Justice John G. Ingram of the Kings County Supreme Court issued a written
decision in People v. Fakoya, Kings Co. Ind. No., 9418/2008 granting the
defendants' motion to suppress all evidence seized by federal agents
during a search of a private apartment. This was a three-defendant Scheme
to defraud, Identity theft, and Grand larceny matter, and the evidence
at issue was "hundreds, maybe even thousands of various personal
records, photos, social security cards, and two computers . . . ."
Fakoya, N.Y. L.J., Oct. 1, 2009 (Ingram, J.).
Identity theft cases may be may be readily proved when such physical and
documentary evidence is recovered; but are likely to fall apart where
such evidence is suppressed.
In Fakoya, a secret service agent and approximately seven N.Y.P.D. officers
arrived at a Brooklyn apartment in an effort to execute a federal warrant
for the arrest of a third party. According to the law enforcement testifiers
(the agent and a single N.Y.P.D. officer), Fakoya answered the door and
after being made aware of the purpose of the visit, made a beckoning gesture
toward the agent and the officers, which law enforcement interpreted as
an invitation into the apartment. The agent quickly checked a bedroom
for the arrest warrant subject and then entered a room where Fakoya and
three other people were seated around a coffee table. The agent began
to question Fakoya and the others concerning the subject's whereabouts.
Id. While questioning these people, the agent noticed, and picked up off
of the coffee table what he thought to be a suspicious I.D. He asked the
apartment occupants who the person on the I.D. was, and they could not
give him a satisfactory answer. According to the testimony, this caused
the agent to become more suspicious and to locate and collect other papers
and documents lying about the apartment. The officers testified that they
continued to search the apartment and find and collect new suspicious
documents and physical evidence along the way. The occupants could not
give satisfactory explanations for the any material the agent was collecting.
After consulting with an Assistant United States Attorney presumably concerning
the nature of the discovered evidence, the agent authorized the N.Y.P.D.
officers to arrest and charge the occupants of the apartment.
Two of the defendants testified at the suppression hearing and gave contradictory
accounts. They each recounted being present in the apartment and hearing
a knock on the door accompanied by profanity-laced orders and commands
from the officers to get on the ground. Neither testifying defendant recalled
anyone in the apartment giving consent to the agent or officers to search
the apartment in any way. One defendant testified that the officers had,
in fact, forced the door and their way into the apartment.
Justice Ingram began his analysis by stating the well-established Payton
rule which allows law enforcement to enter an arrest warrant target's
own residence to execute the warrant, but requires a separate search warrant
to enter and search a third-party residence for such target. Applying
that standard, the court concluded that there was an insufficient showing
that the arrest-warrant target actually resided at the subject premises.
Thus, the issue was narrowed to one of consent to search the apartment.
The court articulated the standards governing consent to search as follows:
The People contend that a search warrant was unnecessary because they had
consent to enter the apartment. When the police claim to have consent
to enter the premises, it is the People’s burden to show that “consent
was in fact voluntarily given, and not the result of duress or coercion,
express or implied.” Bumper v. North Carolina, 391 U.S. 543 (1968);
Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973). There are a variety
of factors that should be examined as a whole when determining the voluntariness
of consent, including, 1) whether the consenter was in police custody
at the time (also including such considerations as number of officers
present and the extent to which they restrained the defendant), 2) the
background of the consenter, including prior experiences with the police,
3) whether or not the consenter offered any resistance to the police,
and 4) whether the police informed the consenter of their right to refuse
consent. People v. Gonzalez, 39 N.Y.2d 122, 128-130 (1976). None of these
factors is individually controlling; rather consent must be determined
from the totality of the circumstances. Id. at 128. Furthermore, such
consent need not be specifically or orally given, but may "be inferred
from an individual’s words, gestures, or conduct." United States
v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir. 1981).”
Fakoya, N.Y. L.J., Oct, 1 2009.
In evaluating the totality of the circumstances, Judge Ingram found that
consent to enter the apartment was not voluntarily given. He looked at
several "factors" that led him to that conclusion:
- The time of the visit ("close to midnight") and the number of
officers and agents present (seven or eight) were "not conducive
to any sort of voluntary consent");
- The fact that the agent's weapon was drawn (and the dearth of testimony
establishing whether any of the other officers present had their respective
weapons drawn) at the time of announcement and initial conversation tended
to negate voluntary consent;
- The agent's failure to recall whether he had informed any of the apartment's
occupants that he possessed an arrest warrant for the third party;
- The fact that the agent and officers did not inform the occupant who answered
the door of his "right to refuse consent" or use a "written
consent" to which he had access during the encounter; and
- The testifying agent's lack of specificity of detail when it came to
the whereabouts and doings of the other officers at the start of the encounter.
Finding all of the factors to weigh in favor of the defendants' position,
the court concluded that "the People have not met their burden to
show that Defendant's consent was in fact voluntary, and therefore
the police had no legal basis for their entry into the apartment. As such,
all the evidence seized as the result of the subsequent search should
be suppressed as the fruits of an illegal search. Nardone v. United States,
308 U.S. 338 (1939), People v. Balian, 49 A.D.2d 94 (4th Dept. 1975)." Id.
Interestingly, the court took its analysis a step further by assuming arguendo
that even if the consent was validly obtained, the scope of the search
should have been limited to additional questioning concerning the arrest
warrant target's whereabouts, but would not include the picking up
of the I.D. off of the table. Rejecting the People's "plain view"
argument, the Court found that since the [I.D.] was not immediately recognizable
as contraband and [the agent] needed to further question the Defendants
before his suspicions were confirmed, the seizure of the driver's
license was not subject to the "plain view" exception to the
search warrant requirement, and should therefore be suppressed. As such,
the other items found as a result of this initial search should be suppressed
as well as "fruit of the poisonous tree." Nardone, 308 U.S.
338 (1939); People v. Balian, 371 N.Y.S.2d 516 (4th Dept. 1975).
Although the issue of the voluntariness of the consent was largely fact-specific,
this case may be of interest to attorneys whose clients seek suppression
of documentary evidence where the "plain view" rule is at issue.
The precedential value of this opinion may not be as strong on account
of the fact that the matter was decided on the issue of consent, but the
Court's reasoning is very persuasive in dicta. Also, the Court's
placement of weight on the officer's failure to inform the occupant
of the "right to refuse consent" and the purposeful disregard
of the readily available written consent form may prove to be fertile
areas for cross-examination in similar cases.