Opposition Brief — Corporation Counsel of New York v. Erik M.

ORIGINAL _

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ORIGINAL

No. 00-819 ae me Cewrt, U.S.

IN THE SUPREME COURT ILED

OF THE UNITED STATES

OCTOBER TERM 2000 DEC 20 2000 1

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THE CITY OF NEW YORK, CLE®x

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Petitioner, Ce a

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ERIK M., = :

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Respondent. a ee

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On Petition for Writ of Certiorari to the

New York State Supreme Court Appellate Division, First Department

MOTION TO PROCEED IN FORMA PAUPERIS

Respondent Erik M. asks leave to file the attached Brief in

Opposition to a Petition for Writ of Certiorari and to proceed in

forma pauperis. Respondent has been granted leave so to proceed in

the state courts of New York. Respondent’s affidavit in support of

this motion is attached hereto.

1

MONICA DRINANE

Attorney for Respondent

THE LEGAL AID SOCIETY

Juvenile Rights Division

90 Church Street, 15‘ Floor

New York, New York 10007

tu. Ee. (212) 577-3544

RAYMOND E. ROGERS*

Of Counsel .

*Counsel of Record

December 20, 2000

RECEIVED

DEC 9 2 carp

OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM 2000

xX

THE CITY OF NEW YORK, No. 00-819

Petitioner

AFFIDAVIT IN SUPPORT

-y- OF MOTION TO PROCEED

IN FORMA PAUPERIS

ERIK M..,

Respondent. |

x

INSTRUCTIONS

Complete all questions in this application and then sign it. Do not leave any blanks: if the answer

to a question is "0," "none," or "not applicable (N/A)," write in that response. If you need more space

to answer a question or to explain your answer, attach a separate sheet of paper identified with your

name, your case's docket number, and the question number.

AFFIDAVIT IN SUPPORT OF MOTION

I swear or affirm under penalty of perjury that, because of my poverty, I cannot prepay the docket

fees of my appeal or post a bond for them. I believe I am entitled to redress. | swear or affirm under

penalty of perjury under United States laws that my answers on this form are true and correct. (28

U.S.C. § 1746; 18 U.S.C. § 1621.)

Signed: a. ie Pete

Date: ae -2Y- DO

1. For both you and your spouse estimate the average amount of money received from each of the

following sources during the past 12 months. Adjust any amount that was received weekly,

biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross amounts, that

is, amounts before any deductions for taxes or otherwise.

Income source Average monthly § Amount expected

amount during the next month

past 12 months

You You

Employment $ “V / fr $ A ft

Self-employment $ . aa

Income from real property $ MV] Ht $ | 4

(such as rental income)

Interest and dividends $ Vv $ i] fi

Gifts $ $_, . if

Alimony $ $ Ad ag

Child support $ A fh $ A fi

Retirement (such as social security, i

pensions, annuities, insurance)

Disability (such as social security, Saf fr $ OL

insurance payments)

Unemployment payments $ M/ fr $ A

Public-assistance (such as welfare) $ Lf $

Other (specify): $ $

Total monthly income: $ a] fi $ ft

2. List your employment history, most recent employer first. (Gross monthly pay

is before taxes or other deductions.)

Employer Address Dates ofemployment | Gross monthly pay

AN

3. List your spouse's employment history, most recent employer first. (Gross

monthly pay is before taxes or other deductions.)

Employer Address Dates of employment Gross monthly pay

“f/f

4. How much cash do you and your spouse have? $_ 4¢e attac hed

Below, state any money you or your spouse have in bank accounts or in any other

financial institution.

Financial Type of account Amount youhave Amount your spouse

institution has

$ a

$ $

$ $

If you are a prisoner, you must attach a statement certified by the appropriate

institutional officer showing all receipts, expenditures, and balances during

the last six months in your institutional accounts. If you have multiple

accounts, perhaps because you have been in multiple institutions, attach one

certified statement of each account.

