Petition for Writ of Certiorari — Corporation Counsel of New York v. Erik M.

> Supreme Court, Us.

| PILED

OFFICE OF THE CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

CORPORATION COUNSEL OF

THE CITY OF NEW YORK,

Petitioner,

-against-

ERIK M..,

A Person Alleged To Be A Juvenile Delinquent,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

MICHAEL D. HESS

Corporation Counsel of the

City of New York

Attomey for Petitioner

100 Church Street

New York, New York 10007

(212) 788-1049 or 1067

LEONARD J. KOERNER*

LARRY A. SONNENSHEIN

SHARYN ROOTENBERG

of Counsel

*Counscel of Record

November 8, 2000

QUESTION PRESENTED

Was the Fourth Amendment right to be free from

unreasonable searches and seizures violated when police,

acting in their community care-taking capacity to insure

both timely notification to a suicide victim’s next-of-kin

and proper disposition of her remains, initiated a

warrantless search for identifying information within the

room she resided and died, and unexpectedly discovered

contraband which led to the respondent’s prosecution?

PARTIES TO THE PROCEEDING

Petitioner, the Corporation Counsel of the City of

New York, was the Presentment Agency in this juvenile

delinquency proceeding. Respondent, Erik M., was the

person under sixteen years of age alleged to be a juvenile

delinquent. The Legal Aid Society, Juvenile Rights

Division, served as Respondent’s law guardian throughout

the lower court proceedings.

belated aca hot nee ahs ed aeons ” ‘Vere TARE TGR”

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TABLE OF CONTENTS

SRE CP RIFT wicresincettscctintctidcrnidinaiincrine ili

CPUS TION PUREST ED ci esncncccoccsncssccecceseccesssecssecseseces ]

PARTIES TO THE PROCEEDING ..000...cccccceccccoceccecceceses ]

Fe PE REIT vis cisiiasicticisnsnlihidiniateinii sit 1

PG iia itniniiiicicbincneasiibtiinD es he ee 2

CONSTITUTIONAL PROVISIONS ..0.o.o.occccccccccccceseeeseeeeee. 3

DEATIOMMEINE OF THUG CAGE oon cncccccnssocceseescncsnscosses 4

The Suppression Hearing .0.0..0.0......cccccccceccceseseseseceeeee. 4

The Fact-Finding and

Dispositional Hearings ...0.0...............ccececescssssososeseceeee. 6

The Appellate Division

| RET pilsasathihinbaices 6

Subsequent Procedural History .0.0.......cccccccccccccecseseeees 8

REASON FOR GRANTING THE 1s, enna 8

PN kh nt lt 16

SE NITRI ECO nen POS TR ISOS TO A-1

The Appellate Division ;

Nil bald cli sicesibsipssrubindicnhasiasceissptccntceties A-2

The Family Court Decision .0.0..0.....ccccccccccesessseseceees A-4

The Family Court Order of

ee cc a, LAL AOL TAR A-8

The Court of Appeals Sua

SanTTEY SUIT ind cctbicsiaieintennmneubainesiiibebiilinisisienseiiaal A-10

The Appellate Division Order

vr anITIIIIII iiscepcinpascsinssisentsabictenipuuishniiniednlianbindamiantaat .A-11

The Court of —- Order on

Motion .............. ee

TABLE OF AUTHORITIES

Cases

Agnello v. U.S...

i RN NT aD NAN 2G Faas /) 10

Anzona v. Hicks.

S/S ERR Me eS 14

Brinegar v. U_S.

338 U.S. 160. rehg. den., 338 U.S. 839(1949)... 10

Cady v. mbrowski,

Colorado v. Bertine.

ti he ae Ee 12, A-5

Darcy v. Presbyterian Hospital.

202 N.Y. 259, 95 N_E. 695.

rehg. den., 203 N.Y. 547,96 N.E. 1113(1911)........ eS

Donovan v. Dewey.

GIB WB. FOG (EBON) asc ccccccesnsacscocccsensesssescseec. 7, 13, A-3

Finn v. City of New York,

76 Misc.2d 388 (App. Term, 1* Dept. 1973)... 1!

Fli v. West Virginia.

ne PP i ce 2 Cal ee ele nee 14

Florida v. Jimeno. et. al..

EE ED acini isl oT Eos a 10

Illinois v. Lafayette,

462 U.S. 640 (1983) 00 10, 12, 14, A-3, A4

Kohn v. United States.

591 F.Supp. 568, 573 (EDNY 1984),

affd., 760 F.2d 253 (2d Cir. 1985) ooo 1

inl

Marshall v. Barlow’s. Inc..,

a es penenaeneamaanienmtonniies 13

McDonald v. United States,

SU i ciednithanaie 14

Mincey v. Arizona,

I eee 14, A-6

Minnesota v. Olson.

ny i TIE cessisicsesentendntatdersoueiieaieniasadbiniabeaianmtanaceia 14

New Jersey v. T.L.O..

I i 8

New_York v. Burger,

Re es I I icicsisiicericiiaetaninieiinipnnaiabadbntemsatioubnamatbied 7,13

Patchogue-Medford Congress of Teachers v. Bd. of Ed..,

rj) &m& Ty Bly) RAS? . T.. |, ree 7

Payton v. New York,

8 Ee eee een ae OOO 14

People v. Bigelow,

66 N.Y.2d 417, 488 N.E.2d 451 (1985)............ ee ceee ee eeeeeeee 10

People v. Cohen,

58 N.Y.2d 844, 446 N.E.2d 774, cert. den., 461 U.S. 930

SEES Eee seni kena as eens nie ee Os eI EMT ee 14

People v. Galak.

