Opposition — Gordon v. New York

78-6839 Bernie:

[in SEL PODAM, JR., CLERK

In the

SUPREME COURT OF THE UNITED STALL:

1978 ferm

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No. 8-

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EDDIbt GORDON,

Petitioner,

-against-

THE PEOPLE OF THE STATE OF NEW -') th,

Responde at.

BRIEF IN OPPOSITION TO vil’

FOR A WRIT OF CERTIOR?: '

ee ee ee ee —_—— <= - - +m

EUGENE GOLD

District Attutney, Kinjs Count

40U Muricipa: S8uildi.g

Brooklyn, New York .i20)

(212) #34-5000

SUZAN PILCARIELLO

Assistant District Attorney

of Counsel

INDEX

TABLE OF AUTHORITIES eeeeeveeeeeeeeeenee oe 6 8 @&.6:@ fe fy 5

PREOSNAMAMS STATRMONE. “cckuwis s oko osbeeecbucin. oepedce

OPINTONS BELOW eeoeeneeeeeeeseeeeeeeeeee ed ef 8 @ or, ef @ ee w@ ©

JURISDICTION SUPSCOSCHOOCECREHSOCOCOCSCOCCHOSCES CSS RECESS OBES SES

QUESTION PRESENTED eoeeoeeeeeeeeeeeeeeeeeeeesese ee ee ©

STATEMENT OF THE CASE e@eeeeveeeeseeeeeeeeesevsee oeer eevee

ARGUMENT -

THE COURT BELOW CORRECTLY CONCLUDED

THAT THE POLICE HAD PROBABLE CAUSE

TO ENTER THE APARTMENT WHERE PETi-

TIONER WAS FOUND AND ARRESTED AND

THAT THE EXIGENT CIRCUMSTANCES

PRESENTED HEREIN JUSTIFIED THIS

COURSE OF ACTION DESPITE TKE AB-

SENCE OF A WARRANT. THERE BEING

NO SUBSTANTIAL FEDERAL QUESTION TO

BE RESOLVED, CERTIORARI SHOULD BE

ba TG Gls DEM WOGUES cbdsneccavavuevecn

CONCLUSION -

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED

SR Se Oe | Unb ceeecads ch cvdéwen boku

6

li

TABLE OF AUTHORITIES

Page

Chimel v. California, 395 U.S. 752 (1969) ........... seeccese Y

Coolidge v. New Hampshire, 403 U.S. 443 (1971) reh.

denied 92 S. Ct. 26 (1971) eer eeee eee eee eee eee eee ereneeee eee 6

Dorian v. United States, 435 F.2d 385 (D.C. Cir.

T9707) ere eee eee eeeeee ree eee eee eee eeeeeeeeee eoeeeeeveeeeae ee ee 8

Draper v. United States, 358 U.S. 307 (1959) ........ eeevcsee 7

Gerstein v. Pugh, 420 U.S. 103 (1975) .cccccccccccccs hcccanely

Johnson v. United States, 33 U.S. 10 (1948) ......eeeecceeeee 9

Ker Vv. California, 374 U.S. 23 (1963) eee e eee eee eeeee eee ee eee 7

People v. Hodge, 44 NY2d 553, 406 N.Y.S.2d 268, 377

N.E.2d 72) (19 8) eee eee eee eet ee eee eee ee ee eeee eeneeve eee ee ee 10

People v. Payton, 45 N¥2d 300, 408 N.Y.S.2d 387,

380 N.E.2d 2? 1978); probable jurisdiction noteé

Sub. ‘nom. Payton v. New York, «UWS. , “*

S. Ct. 718 ( 9 8) No. 78-5420 ere eee eee eee eee eee eran eeee 7,10

People v. Riddick, 45 NY¥2d 300, 408 N.Y.S.2d 387,

750 Nee.24-207 (1978) probable jurisdiction noted

Sub. nom. Riddick v. New York, —s-«UWS. __, «99 S.C.

