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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1372%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 1133

## Text

ORIGINAL _
\ cy

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
t
|
THE CITY OF NEW YORK, CLE®x
J
Petitioner, Ce a
re
-V- =
Pee
i] Ke
ERIK M., = :
es Rp
Respondent. a ee
pee
Maul i

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:

ANOTHER LOOKUP - KEY NEXT OIN PRESS RETURN TO MENU PRESS

‘7 onthly Qverage S49

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
|
oe j
at

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

ait Bs

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1372%3A2. Public record. Not legal advice.