80 N.Y.2d 715, 610 N.E.2d 362 (1993)....................202 10, A-5

People v. Gonzalez,

62 N.Y.2d 386, 465 N.E.2d 823 (1984)............2.22202020+- 10, A-5

People v. Hodge.

44 N.Y.2d 553, 378 N.E.2d 99 (1978) .............00000eeeeees 14, A-2

People v. John BB..,

56 N.Y.2d 482, 453 N.Y.S.2d 158,

eS CP HD NE cnictieiactenccesieiibiniininiiictiiiadannteiiiianas 7

People v. Knapp,

52 N.Y.2d 689, 422 N.E.2d 531 (1981)...........cccccscccccccssseeees 14

lV

People v. Mendez,

199 A.D.2d 182, 605 N.Y.S.2d 94 (1st Dept. 1993),

app. den., 83 N.Y.2d 874, 635 N.E.2d 303 (1994).......0........ 10

People v. Mitchell,

39 N.Y.2d 173, 347 N.E.2d 607,

Cert. den., 426 U.S. 953 (1976) ...c.ceecceccsecesscsesesesceceeeceee, 16, 14

People v. Pinchback,

82 N.Y.2d 857, 631 N.E.2d 100 ESE Ae ARS Rte Es 10

People v. Ringe.

197 N.Y. 143, 171 N.Y.S. 728 ERE SR pecs A ae ae 11

People v. Scott,

63 N.Y.2d 518, 483 N.Y.S.2d 649 RES eee 7

Sokolov v. Village of Freeport,

52 N.Y.2d 341, 420 N.E.2d | ELSE ea ee 13

South Dakota v. rman,

AN OA. BOO CEFN oecettrnnccnisacsecsassanasacesscesses.,.... 10, 12, A-3

Stahl v. Necker,

184 App. Div. 85 (1* Dept. 1918) ....eecccccccccccccccsceseeceeeeceece.. 1]

Thompson v. Louisiana,

nt 8. SORES a ee 14

U.S. v. Brignoni-Ponce,

ac 10

Statutes

co, AEE SSID asset eA ea 7

eee ea, NRE RE SEY om TE aE 6

Other Authorities

Debra Livingston,

Police, Community Caretaking, and the Fourth Amendment,

1998 U Chi Legal F 261 (1998) ooo. eccccceccccccceceseecoseeseesn. 8, 14

ee Cee ee eee ere ee,

No.

IN THE

CORPORATION COUNSEL OF

THE CITY OF NEW YORK,

Petitioner,

-against-

ERIK M.,

A Person Alleged To Be A Juvenile Delinquent,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT:

ee __

PETITION FOR WRIT OF CERTIORARI

ames

ae

The Corporation Counsel of the City of New York

respectfully petitions for a writ of certiorari to review the

judgment of the New York State Supreme Court Appellate

Division, First Department, in this case.

OPINIONS BELOW

The opinion and order from which Petitioner seeks

certiorari is reported at 265 A.D.2d 256, 697 N.Y.S.2d 35

(1st Dept. 1999) and appears in the appendix at A-2. The

opinion of the Family Court is unreported but appears in

the appendix at A-4.

JURISDICTION

The Appellate Division judgment was entered on

October 28, 1999. By order entered February 27, 2000, the

New York State Court of Appeals, sua sponte, dismissed

Petitioner’s appeal which had been taken as of right (A-10).

In an order entered May 25, 2000, the Appellate Division,

First Department, denied Petitioner’s motion seeking leave

to appeal to the Court of Appeals (A-11). In an order

entered September 5, 2000, the Court of Appeals denied

Petitioner's motion seeking leave to appeal to that Court

(A-12). Thus, the jurisdiction of this Court is invoked

under 28 U.S.C. §1257.

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment IV:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or

things to be seized.

United States Constitution, Amendment

Section 1:

All persons born or naturalized in the United

States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

Pursuant to Article 3 of the New York State Family

Court Act, a juvenile delinquency proceeding was initiated

by the Presentment Agency against Respondent. A petition

was filed, charging Respondent with committing acts

which, had he been over the age of sixteen, would have

constituted varying degrees of Crnminal Possession of a

Controlled Substance and Cnminal use of Dmg

Paraphernalia, ranging from a class B felony to class A

misdemeanors.

Through his law guardian, Respondent challenged

the warrantless police search, seeking to preclude the

physical evidence or, in the alternative, requesting a pre-

trial Mapp hearing. Although the Presentment Agency

opposed both applications, arguing that the search was

initiated pursuant to the officers’ community care-taking

functions and was ministerial in nature, not designed to

uncover evidence of criminality, the Family Court granted

and conducted the pre-trial Mapp hearing.

The Suppression Hearing

At the Mapp hearing, Police Officer Michael

Oliver, the responding officer who later arrested

Respondent, was the sole testifying witness. He recalled

the events leading to his recovery of the contraband as

follows:

On the morming in question, Officer Oliver and his

partner were on uniform duty and on patrol in their patrol

car. At approximately eight o’clock a.m., they received a

radio transmission from the Police Department’s central

dispatcher, alerting them to an emotionally disturbed

person at the subject address. As they proceeded to the

location, they received another radio _ transmission

informing them that the person may have hung herself. At

that point, pursuant to routine police procedures for

responding to possible suicide scenes, the dispatcher also

summoned a sergeant to the scene.

Upon arriving at the apartment, Officer Oliver was

greeted by Respondent’s father, whose native tongue is

4

Spanish. The father ushered him into the apartment and led

him to a partially closed door. Through his body

movements, the father made clear that he did not want to

accompany the officer into the room. Thus, the officer

entered the room alone, whereupon he observed a young

dead woman hanging from the inside of the door. The

officer looked around the bedroom, which contained a

single bed and dresser with a mirror, but saw no evidence

of foul play or criminality.

