PRESENT: BRUCE E. TOLBERT, J.P., JAMES V. BRANDS, TERRY JANE RUDERMAN, JJ
*1 ORDERED that the matter is remitted to the City Court for a new determination of the branches of defendant's omnibus motion seeking to suppress physical evidence and statements to law enforcement officials in accordance herewith, and thereafter a report to this court advising of the new determination, and the appeal is held in abeyance in the interim. The City Court shall file its report with all convenient speed.
On March 6, 2012, the Town of Wallkill Justice Court authorized a warrant to search defendant's house and grounds at 237 Derby Road in the Town of Wallkill, New York. The warrant was executed, two of defendant's numerous dogs were seized and defendant was served with a notice to comply with the requirements of the Agriculture and Markets Law with respect to the care and sheltering of the remaining dogs. Following inspections on March 16, 2012 and April 13, 2012, when it was determined that defendant had failed to comply with the notice, multiple amended warrants issued, the last on May 16, 2012, which resulted in the seizure of all of defendant's dogs, certain of which required surgery to repair broken bones and other injuries. Other dogs, one with “a large tumor that was hanging from its mammary gland area,” were euthanized shortly after being seized.
On April 30, 2012, defendant was arrested and charged with two counts of animal cruelty in violation of Agriculture and Markets Law § 353 in relation to two dogs seized during the execution of the initial search warrant. On May 29, 2012, the People charged defendant, in a superseding information, with 11 violations of Agriculture and Markets Law § 353, 55 violations of Agriculture and Markets Law § 353-b (2) (a), 60 violations of Code of the Town of Wallkill (“Code”) § 70-6 (A) (1), 23 violations of Code § 70-18 (B) (2), and 1 violation of Code § 249-10. Defendant moved to suppress all of the physical evidence and statements obtained in the course of the officer's initial warrantless entry onto defendant's property, as well as all of the evidence obtained pursuant to the execution of the subsequent, amended warrants, arguing that the initial entry, being without legal justification, tainted all of the evidence thereafter obtained. On May 22, 2013, the City Court granted the motion to the extent of ordering Mapp and Huntley hearings.
At the combined suppression hearing, a building contractor testified that, prior to March 6, 2012, he had spoken with defendant, at her property, to provide an estimate for repairs to her home. On March 6, 2012, he contacted the Office for the Aging and expressed his “concern[ ] with ... [defendant].” Asked if he had exhibited concern for the welfare of the dogs, he replied, “not so much for the dogs as for her.” An official at the Office for the Aging testified that the contractor had informed her that defendant's home should be “condemned” and that he had observed 6 dogs in the home and 50 to 100 dogs in outdoor cages, and that “somebody has to help those dogs.” She then telephoned the Wallkill Police Department “[t]o ask them to get somebody out there to check the situation out,” and a police officer replied that she would send an officer to “take a look.”
*2 The investigating officer testified that, on March 6, 2012, assisted by another officer, he visited defendant's property to determine the welfare of the female occupant (defendant) and to investigate a report of nearly 100 dogs living in “unhealthy conditions” on defendant's property. Upon arriving at defendant's driveway, the officers bypassed a chain attached to a closed gate to defendant's driveway upon which was posted, according to defendant's photographic proof, a no trespassing sign. As he walked down the lengthy driveway, the investigating officer detected the strong odor of animal feces and observed dogs exhibiting injuries and other conditions requiring medical treatment. He eventually encountered defendant, who, upon understanding the purpose of the officer's presence, demanded that the officer produce a search warrant or obtain a warrant if he were to conduct further investigation. The officer departed and obtained a warrant, which was executed later the same day, and two dogs were seized. Amended warrants resulted in the seizure of numerous dogs and the gathering of evidence pertaining to defendant's alleged neglect of her dogs, including the failure to provide adequate food, shelter, and veterinary care. The officer acknowledged that he had not observed the no trespassing sign before walking down defendant's driveway and that his actual knowledge of the condition of any of defendant's dogs was first obtained on that walk.