7is (1978) No. 76-5421 ere ee eee eee eee eee eee eee eee eee eee 7,10

Salvador v. United States, 505 F.2d 1348

(sth Cir. 1974) iit ee ee ee ee ee 2

eee ee eee 7

United States v. Di Re, 332 U.S. 581 Fa) caéeeoes

United States v. Jarvis, 560 F.2d 494 (24 Cie.

1977) cert. denied 435 U.S. 934 (1978) ....ccccecescecceeee 6, 8

United States v. Killebrew, 560 F.2d 729 (6th Cir.

1977) CS SSHSHHHSESTESSHHEHHEHHEHHEHHESEEOSHEHHSSESEEEOSESEEESESESEEES 8

United States v. Phillips, 497 F.2d 1131 (9th Cir. 1576) ices 8

United States v. Price, 345 F.2d 256 (2d Cir. AGG). xvsscecaa. 20

United States v. Reed, 572 F.2d 412 (2d Cir. 1978) .......... 6

(i)

tn the

TABLE (ce AUTHORITLES

- - i i SUPREME COURT OF THE UNITED STATE,

BES Page ! 1978 Term

, United States v. Santana, 427 U.S. 38 (1976) .......-26. 6,/,10

United States v. Watson, 423 U.S. AL] (1976) .......eeeeee 6, 7 No. 78-

Vance v. North ‘Carolina, 432 F.2d 984 (4th Cir, 1970) ....... 6 hens sicaestpnitsctpiieteligian snianelincheaaeiiineainiateapetinns

Warden v. Hayden, 387 U.S. 294 (1967) wsecececeeseseecees eoee 7 EDDIE GORDON,

Petitioner,

-~against-

j THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

BRIEF IN OPPOSITION TO PETITION

\ FOR A WRIT OF CERTIORARI

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PRELIMINARY STATEMENT

Petitioner seeks a writ of certiorari to the Appellate

Division of the Supreme Court of the State of New York,

Second Department, to review the judgment of the Supreme Court,

Kings County rendered on July 29, 1977, convicting him, upon

his plea of guilty, of the crime of Manslaughter in the First

Degree and euikenciae him thereon to a term of imprisonment

of eight and one-third to twenty-five years. The Honorable

Hyman J. Barshay presided at trial and imposed sentence.

OPINIONS BELOW

The Appellate Division of the Supreme Court of the State

(41) . . . .

ot New York affirmed the judgment. of conviction in an opinion

i" si eatin i on i

unotticially teported at 413 N.Y.S.2d 29 (1979). On th:

L9th of March, 1979, Leave to appeal to the Court of Appeal«

| was denied by the Honorable Jacob D. Fuchsberg, Associate

| Judge. (46 N¥2d LO8BU) The written opinion of the Supreme

Court, Kings County is not reported,

\ JURISDICTION

§1257(3).

QUESTION PRESENTED

a”

Under the circumstances of this cage, where petitioner

| was identified six days before as the Perperratos by the only

| live victim of the shooting, where information was received

| approximately an hour and a half before the arrest that the

petitioner was finally located at a specific address and |;

| the police officers were denied entry to that premises ai -+:

they identified themselves, were these otficers, having pro

| bable cause to arrest, justified in forcibly entering the

' apartment without a warrant to effect petitioner's arrest

| and to seize the gun hidden under the mattress in that apart-

‘ment as incident to that arrest.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendments IV and XIV

STATEMENT OF THE CASE

EDDIE GORDON, petitioner herein, was accused by Kings

County Indictment Number 4037/1976 of the crimes of Murder

The Court's jurisdiction is invoked pursuant to 28 U.S.©.

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Attempted Murder in the Second Degree and Criminal Possession

of a Weapon in the Second Degree, it being alleged that in

, the early morning hours of December 15, 1976, petitioner and

two others unlawfully entered the apartment of Ignacia Yoirveli

and torcibly stole property trom both Torruella and one Janes

| Lawrence. In the course of the commission otf the this crim,

Torruella and Lawrence were both shot in the head as they

lay tied up on a bed. Lawrence died of his wounds that saine

day; Torruella was hospitalized and eventually recovered.

