State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 14, 2016 108011 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

HERIBERTO ORTIZ JR.,

Appellant.

________________________________

Calendar Date: June 3, 2016

Before: Peters, P.J., Lahtinen, Egan Jr., Rose and Clark, JJ.

__________

William E. Montgomery III, Glens Falls, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Sara E.

Fischer of counsel), for respondent.

__________

Clark, J.

Appeal from a judgment of the County Court of Washington

County (McKeighan, J.), rendered February 17, 2015, convicting

defendant upon his plea of guilty of the crime of criminal

possession of a controlled substance in the third degree (two

counts).

On May 21, 2014, Detective Scott Gillis and Sergeant John

Kibling of the Hudson Falls Police Department went to an

apartment in the Village of Hudson Falls, Washington County to

investigate suspected drug activity. The apartment owner

answered the door, permitted the officers to enter, informed the

officers that a guest was in the bathroom and ultimately

consented to a search of her home. Upon Gillis' direction, the

guest, later identified as defendant, exited the bathroom and
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eventually provided his true name and identification to the

officers. The owner informed Gillis that defendant had been

selling drugs out of her home, and, after running an inquiry, the

officers learned that defendant was wanted by the Warren County

Sheriff's Department on an active bench warrant for failure to

pay a fine. Defendant was thereafter arrested on that warrant. 

Following defendant's arrest, Gillis observed a duffel bag behind

the couch and asked defendant whether the bag belonged to him

and, if so, whether he would like it brought to the police

station. Defendant acknowledged that the bag belonged to him,

but did not respond to the second question. Gillis searched

defendant's person and the bag, finding, among other things,

crack cocaine inside a can in the bag. 

Defendant was indicted on two counts of criminal possession

of a controlled substance in the third degree, and County Court

denied his subsequent motion to suppress the physical evidence

and his statements to law enforcement. Defendant pleaded guilty

to both counts and was sentenced, in accordance with the plea

agreement, to two concurrent prison terms of 101⁄2 years and three

years of postrelease supervision. Defendant appeals, primarily

challenging the denial of his motion to suppress.1 

Initially, we reject defendant's argument that his arrest

in Washington County pursuant to the bench warrant issued in

Warren County was unlawful. Inasmuch as the arresting officers

relied on the information relayed to them by another police

agency and Warren County adjoins Washington County, defendant was

properly arrested on that warrant (see CPL 530.70 [1]; People v

Ennis, 186 AD2d 145, 146 [1992], lv denied 81 NY2d 762 [1992]).

We also find unavailing defendant's contention that Gillis

unlawfully asked for his name and identification. We begin our

analysis by noting that the analytical framework set forth in

People v De Bour (40 NY2d 210 [1976]) does not apply to criminal

1 Defendant's challenge to County Court's denial of his

motion to suppress survived his guilty plea (see CPL 710.70 [2];

People v Cogdell, 126 AD3d 1136, 1138 [2015], lv denied 25 NY3d

1200 [2015]).
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investigations at a residence (see People v Madden, 58 AD3d 1023,

1025 [2009]). "Rather, a warrant supported by probable cause 

. . . is required before such investigations will be permitted,"

in the absence of which "governmental intrusion into the privacy

of the home will not be permitted unless an exception to the

warrant requirement applies" (id.; see People v Gonzalez, 39 NY2d

122, 127 [1976]). That being said, it is well settled that one

of the limited exceptions to the warrant requirement is voluntary

consent (see People v Gonzalez, 39 NY2d at 127; People v Madden,

58 AD3d at 1025). In this regard, Gillis testified, and

defendant concedes, that the apartment owner permitted the

officers to enter and examine her home (see People v Hook, 80

AD3d 881, 882 [2011], lv denied 17 NY3d 806 [2011]). Thus, our

inquiry shifts to whether defendant was unlawfully detained and

questioned when he exited the bathroom of the residence.

It is axiomatic that "Miranda safeguards are not triggered

unless a suspect is subject to custodial interrogation" (People v

Chaplin, 134 AD3d 1148, 1150 [2015] [internal quotation marks and

citations omitted], lv denied ___ NY3d ___ [May 10, 2016]; see

People v Mercado, 113 AD3d 930, 931 [2014], lv denied 23 NY3d

1040 [2014]). Here, Gillis' questioning of defendant following

his exit from the bathroom up until his arrest on the active

warrant was neither custodial nor interrogatory. Gillis

testified that, when defendant exited the bathroom, he sat on the

couch on his own accord, and Gillis asked him for his name and

identification. Although defendant initially stated that his

name was "Mike," upon a follow-up question, he provided his real

name and identification. At that point, the officers had no

reason to keep defendant at the apartment, and they did not ask

him any other questions prior to his arrest on the warrant. 

