People v. Volpe , 452 N.Y.S.2d 609 ( 1982 )

Judgment of conviction by plea of guilty of criminal possession of a controlled substance, fifth degree, rendered March 19,1981, Supreme Court, New York County (Fitzer, J.), after denial of a motion to suppress physical evidence (Moldow, J.), affirmed. The outstanding stay of execution of sentence is vacated, and defendant-appellant directed to surrender. The facts are fairly stated in the dissent and require little comment. Even the dissent seems to concede that there were sufficient grounds to induce a court to issue a search warrant; however, there was good and sufficient reason not to apply for one. The conduct of the police in using the volunteered service of defendant-appellant’s visitors to gain entrance was eminently proper, and has no connection whatever with authority to permit access either to the apartment or to the building. It is misleading to endeavor to equate an offer to knock on a door with an assumed grant of authority to enter an apartment. The Federal agent was legally in the building’s public hall on official business having nothing to do with defendant. He did not go there to eavesdrop, and his involvement in this case was completely serendipitous. Nor does the appellant have standing to complain that the police invaded the rights of the two visitors by questioning them; indeed, there was no invasion of their rights at all, and a positive duty to make inquiry of them. After Miranda warnings, they responded freely, and offered to knock at the apartment door. The dissent does not dispute that the officer saw contraband in plain view through the open door as defendant responded to his erstwhile visitor’s knock, and thus acted properly on entering to seize the illegal substances. Considering all the circumstances together, the police conduct was reasonable and responsible. The Federal agent had communicated to fellow law enforcement officers his well-founded belief that traffic in guns and controlled substances was going on behind the door of defendant’s apartment, and they had a clear duty to respond to that information. That part of the conversation heard through the door, apparently conducted partially over the telephone, patently concerned illegal substances; this was corroborated in a few moments when the two men came downstairs and were interviewed. An informed appraisal of the situation as it was on the heels of the conversation with the two visitors must lead to the conclusion that what the police then did was dictated by the circumstances. The police had no ground whatever to hold further the two men who had responded to their question. They could not detain them while they sent for a warrant. The two had stated that they were friends of the men behind the door. Obviously, there was a phone in the apartment, and it would have been sheer folly for the police to have risked a phoned warning by the two visitors that the officers were outside waiting to get in. The contraband would have been flushed away long before an affidavit could be drawn in support of a warrant. To any reasonable mind, this presented an exigent situation. Very little further need be said except that appellant makes two points, which should not be overlooked. One is to the effect that defendant’s privacy was invaded by eavesdropping. As to this, it would seem that anyone who talks inside an apartment loud enough to be heard through the door in the public hall cannot really be believed to have an expectation of privacy. The other makeweight is to point out that the police displayed weapons — prudently, it must be said, in the face of the conversation with accompanying sounds indicating presence of what any policeman would have identified as a .357 Magnum handgun. Undue stress is laid upon the fact that one of the weapons displayed was a shotgun. It certainly inspired no terror in defendant; neither did it induce him to respond in any inculpatory manner. Concur — Sullivan, Ross and Markewich, JJ.