People v. Gordon

36 N.Y.3d 420

166 N.E.3d 514

142 N.Y.S.3d 440

The PEOPLE of the State of New York, Appellant,

v.Tyrone D. GORDON, Respondent.

No. 9

Court of Appeals of New York.

February 18, 2021

OPINION OF THE COURT

WILSON, J..

Over several days, police officers observed Mr. Gordon selling heroin from his home; in addition to the surveillance, undercover officers engaged in drug transactions with Mr. Gordon and conducted a controlled buy using an informant. Based on that information, the court issued a search warrant authorizing a search of Mr. Gordon's "person" and the "entire premises." In the proceedings below, Supreme Court held that although the police had probable cause to search Mr. Gordon and his residence, the warrant did not encompass the search of two vehicles located outside the residence, and the police lacked probable cause to search those vehicles. As a result, Supreme Court ordered the suppression of physical evidence seized from the two vehicles. On appeal, the Appellate Division affirmed, and we now do so as well. Because the search warrant in this case contained no references to the vehicles and the record supports the finding of Supreme Court that the search warrant materials failed to provide probable cause to search the vehicles, the evidence seized therefrom was properly suppressed.

I.

During the course of a narcotics investigation, police officers observed Mr. Gordon and at least one associate selling narcotics from a private residence; on several occasions, Mr. Gordon or an associate exited the residence, walked to the street and delivered an object to a waiting person in exchange for money. As part of the investigation, detectives prepared a search warrant application that alleged the following: (1) on August 13 and August 25, 2015, undercover detectives had engaged in two controlled buys of heroin from Mr. Gordon, (2) a confidential informant had participated in a third controlled purchase from Mr. Gordon, and (3) the detectives had observed several more likely narcotics sales on the evenings of August 25 and 26, 2015. In all cases, the alleged sales followed the same pattern: a car would arrive on the street outside the residence, Mr. Gordon or another person would emerge from the residence, approach the prospective buyer, and then return to the residence a few minutes later.

Based on the surveillance and undercover purchases, the detectives applied for and obtained a search warrant authorizing a search of "the person of Tyrone Gordon ... and the entire premises" from which Mr. Gordon was seen emerging. The warrant was issued on August 28, 2015 and executed one week later. As a result of the search of the residence, the police found a handgun, but a separate individual (not Mr. Gordon) was charged with possession of that weapon. No other contraband was found on Mr. Gordon's person or in the interior of the residence.

The factual materials prepared for the search warrant made no mention of any vehicles associated with Mr. Gordon or the premises as allegedly being involved in the observed criminal activity. Nonetheless, as part of the search of the "entire premises," police officers searched two vehicles found onsite: a Nissan Maxima and a Chevrolet sedan. The Nissan, which was registered to Mr. Gordon's cousin, was parked in the driveway of the residence. From the search of the Nissan, the police retrieved quantities of heroin, cocaine, and assorted drug paraphernalia. The Chevrolet, parked in the backyard behind two fences, was unregistered. A search of the Chevrolet revealed a loaded handgun.

Mr. Gordon was arrested and arraigned on a 9–count indictment. Counts 5 through 9 rested in large part on the physical evidence seized from the two vehicles. In an omnibus motion, Mr. Gordon moved to suppress that evidence. Mr. Gordon based his argument on several of our prior decisions, including People v. Dumper, 28 N.Y.2d 296, 321 N.Y.S.2d 586, 270 N.E.2d 311 (1971) and ( People v. Hansen, 38 N.Y.2d 17, 377 N.Y.S.2d 461, 339 N.E.2d 873 [1975], abrogated on other grounds by People v. Ponder, 54 N.Y.2d 160, 445 N.Y.S.2d 57, 429 N.E.2d 735 [1981] [abrogating automatic standing]). Based on our prior precedent and interpretations thereof by the lower courts, Mr. Gordon argued that the police officers lacked the particularized probable cause necessary to search the vehicles. The factual allegations, Mr. Gordon contended, supported at most a search of Mr. Gordon's person and his residence and not the vehicles located outside the residence.