Concluding that the decedent had committed

suicide, Officer Oliver exited the bedroom and joined

Respondent and his family in the kitchen, where they had

gathered. For the next five minutes, Officer Oliver

attempted to gather the victim’s pedigree information from

the family. All he was able to ascertain, however, was that

the victim had been living with Respondent and his family

for approximately one month, during which time she

resided in Respondent’s bedroom, the same room in which

she took her life. The two had briefly dated, though their

relationship ended during the course of her stay.

Respondent thought that her first name may have been

Lilly, but he was unsure. They did not know her family

name, nor did they know anything about her family. They

suggested that the victim may have carried a pocketbook or

scnool identification containing her true name and last

known address.

Once it became clear that Respondent and his

parents could not adequately identify the victim, Officer

Oliver and his partner re-entered the bedroom to search for

identifying information, such as the victim’s pocketbook or

any form of identification she may have carried. Upon

Opening the top drawer of the dresser, Officer Oliver

immediately observed drugs, which later tested positive for

cocaine, along with drug paraphernalia and a sum of

currency. The items were ultimately seized and

Respondent arrested. ;

Both parties rested at the close of Officer Oliver’s

testimony. During summations, Respondent argued that

the warrantless search violated his Fourth Amendment

rights because the officer lacked probable cause to believe

that a crime was committed or that exigent circumstances

5

existed. The Presentment Agency countered that the

officer was not engaged in a criminal investigation, that the

room was never considered a crime scene, and that the

officer acted reasonably. Thereafter, the Family Court

denied Respondent’s motion to suppress the evidence,

finding that the search was administrative in nature and

reasonable under the circumstances.

The Fact-Finding and Dispositional Hearings

Officer Oliver again testified on behalf of the

prosecution at the fact-finding hearing. The sole witness

called on Respondent’s behalf was his mother. At the

hearing’s end, the Family Court found the officer’s

testimony entirely credible and that of Respondent’s

mother “bordering on perjurious.” The court then issued

findings to every count in the petition, with the exception

of one previously withdrawn by the Presentment Agency.

At the dispositional hearing, Respondent was

adjudicated a juvenile delinquent in need of supervision,

treatment and confinement. He was placed with the

Division For Youth, in a limited secure facility, for an

initial period of up to fifteen months, with a specific

directive that he be confined therein for a minimum of six

months.

The Appellate Division Decision and Order

Respondent appealed to the Appellate Division,

First Department, arguing that the Family Court erred in

denying Respondent’s motion to suppress the physical

evidence, as the officers lacked probable cause and/or

exigent circumstances to conduct the warrantless search.

The Presentment Agency countered that the search was

administrative in nature, undertaken in advancement of the

police care taking function to identify dead human bodies

and to ensure both timely notification to the next-of-kin and

proper disposition of the body and personal effects. As

such, it argued, that the search was initiated without a

search warrant was completely irrelevant to the legality of

the search. The Presentment Agency urged the Appellate

Division to instead focus on:

assess[ing] the reasons for the search and the

extent to which it intrude[d] on legitimate

privacy interests to determine whether, on

balance, the government’s action [was]

reasonable.

Patchogue-Medford Congress of Teachers v. Bd. of Ed., 70

N.Y.2d 57, 68, 517 N.Y.S.2d 456 (1987) (citing People v.

Scott, 63 N.Y.2d 518, 525, 483 N.Y.S.2d 649 (1984) and

People v. John BB., 56 N.Y.2d 482, 487, 453 N.Y.S.2d

158, cert. den., 459 US 1010 (1982).

In reversing the Family Court’s orders, the

Appellate Division failed to engage in this analysis,

choosing instead to baldly conclude that the search did not

“fall within the parameters of the exception [to the warrant

requirement] permitting warrantless searches for

administrative purposes” and holding that a warrant should

have been obtained (A-3). The court relied upon three

federal cases to support its decision,’ none of which were

on point but all of which utilized the balancing test

advocated by the Presentment Agency and discounted by

the Appellate Division.

Subsequent Procedural History

Respondent served Petitioner with the Appellate

Division order with notice of entry on or about November

5, 1999. Pursuant to New York State Civil Practice Law

and Rules (“CPLR”) §5501(b), a timely appeal was

initiated, as of right, to the New York State Court of

Appeals. By order dated February 27, 2000 and reported at

94 N.Y.2d 898, 707 N.Y.S.2d 142 (2000), the Court of

Appeals dismissed the appeal, sua sponte. The order was

served with notice of entry on or about March 6, 2000.

Pursuant to CPLR §5514(a), Petitioner next sought

' New York v. Burger, 482 U.S. 691 (1987); Donovan v.

Dewey, 452 U.S. 594 (1981); and Camara v. Municipal

Court of San Francisco, 387 U.S. 523 (1967) (all involving

warrantless inspections designed to enforce regulatory

schemes carrying civil and/or criminal sanctions for non-

compliance).

permission for leave to appeal to the Court of Appeals in a

motion before the Appellate Division, First Department.

That motion was denied on May 25, 2000 and a copy of the

order with notice of entry was served oii or about June 6,

2000. (_ A.D.2d _,__ N.Y.S.2d __ (1" Dept. 2000)).

Finally, in a motion dated June 15, 2000, Petitioner

requested permission for leave to appeal to the Court of

Appeals from that Court. In an order dated September 5,

2000, the motion was denied. (__ N.Y.2d _,__ N.E.2d

__(2000)). A copy of the order, with notice of entry, was

served on or about September 21, 2000.