5. List the assets, and their values, which you own or your spouse owns. Do not

list clothing and ordinary household furnishings.

Home (Value) Other real (Value) Motor vehicle #1 (Value)

estate

VANS MA Make & year: wt

Model:

Registration #:

Motor vehicle #2 (Value) Other assets (Value) Other assets (Value)

Make & year:

Model:

Registration #:

WT a ed eee ae eee

6. State every person, business, or organization owing you or your spouse

money, and the amount owed.

Person owing you or your Amount owed to you Amount owed to your spouse

spouse money

Lp

7. State the persons who rely on you or your spouse for support.

Name Relationship Age

Pais

8. Estimate the average monthly expenses of you and your family. Show

separately the amounts paid by your spouse. Adjust any payments that are made

weekly, biweekly, quarterly, semiannually, or annually to show the monthly

rate.

You Your Spouse

Rent or home-mortgage payment $ Af A g A] A

(include lot rented for mobile

home)

Are real-estate taxes included? [ ] Yes [ ] No

Is property insurance included? [ ] Yes [ ] No

Utilities (electricity, heating fuel, $ 4/At s vit

water, sewer, and Telephone)

Home maintenance (repairs and upkeep) $_A/ $

Food $A $

Clothing $ $

Laundry and dry-cleaning $ $

Medical and dental expenses $ $

Transportation (not including motor $ MV} A $

vehicle payments)

Recreation, entertainment, g VV / A $ NV] }

newspapers, magazines, etc.

Insurance (not deducted from wages or $_ $ wlh

included in Mortgage payments)

Homeowner's or renter's $f $ ft

Life $ $

Health $ } $

Motor Vehicle $ Ad) ft $

Other: s/h $ V/ fh

Taxes (not deducted from wages or $ | A $

included in Mortgage payments)

(specify):

Installment payments $s /

Motor Vehicle

Credit card (name):

$

$ $

$ $

Department store (name): $ $ Mv]

$ $ A//

$ $ v/

Other:

Alimony, maintenance, and support

paid to others

Regular expenses for operation of $4, , il $ NV] Kr

business, profession, or farm

(attach detailed statement)

Other (specify): $ ‘al $ A

Total monthly expenses: $ $

9. Do you expect any major changes to your monthly income or expenses or in

your assets or liabilities during the next 12 months?

[] Yes DYNo If yes, describe on an attached sheet.

connection with this case, including the completion of this form? Yeg No

If yes, how much? $

If yes, state the attorney's name, address, and telephone number:

10. Have you paid--or will you be paying--an attorney any money for om in

KO

11. Have you paid--or will you be paying--anyone other than an attorney (such

as a paralegal or a typist) any money for services in connection with this

case, including the completion of this form?

[ ] Yes ANo

If yes, how much? $ eek

If yes, state the person's name, address, and telephone number:

-—

AN

12. Provide any other information that will help explain why you cannot pay the

docket fees for your appeal.

13. State the address of your legal residence.

Chiat Cocroctioul Facil ty Anne

Danne mova, NY 12929 l

Your daytime phone number: 51g «wes -36u

Your age: AO Your years of schooling: GE D

Your social-security number:

2, IcsS SYSTEM 12/04/00

YS DEPT OF CORRECTIONS 12:47:25

209-INMATE BALANCE SCREEN

PHONE: ( 518 >) 492 2511 EXT: 2000

NYSIO: 88518120 FAX: « $18 ) 492 2511 EXT: 2097

DOB: 11/06780 CURRENT FACILITY: CLINTON

FULL NAME: MORALES ERIK

DIN: OOA14614 AAA AAAAAAAARAAARAARARARAARERREREARA

* ENCUMBRANCES “

* TOTAL: 155.00 -

SPEMOABLE BALANCE: 0.00 . COLLECTED: 55.68 -

a OUTSTANDING: 99.32 *

HARARE REAR KAAAKRERAKRAA ARAMARK A KEES

SPENDABLE FOR LAST TOTAL. DEPOSITS FOR

SIX MONTHS LAST SIX MONTHS

OLDEST 4.63 15.60

i | 4.461 9.92

it 2.67 16.00

| 2.35 12.40

oa 13.62 43.30

NEWEST 5.06 16.80

NEXT DIN:

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CERTIFIED COPY

Ke,

INMATES ACCOUNTS

No. 00-819

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM 2000

THE CITY OF NEW YORK,

Petitioner,

-v-

ERIK M.,

Respondent.

On Petition for Writ of Certiorari to the

New York State Supreme Court Appellate Division, First Department

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

MONICA DRINANE

Attorney for Respondent

THE LEGAL AID SOCIETY

Juvenile Rights Division

90 Church Street, 15™ Floor

- New York, New York 10007

(212) 577-3544

RAYMOND E. ROGERS*

Of Counsel

*Counsel of Record

December 20, 2000

QUESTION PRESENTED

Whether the warrantless and non-consensual search of the

respondent’s closed bedroom dresser drawer violated the Fourth and

Fourteenth Amendments to the United States Constitution, where the

sole justification for the police action was the investigation of

a suicide that occurred in the bedroom.

TABLE OF CONTENTS

Page

oO Be Ps Sed we area ee ae ae ee ee ee ii

RMR Meee e OW Tie CABS 6s cc cick nents csec vse snsesesssssnes 1

Os Eee eee re Sr or ee ee ar ee a ee ee eee eee eee ee 10

CREAM 6 edb ede dd ww WhO KAA Mes ewe eer eee senses neeees 13

emit nc ae

Le ae aa SR SSS SESS ATS WZ

TABLE OF AUTHORITIES

Cases Page

Camara v. Municipal Court, 387 U.S. 523 (1967)......... 12

Flippo v. West Virginia, 528 U.S. 11 (1999)............ 11

In re Erik M., 265 A.D.2d 256, 697 N.Y.S.2d 35

(2™ See. BROS sg bna ws ha de eek ea hk eee 5

Bineey +. Avian. 437 U6. SO AOTO ii ok cs ck tees twins 13

Thompson v. Louisiana, 469 U.S. 17 (1984)............... 11

Court Rules

Rie. CE. a SR io kd oc kes cee ea hs ee ae 10

CU: es TS GG oa 6 86 oe ae 2G ROARS Oe ee ee 11

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IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM 2000

a a a ey aris Selah sae Bla aR X

THE CITY OF NEW YORK, : No. 00-819

Petitioner,

-v-

ERIK M.,

Respondent.

Sg eg PE Ee eee ee ee ee ee X

STATEMENT OF THE CASE

On October 22, 1996, the Corporation Counsel of the City of

New York (the petitioner in this Court) filed a juvenile

delinquency petition in New York County Family Court charging the

then fifteen-year-old respondent, Erik M., with the commission of

six delinquent acts regarding the possession of crack cocaine

discovered as the result of an October 18, 1996, police search of

a closed dresser drawer in the respondent’s bedroom. On October

23, 1996, the respondent filed a motion to suppress all evidence

the police had obtained as a result of the search of the bedroom on

the ground the search and seizure violated the federal constitution

and state law.