While the officers were still in possession of defendant's

driver's license, we cannot conclude, on this record, that "a

reasonable person innocent of any wrongdoing would have believed

that he or she was not free to leave" (People v Paulman, 5 NY3d

122, 129 [2005]; see People v Locke, 25 AD3d 877, 878 [2006], lv

denied 6 NY3d 835 [2006]; People v Johnson, 17 AD3d 932, 933-934

[2005], lv denied 5 NY3d 790 [2005]). In addition, because the

questioning at issue was limited to eliciting pedigree

information, it did not constitute an interrogation (see People v

Rivera, 26 NY2d 304, 309 [1970]; People v Kreydatus, 305 AD2d
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935, 936 [2003], lv denied 100 NY2d 595 [2003]). 

Next, although the search of defendant's person was

incident to his lawful arrest (see People v Cruz, 131 AD3d 724,

726 [2015], lv denied 26 NY3d 1087 [2015]), we agree with

defendant that his duffel bag was illegally searched and seized. 

To justify a warrantless search of a closed container incident to

arrest, the People must satisfy two requirements: "The first

imposes spatial and temporal limitations to ensure that the

search is not significantly divorced in time or place from the

arrest. The second, and equally important, predicate requires

the People to demonstrate the presence of exigent circumstances"

(People v Jimenez, 22 NY3d 717, 721-722 [2014] [internal

quotation marks and citations omitted]; see People v Morales, 126

AD3d 43, 45 [2015]). Two interests underlie the exigency

requirement: "'the safety of the public and the arresting

officer; and the protection of evidence from destruction or

concealment'" (People v Jimenez, 22 NY3d at 722, quoting People v

Gokey, 60 NY2d 309, 312 [1983]). 

The People failed to establish the existence of exigent

circumstances justifying the search of defendant's duffel bag. 

Gillis testified that the bag was still against the wall when

defendant was handcuffed and personally searched pursuant to the

outstanding warrant, and Gillis had to physically retrieve the

bag from behind the couch in order to search it. In addition,

the officers had searched the residence prior to arresting

defendant and did not find any evidence of drug activity or

paraphernalia, the owner told Gillis that there was nothing

illegal in the apartment and defendant denied that there was

contraband in the bag when questioned about its contents. Thus,

the search of the subject bag was improper and its contents –

namely, crack cocaine, cell phones and train tickets – should

have been suppressed (see People v Jimenez, 22 NY3d at 723-724;

People v Wilcox, 134 AD3d 1397, 1399 [2015]; People v Morales,

126 AD3d at 46-48; People v Boler, 106 AD3d 1119, 1123 [2013]). 

We likewise agree with defendant that his postarrest, preMiranda statements concerning the ownership and contents of the

duffel bag must be suppressed. When making those statements,

defendant had already been arrested on the active warrant. In
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the absence of any other circumstance justifying police inquiry,

the subject questioning constituted a custodial interrogation,

requiring suppression of the resulting statements (see People v

Soto, 183 AD2d 926, 927 [1992]; compare People v Jemmott, 116

AD3d 1244, 1245 [2014]; People v Coffey, 107 AD3d 1047, 1050

[2013], lv denied 21 NY3d 1041 [2013]). 

We reach a different conclusion, however, with respect to

defendant's postarrest statements made at the police station. 

Although Gillis did not recall whether defendant indicated that

he understood his Miranda rights, and there were no notes

confirming that defendant had been advised of such rights, Gillis

testified that he administered Miranda warnings to defendant

prior to questioning him and that defendant expressed a

willingness to speak with him without an attorney. According

"great weight" to County Court's determination that defendant

implicitly waived his Miranda rights (People v Cipriani, 267 AD2d

595, 597 [1999], lvs denied 95 NY2d 833 [2000], cert denied 531

US 1092 [2001]), the court properly denied that portion of

defendant's motion seeking to suppress his postarrest statements

(see People v Goncalves, 288 AD2d 883, 884 [2001], lv denied 97

NY2d 729 [2002]; People v Carrion, 277 AD2d 480, 481 [2000], lv

denied 96 NY2d 757 [2001]).2 Defendant's remaining argument is

unpreserved and, in any event, lacks merit. 

Peters, P.J., Lahtinen, Egan Jr. and Rose, JJ., concur.

2 We note that defendant did not argue, either before

County Court or on appeal, that the postarrest statements he made

at the police station should have been suppressed as the product

of a continuous custodial interrogation (see People v Tutt, 38

NY2d 1011, 1013 [1976]; People v Rodriguez, 55 AD3d 351, 352

[2008], lv denied 12 NY3d 762 [2009]; People v Rogers, 34 AD3d

504, 504-505 [2006], lv denied 8 NY3d 849 [2007]).
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ORDERED that the judgment is reversed, on the law,

defendant's motion to suppress granted to the extent of

suppressing the contents of the duffel bag and certain preMiranda statements as more specifically set forth herein; matter

remitted to the County Court of Washington County for further

proceedings not inconsistent with this Court's decision; and, as

so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court