REASON FOR GRANTING THE PETITION

This case presents a unique opportunity to squarely

address the profound differences between police intrusions

initiated in furtherance of community care-taking functions

from those undertaken in advancement of law enforcement

objectives. The lack of judicial guidance in recognizing

and appreciating the distinct expectations, motivations, and

Orientations associated with each has here resulted in a

complete disregard for this Court’s instruction that

“[w]here a .sreful balancing of governmental and private

interests suggests that the public interest is best served by a

Fourth Amendment standard of reasonableness that stops

short of probable cause,” such standard should be adopted.

New Jersey v. T.L.O., 469 U.S. 325, 341 (1985). Indeed,

the Appellate Division’s holding in this case represents a

growing and disturbing trend throughout the nation:

Courts have often assumed that the warrant

preference theory’s presumptive probable

cause and warrant requirements apply to

community caretaking intrusions by police.

They have commonly held that warrantless

intrusions can be justified only when they

fall within variously stated “exigent

circumstances,” “emergency,” or “rescue”

exceptions to this framework. These

exceptions, however, accommodate only a

portion of the factual circumstances in

which police have traditionally intruded on

private space to keep the peace, to protect

yeople and property from perceived threats,

8

2a Q3°gXeeYeE_™_ —.-

or to render assistance to those in need.

More fundamentally, the warrant preference

theory itself affords at best an awkward

language for assessing the constitutional

reasonableness of such intrusions.

Debra Livingston, Police, Community Caretaking, and the

Fourth Amendment, 1998 U Chi Legal F 261, 263 (1998)

(Footnotes and citations omitted). Should this trend

continue, every state’s ability to promote public welfare

will be unjustifiably curtailed.

In this case, the Appellate Division had no basis to

conclude that the underlying search was initiated for law

enforcement purposes. To the contrary, the uncontested

facts unequivocally demonstrate that the search was

motivated by the purely benign care-taking objectives of

the police officers involved. Respondent himself invoked

the Police Department’s generally accepted community

care-taking role by calling for assistance with the removal

of a suicide victim’s body from his home. Throughout the

proceedings below, Respondent conceded that the victim’s

death was an obvious suicide and never challenged the

officer’s ability to determine same. He never alleged that

the search was subterfuge for a criminal investigation, nor

did he argue that police suspected a crime had been

committed. To the contrary, Respondent accepted and

adopted the officer’s stated purpose behind initiating the

search, which was to locate identifying information

belonging to the victim, such as her pocketbook or school

identification card, in an effort to determine her true name

and last known address. He neither contested that these

items were targeted based on information he and his family

provided to the officer, nor did he question the officer’s

assumption that these items would be located in

Respondent’s room, the very room in which the victim had

lived and taken her life.”

* The officer’s assumption that the victim’s belongings

would be in that room is consistent with the reasoning

articulated in those cases bestowing a legitimate

expectation of privacy to overnight guests and affording

them standing to contest the legality of warrantless searches

9

Where, as here, the record is devoid of facts tending

to suggest that a police intrusion was initiated for purposes

of uncovering evidence of cnminality, and where, as here,

the action itself was so “totally divorced from the detection,

investigation, or acquisition of evidence relating to the

violation of a criminal statute,” Cady v. Dombrowski, 413

U.S. 433, 441 (1973), it is error to invoke a probable cause

type analysis rather than one grounded in reasonableness,

the actual benchmark for Fourth Amendment protections

against searches and seizures. Indeed, “courts have held--

and quite correctly--that search warrants are not required

{for searches unrelated to law enforcement], linked as the

warrant requirement textually is to the probable cause

concept.” South Dakota v. Opperman, 428 U.S. 364, 371

(1976). Thus, “[t}he standard of probable cause is

peculiarly related to criminal investigations, not routine,

non-criminal procedures” of the type presented at bar. Id.

at 370-371, n. 5; Florida v. Jimeno, et. al., SOO U.S. 248

(1991); see Brinegar v. U.S. 338 U.S. 160, rehg. den., 338

U.S. 839 (1949); Agnello v. U.S., 269 U.S. 20 (1925); See

also People v. Pinchback, 82 N.Y.2d 857, 631 N.E.2d 100

(1993); People v. Bigelow, 66 N.Y.2d 417, 488 N.E.2d 451

(1985); People v. Mendez, 199 A.D.2d 182, 605 N.Y.S.2d

94 (Ist Dept. 1993), app. den., 83 N.Y.2d 874, 635 N.E.2d

303 (1994). Consequently, the constitutionality of the

search at bar, both benevolent and benign in nature, must

rest on the reasonableness of the police action, which is

determined by “...weighing the governmental and societal

interests being advanced against the individual's night to be

free from arbitrary interference by law enforcement

officers.” People v. Galak, 80 N.Y.2d 715, 718, 610

N.E.2d 362 (1993) (citing U.S. v. Bngnoni-Ponce, 422 U.S.

873, 878 (1975)); Illinois v Lafayette, 462 U.S. 640 (1983),

mot. granted, pet. den., 468 U.S. 1213 (1984); see also

People v. Mitchell, 39 N.Y.2d 173, 179, 347 N.E.2d 607,

cert. den., 426 U.S. 953 (1976); People v. Gonzalez, 62

N.Y.2d 386, 390, 465 N.E.2d 823 (1984).

In this case, for example, notwithstanding the

Appellate Division’s categorical rejection of this analyticai

of their rooms. E.g. Minnesota v. Olson, 495 U.S. 91

(1990).

10

approach, the Family Court recognized the strong

governmental and societal interest “in determining the

identity of the deceased minor” for purposes of notifying

her next-of-kin and ensuring the proper disposition of her

remains (A-5). This determination is well grounded in state

law. In New York, “{tJhe law is well settled that the

surviving next of kin have a right to the immediate

possession of the decedent’s body for preservation and

burial and that damages will be awarded against any person

who unlawfully interferes with that nght or improperly

deals with the decedent’s body [citations omitted].” Finn v.

