
    The People of the State of New York, Appellant, v Joseph Gonzalez and Tracy Gonzalez, Respondents.
    Argued February 11, 1976;
    decided March 30, 1976
    
      
      Robert M. Morgenthau, District Attorney (Robert M. Pitler, Peter L. Zimroth and T. James Bryan of counsel), for appellant.
    Both defendants voluntarily consented to the search of their apartment. (Schneckloth v Bustamonte, 412 US 218; People v Kuhn, 33 NY2d 203; Culombe v Connecticut, 367 US 568; United States v Faruolo, 506 F2d 490; People v Rodriquez, 11 NY2d 279; People v Alberta, 37 Misc 2d 847; United States v Miley, 513 F2d 1191; United States v Williams, 479 F2d 1138, 414 US 1025; United States v Glasgow, 451 F2d 557; United States v Ferrara, 377 F2d 16, 389 US 908.)
    
      Joseph I. Stone for respondents.
    The search in the apartment was illegal and the People failed to prove that defendants’ consent was voluntary. (Agnello v United States, 269 US 20; Preston v United States, 376 US 364; Wong Sun v United States, 370 US 908; McDonald v United States, 335 US 451; 
      United States v Faruolo, 506 F2d 490; United States v Miley, 513 F2d 1191; United States v Heimforth, 493 F2d 970.)
   Chief Judge Breitel.

The exclusive issue is whether in a criminal action defendants’ written consents to search their apartment were involuntary as a matter of law, as indeed the Appellate Division concluded.

Defendants, after denial of their motions to suppress drugs uncovered and seized under the consents, were convicted upon their pleas of guilty of possession of drugs (Penal Law, § 220.16). The Appellate Division unanimously reversed their convictions, on the law, vacated their pleas, granted defendants’ motions to suppress the drugs seized, and remanded to Supreme Court for further proceedings. The People appeal.

There should be an affirmance. Consent to search, a relinquishment of constitutional protection under both the Federal and State Constitutions against unjustified official intrusion, must be a free and unconstrained choice. Official coercion, even if deviously subtle, nullifies apparent consent. Whether consent has been voluntarily given or is only a yielding to overbearing official pressure must be determined from the circumstances. Where, as here, the circumstances objectively reveal overbearing official conduct in obtaining an apparent consent, there is, as the Appellate Division concluded, a question of law, and an absence of voluntary consent. Contraband seized as a result of the search must, therefore, be suppressed, because on no view of the evidentiary facts was there an exercise of free will in the giving of the consents.

In viewing the record, because the issue comes to this court solely on a question of law, the evidence, but only the actual evidence, given by the prosecution witnesses must be assumed to be entirely creditable, together with any admissions by defendants. The contrary and largely plausible version given by the defense witnesses detailing an entirely different account of the relevant events must be disregarded. Despite the obvious temptation to describe that version, it will not be set forth except for an occasional reference where the prosecution’s version is demonstrably uncreditable as contrary to human experience and the context in which the events in question occurred.

On September 17, 1973, Agent Michael Horn of the United States Drug Enforcement Administration, while negotiating a prospective drug sale, received a "sample” of cocaine from Joseph Gonzalez in the bedroom of his small, three-room Castle Hill apartment in the northern part of New York County. Gonzalez took the cocaine from a clear plastic bag on top of the bedroom dresser. Present in the bedroom at the time of the transaction was Mr. Gonzalez’ bride of three days, Tracy. Both Gonzalezes were under 20 years of age.

A few minutes after leaving the apartment, Agent Horn returned with another Federal agent, Hochman, to arrest Mr. Gonzalez for the initial sale and for possession of drugs and Mrs. Gonzalez only for possession. The agents came upon Mr. Gonzalez in the hallway outside his apartment. They identified themselves and Agent Hochman drew his weapon. When they tried to arrest him, Gonzalez resisted and a brief struggle ensued. During the struggle, Agent Hochman and Gonzalez fell down a flight of stairs and the agent’s gun was dropped. Also during the struggle, Gonzalez shouted to his wife to "lock the door [or] something like that”. Gonzalez was finally subdued by the agents, now assisted by a third agent, and his arms were handcuffed behind his back.

