit, which stand for the proposition that when police officers have lawfully entered premises to effect an arrest, they are entitled to make a quick and limited pass through the premises to check for third persons who may destroy evidence or pose a threat to the officers (United States v Viera, supra, 569 F Supp, at 1427, quoting United States v Vasquez, 638 F2d 507, 530, which quoted United States v Gomez, 633 F2d 999, 1008).

Those cases hold that in order to justify the officers’ warrantless entry into defendant’s apartment after their arrest of the young boy, who had just left it, holding $20 and eight glassine envelopes containing white powder, they must have had a reasonable belief that third persons were inside and a reasonable belief that these persons were or would imminently become aware of the arrest outside the premises so that they might destroy evidence, escape or jeopardize the safety of the officers or the public. (United States v Mejia, 578 F Supp 1541, 1549, affd sub nom. United States v Bermudez, 751 F2d 371.) "Weighing the public interest against the modest intrusion on the privacy of the individual, Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977); Terry v. Ohio, 392 U.S. 1, 20-21 (1968), a security check conducted under the circumstances stated above [later expanded in United States v Mejia, supra, to add imminent discovery of the arrest] satisfies the reasonableness requirement of the Fourth Amendment.” (United States v Agapito, 620 F2d 324, 336, cert denied 449 US 834.)

[383]*383Most recently, in Maryland v Buie (494 US —, —, 108 L Ed 2d 276, 281 [Feb. 28, 1990]), the Supreme Court upheld a "protective sweep” which it defined as "a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” Rather than applying the stricter probable cause standard, the court concluded that the Fourth Amendment permitted the protective sweep undertaken if the searching officer " 'possesse[d] a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[ed]” the officer in believing,’ Michigan v Long, 463 U.S. 1032, 1049-1050 (1983) (quoting Terry v Ohio, 392 U.S. 1, 21 (1968)), that the area swept harbored an individual posing a danger to the officer or others” (supra, 494 US, at —, 108 L Ed 2d, at 282).

The facts here differ from those in Buie (supra) where the police executed an arrest warrant at Buie’s house. Upon entering the house, 1 of the 6 or 7 officers involved went to "freeze” the basement so that no one could come up and surprise the officers. As a result of the officer’s shouts into the basement, ordering anyone down there to come out, Buie emerged and was arrested, searched and handcuffed. Another officer then entered the basement, "in case there was someone else” down there, and found, lying in plain view on a pile of laundry, a running suit, which was the subject of Buie’s suppression motion;

Although a radio call of "men with guns”, standing alone, has almost no legal significance and does not justify intrusive police action, such action may be appropriate when considered in conjunction with other supportive facts including factors rapidly developing or observed at the scene. (People v Benjamin, 51 NY2d 267, 270.) Here, the basis for the officers’ action emanated not from the radio call, but from their arrest of the young boy as he left defendant’s apartment holding money and drugs in his hands. The question then is what justification did Officer Parisella have for pushing open the already slightly ajar door of defendant’s apartment?

We are all too often reminded by newspaper headlines of the dangers inherent in drug enforcement (3 Officers Shot, One Fatally, in Lower East Side Drug Deal, New York Times, Mar. 6, 1990, at Bl). In fact, almost six years ago, this court took [384]

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Cite This Page — Counsel Stack

Bluebook (online)
157 A.D.2d 380, 556 N.Y.S.2d 1000, 1990 N.Y. App. Div. LEXIS 6969, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-febus-nyappdiv-1990.