City of New York, 76 Misc.2d 388, 389 (App. Term, 1*

Dept. 1973); see Darcy v. Presbyterian Hospital, 202 N.Y.

259, 95 N.E. 695, rehg. den., 203 N.Y. 547, 96 NE. 1113

(1911); Stahl v. Necker, 184 App. Div. 85 (1" Dept. 1918);

see also People v. Ringe, 197 N.Y. 143, 171 N.Y.S. 728

(1910). In fact, New York law requires that “those who

deal with [dead] bodfies] do so with due regard for the

feelings and beliefs of the next of kin.” Cf. Kohn v. United

States, 591 F.Supp. 568, 573 (EDNY 1984), affd., 760 F.2d

253 (2d Cir. 1985). As for the governmental agency

charged with taking custody of unidentified or unclaimed

corpses and securing them against loss or theft pending

identification and disposition, this community care-taking

responsibility has long been relegated to police. See People

v. Ringe, 197 N.Y. 143, 90 N_E. 45] (1910). It is also “the

New York City Police Department...under the system in

effect in New York City...[through] which notification of

death is given to the family or next of kin.” Finn v. City of

New York, 70 Misc.2d 947 (1972), revd. on other grounds,

76 Misc.2d 388 (App. Term Ist Dept. 1973). Based on

these presidents, there was overwhelming support for the

Family Court's decision that there exists a strong

governmental and societal interest in identifying suicide

victims for purposes of notifying their next-of-kin and

ensuring proper disposition of their remains.

Once the Family Court isolated the governmental

interest involved, it proceeded to balance that interest

against Respondent’s Fourth Amendment nights. In so

doing, the court correctly concluded that the search,

undertaken to further the community care-taking objective

of identifying dead human bodies, outweighed

Respondent’s rights and was therefore “a proper procedural

1!

am ss es aed

measure” (A-5). In engaging this balancing test, the

Family Court analogized the competing interests at bar to

those involved in police inventory searches, a well

recognized administrative search excepted from the warrant

requirement. E.g., Colorado v. Bertine, 479 U.S. 367, 371-

372 (1987); Illinois v. Lafayette, 462 U.S. 640 (1983);

South Dakota _v. Opperman, 428 U.S. 364 (1976).

Although the Appellate Division categorically rejected the

Family Court’s comparison of this case to those “fall[ing]

within the parameters of a valid inventory search,” the

similarities between the two are immediately evident. In

inventory searches, the governmental interest forwarded

involves “protecting an owner’s property while it is in the

custody of the police, to insure against claims of lost,

stolen, or vandalized property, and to guard the police from

danger.” Colorado v. Bertine, 479 U.S. 367, 371-372

(1987). In this case, the governmental interest involved

protecting a corpse, while in police custody, to insure

against claims of untimely notification to the next-of-kin,

improper preservation and/or bunal, and unlawful

interference with a survivor’s nghts. Both intrusions

involve benign care-taking functions of the State,

undertaken to protect individuals, to preserve property, and

insure against legal claims for damages. Neither is

motivated by, or designed to further, a criminal

investigation.” Thus, since it has long been held that an

individual’s privacy mghts are outweighed by the

government's interest in inventorying property for purposes

of protecting an owner’s property and limiting police

liability, so too must the government’s interest in

identifying decedents for purposes of ensuring proper

disposition of the remains, timely notification to the next-

of-kin, and limiting potential liability for related legal

claims outweigh the Respondent’s privacy rights in this

case.

> The only significant distinction is that inventory searches

often precede the property owner’s arrest, thereby

implicitly heightening the likelihood of police either

specifically seeking or inadvertently finding evidence of

criminality, whereas the search at bar was undertaken in the

complete absence of such odds and/or suspicion.

12

nih pein

Rather than addressing the Family Court’s analysis,

the Appellate Division jumped to the conclusion that this

case did “not fall within the parameters of the exception

permitting warrantless searches for administrative

purposes.” (A-3). Of the three federal cases the Appellate

Division chose to cite in support of this result, each

involved warrantless inspection programs easily

distinguishable from the intrusion at bar based upon their

distinct purpose, randomness, and likely result. The

governmental interest identified in each of those cases

involved enforcing municipal codes, statutory schemes, and

regulations. Inspection cite locations were targeted on an

ad hoc basis and inspectors were naturally predisposed to

searching for violations and issuing citations and sanctions

therefor. See, e.g., New York v. Burger, 482 U.S. 691, 704

(1987) (enforcement of New York Vehicle and Traffic Law

§415-a(5), violations of which constitute class A

misdemeanor); Donovan _v. Dewey, 452 U.S. 594, 606

(1980) (enforcement of Federal Mine Safety and Health

Act of 1977 §103(a), violations of which result in civil

penalties); Camara v. Municipal Court of San Francisco,

387 U.S. 523 (1967) (enforcement of San Francisco

Housing Code §503, et. al., violations of which result in

fine and/or imprisonment).* In this case however, the

governmental interest involved identifying dead human

bodies to insure timely notification to the next-of-kin and

proper disposition of the decedent’s person and property.

Searching respondent’s room for the victim’s identity was

narrowly tailored to that end and a proper exercise of police

discretion. The officers had no intention of, or reason to

foresee, uncovering evidence likely to result in

respondent’s arrest and prosecution. Thus, while the

similarity in purpose and intended outcome between

inspection programs and general law enforcement may

* Respondent has previously cited cases distinguishable on

the same basis. E.g. Marshall v. Barlow’s, Inc., 436 U.S.

307, 313 (1978) (warrantless inspection of business

premises pursuant to section 8(a) of the Occupational

Safety and Health Act of 1970); Sokolov v. Village of

Freeport, 52 N.Y.2d 341, 346-347, 420 N.E.2d 55 (1981)

(warrantless inspection of residential rental property

pursuant to a Rental Permit Ordinance).