On June 28, 1977, a hearing was held on petitioner's

motion to suppress the gun found hidden under the mattrese

during the limited search conducted incident to his arres*

Detective Arthur Walsh, assigned to the 12th Homicice

| Zone, testified that, on December 15, 1976, he was called t:

investigate the homicide of one James Lawrence. In the

course of this investigation, he went to Brookdale Hospital!

on December 15th to interview one Ignacia Torruella who hao

been shot in the head along with James Lawrence. Torruella

was shown a series of photographs and identified Eddie Ge: don

as the man who had shot him by picking his photo from a

photographic display. He informed Detective Walsh that he ine

Gordon approximately one year by his “street name" Eddie.

Torruella related that petitioner and others had entered nis

apartment, bound him and Lawrence, searched the apartment and

that afterwards Gordon returned and shot the deceased and

Torruella. After his conversation with Torruella, Walsh

commenced the effort to locate Kddie Gordon.

On the morning of December 21, 1976, Detective Walsh r.

ceived a phone call from the mother of one Diane McMoore. Sh:

informed him that Eddie Gordon was at her daughter's apart

ment, located at 2989 Fulton Street in Brooklyn. Walsh, accom

panied by Sergeant Lanzetta, and Detectives Jacobson and Lack

immediately proceeded to Ms. McMoore's apartment. They knock:

on the door and identified themselves as police officers.

A temale voice responded and told the officers to wait. The,

did so and, while standing outside, heard the sounds of ii!iin

around from inside the apartment. After a pause, the officers

knocked and identified themselves again. Receiving no reenon:

the door was pushed in.

After entering the apartment, the detectives moved tovrr

the tront of the house. Eddie Gordon was found in a clos»

wearing only his undershorts. He was informed that he was

under arrest and was told to get dressed. Petitioner ano

the detectives went into the bedroom where his ciothes were

lying on the floor next to the bed. As Gordon was about to

sit down on the bed and put on his socks, Detective Jacobson

ordered him to stop, flipped the mattress and found the gun.

The defense produced two witnesses, Eddie Gordon and

Diane McMoore, who recounted their versions of the arrest.

At the conclusion of the hearing, petitioner's motion to

suppress the gun was denied by the court. in a detailed

opinion, the court concluded that there was clear and con-

vincing evidence of probable cause to arrest petitioner

TPO AD eT AEE

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) without a warrant and the ensuing limited search was Lawt |

as incident to a valid arrest.

Attec the court's decision on petitioner's suppression

motion, Lddie Gordon offered to plead guilty to Manslaughter

in the First Degree to cover the entire indictment. Durino

the course of his allocution, petitioner admitted entering

Mr. Yorruella's apartment armed with a gun. le informed

the court that he was prepared to shoot anyone who might

have arrived at the apartment during the robbery. Gordon

admitted that both victims of the robbery were shot durira

the course of the crime and that he left the apartment “on

the assumption they were dead". Thereafter, the

plea was accepted.

On July 29, 1977, petitioner appeared before tne court

for sentencing. At that time, the court indicated that i'

had read the probation report thoroughly. Following state-

ments by both counsel, the court sentenced Eddie Gordon «:

a minimum of eight and one-third years imprisonment and a

maximum of twenty-five years.

The judgment of conviction was affirmed by the Appellate

Division of the Supreme Court of the State of New York, Seconc

Department, and leave to appeal to the Court of Appeals has

been denied. Petitioner now seeks a writ of certiorari to

review the question of whether considering the existence

of probable cause and the exigent circumstances, the police

‘| officers' actions in entering an apartment where he was Stayli

without a warrant was a violation of his rights under the

Fourth and Fourteenth Amendments.

