THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. AARON JOHNSON DEFENDANT APPELLANT (2015)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  On appeal from a judgment convicting him upon a plea of guilty of, inter alia, criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and criminal possession of a controlled substance in the fifth degree (§ 220.06[5] ), defendant contends that County Court erred in refusing to suppress physical evidence and his inculpatory statement.   We reject that contention.

As police officers approached an apartment to execute a search warrant, the validity of which is not at issue on this appeal, they observed defendant standing in the driveway, only 10 feet away from the “wide open” door of the unoccupied apartment.   Officers physically detained defendant while they secured the apartment and, after observing large quantities of cocaine and marihuana in open view on a table in the living room of the apartment, the officers arrested him.   Defendant was brought into the apartment while officers conducted a more thorough search of the premises and, shortly thereafter, defendant identified the cell phone on the table next to the drugs as belonging to him.   When the officers conducted a search of defendant's person incident to arrest, they recovered documents linking him to the apartment.

Contrary to defendant's contention, we conclude that defendant was lawfully detained incident to the execution of the search warrant inasmuch as he was in the “immediate vicinity of the premises to be searched” (Bailey v. United States, _ U.S. _, _, 133 S Ct 1031, 1041).   Although the Supreme Court has not defined “immediate vicinity,” the Court has limited it “to the area in which [a person] poses a real threat to the safe and efficient execution of a search warrant” (id. at _, 133 S Ct at 1042).   Factors to consider include “the lawful limits of the premises, whether the [person] was within the line of sight of his [or her] dwelling, [and] the ease of reentry from the [person's] location” (id.).   In our view, defendant was in the immediate vicinity of the premises to be searched and, therefore, was lawfully detained (see People v. Sanin, 60 N.Y.2d 575, 576–577;  People v. Jackson, 88 AD3d 451, 451–452, lv denied 18 NY3d 884;  cf.  People v. Reyes, 210 A.D.2d 159, 160, lv denied 84 N.Y.2d 1037, cert denied 515 U.S. 1152).

Once the large quantity of drugs and money were located in plain view in the apartment, there was probable cause to arrest defendant inasmuch as it was reasonable to conclude that “only trusted members of the [drug] operation would be permitted to enter an apartment containing a large cache of drugs[ and] money ․ in plain view” (People v. Bundy, 90 N.Y.2d 918, 920;  see People v. Jackson, 44 AD3d 364, 364, lv denied 9 NY3d 991).

As defendant correctly contends, “a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person” (Ybarra v. Illinois, 444 U.S. 85, 91, reh denied 444 U.S. 1049).   Here, however, defendant was not merely near others suspected of criminal activity.   Rather, defendant was the person suspected of criminal activity because he was the only person in or around an open apartment in which large quantities of drugs were located in plain view.   We thus conclude that defendant's reliance on Ybarra is misplaced.

“Because the arrest was supported by probable cause, the police were authorized to search defendant incident to that lawful arrest and thus properly seized the inculpatory paper[s] from defendant's pocket during that search” (People v. Ralston, 303 A.D.2d 1014, 1014–1015, lv denied 100 N.Y.2d 565;  see generally People v. Weintraub, 35 N.Y.2d 351, 354).

Defendant further contends that the court erred in refusing to suppress his statement identifying the cell phone, which was located on the table next to the drugs, as belonging to him.   Relying on Rhode Island v. Innis (446 U.S. 291) and People v. Ferro (63 N.Y.2d 316, 321–323, cert denied 472 U.S. 1007), he specifically contends that the police officers engaged in the functional equivalent of custodial interrogation without the benefit of Miranda warnings when they placed him in an area near the cell phone and questioned him concerning pedigree information.   We reject that contention.   The testimony from the suppression hearing established that the police officers did not in any way draw attention to the phone and “there is no indication that the police acted in a manner that ‘should reasonably have been anticipated to evoke a statement from the defendant’ [concerning the phone] or that the statement [ ][was] not self-generating” (People v. Hann, 198 A.D.2d 904, 904, lv denied 83 N.Y.2d 805, quoting People v. Rivers, 56 N.Y.2d 476, 480, rearg. denied 57 N.Y.2d 775;  see People v. Castro, 73 AD3d 800, 800–801, lv denied 15 NY3d 803;  People v. Arriaga, 309 A.D.2d 544, 545, lv denied 1 NY3d 624;  cf.  Ferro, 63 N.Y.2d at 323).   Finally, the questions of the officers relating only to pedigree information “were not ‘subtly designed to elicit a statement’ from defendant” (People v. Lipscomb, 214 A.D.2d 970, 970, lv denied 86 N.Y.2d 797, cert denied 516 U.S. 1078).

Frances E. Cafarell

Clerk of the Court