People v. Jakubowski

100 A.D.2d 112, 472 N.Y.S.2d 853, 1984 N.Y. App. Div. LEXIS 16981
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 6, 1984
StatusPublished
Cited by6 cases

This text of 100 A.D.2d 112 (People v. Jakubowski) 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. Jakubowski, 100 A.D.2d 112, 472 N.Y.S.2d 853, 1984 N.Y. App. Div. LEXIS 16981 (N.Y. Ct. App. 1984).

Opinion

OPINION OF THE COURT

Hancock, Jr., J.

It is well settled under the Fourth and Fourteenth Amendments that “a search conducted without a warrant issued upon probable cause is ‘per se unreasonable * * * subject only to a few specifically established and well-delineated exceptions.’ Katz v. United States, 389 U.S. 347, 357” (Schneckloth v Bustamonte, 412 US 218, 219 [Stewart, J.]); that “one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent” (Schneckloth v Bustamonte, supra, p 219); and that “[w]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntar[113]*113ily given” (footnote omitted) (Bumper v North Carolina, 391 US 543, 548 [Stewart, J.]).

Defendant’s sole argument in this appeal from her conviction on a guilty plea to criminal possession of a weapon, fourth degree, is that the court erred in denying her motion to suppress the weapon seized by police during a warrantless search of her home after obtaining a written consent. We disagree. Without making formal findings the court denied the motion following a hearing at which the significant facts pertaining to the search were related by defendant and David O’Brien, a criminal investigator with the New York State Police who conducted the search. A summary follows.

O’Brien testified that he had arrested one Jerry O’Neal in connection with the burglary of a summer camp owned by Thomas Loveric. O’Neal, on May 11,1981, gave a signed statement implicating defendant and admitting that he and defendant had committed the burglary on February 20,1981 and had taken a tractor, a wood stove, a refrigerator, and other large items plus “some small stuff”. O’Brien, accompanied by another member of the State Police, went to see defendant at her residence, but she was not there. In the driveway, however, attached to a lawnmower believed to have been taken in the burglary, O’Brien found a handwritten note from defendant. In it defendant, who knew she had been implicated in the burglary, explained that someone had brought the mower to her home but that she did not know its origin. The note ended with an invitation to the police “to come and chitchat.”

On June 19, 1981, when they returned to defendant’s home, the two officers met defendant and after giving her Miranda warnings obtained a written waiver of her Miranda rights and a written consent to search the premises reading as follows:

“I, Lucy Jakubowski, having been informed of my constitutional right not to have a search made of the premises hereinafter mentioned without a search warrant and of my right to refuse to consent to such a search, hereby authorize Investigator D. M. O’Brien and Trooper R. J. O’Brien, members of the New York State Police, to conduct a complete search of my premises located at Rt. 16, Franklinville.
[114]*114“These members of the New York State Police are authorized by me to take from my premises any letters, papers, materials or other property which they may desire.
“This written permission is being given by me to the above-named members of the New York State Police voluntarily and without threats or promises of any kind.
“Signed Lucy Jakubowski.”

The two officers signed as witnesses.

Before defendant signed the consent form, O’Brien testified, he told her he was looking for property taken in the Loveric burglary and that he believed (although he was “not positive”) that he showed her a complete list of the property reported stolen which consisted of seven pages covering more than 230 different articles including a kitchen range, a tractor, a stove, and other large units in addition to sundry items such as screwdrivers, toggle switches, a flashlight, extension cords, a crocheted doily, bedding and various types of outer wear. He may have shown her another list as well.

In the search of defendant’s bedroom, O’Brien found marihuana on top of the dresser next to the bed and an Ivers Johnson .22 caliber revolver and ammunition in the top dresser drawer. When he found them, defendant was not with him, he said, but elsewhere in the house. On cross-examination O’Brien stated that defendant had expressed a desire to be present during the search but that he had searched the bathroom and a couple of rooms without her. The house, it appears, was small and, except for the basement, on one level.

Defendant testified that before she signed the consent form she sat with the officers at her dining room table “for the longest time talking” and drinking coffee. She asked Investigator O’Brien what he was looking for. In response he showed her a one-page (not a seven-page) list of the items and, after looking at it, she consented to the search of her house. The only objects on this list that she could recall were a tractor, a refrigerator, a chain saw and wood-burning stoves — “the huge items that were on the list.” Concerning the consent form, she testified:

[115]*115“Q: Now, could you tell The Court briefly what your understanding of this consent was? In other words, what you were consenting to?

“A: My understanding was that he was searching for the items on the list.

“Q: Such as?

“A: Gravley tractor, woodburning stoves, refrigerator. A cook stove.”

And further:

“Q: Did you understand that they would be going through your dresser drawers?

“A: No. I didn’t think a Gravley tractor would fit in a dresser drawer. Any of the items that I was shown.”

As the officers were about to commence their search, some women arrived whom defendant accompanied to her basement where she was holding a “garage” sale. Defendant’s description as to what transpired thereafter is: “I asked him [i.e., Investigator O’Brien] not to go through the house until I came back * * *. They [i.e., the women] were down there chitchatting the longest time and finally they left and when I was down in the basement, I could hear [the officers] walking around upstairs so they had already proceeded to search the house without me up there and I specified I wanted to be there.” Investigator O’Brien had already discovered the weapon and the marihuana when defendant returned from the basement. There is no evidence that defendant, upon learning that O’Brien had searched the dresser, revoked her consent, ordered the search to cease, or made any protest about the nature of the search.

There is no contention that the conduct of the officers was in any way overbearing and no testimony that defendant did not read or understand what was printed on the consent form. Defendant had had prior contacts with the police and had been questioned several times before.

Whether a consent to search was voluntarily given presents a question of fact to be determined from the totality of the circumstances (see Schneckloth v Bustamonte, 412 US 218, 227, supra; People v Gonzalez, 39 NY2d 122, 128), and the People’s burden on this issue is a heavy one (see [116]*116People v Gonzalez, supra, p 128; People v Driscoll, 87 AD2d 996, 997).

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Cite This Page — Counsel Stack

Bluebook (online)
100 A.D.2d 112, 472 N.Y.S.2d 853, 1984 N.Y. App. Div. LEXIS 16981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-jakubowski-nyappdiv-1984.