13

SQ aa:

justify obtaining a warrant prior to inspecting commercial

or private property, the same result is far from logical, let

alone proper, for the benign intrusion at bar. undertaken in

furtherance of a benign community care-taking objective.

Respondent has relentlessly pursued an equally

unavailing argument, analogizing this case to those

involving warrantless searches initiated during criminal

investigations. E.g., Flippo v. West Virginia, 528 U.S. 11

(1999) (homicide and assault); Minnesota v. Olson, 495

U.S. 91 (1990) (armed robbery); Arizona v. Hicks, 480

U.S. 321 (1987) (shooting investigation); Thompson _v.

Louisiana, 469 U.S. 17 (1984) (homicide investigation);

Payton v. New York, 445 U.S. 573 (1980) (arrest inside

home); Mincey v. Arizona, 437 U.S. 385 (1978) (homicide

investigation); McDonald v. United States, 335 U.S. 451

(1948) (illegal lottery); People v. Cohen, 58 N.Y.2d 844,

446 N.E.2d 774, cert. den., 461 U.S. 930 (1983) (murder

investigation), People _v. Knapp, 52 N.Y.2d 689, 422

N.E.2d 531 (1981) (illegal drug sale investigation); People

v. Hodge, 44 N.Y.2d 553, 378 N.E.2d 99 (1978) (fatal

stabbing); People v. Mitchell, 39 N.Y.2d 173, 347 N.E.2d

607, cert. den. 426 U.S. 953 (1976) (investigation of

missing person believed to be in danger). Each of those

searches occurred at a crime scene, were initiated pursuant

to a criminal investigation and/or after the commission of a

crime, and were designed to uncover evidence of

criminality to be introduced during a criminal tnal. Such

distinctions easily distinguish those cases from the one at

bar. Furthermore, since there was no reason for police to

believe that a crime was committed, a regulatory scheme

violated, or that evidence thereof existed, there would have

been no basis from which to swear out a warrant in the first

instance.

> Even if, arguendo, a warrant could have been secured

based on the facts presented here, “the real question is not

what ‘could have been achieved’, but whether the Fourth

Amendment require[d] such steps.” Illinois v. Lafayette.

462 U.S. 640, 647 (1983). Courts “are hardly in a position

to second guess police departments as to what practical

administrative method will best [advance their goals].” Id.

at 648.

eo

In sum, this case presents a rare opportunity to

directly address the wide range of care-taking functions

undertaken by police on a daily basis and to articulate a

clear standard for assessing such police undertakings.

Society has come to expect local police departments

to aid those in danger of physical harm, to

preserve property, or ‘to create and maintain

a feeling of security in the community.’

[They are expected to facilitate] things like

the mediation of noise disputes, the response

to. complaints about stray and injured

animals, and the provision of assistance to

the ill or injured. Police [are] frequently

[expected to] ‘care for those who cannot

care for themselves: the destitute, the

inebriated, the addicted...and the very

young.’ They are often charged with taking

lost property into their possession; [and]

they not infrequently see to the removal of

abandoned property...°

Precisely because these benevolent community care-taking

activities have now long been relegated to local police, the

need for a clear standard of constitutional review has never

been more compelling. The potential ramifications of the

Appellate Division’s ruling are far reaching. Not only does

it undermine traditional notions of Fourth Amendment

analysis, but it perpetuates the inaccurate identification and

assessment of benign police activities by other courts. If

left unchecked, the states’ interest in promoting public

welfare will be abridged and law enforcement agencies

nation-wide will suffer its chilling effect.

° Debra Livingston, Police, Community Caretaking, and the

Fourth Amendment, 1998 U Chi Legal F 261, 272 (1998)

(footnotes and citations omitted).

15

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

MICHAEL D. HESS,

Corporation Counsel of the

City of New York

Attorney for Petitioner

100 Church Street, 6" Floor

New York, New York 10007

LEONARD J. KOERNER*

LARRY A. SONNENSHEIN

SHARYN ROOTENBERG =—

of Counsel

*Counsel of Record

November 8, 2000

APPENDIX

A-l

IN RE ERIK M., A PERSON ALLEGED TO BE A

JUVENILE DELINQUENT, APPELLANT.

PRESENTMENT AGENCY, RESPONDENT.

1309, 1310, 1311

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : FIRST DEPARTMENT

October 28, 1999

COUNSEL:

For Appellant: Monica Drinane, The Legal Aid Society,

Juvenile Rights Division, by Raymond E. Rodgers.

For Respondent: Michael D. Hess, The New York City

Corporation Counsel, by Sharyn Rootenberg.

JUDGES:

Ellerin, P.J., Tom, Wallach, and Friedman, JJ.

DECISION:

Order of disposition, Family Court, New York

County (Gloria Sosa-Litner, J.), entered on or about

February 3, 1997, which adjudicated appellant a juvenile

delinquent and placed him with the Division for Youth for

a period of 15 months upon a fact-finding determination

that appellant committed acts which, if committed by an

adult, would constitute criminal possession of a controlled

substance in the third, fifth and seventh degrees and

criminal use of drug paraphernalia in the second degree,

unanimously reversed, on the law and the facts, without

costs, the motion to suppress granted, and the petition

dismissed. Appeals from orders, same court and Judge.

entered on or about January 24, and February 19, 1997,

unanimously dismissed, without costs.

It is a basic tenet of constitutional law that, absent a

search warrant, a search is unreasonable unless it falls

within one of the specifically recognized exceptions to the

warrant requirement. (People v. Hodge, 44 N.Y. 2d 553.

A-2

557). The presentment agency argues that the police

conduct in this case falls within the scope of one of those

exceptions, namely, that it was a permissible administrative

search. We cannot agree.