Agents Horn and Hochman then knocked on the apartment door and identified themselves. When no immediate response was forthcoming, the agents banged and kicked the door. At this point, six other agents arrived, now an aggregate of nine. After about five minutes Mrs. Gonzalez opened the door and was immediately handcuffed and placed in the bedroom by the agents. (At the suppression hearing she admitted that, during the interval, she had been disposing of drugs.) Mr. Gonzalez was brought in by Agent Jenkins and placed in the living room.

Nine Federal agents were now in the small apartment with the handcuffed and separated Gonzalezes. Some of the agents began their "standard procedure” of checking closets for possible other occupants of the apartment. No otherwise full-scale search for contraband was conducted. After the visual search, two agents left to check the area below the apartment windows, and two others went outside the apartment to reassure neighbors who had been disturbed by the fracas. Three agents were clustered about Mr. Gonzalez, "conversing” with him. At least one agent was guarding Mrs. Gonzalez in the bedroom. None of the agents had their weapons drawn while they were in the apartment.

Without described preliminary conversation, Agent Horn read Mr. Gonzalez the now standard preinterrogation warnings (Miranda v Arizona, 384 US 436). On question, Gonzalez responded that he understood them. Agent Horn and two other agents then went into the guarded bedroom and read Mrs. Gonzalez the same warnings, and she too said that she understood them.

About five minutes after the agents had entered the apartment, Mrs. Gonzalez’ mother and grandfather came in. Mrs. Gonzalez’ mother immediately went into the bedroom to talk with her daughter. Mrs. Gonzalez’ grandfather berated her for having married Joseph. After being in the apartment for approximately five minutes, they were "required to leave” by the agents. Agent Jenkins explained that Mrs. Gonzalez’ mother "could say what she had to say and it was time to leave”. These events consumed a period of approximately one-half hour.

The bare description of what had occurred thus far is the version of the Federal agents. As might be expected, a quite different narration was given by the defense witnesses, who described threats to expose the defendants to State prosecution under the severe State sentencing laws, threats to separate the newlyweds forever, and the desirability of defendants signing consents to a full-blown search of the apartment induced further by the comment about how a search warrant was "on the way”. Interestingly, when asked whether he had threatened Mr. Gonzalez with State prosecution with its well-advertized severe penalties, rather than Federal prosecution, Agent Horn replied with negative pregnant in classic form "Not in the apartment”. True, after the arrest, Mr. Gonzalez averred that he had been so threatened in seeking his cooperation with the Federal agents. This is now explained to have occurred in a different "context” and at a different time.

Agent Horn then returned to the living room and asked Mr. Gonzalez whether he now wished to "waive his rights”. Gonzalez said that he did. The Federal agent then asked him whether he was willing to sign a statement consenting to a search. Agent Horn read a printed consent form to Gonzalez and had him read it. Having agreed to sign the consent form, Gonzalez was unbound and signed the form. At the suppression hearing, Mr. Gonzalez testified that, when he signed the consent, he did not know whether his wife had disposed of all the drugs before she let the agents enter the apartment.

Returning now to the bedroom, Agent Horn told Mrs. Gonzalez that her husband had signed a consent form and asked her if she would. After seeing her husband’s signature to the consent form, she said that she would sign it too. The Federal agent read a consent form to her and then handed it to her to read and sign.

At the suppression hearing, Mrs. Gonzalez was asked whether "there were other drugs in the apartment other than the ones that you had flushed down the toilet bowl?” She responded "No”. She was then asked whether she thought she had gotten rid of everything. She responded "Pretty much”. She was asked "So, when you signed the consent you figured you had gotten rid of everything?” She responded "No”. She testified that she knew some cocaine had been found in the bathroom before she had signed the consent. When finally asked "Did you know there were any others [drugs] in the apartment?” She responded "I wasn’t sure.”

