Be sure not to unpack your incriminating evidence.

One Mr. Loomis was staying at his sister's house after being released from jail. For two nights, he slept on a pull-out couch in his sister's living room. The sister was even nice enough to drag an unused dresser into the living room for his use while staying with her. Unfortunately, the police came calling on the third day of Mr. Loomis' stay, suspecting that he may have been involved in a murder the day before. The sister's family courtesy extended only so far. She gave the police consent to search the dresser being used by her brother, and bloodstained clothing and incriminating letters were found. Mr. Loomis moved to suppress the evidence found in the dresser, arguing that his sister did not have the authority to consent to the search. In a 3-2 memorandum decision, the Fourth Department upheld the trial court's decision, finding the "Defendant's sister was the undisputed owner of the dresser, which was located in a common area of her residence, and it is uncontroverted that she gave the police consent to search that piece of furniture without a warrant." (People v Loomis, KA 02-02746.) The majority found these facts sufficient to conclude that the sister had "common authority over the dresser" sufficient to give her the right to permit the search. (Id.)

Judges Hurlbutt and Martoche dissented, noting that,

a homeowner's authority over the premises does not extend to a 'guest's closed container (or similar item) . . . customarily used to hold one's most personal belongings'. Thus, '[o]verwhelmingly, the courts have . . . rejected the sufficiency of a host's general consent to search premises to validate the search of a guest's overnight bag, purse, dresser drawers used exclusively for the guest's personal effects, or similar objects.'

(Id. at 3 [citing People v Gonzalez, 88 NY2d 289, 295][emphasis in original].)

Given the burden to establish the sister's "common authority" over the dresser, and further given the undisputed proof developed at the hearing (that the "dresser, owned by defendant's sister, had been placed in the living room for the exclusive use of defendant, and had not been used by anyone else" [Id.]), the dissenters would have held that the People failed to meet their burden to prove the sister had authority to consent to the search.

The majority did not attempt to distinguish Gonzalez, which is odd since it seems Gonzalez is a Court of Appeals decision factually on-point and seemingly dispositive against the majority's argument. One wonders if the majority's decision would have been any different if the sister had loaned Mr. Loomis a duffel bag to keep his stuff in, and the police had searched the duffel bag containing Mr. Loomis' personal items on her consent. It doesn't seem like the sister's authority to consent to a search of her brother's possessions should turn on the type of container she allows him to exclusively use while a guest, but the majority's opinion would seem to hold otherwise. I guess the lesson to learn is that, while an overnight guest at a friend's or relative's house, keep your incriminating evidence in your own suitcase (or instruct your host on the niceties of Fourth Department precedent and make sure they know enough not to consent to a search of your stuff).

Decision Day

The Fourth Department handed down its decisions today, with a (relative) glut of interesting criminal decisions (and at least one partial reversal!). Leading the list of noteworthy decisions is Judge Kehoe's opinion in People v Wardlow, KA 02-02295, where the Court held (apparently for the first time in New York) that "the deprivation of a defendant's right to counsel at a pretrial suppression hearing is subject to constitutional harmless error analysis." (Id. at 5.) The facts of Wardlaw are relatively straightforward: 1) the trial court erred in allowing defendant to proceed pro se at his Huntley hearing, 2) the statement attributed to defendant (essentially denying guilt) was not suppressed, 3) the trial evidence of defendant's guilt was overwhelming. On these facts, the Fourth Department held that it would not make sense to reverse and remit for a de novo suppression hearing "because, even if the statements should have been suppressed, any error is harmless beyond a reasonable doubt." (Id. at 3.)

What makes this opinion interesting is that the Court of Appeals has skated up to the edge of this issue a few times, but has never held that denial of right to counsel at suppression is subject to harmless error analysis (indeed, Judge Kehoe's opinion in Wardlaw cites to and discusses these opinions). That would seem to leave the Court of Appeals' holding in People v Hilliard (73 NY2d 584)as controlling precedent, where the Court held that a harmless error analysis does not apply to an affirmative denial of the constitutional right to counsel. (Hilliard, 73 NY2d at 587.) Absent the Court of Appeals itself revisiting this issue (which it has expressly declined to do so far), it would seem the Fourth Department is arguably bound by Hilliard not to apply a harmless error analysis to the denial of right to counsel, regardless of what stage the deprivation occurs.

I haven't had time to fully digest this decision (or thoroughly review the Court of Appeals precedent on the issue), but it seems at first blush as if the Fourth Department is getting out ahead of the Court of Appeals on this issue. Of course, the decision also reinforces the Fourth's strict application of 'harmless error' doctrine.

More on the other interesting decisions from this packet soon.

Welcome . . .

. . . to the newly revamped home of Indignant Indigent. This blog is intended to be a clearinghouse of sorts for current issues in New York criminal defense law, with a focus on the Fourth Department of the New York State Supreme Court Appellate Division. Some Resources are collected to the left, with more sites to be added when I come across them. I'll also sift through the new decisions handed down by the Fourth Department each term, and highlight any significant criminal decisions (next decision date is April 29, 2005). Finally, I hope to post more extensive discussions on certain interesting issues I come across while working on briefs. New stuff soon!