The search at issue in this case, which was rooted in

the investigation of the apparent suicide of a young woman,

does not fall within the parameters of the exception

permitting warrantless searches for administrative purposes

(see, New_York v. Burger, 482 U.S. 691; Donovan v.

Dewey, 452 U.S. 594; Camara v. Municipal Court of San

Francisco, 387 U.S. 523). Nor can it be said that there was

any exigency justifying a warrantless search since the

police could easily have secured the apartment and

obtained a_ warrant. Additionally, contrary to the

conclusion of the Family Court, this search did not fall

within the parameters of a valid inventory search (see,

Iilinois_v. Lafayette, 462 U.S. 640; South Dakota v.

Opperman, 428 U.S. 364).

Accordingly, since the presentment agency has

failed to demonstrate that the search in this case fell within

any recognized exception to the warrant requirement,

Suppression of the items found in appellant’s dresser

drawer is mandated.

A-3

Ce ey

FAMILY COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

In the Matter of

ERIK MORALES,

A Person Alleged to be a Juvenile Delinquent,

Respondent.

Docket Number D-1 1626/96

DECISION AND ORDER

SOSA-LITNER, J.F.C.:

This juvenile delinquency petition was commenced

by the filing of a petition on October 18, 1996. The

Respondent’s application for a pre-trial suppression hearing

was granted on October 30, 1996 and the Mapp hearing

itself was heard on November 19, 1996.

Now, after reviewing the case law submitted by

both counsel and considering the testimony of the arresting

officer and the arguments offered by counsel during

summations, the Respondent’s motion to suppress the

~ physical evidence recovered from his room is denied.

Briefly, the police were summoned to_ the

Respondent’s home by his parents on October 18, 1996 to

investigate the suicide of the Respondent’s girlfriend in his

bedroom. Although the Respondent and his father

informed the police that the girl had been staying in the

respondent’s room for approximately one month, neither

the Respondent nor his parents could provide the police

with the deceased girl” full name, address or guardian. In

order to make a complete identification of the deceased,

Police Officer Michael Oliver proceeded to look through

the Respondent’s room in an attempt to locate a handbag or

some form of identification. The first place he looked was

in the Respondent’s top dresser drawer, where he

A-4

immediately observed two bags containing large quantities

of cocaine, more than 75 empty crack vials, and $377.00 in

cash.

Counsel for the Respondent argues that the search

was made in violation of the Respondent’s constitutional

and statutory rights since it was conducted without a search

warrant, without probable cause, without consent of the

Respondent or his parents and in the absence of exigent

circumstances. Counsel for the Presentment Agency argues

that the search was an inventory search, and therefore an

exception to the warrant requirement. See, Colorado v.

Bertine, 479 U.S. 367, 107 S.Ct. 738 (1987).

The Court agrees with the Presentment Agency that

the search was an inventory search, and further holds that it

was proper based on the consent of the Respondent’s

parents.

Inventory searches are permitted without a warrant

because the government has justifiable interests in

protecting an individual’s property during the course of a

necessary police investigation, in protecting the Police

Department from false claims arising from those

investigations and insuring the safety of the police officers

during the investigation. People v. Galak, 594 NYS2d 689

(1992). Although inventory searches are traditionally

conducted of an automobile or other movable property after

the an arrest [sic], the same rationale permits that permits

[sic] the police to search that property allows the police to

search a secured area that cannot otherwise be impounded.

See, People v. Dancey, 443 NYS2d 776 (2d Dept. 1981),

permitting the “safeguarding” of an apartment as a crime

scene. There can be no question that the police had a

legitimate interest in determining the identity of the

deceased_minor and that the room had to be secured as the

scene of a death. Consequently, the police action in

looking into the Respondent’s dresser drawer was a proper

procedural measure.

The search was also conducted according to

standardized Police Department regulations as required by

the Court of Appeals in People v. Galak, supra. See also,

People_v. Gonzalez, 477 NYS2d 103 (1984); Compare,

A-5

People v. Townsend, 544 NYS2d 349 (1" Dept. 1989). The

Presentment Agency offered into evidence relevant

portions of the Police Department’s “Patrol Guide” which

instructs the police to search both the body and the

premises whenever a dead human body is discovered at a

location other than his or her residence. See, Petitioner’s

Exhibit 1.

Although Officer Oliver testified that the

Respondent and his father had informed the police that the

deceased had been staying with the Respondent for “about

a month,” the transitory nature of her existence precludes a

finding that the case address was her “home.” The

Respondent or his parent’s [sic] informed the police that

the decedent’s mother may have been incarcerated out-of-

State and that the decedent had lived or “was staying” with

friends or family on 135” Street in Manhattan. The

Respondent’s parents were not the decedent’s guardians,

were not legally responsible for her care and were allegedly

not even sure of her real name. As such, it was proper for

Police Officer Oliver to follow the procedures proscribed

for bodies found outside of the decedent’s home.

Officer Oliver was merely performing this

ministerial duty when he discovered the illicit drugs.

Police Officer Oliver was not looking for contraband and

credibly testified that he did not suspect foul play at that

stage of his involvement. He had no reason to suspect that

he would discover crack cocaine in the dresser and the

Court finds no reason the [sic] doubt his veracity on that

point. Moreover, the contraband was discovered in the

very first place Officer Oliver looked. The search was

narrow in scope, reasonable under the circumstances, und

did not constitute an undue intrusion upon the

Respondent’s privacy. Illinois v. Lafayette, 462 U.S. 640.

103 S.Ct. 2605, 77 L.Ed.2d 65; Compare, Mince, \

Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 2%

(1978), where the Supreme Court suppressed contraband!

discovered during the course of a four-day search of the

Defendant’s home which included emptying cloth.

pockets, digging bullet fragments out of a wall, and pullin-

up sections of the carpet for analysis.