After the Gonzalezes were taken away, a full-blown search discovered a commercial quantity of drugs. The significance of a rummage search after the Gonzalezes had been removed indicated again the critical need for the consent, if there were no warrant.

Governmental intrusion into the privacy of the home is, with limited exceptions, prohibited by constitutional limitations in the absence of a valid search warrant (NY Const, art I, § 12; US Const, Arndts IV, XIV; see People v Loria, 10 NY2d 368, 373; Silverman v United States, 365 US 505, 511; Jones v United States, 357 US 493, 498; cf. People v Gleeson, 36 NY2d 462, 466). Even if an individual has been lawfully arrested, the police are not thereby free to conduct a full-blown, rummaging search of the arrested person’s home without a warrant (see People v Clements and Metzger, 37 NY2d 675, 678-679, cert den 425 US 911; People v Perel, 34 NY2d 462, 468; Chimel v California, 395 US 752, 764-765).

One of the limited exceptions to the warrant requirement and, indeed, to the requirement of probable cause, is voluntary consent to the search (People v Singleteary, 35 NY2d 528, 532; People v Carter, 30 NY2d 279, 282; People v Pelow, 24 NY2d 161, 165; People v Loria, 10 NY2d 368, 373, supra; Schneckloth v Bustamonte, 412 US 218, 219, 222; cf. People v Lane, 10 NY2d 347, 353). In the instant case, the People concede that the legality of the search of the Gonzalez apartment turns entirely upon the validity of either of the Gonzalez’ consents. (Indeed, the agents by obtaining and relying on the signed consents indicated unequivocally that they recognized the doubtfulness of a right to a rummage search without a warrant [cf. People v Clements, 37 NY2d 675, 678-679, supra].) Of course, the People also recognize that theirs is the heavy burden of proving the voluntariness of the purported consents (see People v Kuhn, 33 NY2d 203, 208; People v Whitehurst, 25 NY2d 389, 391; Bumper v North Carolina, 391 US 543, 548-549; People v Jackson, 46 AD2d 816, 817, affd 39 NY2d 64; People v Talbot, 44 AD2d 641; People v Stepps, 31 AD2d 59, 62).

Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle (see People v Kuhn, 33 NY2d 203, 208, supra; Schneckloth v Bustamonte, 412 US 218, 225-228, supra). As the Supreme Court stated in Bumper v North Carolina (391 US 543, 550, supra), "Where there is coercion there cannot be consent”.

No one circumstance is determinative of the voluntariness of consent. Whether consent has been voluntarily given or is only a yielding to overbearing official pressure must be determined from the circumstances (see People v Kuhn, 33 NY2d 203, 208-209, supra; Schneckloth v Bustamonte, 412 US 218, 224, supra; see, generally, Search—Consent While in Custody, Ann., 9 ALR3d 858, 864-866).

An important, although not dispositive, factor in determining the voluntariness of an apparent consent is whether the consenter is in custody or under arrest, and the circumstances surrounding the custody or arrest. True, custody or arrest alone does not necessarily preclude voluntariness (see People v Rodriquez, 11 NY2d 279, 287; People v Mule, 46 AD2d 414, 421; United States v Watson, 423 US 411, 424-425; United States v Ellis, 461 F2d 962, 968, cert den 409 US 866). Custody, or, more compellingly, the immediate events of an arrest, especially a resisted arrest, do, however, engender an atmosphere of authority ordinarily contradictory of a capacity to exercise a free and unconstrained will (see People v Rodriquez, 47 Misc 2d 551, 557; People v Porter, 37 Misc 2d 73, 76 [J. Irwin Shapiro, J.] Castaneda v Superior Ct., 59 Cal 2d 439, 443 [Traynor, J.]; United States v Lewis, 274 F Supp 184, 188 [Mansfield, J.]; Search—Consent While in Custody, Ann., 9 ALR3d 858, 875-876).