Following the hearing, the City Court concluded that, while the officers' initial entry violated defendant's legitimate expectation of privacy, the officers' actions were justified, pursuant to the emergency exception to the warrant requirement, to determine the state of defendant's welfare and that of her dogs, and denied the suppression motion in its entirety, addressing no other issue pertinent to suppression. Defendant appeals, alleging, among other things, that the People failed to establish that the officers had reasonable grounds, based on “empirical facts” (People v. Mitchell, 39 N.Y.2d 173, 178, 383 N.Y.S.2d 246, 347 N.E.2d 607  ), to believe that there was an immediate need for their assistance to protect life or property (see Michigan v. Fisher, 558 U.S. 45, 47, 130 S.Ct. 546, 175 L.Ed.2d 410  ), and that the City Court should have suppressed all of the evidence acquired pursuant to the officers' observations upon which the first search warrant was granted, and pursuant to the execution of the subsequent, amended warrants necessarily derivative therefrom.
In People v. Mitchell, the Court of Appeals summarized the emergency exception to the warrant requirement as follows:
“(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
(2) The search must not be primarily motivated by intent to arrest and seize evidence.
(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched” (39 N.Y.2d at 177-178, 383 N.Y.S.2d 246, 347 N.E.2d 607; see also People v. Doll, 21 N.Y.3d 665, 670-671, 975 N.Y.S.2d 721, 998 N.E.2d 384 ; People v. Dallas, 8 N.Y.3d 890, 891, 832 N.Y.S.2d 893, 865 N.E.2d 1  ).
The emergency exception, which “sanctions warrantless searches and seizures” (People v. Calhoun, 49 N.Y.2d 398, 403, 426 N.Y.S.2d 243, 402 N.E.2d 1145  ), applies to animals in imminent danger of health or which are otherwise in need of protection (see People v. Rogers, 184 Misc. 2d 419, 420, 708 N.Y.S.2d 795 [App. Term, 2d Dept., 2d & 11th Jud. Dists. 2000]; see also Shapiro v. City of Glen Cove, 236 Fed. Appx. 645, 646 [2d Cir. 2007] ). While the People need not meet the probable cause standard, it remains their burden, in the first instance, to establish the applicability of the doctrine (see People v. Hodge, 44 N.Y.2d 553, 557, 406 N.Y.S.2d 736, 378 N.E.2d 99 ; People v. Williams, 146 A.D.3d 906, 908, 48 N.Y.S.3d 405 ; People v. Rodriguez, 77 A.D.3d 280, 287-288, 907 N.Y.S.2d 294 ; see also Brigham City v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650  [a warrantless entry is reasonable under the Fourth Amendment “regardless of the individual officer's state of mind, as long as the circumstances, viewed objectively, justify (the) action”] [internal quotations marks and citation omitted] ). Although a question exists whether the second criterion of Mitchell remains viable (see e.g. People v. Theodore, 114 A.D.3d 814, 817, 980 N.Y.S.2d 148 ; People v. Rodriguez, 77 A.D.3d at 284, 907 N.Y.S.2d 294; People v. Desmarat, 38 A.D.3d 913, 915, 833 N.Y.S.2d 559  ), we need not address that issue because we conclude that the People failed to satisfy the first criterion. The emergency exception “ ‘must be narrowly construed because it is susceptible of abuse and may be used to validate an otherwise unlawful arrest or seizure’ ” (People v. Mormon, 100 A.D.3d 782, 783, 954 N.Y.S.2d 152 , quoting People v. Guins, 165 A.D.2d 549, 552, 569 N.Y.S.2d 541  ), and “an impermissible entry is not rendered retroactively permissible when the police find evidence of criminality” (People v. Ringel, 145 A.D.3d 1041, 1046, 44 N.Y.S.3d 152 ; see e.g. People v. Tarbell, 158 A.D.3d 1215, 1216, 71 N.Y.S.3d 768 ; People v. Scott, 133 A.D.3d 794, 797, 21 N.Y.S.3d 121 ; People v. Hammett, 126 A.D.3d 999, 1001, 6 N.Y.S.3d 107 ; People v. Morris, 126 A.D.3d 813, 814, 4 N.Y.S.3d 305 ; People v. Mormon, 100 A.D.3d at 783, 954 N.Y.S.2d 152).
