
    The People of the State of New York, Respondent, v Marcel Etcheverry, Appellant.
    Argued February 19, 1976;
    decided April 8, 1976
    
      
      Eugene Murphy, James J. McDonough and Matthew Muraskin for appellant.
    I. The shotgun should have been suppressed. (Chimel v California, 395 US 752; People v Fitzpatrick, 32 NY2d 499; People v Ernest E., 38 AD2d 394; United States v Mapp, 476 F2d 67; People v Metzger, 44 AD2d 572; United States v Shye, 473 F2d 1061; People v Pagliarulo, 41 AD2d 563; People v Velez, 43 AD2d 745.) II. The knife should have been suppressed. (People v Alford, 35 AD2d 740; People v Koposesky, 25 AD2d 777; People v Metzger, 44 AD2d 572, 45 AD2d 719; Coolidge v New Hampshire, 403 US 443; People v Spinelli, 35 NY2d 77.)
    
      Denis Dillon, District Attorney (William C. Donnino and Anthony J. Girese of counsel), for respondent.
    I. In executing an arrest warrant the police officers conducted a reasonable search for defendant and his shotgun. (Warden v Hayden, 387 US 294; People v Fitzpatrick, 32 NY2d 499; Chimel v California, 395 US 752; People v Perel, 34 NY2d 462; United States v Titus, 445 F2d 577; United States v Miller, 449 F2d 974; United States v Riggs, 474 F2d 699, 414 US 820; People v Loria, 10 NY2d 368; United States v Jenkins, 496 F2d 57.) II. Defendant is without standing to challenge the seizure of his knife, albeit the seizure was proper. (People v Alford, 35 AD2d 740; People v Metzger, 44 AD2d 572, 45 AD2d 719; People v Spinelli, 35 NY2d 77; Thompson v United States, 382 F2d 390.)
   Wachtler, J.

This appeal involves the validity of a search of a house where the defendant, believed to be armed, was hiding on the premises to avoid arrest pursuant to a valid warrant.

On March 21, 1973 the police went to the house of the defendant’s mother to execute an arrest warrant for assault which had been issued approximately one year earlier. The officers were acting on information from a confidential informant who had called a few days before to inquire whether the police were still looking for Marcel Etcheverry. On the day in question the informant called again and told the police that the defendant was presently at his mother’s house and was armed with a sawed-off shotgun. Since the defendant’s whereabouts had been unknown and a further check revealed that he was also in violation of parole, the police proceeded there immediately. Several officers were positioned outside the premises while Detective Rizzo, who testified at the suppression hearing, and some others approached the house. When confronted by Mrs. Etcheverry they identified themselves and informed her that they were there to arrest her son. At first she denied that he was home, but on further questioning she admitted that he was working in the upstairs bathroom. The record indicates that when the officers arrived at the bathroom it was unoccupied; although it was apparent from the brush and paint can that someone had just been painting the room.

Realizing that Etcheverry was somewhere in the house the police commenced their search for him. Mrs. Etcheverry pointed out defendant’s bedroom and Detective Rizzo entered looking for the defendant and the shotgun. After checking under the bed Rizzo peered into a walk-in closet where he discovered a chest of drawers and a trapdoor leading to the attic. He searched the dresser and found a shotgun and seven shells in the third drawer. At the time the shotgun was seized the police had been in the house for approximately 20 minutes but had failed to find the defendant. Since he had not exited from the house, they concluded that he was in the attic and called to him to come down and surrender. The defendant failed to respond.

In preparation for an ascent into the attic, one of the officers removed the clothing from the closet pole in order to have clear access to the trapdoor above. While transferring a sports jacket he felt an object inside the pocket which had the shape and feel of a knife and which, on removal, was in fact a switchblade. After approximately 30 minutes the defendant’s uncle agreed to precede Detective Rizzo into the attic. Etcheverry was found by Rizzo lying under a mattress between the floorboards. After being manacled and searched he was brought down from the attic and to the police station. Shortly thereafter he was indicted for felony possession of the sawed-off shotgun and the switchblade.

At the suppression hearing to consider the validity of the seizure of the weapons, the court held that the search was incident to a valid arrest and hence lawful. The Appellate Division affirmed, without opinion. We affirm but for a different reason.