This is especially true when the individual in custody or under arrest is confronted by a large number of police agents (see People v Cameron, 73 Misc 2d 790, 798; People v Porter, 37 Misc 2d 73, 76, supra; United States v Lewis, 274 F Supp 184, 188, supra). Moreover, the fact that a defendant was handcuffed has been considered a significant factor in determining whether his apparent consent was but a capitulation to authority (see Castaneda v Superior Ct., 59 Cal 2d 439, 443, supra; People v Currier, 232 Cal App 2d 103, 110; United States v Lewis, 274 F Supp 184, 188, supra; cf. People v Zazzetta, 27 Ill 2d 302, 310-311; but see, e.g., Carpenter v United States, 463 F2d 397, 401, cert den 409 US 985). Submission to authority is not consent (People v Gorsline, 47 AD2d 273, 276; Bumper v North Carolina, 391 US 543, 548-549, supra; Johnson v United States, 333 US 10, 13).

In the instant case, the Gonzalezes were arrested, separated from each other and their arms were handcuffed behind their backs. As many as nine armed Federal agents had swarmed about the small apartment and, about one-half hour after their entry, each defendant was asked to sign the consent to search in the immediate presence of at least three agents. Mrs. Gonzalez’ mother and grandfather had been excluded from the premises. Thus, the atmosphere, as inferred from the testimony of the agents and interpreted on the objective facts, in which the "consents” were obtained could hardly have been more coercive, short of direct police testimony of actual duress.

Another factor to be considered in determining the voluntariness of an apparent consent is the background of the consenter (see United States v Watson, 423 US 411, 424-425, supra; Search—Consent While in Custody, Ann., 9 ALR3d 858, 880, 885-886). A consent to search by a case-hardened sophisticate in crime, calloused in dealing with police, is more likely to be the product of calculation than awe. Here, the Gonzalezes were both under 20 years of age and were newlyweds of three days. They had had very limited prior contact with the police. Under these circumstances, the ineluctable inference, except to the jaded, is that the consents could not be, on any creditable view of the agents’ testimony, the product of a free and unconstrained choice.

Another factor to be considered is whether the consenter has been, previously to the giving of the consents, or for that matter even later, evasive or un-co-operative with the law enforcement authorities (see Castaneda v Superior Ct., 59 Cal 2d 439, 443, supra; People v Currier, 232 Cal App 2d 103, 110, supra; cf. People v Alberta, 37 Misc 2d 847, 848). Of course, if defendants had assisted the Federal agents in their search, this would be evidence of a voluntary consent. But, to the contrary, Mr. Gonzalez had previously forcibly resisted arrest by the Federal agents, one of whom had his weapon drawn. Mrs. Gonzalez, too, did not open the apartment door immediately upon request, she delayed approximately six minutes. She then opened the door only when the banging and kicking at the door indicated that the agents would enter in any event. If Mrs. Gonzalez had been trying to dispose of contraband, it was now obvious, she was not to be left free to complete the task. Such determined resistance and evasion is hardly compatible with a suddenly voluntary consent, which consent in all likelihood would be recognized as self-destructive. Instead, the circumstances are evidence that the consents were a yielding of overbearing official pressure.

A final factor is whether a defendant was advised of his right to refuse to consent (People v Mule, 46 AD2d 414, 421, supra; People v Talbot, 44 AD2d 641, supra; Schneckloth v Bustamonte, 412 US 218, 249, supra). Such advice is not mandatory (People v Kuhn, 33 NY2d 203, 209, supra). Failure to advise, however, may be considered in determining whether a consent was voluntary. In the instant case, the Gonzalezes were informed of their right to refuse to consent to the search. It must be noted that such advice was contained in a printed form read to and signed by them, hardly an amelioration of the coercive atmosphere in the apartment (cf. People v Rodriquez, 47 Misc 2d 551, 557, supra).

