People v. Mack , 486 N.Y.S.2d 520 ( 1985 )

— Judgment affirmed. Memorandum: On appeal from his conviction for robbery, first degree, and criminal possession of a weapon, third degree, defendant contends that the trial court erred in holding admissible the contents of a telephone conversation in which he made an incriminating statement. The evidence at the suppression hearing showed that, with probable cause to believe that defendant had committed a robbery, two police officers went to defendant’s house to arrest him without a warrant. The police were admitted through the front door into the living room by Clifford Fruster, who said he was a roommate or tenant of defendant. When the police were about to leave the house, the telephone in the living room rang and Fruster answered. The call was from the defendant and Fruster permitted one of the police officers to listen to defendant’s conversation. The officers then made a search, leading to the seizure of the weapon.

In our view, the trial court properly denied defendant’s motion to suppress the telephone conversation. Although the police officers had no arrest warrant, their entry was lawful because Fruster voluntarily admitted the officers into the living room (see Payton v New York, 445 US 573, 583; United States v Turbyfill, 525 F2d 57; People v Maerling, 96 AD2d 600). In entering, they relied upon the apparent authority of Fruster, who said he was a roommate of defendant and appeared to have joint access to the living room (see People v Adams, 53 NY2d 1, 9, mot for rearg den 54 NY2d 832, cert den 454 US 854; People v Battee, 94 AD2d 935). Since Fruster permitted the officer to listen to the telephone conversation, the defendant’s constitutional right to privacy was not violated (see People v McGee, 49 NY2d 48, 59, cert den sub nom. Waters v New York, 446 US 942). That the suppression court found that Fruster had no authority to consent to the search has no effect on our determination; there was no causal connection between the illegal search and the consensual overhearing of the telephone conversation.

Under the circumstances presented here, we reject the People’s argument that the defendant waived the right to suppression of the statement. All concur, except Denman and Green, JJ., who dissent and vote to reverse, in the following memorandum.