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ARGUMENT

THE COURT BELOW CORRECTLY CONCLUDED THAT THE

POLICE HAD PROBABLE CAUSE TO ENTEK THE APART-

MENT WHERE PETITIONER WAS FOUND AND ARRESTED

AND THAT THE EXIGENT CIRCUMSTANCES PRESENTED

NCREIN JUSTIFLED THiS COURSE OF ACTION DESPITE

ZUE ABSENCE OF _A WARRANT. THERE BEING NO

SUBSTANTIAL FEDERAL QUESTION TO BE RESOLVED,

CERTIORARI SHOULC BE DENIED IN ALL_RLSPECTS.

Vetitioner's challenge to the legality of his arcest

and the subsequent seizure of the gun raises the: issue of

whether a police officer who has probable cause to arresi

and who, additionally has received information that a sovugh:

after suspect is at a specific location, may forcibly enter

that premises after being denied entry to effect an arrest

without a warrant. While respondent recognizes that under

certain ciccumstances the warrantless intrusion into a home

to effect an arrest may violate a suspect's Pourth Amendme +

rights (see, e.g., United States v. Reed, 572 F.2d 412 j20

Cir. 1976); United States v. Jarvis, 560 F.2d 494 [2d Cir.

1977], cert. denied, 435 U.S. 934, (1978]), the case at or

is not such a case.

It is beyond cavil that the perimeters of “whether ana

under what circumstances an officer may enter a suspect's

home to make a warrantless arrest" (Gerstein v. Pugh, 420

U.S. 103, 113 n.13 [1975]) have yet to be precisely definea

by this Court. United States v. Santana, 427 U.S. 38 [1976];

United States v. Watson, 423 U.S. 411 {1976}; Coolidge v.

New Hampshire, 403 U.S. 443 [1971]). Nonetheless, it is

equally uncontested that this Court would not invalidate

an arrest based upon probable cause for the sole reason that

the law enforcement ofticial did not obtain a warrant.

(Gerstein v. Pugh, supra, 420 U.S. at 113; Ker v. Calitornia,

374 U.S. 23 [1963]; Draper v. United States, 358 U.S. 307

[1959]). Nor would this Court void an arrest where exiqent!

circumstances made a warrantless entry the only reasonable

means of eltecting such arrest. (United States v. Santana,

Supta; Warden v. Hayden, 367 U.S. 294 [1967]). It is precise!

within these already well-recognized exceptions to the warr.an

requirement that the factual pattern presented herein fits.

Although in the absence of a United States Supreme Cour:

pronouncement, “the law of the state where an arrest withou!

warrant takes place determines its validity” (United Stetes

v. Di Ke, 332 U.S. S81, 589 [1948]; See also United States

Vv. Watson, Supra, 423 U.S. at 420 n.8), even when considers

without the benefit of the rationale of People v. bkayton,

and People v. Kiddick, (45 NY¥2d 300, 408 N.¥.S.2d 387, 380

N.b.2a 217 (1978); probable jurisdiction noted sub nom.

Payton v. New York and Riddick v. New York, __ U.S. ___,

99 S.C. 718 (1978) Nos. 78-5420, 78-5421), under the wel!

established exception of exigent circumstances, the police

conduct in the instant case clearly passes constitutional!

muster.

In the case at bar, the detectives were investigating

the commission of a violent murder. On the day of the inci-

dent, the sole remaining victim of the shooting conclusive!y

identitied the petitioner as the person who shot him and

;

killed James Lawrence. Armed with the information that thy

perpetrator was named Eddie and came from the East New Yor}

area of Brooklyn, the police began an unfrvitful search tor

his location. At approximately 9:00 a.m. on the twenty-first

of December, Six days after the identification, Detective

Walsh received a tip from a highly reliable source that th:

Eadie Gordon was at 2989 Fulton Street in Brooklyn. Within

a hour and a half after the receipt of this information, a

detail of officers was present at the Fulton Street address

The officers knocked and identified themselves twice. kKeceiv

ing no response the second time, they forcibly entered the

apartment where petitioner was found in the closet.