At the suppression hearing held in New York County Family

Court on November 19, 1996, New York City Police Officer Michael

Oliver, who at the time of the hearing had been a member of the

force for three years and had been stationed in the 30% Precinct

for over a year, testified that on October 18, 1996, at 8:00 a.m.,

he was in a marked patrol car with his partner (Steven Helman),

both in uniform, when. they received a radio run regarding an

emotionally disturbed person at 602 West 137 Street, apartment 27,

in Manhattan (A4-6, 20, 27-28).* On their way to the location, the

radio dispatcher clarified that the purpose of the run was a report

of a suicide by hanging at that address (A5). When they arrived at

that address a few minutes after 8:00 a.m., respondent’s father

opened the door to the apartment and let the officers inside (A6,

20). Inside the apartment, the officer also saw respondent and his

mother and brother (A7). Officers Oliver and Helman were the first

members of the force to arrive, and they were joined by at least

four other police officers, including a sergeant (A21). Neither

Officer Oliver nor Officer Helman nor the police sergeant who

arrived speaks Spanish, the principal language spoken by

*Parenthetical citations refer to the pages of the transcripts

of the suppression hearing held in the New York County Family Court

on the following dates: A--11/19/96 (36-page session before recall

of case)and B--11/19/96 (23-page session after recall of case).

a

respondent's parents (A22-23). Officer Carrasco, the Youth Officer

at the 30° Precinct, arrived at the apartment shortly after Officer

Oliver, and an Officer Sanchez also came to the apartment (A25-26).

Respondent’s father led the officers _to a room in the

apartment where he struggled to push the door open, put his head

inside the room, and then stepped away from the door with tears in

his eyes (A7). Officer Oliver entered that room and observed “a

young woman who was hanging from the door” and who was “apparently

dead” (A8). Officer Oliver looked around the room for “any signs

of foul play” but saw none (A8). It appeared to Officer Oliver

that the woman had coleieeie iekinkde (A8, 22). Inside the room was

a Single bed and a dresser with a mirror that had respondent’s

first name on a piece of paper attached to it (A9).

Officer Oliver went to the kitchen of the apartment with his

partner and asked the members of the M. family who the woman was

and what had happened (A9, 26-27). At least four other police

officers were also in the apartment at the time of this

conversation; they were in the hallway (A27). Officer Oliver

testified that ‘“[b]Jecause of the language barrier [they were]

having a hard time understanding each other and from the part we

did understand because [respondent] does speak English, [he] could

not give me a straight answer as to who this person was. I could

oe

not get full identification” (A9). Respondent did tell the

officers that the woman’s name was, “possibly, Lilly” (A9).

Respondent and his father told the officers that the young woman

had been staying in the apartment for “approximately a month” (A10).

Respondent told the ofticec that the woman, whom he described as

his girlfriend, had been staying in his bedroom (A14-15, 30-31).

Members of the M. family also told the officer that the young

woman's mother “was possibly in jail in Texas” and the young woman

had previously “been staying on 135th Street. They were not sure

of the exact address” (Al6). The officer was trying to identify

the Secnaen because “anytime we have a . .. dead human body, we

have to try to make--we have to try [to] ascertain who this person

is, to make notifications as to the family or next of kin or

someone who can identify her” (A10).

After talking to the M. family-for approximately five minutes

regarding the identity of the young woman, Officer Oliver, “[b]eing

that I could not ascertain exactly who this person was .. . re-

entered the bedroom and proceeded to search for some sort of

identification” (All). Officer Oliver never testified that he

asked or received permission from any member of the M. family to

conduct a search of the apartment. Upon his second entry to the

bedroom, Officer Oliver was accompanied by Officer Helman (A25).

st nin

The officer hoped to find “a pocketbook or some school I.D.

Anything with her name, address on it” (A1l5). Officer Oliver went

to the bedroom because “that is where that person was and I wanted

to check the immediate surroundings” (A12). The officer

“immediately went ta thes dresser drawer. The first drawer I opened

which was the top left drawer. It had contained an amount of

money, drugs and drug paraphernalia” (All). The dresser drawer was

closed at the time he entered the room, and he opened the drawer in

order to search it (A29). Officer Oliver reported his discovery to

the police sergeant, who had earlier arrived at the apartment in

response to the same radio run (All).