Although one of the officers testified at the suppression hearing that he had not seen a no trespassing sign, there is no dispute that, to enter defendant's property, the officers crossed a chain fence that was posted with a no trespassing sign; that the City Court correctly concluded that “the chaining of the driveway and posting of a no trespassing sign establishe[d] an expectation of privacy for the defendant”; that the People “must therefore establish an exception to the warrant requirement to justify the police officers' entry onto the defendant's property”; and that “[t]he legality of the search turns on the first element [of the Mitchell test], that is, whether the police had reasonable cause to believe an emergency was at hand and whether there was an immediate need for their assistance to protect life or property.” The rule applies even where the entry is for “a legitimate, benevolent purpose distinct from crime-fighting” (People v. Molnar, 98 N.Y.2d 328, 333, 746 N.Y.S.2d 673, 774 N.E.2d 738  ). Having properly concluded that “the chaining of the driveway and posting of a no trespassing sign establishe[d] an expectation of privacy for the defendant” (see People v. Scott, 79 N.Y.2d 474, 491, 583 N.Y.S.2d 920, 593 N.E.2d 1328  ), the City Court was required to determine whether the hearing proof established the existence of “empirical facts” sufficient to give the officer “reasonable grounds” to believe that an emergency existed requiring the immediate need for police assistance with respect either to defendant or her dogs.
Here, the People established, at most, only that the police were aware of a report of “unhealthy conditions” on defendant's property, that defendant lived in a house that a repair contractor thought should be “condemned,” that a large number of dogs were housed on defendant's property, and that the contractor had expressed concern for the welfare of defendant, and to a lesser extent, her dogs. These facts are insufficient to support a conclusion that there existed a “substantial threat of imminent danger” to defendant or her dogs. Considered in retrospect, there is no question that an emergency with respect to the dogs existed, and that, were the officers legally present, the “scope and duration of the search [would ultimately] be limited by, and reasonably related to, the exigencies of the situation” (People v. Williams, 146 A.D.3d at 908, 48 N.Y.S.3d 405, citing Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 ; see e.g. People v. Alster, 28 A.D.3d 490, 491, 811 N.Y.S.2d 784  ). However, as noted, we cannot retroactively apply subsequently obtained facts to justify the officers' initial entry onto defendant's property (see People v. Ringel, 145 A.D.3d at 1046, 44 N.Y.S.3d 152).
In view of the foregoing, we conclude that, given the illegality of the entry, the evidence gathered thereby could not support the issuance of the initial search warrant. However, in light of the sequence of evidence-gathering in this case, that is, the execution of multiple amended warrants, a question is presented as to whether the seizures of evidence following the illegal entry occurred under circumstances “sufficiently distinguishable” from the initial illegality (People v. Conyers, 68 N.Y.2d 982, 983, 510 N.Y.S.2d 552, 503 N.E.2d 108  ) so as to have purged the taint resulting therefrom. This mixed question of law and fact (see People v. Bradford, 15 N.Y.3d 329, 333, 910 N.Y.S.2d 771, 937 N.E.2d 528  ) “requires consideration of the temporal proximity of the [initial illegality and the subsequent seizure of evidence], the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct” (People v. Conyers, 68 N.Y.2d at 983, 510 N.Y.S.2d 552, 503 N.E.2d 108; see also People v. Harris, 77 N.Y.2d 434, 441, 568 N.Y.S.2d 702, 570 N.E.2d 1051  ). “[T]he relevant factors will vary from case to case and each case must be individually considered on the particular facts and circumstances presented” (People v. Borges, 69 N.Y.2d 1031, 1033, 517 N.Y.S.2d 914, 511 N.E.2d 58  ). Since “the resolution of that issue could have affected the determination of the suppression motion” (People v. Chazbani, 153 A.D.3d 930, 932, 60 N.Y.S.3d 433  ), the appeal is held in abeyance and the matter remitted to the City Court for the issue's consideration. At this stage of the appeal, we need not address defendant's remaining contentions (see People v. Vinson, 161 A.D.3d 493, 493, 77 N.Y.S.3d 26  ).
Accordingly, the matter is remitted to the City Court for a new determination of the branches of defendant's omnibus motion seeking to suppress physical evidence and statements to law enforcement officials in accordance herewith, and thereafter a report to this court advising of the new determination, and the appeal is held in abeyance in the interim.
TOLBERT, J.P., BRANDS and RUDERMAN, JJ., concur.
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