In re Leroy M. , 16 N.Y.3d 243 ( 2011 )

OPINION OF THE COURT

Pigott, J.

In January 2008, officials at a school in the Bronx discovered that a laptop computer, valued at almost $1,500, was missing. Fortunately, the computer was equipped with tracking software designed to facilitate its recovery. Using that software, the police were able to trace the computer to an address in the Bronx.

Police officers went to the address, a single-family dwelling, in the middle of the afternoon. Once there, they entered the vestibule of the house without ringing the doorbell or otherwise announcing their presence.

Inside the vestibule, one of the officers knocked on an inner door separating the vestibule from the rest of the home. Respondent’s sister, who had heard the officers enter the vestibule, welcomed the officers inside, saying “Thank God you’re all here.” When asked whether respondent was at home, she answered affirmatively, explaining that her brother had been “acting up” and cursing at her mother, and that she “was going to call [the police] anyway, if [her brother] kept it up.”

The sister then directed the officers up the stairs, to a bedroom where they encountered a young man, not the respondent, with a laptop. When asked whether it was his laptop, the young man answered that it was not. At this point, respondent entered the room and, according to one of the officers, said, “That’s my laptop. My friend stole it.” Respondent, who was 15 years old at the time, was arrested and charged with committing an act that, if committed by an adult, would constitute the crimes of fourth-degree and fifth-degree criminal possession of stolen property.

Respondent moved to suppress all evidence obtained by the police at his residence on the ground that they had entered without a warrant, permission to enter, or exigent circumstances. The Presentment Agency maintained that respondent’s sister had consented to the entry.

Following a suppression hearing, Family Court denied respondent’s motion, concluding that the Presentment Agency had met its burden of proving that the police had consent to enter the premises. In particular, Family Court found that the sister’s consent had not been coerced or otherwise invalidated. After a fact-finding hearing, Family Court found that respondent had committed an act that, if committed by an adult, would constitute fifth-degree criminal possession of stolen property, adjudicated him a juvenile delinquent, and placed him with the Office of Children and Family Services for 12 months.

The Appellate Division reversed Family Court’s order of disposition. It held that the officers’ “intrusion over the threshold of the home was unlawful” (65 AD3d 500, 501 [2009]), and that the Presentment Agency had not met its burden of showing that the sister’s consent was both voluntary and “sufficiently distinguishable” from the entry to be purged of any illegality (id. at 501-502). The court did not pass on the question whether the sister’s consent was voluntary, instead resting its decision on a lack of attenuation of the illegal entry. We granted leave to appeal (13 NY3d 717 [2010]) and now reverse.

For purposes of this appeal, the Presentment Agency concedes that the entry into the vestibule was illegal, and respondent concedes that his sister’s consent was voluntary. The Presentment Agency argues attenuation, asserting that respondent’s sister’s consent was “sufficiently distinguishable” from the concededly illegal entry so as to be purged of the taint of the illegality (Brown v Illinois, 422 US 590, 599 [1975]).

In deciding whether voluntary consent attenuated the taint of illegal police action, a court must give consideration to a variety of factors, including

“the temporal proximity of the consent to the [illegal police action], the presence or absence of intervening circumstances, whether the police purpose underlying the illegality was to obtain the consent or the fruits of the search, whether the consent was volunteered or requested, whether the defendant was aware he could decline to consent, and particularly, the purpose and flagrancy of the official misconduct” (People v Borges, 69 NY2d 1031, 1033 [1987]; see Brown, 422 US at 603-604).

Such factors enable the court to decide “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint” (Brown, 422 US at 599). Here, under Borges, the sister’s consent attenuated the taint of the initial unlawful entry into the vestibule as a matter of law.

This is so because of, among other things, the sister’s unsolicited welcoming of the officers into her home. Upon seeing the officers, the sister exclaimed, “Thank God you’re all here”—not the response of someone intimidated into allowing the police into her home. Indeed, the sister testified that she would have summoned the police anyway, had her brother continued to act disrespectfully to their mother. The testimony of both the officers and the sister established that her consent was volunteered and not given upon request.

Further, the fact that the consent came close on the heels of the initial illegality—the factor heavily relied upon by the Appellate Division—is not dispositive of attenuation here, particularly where the person giving the consent is not the subject of the police action. In reaching its conclusion, the Appellate Division considered only the temporal relationship between the illegality and the consent, and ignored the fact that the sister’s consent was volunteered, rather than requested, and that she was not the subject of the police investigation. The mere fact that, in other situations, the passage of time has supported a finding of attenuation does not mean that the absence of that factor precludes attenuation. Indeed, the immediacy— the spontaneity—of the sister’s consent shows that it was truly volunteered and not, in any way, coerced.

There was no evidence that the illegal entry was undertaken for the purpose of obtaining the consent or seizing the fruits of the search. Moreover, the alleged police misconduct here—walking through an unlocked front door into a vestibule, before knocking on an interior door—is not so flagrantly intrusive on personal privacy that its taint cannot be dissipated.

In sum, the hearing testimony established, as a matter of law, that “the evidence to which . . . objection [was] made [was not] come at by exploitation of th[e initial] illegality” (Brown, 422 US at 599). Rather, the computer was recovered “by means sufficiently distinguishable to be purged of the primary taint” (id.).

Accordingly, the order of the Appellate Division should be reversed, without costs, and the order of Family Court, Bronx County, reinstated.