As an aid in determining whether the circumstances are

sufficiently compelling to necessitate a warrantless intrusio:

in the home, the District of Columbia Circuit has listed 4

number of factors gleaned from this Court's decisions to he

considered when evaluating the constitutionality of a warran:

less arrest. Dorman v. United States, 435 F.2d 385, 392 ih.

Cir. 1970). These considerations, recognized and adoptea

by tive other circuits, include:

-+.-commission of a grave offense, belief

that the suspect is armed, probable cause

to believe the suspect has committed the

crime, suspicion that suspect is on the

premises, likelihood of escape if delay

ensues, and peaceful entry by the police.

United States v. Jarvis, 560 F.2d 464, 498

(2d Cir. 1977).

See also, Salvador v. United States, 505 F.2d 1346 (8th Cir.

1974); United States v. Phillips, 497 F.2a 1131 (9th Cir.

1974); United States v. Killebrew, 560 F.2d 729 (6th Cir.

1977); Vance v. North Carolina, 432 F.2d 984 (4th Cir. 1970).

All of the cited considerations were present in this

2

case but one. A qrave offense was obviously involved here

and there was also a strong beliet that petitioner was

armed. As conceded by petitioner in the courts below, the

was probable cause to believe that he had committed the «> }

there was a strong suspicion that Gordon was at the premises

to be entered and a strong likelihood that he would leave

the apartment and continue to elude the police were any dels,

to ensue. The only consideration not present was that of

a peacetul entry. when viewed in the totality of circum

Stances, however, the manner of entry was eminently reas.

able. ‘The police announced their identity at the door am!

were told to wait. During the period of waiting, they he.)

sounds of milling about inside the apartment. Considerins

the likelihood ot the suspect being armed, the forcible en'+,

was teasonable. Any further delay would have enhanced che

possibility of a shootout with serious injuries to those

within and without the apartment.

Moreover, the officers went to 2989 Fulton Street wirh

the sole intent of effecting a felony arrest. No generai

search of the premises was intended nor was one undertake:

The only seizure of property was the result of a search in-

cident to a lawful arrest. Clearly, once petitioner sat >:

the bed, anything hidden therein was obviously within tne

“gcrabbable” area and under these facts, the officers were

entirely justified in conducting this limited search for tiv)

own safety. (Chimel v. California, 395 U.S. 752 [1969]).

Although not the classic “hot pursuit" situation (see

Johnson v. United States, 33 U.S. 10 {1948}, nevertheless,

the factual situation presented herein is tantamount to the

type of exigency justifying immediate police action without

@ warrant.

v. Price, 345 F.2d 256 [2d Cir. 1965]); People v. hodge,

44 NY2d 553, 406 N.Y.S.2d 268, 377 N.E.2d 721 [1978]). The

circumstances in the case at bar do not raise the more difti

cult issue presented to this Court in Payton and Riddick,

namely whether a police officer who has probable cause to

arrest may enter the home of the suspect to effect «he arres'

in the absence of exigent circumstances.

Accordingly, the

case at bar presents no substantial federal question warrant

the granting of petitioner's application for a writ of cercio.::

In the event that this Court determines that tne factua!

pattern presented in the case at bar was not sufficiently

critica] to warrant the immediate arrest of this wurder sispe:

without a warrant, we respectfully request that any decisio

on this petition be stayed until this Court's determination

upon the reargument of Payton and Riddick.

(Sec United States v. Santana, Supra; United state.

eee

CONCLUSION

THE PETITION FOR A_WRIT OF CERTIORARI

BE DENIED IN ALL RESPECYS.

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Dated: Brooklyn, New York

July, 1979

SHOULD

Respectfully submitted,

EUGENE GOLD

District Attorney

Kings County

400 Municipal Buildin,

Brooklyn, New

(212) 834-5000

SUZAN PICARTELLO*

Assistant District Attorney

of Connsel

*-"The writer is indebted to Assistant District Attorne-

Adrian Mecz who prepared the brief submitted to the Appe.-

York 1li2vul

late Division ot the Supreme Court of the State o: New

York, Second Department.