Officer Oliver testified he was familiar with the New York

City Police Patrol Guide, which contains police department

“procedures and guidelines” (Al2). The part of the Guide, which was

dated August 9, 1985, concerning the procedures regarding dead

human bodies was received in evidence as exhibit one (A13). In

chapter 106-9, under the heading DEAD HUMAN BODY - -GENERAL

PROCEDURE, the guide states that the purpose of the advice is “[t]o

ensure that notifications to concerned authorities and relatives

are properly made and recorded, evidence is preserved and proper

disposition is made of dead human bodies.” The guide then contains

\

instructions for three classes of police of ficers--uniformed

-5-

members of the service, desk officers, and patrol supervisors.

Paragraph 10 provides that the primary duty for uniformed members

of the service is to prevent anyone from disturbing the body. In

paragraph 19 of the instructions for patrol supervisors, the guide

inks “Have body and premises searched in the presence of

witnesses, ‘whenever possible,’ if deceased resided alone or died at

a location other than residence.” Officer Oliver, who was not a

patrol supervisor but rather a uniformed member of the service,

claimed that he followed paragraph nineteen of that section and

searched the premises because the young woman “died in the location

other than her residence” (A114).

-

Officer Oliver testified that when he re-entered the bedroom

to conduct the search, he believed that what had occurred was an

apparent suicide (A16-17). Detectives from the 30° Precinct were

also present at the apartment that morning, but Officer Oliver

testified that he was not helping them investigate the scene but

rather he was “[j]ust searching for identification” (A17).

In summation at the suppression hearing, respondent’s counsel

argued that the evidence should be suppressed because it was

discovered as a result of a warrantless search of respondent’s

bedroom by a police officer acting without exigent circumstances

and without consent (B3-16). The prosecutor responded that the

ai

—

TT

police action was an appropriate administrative or inventory

search, not a search to discover evidence of a crime(B17-20).

On December 5, 1996, the Family Court issued a written

decision denying the motion to suppress. The Family Court agreed

with the prosecution that the search of the bedroom was a proper

inventory search, and the court also ruled that respondent’s

parents consented to the search (Decision at 2). According to the

Family Court, the police may legally conduct a warrantless

inventory search of a private residence so long as the»smotive for

the search is not to discover evidence of a crime (Decision at 2-

4). Despite the fact that the prosecution did not rely on a

consent theory and never offered any evidence that Officer Oliver

received consent from anyone to search respondent’s bedroom, the

Family Court nevertheless found that respondent’s parents consented

to that search because “[t]hey 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” (Decision at

4). According to the Family Court, the police search of closed

drawers in respondent’s bedroom was no greater an intrusion than

the legitimate police presence in the home (Decision at 4).

At the subsequent fact-finding hearing, the prosecution

introduced the evidence obtained as a result of the police search

~ P

of the respondent’s closed bedroom dresser drawer. That evidence

included $277 in cash, 98 empty crack vials, 19 small plastic bags

containing crack cocaine, shotgun shells, and a handwritten note.

At the conclusion of the fact-finding hearing on January 24, 1997,

the Family Court found that the respondent committed the delinquent

acts of criminal possession of a controlled substance in the third,

fifth (two counts), and seventh degrees, and of criminally using

drug paraphernalia in the second degree. On February 3, 1997, the

Family Court adjudicated the respondent a juvenile delinquent and

placed him with the New York State Division for Youth for a period

of fifteen months. ie

The respondent appealed to the Appellate Division, First

Department, arguing that the police search of the closed bedroom

dresser drawer had been illegal and that all the evidence obtained

as a result of the search should be suppressed. In a decision

issued October 28, 1999, the First Department reversed the Family

Court and granted the motion to suppress. In re Erik M., 265

A.D.2d 256, 697 N.Y.S.2d 35 (1% Dept. 1999). The court held a8

follows:

4

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,

a

44 N.Y.2d 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, Illinois 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.