Had the police in this case not been informed that the defendant was armed and was in the house, the search of the dresser drawer and the closet would not have been justified (Chimel v California, 395 US 752, 763). In this instance, however, with knowledge that the defendant was somewhere in the house and informed that he might be armed, the police officers were admitted to the house by its owner, the defendant’s mother. Their search for the defendant revealed that he had apparently hastily abandoned painting the bathroom and was hiding in the attic, access to which could be had only through a small trapdoor in the ceiling of the closet off the defendant’s bedroom. It is significant that at the time of the instant search the police believed, on the basis of confidential information that the defendant was at his mother’s house and was armed with a sawed-off shotgun. This information had been partially verified when Mrs. Etcheverry indicated that the defendant was upstairs and the police were justified in crediting the information that he was armed (see People v Hanlon, 36 NY2d 549, 557).

At this point the police made a search of the bedroom and its closet to find the sawed-off shotgun the defendant was supposed to have in his possession. The search uncovered the shotgun in a dresser in the closet. Only then did the police head for the attic, and it was in clearing the way through the closet to the attic trapdoor that the knife came to light. As it was, for obvious reasons of their own safety, they asked the defendant’s uncle to precede them through the trapdoor into the attic. Following, they found and arrested the defendant, and after handcuffing him retraced their steps through the trapdoor and the small closet. The factor rendering this search lawful was that Etcheverry had hurriedly left the room he was in and actively sought to elude the police. Consequently they were obligated to use all reasonable efforts to apprehend the defendant and to insure their own safety, as well as that of others present.

In Warden v Hayden (387 US 294), the United States Supreme Court upheld a search of the defendant’s house on the grounds that it was conducted while the police were in "hot pursuit”. There the police were informed that an armed robbery had just occurred and that the suspect had entered a certain house. Hayden’s wife allowed the police to enter and they searched the first and second floors and the cellar simultaneously. Hayden was found feigning sleep in an upstairs bedroom and was arrested. At trial he 4 sought to suppress the weapons found in the bathroom, the clothes found in the washing machine in the cellar and other items. The court held that speed was essential and the police acted reasonably to prevent the resistance or escape of the suspect. Similarly, in the case at bar, an armed fugitive was at large within the confines of a house, necessitating a prompt thorough search by the police.

We recognize that the situation here was not a "hot pursuit” involving a smoking gun, but attach no significance to that fact. The only factor of importance is that an armed fugitive was consciously evading arrest. Therefore the police were justified in searching for the defendant and for weapons which could endanger life or thwart the accomplishment of their mission (Warden v Hayden, 387 US, at p 299, supra).

Accordingly, the order of the Appellate Division should be affirmed.

Jasen, J. (concurring).

I concur in the majority opinion but would add the following.

I agree with Judge Wachtler that successful analysis of difficult Fourth Amendment problems does not hinge on one’s ability to neatly categorize a particular fact pattern as involving, for example, "hot pursuit”, or a "search incident to an arrest”. Unfortunately, the facts in search and seizure cases do not always fit snugly into well-defined categories. This is such a case, as it involves elements of at least the two categories which have come to be known as "hot pursuit” and "search incident to an arrest”. When the officers began searching the house of defendant’s mother, defendant, evidently overhearing the conversations on the first floor, fled, still within the house, seeking a hiding place. To that extent the officers were in "hot pursuit”. Moments later it became clear that defendant was hiding in the attic, with his only escape through the trapdoor which the officers were guarding. Having found the defendant, .the officers were really no longer in "hot pursuit”. But since defendant would not be arrested yet for half an hour, one might be equally concerned about terming the officers’ actions then as being "incident to an arrest”.

Rather than struggle with such categories, I focus on the officers’ conduct and analyze the case on that basis. The officers, who had secured a valid arrest warrant, possessed reliable information not only that defendant was in the house, but that he was armed. When they did not immediately find him, they were entitled to protect themselves and also hinder his escape by searching for, and seizing, weapons that an escaping defendant might be likely to use against his captors. This concern justifies Detective Rizzo’s search of the bedroom closet and the chest of drawers therein, and the seizure of the shotgun and shells from the chest.

Once the officers discovered defendant’s presence in the attic, his arrest without injury to the officers became their paramount concern. Unobstructed access to the trapdoor in the closet became important. To provide such access, the clothes hanging in the closet had to be removed. In so doing, Officer Catalano felt a hard object in the pocket of a sports jacket he was removing. Because this hard object might be a weapon, the officer would have been foolish to ignore its presence. Nothing turns on whether we say that the officers were still in "hot pursuit” of defendant, or that this object might be in defendant’s potential "grab area” once he was arrested and thus could be seized as "incident to an arrest”. The simple fact is that the presence of the weapon posed a potential danger to the officers and could be legally seized for their safety and protection.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Fuchsberg and Cooke concur with Judge Wachtler; Judge Jasen concurs in a separate opinion in which Chief Judge Breitel and Judge Jones also concur.

Order affirmed.  