In taking the composite of the facts: the number of agents present in the small apartment; the youth of the Gonzalezes; the separation and handcuffing of these newlyweds; the removal of parent and grandparent from the scene; the circumstances of the arrests; and the sudden acquiescence of the segregated couple, handcuffed, and without further ado, in the signing of the printed consents, negates totally the idea of a free act of will, or else the pious language of the cases is only a gloss on an unacknowledged ugly reality. Under these circumstances, as a matter of law, the apparent consent was induced by overbearing official conduct and was not a free exercise of the will.

What has been said thus far is enough, or should be enough. But there are two aspects of the narrated events, always giving the police version alone, which for some purposes merit elaboration, if only to see that the facts in cases involving constitutional limitations are not clinically dissected with the body fluids drained and the network of nerves dead.

The removal of the mother and the grandfather, hardly done in the almost Chesterfieldian manner described by the police, but even so, relieved these two young people of the only persons at hand, perhaps at that point better than a lawyer, to advise them and offer moral and material support in making a choice which would affect their liberty and undoubtedly the course of their lives. Of course, these persons of the blood need not have been permitted to remain, but surely their removal first before the consents were obtained, makes the almost wordless obtaining of the consents a mockery.

The second aspect is the swarming of armed Federal agents in the small apartment, hardly a backdrop for a voluntary act, again with an almost wordless preamble, in signing a printed consent to a necessarily fateful full-blown search. The worst of it is that all this was unnecessary once defendants had been arrested and the agents and the defendants remained long enough in the premises for a search warrant to be obtained, a warrant that must have been granted, and with a time interval involved which made impossible the removal of any hidden contraband pending the obtaining of the warrant. None of the permitted exceptions to a warrantless search were present (People v Singleteary, 35 NY2d 528, 531-532, supra). This was offensive official conduct more suitable to a police society than to a policed society.

The instant seizure would have hardly survived scrutiny if the matter had been prosecuted in the Federal courts as the agents at some point had intimated they would do. It may not survive scrutiny in the State courts. A bad seizure under the Federal Constitution in the Federal courts is also a bad seizure under both the Federal and State Constitutions in the courts of this State.

The related conviction of Mr. Gonzalez for the initial criminal sale of cocaine in the third degree, affirmed by the Appellate Division, has not been appealed to this court.

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

Jasen, J. (dissenting).

I take no issue with Chief Judge Breitel’s exquisite analysis of the law of consent. My difficulty is, rather, with the application of the law to the particular circumstances of this case and with the conclusion reached by the majority that "on no view of the evidentiary facts was there an exercise of free will in the giving of the consents” (p 124). In my view, there is a rational and reasonable view of the evidentiary facts which would support the finding of the trial court that the defendants did voluntarily consent to the search of their apartment. Even more fundamentally, I believe that, absent consent, the search was valid pursuant to our recent decision in People v Clements and Metzger (37 NY2d 675, cert den 425 US 911).