265 A.D.2d at 256-57; 697 N.Y.S.2d at 36-37.

On December 2, 1999, the appellant filed a notice of appeal

to the New York Court of Appeals from the First Department’s

October 28, 1999, order, claiming that it had an appeal as of

On February 22, 2000, the New York Court of Appeals

dismissed the appellant’s appeal upon the ground that it did not

present a substantial constitutional question. On April 4, 2000,

the prosecution filed, in the Appellate Division, First Department,

a motion for leave to appeal to the New York Court of Appeals the

First Department’s October 28, 1999, order. On May 25, 2000, the

First Department denied the appellant’s motion for leave to appeal.

On June 15, 2000, the appellant filed, in the New York Court of

Appeals, a motion for leave to appeal the First Department’s

October 28, 1999, order. On September 5, 2000, the New York Court

of Appeals denied the appellant’s motion for leave to appeal. On

November 8, 2000, the appellant filed a petition for writ of

certiorari in this Court, requesting review of the order of the New

York State Supreme Court, Appellate Division, First Department.

ARGUMENT

This Court’s rules provide that it will consider granting

review on certiorari where “a state court of last resort has

decided an important federal question in a way that conflicts with

the decision of another state court of last resort or of a United

States court of appeals.” Sup. Ct. R. 10(b). In its petition,

however, the City of New York fails to cite even one decision of

another state or federal court that conflicts with the holding of

the New York State Supreme Court, Appellate Division, First

-16-

Department, in this case, and the respondent is also unaware of any

such conflicting decisions. Thus certiorari is not warranted by

any split of opinion in the lower courts.

This Court’s rules also provide that certiorari review may be

appropriate where “a state court .. . has decided an important

question of federal law that has not been, but should be, settled

by this Court, or has decided an important federal question in a

way that conflicts with relevant decisions of this Court.” Sup.

Ct. R. 10(c). This Court has settled in Flippo v. West Virginia,

528 U.S. 11, 13-15 (1999), Thompson v. Louisiana, 469 U.S. 17, 18-

23 (1984), and Mincey v. Arizona, 437 U.S. 385, 389-95 (1978), the

question of whether under the Fourth Amendment the police may make

a warrantless search of a home where a dead body has been

discovered. Those cases all held that, absent a warrant or

consent, such searches violated the Constitution. In the present

case, the police did not attempt to obtain a warrant, nor did the

police even ask any member of the respondent’s family for consent

to search the home. Thus, the New York State Supreme Court

Appellate Division merely appiied well settled constitutional

principles to the facts of this case.

In addition, the search violated the New York City Police

Department’s Patrol Guide in that the officer who conducted the

-1i-

search, Officer Oliver, was a uniformed member of the service who,

according to the patrol guide, was to do no more than prevent

anyone from disturbing the body. Only a patrol supervisor,

according to the guidelines, had the authority to authorize a

search. Thus Officer Oliver’s search not only violated the

Constitution but also the police department’s own rules.

The appellant relies on cases upholding police inventory

searches of cars and bags that are lawfully in police custody. The

search in the present case, however, did not involve a lawfully

seized car or bag but rather concerned a search of an area entitled

to the highest level of constitutional protection — a closed

dresser drawer in the respondent’s bedroom — a place for which no

court has ever authorized a warrantless “administrative” search.

In fact, this Court has held that routine inspections of homes to

determine whether any health or safety laws are being violated are

not allowed without the issuance of a warrant. Camara v. Municipal

Court, 387 U.S. 523, 534 (1967). Warrantless administrative or

inventory searches of the home — as opposed to cars or containers

carried by arrestees — are plainly unconstitutional. The New York

State Supreme Court Appellate Division correctly applied this

Court’s precedents. This case, siacailsealiilas te. does not warrant

certiorari review.

a

CONCLUSION

For the reasons stated above, respondent respectfully

requests this Court to deny the petition for writ of certiorari.

Respectfully submitted,

MONICA DRINANE

Attorney for Respondent

Rrynend E.fogers

RAYMOMD E. ROGERS

Of Counsel

December 20, 2000

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