# Opposition — Gordon v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0483%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1980 - **Citation:** 446 U.S. 903 ## Text 78-6839 Bernie: [in SEL PODAM, JR., CLERK In the SUPREME COURT OF THE UNITED STALL: 1978 ferm ne ee ee ee ee ee ae ee No. 8- ee ee ee ae ee ee ee ee _—-- -_— 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 —— ee ee ee -——-— + 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.©. j '‘ | | ! ‘ 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 ee Oe ) 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. t | | ! ' i ! ! | j ay 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. ' 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0483%3A2. Public record. Not legal advice.