Supreme Court granted Mr. Gordon's motion to suppress. Supreme Court explained that in New York, a search warrant must list "each specific area of the building, area or vehicle to be searched" and "[p]robable cause must be shown in each instance." Reviewing the warrant materials, Supreme Court concluded that probable cause was lacking in this case because the detective's affidavit made no mention of the vehicles or otherwise "provide[d] any specific probable cause [to believe] that the vehicles were involved in the criminal activity." The Appellate Division affirmed, concurring in Supreme Court's conclusion that "the search warrant did not particularize that a search of the vehicles was permitted" and "probable cause to search those vehicles had not been established in the application for the search warrant" ( 169 A.D.3d 714, 714–715, 91 N.Y.S.3d 716 [2d Dept. 2019] [internal citations omitted]). A Judge of this Court granted the People's motion for leave to appeal ( 33 N.Y.3d 976, 101 N.Y.S.3d 271, 124 N.E.3d 760 [2019] ), and we now affirm.

II.

The parties dispute the proper standards for evaluating the sufficiency of the warrant application and whether the search of the vehicles conformed to the warrant's directives. Mr. Gordon relies primarily on New York precedent; the People look instead to federal caselaw for guidance. The People rely heavily on United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) and several decisions of Federal Courts of Appeals that have determined, under the U.S. Constitution, that a warrant to search an "entire premises" may, under certain circumstances, impliedly authorize a search of automobiles found on the property (e.g. United States v. Pennington, 287 F.3d 739, 745 [8th Cir.2002] ; United States v. Percival, 756 F.2d 600, 611–613 [7th Cir.1985] ).

In Ross, the Supreme Court held that when police officers have probable cause to conduct a warrantless search of the trunk of a vehicle—based on an informant's tip that narcotics were being kept in the trunk of the car—the police may open a paper bag found inside the trunk ( Ross, 456 U.S. at 801, 102 S.Ct. 2157 ). The Supreme Court did not address whether a search of an automobile could be upheld when the information supporting a warrant application is determined by a magistrate to justify the search of a premises but makes no mention of vehicles located on the property. The People and dissent contend that we should extend the reasoning of Ross to hold, as some Federal Courts of Appeals have, that vehicles located outside a residence are no different from any other "closets, chests, drawers, [or] containers" located within ( id. at 821, 102 S.Ct. 2157 ).

Those federal courts extending Ross to automobiles on the theory that an automobile is no different than a paper bag have found difficulty in arriving at a single standard for determining what vehicles may be searched: they disagree regarding whether police officers may search any vehicle found onsite during the execution of a premises warrant or only those vehicles that are "owned or controlled by the owner of ... the premises" ( Percival, 756 F.2d at 600 ; compare United States v. Reivich, 793 F.2d 957, 963 [8th Cir.1986] [exempting "vehicle(s) of a guest or other caller" from the permissible scope of a premises warrant] with United States v. Cole, 628 F.2d 897, 899–900 [5th Cir.1980] [upholding the search of a truck of a third party that arrived on the property during the execution of the premises warrant]).

Ross itself does not govern the situation here, and we are skeptical of the wisdom of the federal appellate cases extending it.¹ Nonetheless, we decline, as a matter of state constitutional law, to adopt either version of the federal rule advocated by the People. As explained below, the constitutional principles we have developed in this area, including judicial monitoring of the search warrant process and the importance of probable cause and particularity, strongly weigh against the People's proposed rule.

III.

A search warrant must be based on probable cause and describe with particularity the areas to be searched (see People v. Rainey, 14 N.Y.2d 35, 38, 248 N.Y.S.2d 33, 197 N.E.2d 527 [1964] ). We have on several occasions addressed the permissible scope of a search based on allegations of illegal activity occurring at a residence or premises (see e.g. People v. Nieves, 36 N.Y.2d 396, 400, 369 N.Y.S.2d 50, 330 N.E.2d 26 [1975] [a person's mere presence on the premises where suspected gambling is occurring is insufficient to justify a search]).

In People v. Rainey, police officers tendered factual allegations sufficient to establish that the defendant's residence likely contained forged or illicit goods. As a consequence, police officers obtained a warrant for the "entire premises" of 529 Monroe Street, notwithstanding the fact that when they applied for the warrant, the police officers knew that the address contained two separate apartments—one belonging to the suspect of the search, the other to an innocent third party. Attached to the third party's apartment was a shed. Acting pursuant to the authority to search the "entire premises," the police canvassed both apartments and the shed, retrieving from the latter a check writer and set of blank checks believed to have been used in the suspect's check-forging activities. The defendant controverted the warrant, arguing that it was "constitutionally deficient for not ...