A-6

Finally, the Court also finds that the Réspondent’s

parents consented to the search. They notified the police

when they discovered a dead body in their son’s room and

sought police assistance in their home to deal with the

situation. Police Officer Oliver’s search for the identity of

the deceased “constituted no more of an intrusion into

(respondent)’s privacy than did the legitimate- presence of

the police” initially. People v. Dancey, supra, 443 NYS2d

at 778.

Consequently, the Court finds that the search was

proper and denies the Respondent’s motion to suppress the

physical evidence recovered from the Respondent’s room.

Parties are directed to be ready for trial.

This constitutes the order of this Court.

Enter:

/s/

Hon. Gloria Sosa-Lintner, J.F.C.

Dated: New York, NY

December 5, 1996

A-7

At a term of the Family Court of the State of New York,

held in and for the County of New York, at 60 Lafayette

St., New York, NY 10013, on February 03, 1997

PRESENT: Hon. GLORIA SOSA-LITNER

J udge

In the Matter of

ERIK MORALES,

A Person Alleged to be a Juvenile Delinquent,

Respondent.

Docket Number D-1 1626/96

ORDER OF DISPOSITION

An Order of Fact-finding dated the 24" day of

January, 1997, having been entered in the Family Court of

New York County adjudging that the Respondent herein

did the following act(s):

acts as described in count | and counts 3 through 6 of the

petition; and

The matter having thereafter duly come on for a

dispositional hearing before the Court, and the Court, after

having made an examination and inquiry into the facts and

circumstances of the case and after making reports

available to counsel in accordance with section 351.1 of the

Family Court Act, finds upon a preponderance of the

evidence that the Respondent requires supervision,

treatment, or confinement; and

The Court, having fully considered the matter of a

particular disposition pursuant to section 352.2 of the

Family Court Act, finds that the Respondent requires

confinement for the following reasons: see record: and it

appeariny that: .

A-8

Continuation in respondent’s home would be

contrary to the need to protect the community and

reasonable efforts to eliminate the need for removal of the

respondent from home were not made because such efforts

are inappropriate under the circumstances{;]

Now therefore, upon the findings made in the fact-

finding and dispositional hearings herein and upon all

proceedings had herein, it is hereby

ORDERED and ADJUDGED that the above-named

respondent is a juvenile delinquent on the ground that

Respondent, while under sixteen years of age, did act(s)

which if done by an adult would constitute the crime(s) of:

(Criminal Possession of a Controlled Substance (“CPCS”)]

3, CPCS 7, CPCS 5 (2 counts), and Criminally Using Drug

Paraphernalia 2; and on the further ground that the

Respondent requires supervision, treatment, or

confinement; and it is therefore

ORDERED that this proceeding be and the same is

continued and the Respondent be and hereby is placed for a

period of 15 months less the period spent in detention

pending disposition in the custody of the New York State

Division for Youth for placement with DFY Limited

Secure, 6 months minimum, to run concurrently with 30-D-

14168/96, subject to further orders of this Court. In the

event the New York Division for Youth is unable to place

the child in accordance with the direction hereof, or in the

event the placement with the authorized agency is

discontinued, the Division for Youth shall apply to the

Court for an order to stay, modify, set aside, or vacate such

directive pursuant to section 355.1 of the Family Court Act.

and it is further

ORDERED Respondent must receive counselling [sic].

Dated: February 03, 1997

ENTER:

/s/

Hon. Gloria Sosa-Lintner, J.F.C.

A-9

State of New York,

Court of Appeals

At a session of the Court, held at Court of Appeals Hall in

the City of Albany on the twenty-second day of February

2000

Present, HON. JUDITH S. KAYE, Chief Judge, presiding. _

Mo. No. 156 SSD 5

In The Matter of Erik M., A Person Alleged to be a

Juvenile Delinquent,

Respondent.

Presentment Agency,

Appellant.

The appellant having filed notice of appeal in the

above title and due consideration having been thereupon

had, it is

ORDERED, that the appeal be and the same hereby

is dismissed without costs, by the Court sua sponte, upon

the ground that no substantial constitutional question is

directly involved.

/s/ Stuart M. Cohen

Clerk of Court

A-10

At a Term of the Appellate Division of the Supreme Court

held in and for the First judicial Department in the County

of New York on May 25, 2000

Present - Hon. Peter Tom, Justice Presiding,

Betty Weinberg Ellerin

Richard W. Wallach

David Friedman, Justices.

In re Erik M.,

A Person Alleged to be a Juvenile Delinquent,

Appellant.

Presentment Agency

M-2125

Docket #1 1626/96

The presentment agency having moved for leave to

appeal to the Court of Appeals from the decision and order

of this Court entered on October 28, 1999 (Appeal Nos.

1309-1311),

Now, upon reading and filing the papers with

respect to the motion, and due deliberation having been had

thereon,

It is ordered that the motion is denied.

ENTER:

/s/Catherine O’ Hagan Wolfe

Clerk.

State of New York,

Court of Appeals

At a session of the Court, held at Court of Appeals Hall in

the City of Albany on the fifth day of September 2000

Present, HON. JUDITH S. KAYE, Chief Judge, presiding. _

Mo. No. 766

In The Matter of Erik M., A Person Alleged to be a

Juvenile Delinquent,

Respondent.

Presentment Agency,

Appellant.

A motion for leave to appeal to the Court of

Appeals in the above cause having heretofore been made

upon the part of the appellant herein and papers having

been submitted thereon and due deliberation having been

thereupon had, it is

ORDERED, that the said motion be and the same

hereby is denied.

/s/ Stuart M. Cohen

Clerk of Court