On September 17, 1973, defendant Joseph Gonzalez sold a quantity of cocaine to a Federal undercover agent, Michael Horn. The sale was transacted in the bedroom of Gonzalez’ New York City apartment. Agent Horn testified, at the suppression hearing, that Gonzalez removed a clear plastic bag containing approximately two ounces of a brown crystalline powder from a coat hanging on the bedroom door. Gonzalez put the bag on the top of a bedroom dresser and placed a sample of the substance in another bag which he then gave to Agent Horn. The defendant’s wife, Tracy Gonzalez, was seated on the bed and witnessed the entire transaction. Horn left the apartment, only to return 15 minutes later in the company of another agent, Hochman, for the purpose of arresting both defendants. When the agents arrived at the apartment, Joseph Gonzales was standing in the hallway outside his apartment. The agents displayed their badges, produced their weapons, and told Gonzalez that he was under arrest. Although the defendant later denied knowing the reason for the arrest, he conceded, under questioning, that he "had a pretty good idea”. The defendant lunged at Agent Hochman and the men wrestled with each other as they fell down a flight of stairs. As he fought with the agent, Joseph Gonzalez screamed to his wife to lock the door. Agent Horn and a third agent, who had entered the building in response to the sounds of the struggle, went to Agent Hochman’s assistance. The three men eventually subdued the defendant and led him back up the stairs to his apartment. The agents banged and kicked the door for several minutes, while telling Mrs. Gonzalez that she was under arrest. Mrs. Gonzalez was using this time to flush the cocaine from the two-ounce bag down the toilet. When she was through, she opened the door to the agents. The three men, the defendant, and other surveillance agents entered the apartment. Agent Horn arrested Mrs. Gonzalez, placed her in handcuffs and brought her into the bedroom. The agent noticed that the bag of brown powder was no longer in the bedroom. The other agents "conducted an eyeball search of the apartment for other bodies”. In the course of this search, which is routinely done to be sure that no other persons are hiding in the immediate area, the agents opened closet doors to "see if anybody [was] in a closet”. A couple of other agents were outside checking an alleyway in the event that some contraband had been thrown out the window. Another group was outside the apartment reassuring neighbors who had been disturbed by the altercation in the hallway. Defendant Joseph Gonzalez was detained, handcuffed, in the living room. Mrs. Gonzalez’ mother and grandfather were permitted to enter the apartment. The mother went into the bedroom and talked with her daughter for a few minutes. The grandfather "was walking all over” the apartment, so the agents asked him to leave. They also "requested that her mother leave the apartment. She could say what she had to say and [then] it was time to leave.” The agents told her "where her daughter would be, where they were to be arraigned and what she was being arrested for and asked them to leave the apartment.” After these visitors left, the defendants were read the now standard preinterrogation warnings (Miranda v Arizona, 384 US 436) and were asked to sign forms consenting to a search of their apartment. These forms included a warning that fruits of the search could be used against them and that the defendants need not consent. Both defendants signed the form. After the form was signed, the defendants were taken to a police station. Other agents began to search the apartment. They found 52 grams of cocaine hidden under some sweaters in the top shelf of the bedroom dresser. Another gram of cocaine was found in the bedroom sink. Less than a gram of marijuana and a quantity of syringe needles were found on the top of the bedroom dresser. Another half gram of marijuana was discovered in a closet. After completing the search, the officers locked all the doors and closed all the windows. As they left the apartment, they found Mrs. Gonzalez’ grandfather waiting outside the apartment. He claimed he had stopped by because he was worried that the police would leave the apartment door unlocked when they left. The officers gave him the key to the apartment and left the building.

The defendants contend that the agents, to induce them to sign the search consent form, made a wide variety of direct and implied threats against them. Joseph Gonzalez testified that the officers told him that unless he co-operated with them, he would be sent to prison for life and would never see his wife again. He also claimed that the officers physically threatened him. "They didn’t come right out and say they’d hurt me. They said it in a round-about way.” Tracy Gonzalez claimed that similar threats had been directed at her. She alleged further that the officers had searched the apartment prior to obtaining the consent and had pushed her relatives out of the apartment. Contrary to the implication in the majority opinion (p 126), the officers denied these accusations in their entirety. For example, Federal Agent Horn was asked if he, at any time, had threatened to prosecute Tracy Gonzalez in a State court. The court limited the question "to the events of that evening in the apartment and as amended, you may answer that.” The officer responded, in accordance with the court’s limitation, "Not in the apartment”. This response was not a negative pregnant designed to give a false impression. Rather, the officer’s answer was in full compliance with a limitation that the court imposed upon the question, a limitation that the defense did not object to.

I cannot agree with the court that "on no view of the evidentiary facts was there an exercise of free will in the giving of the consents” (p 124). As I view the facts before us, there is evidence upon which the court could find, as the trial court did, that the defendants willingly consented to a search of their apartment. The record discloses that the consent was not given until after Tracy Gonzalez disposed of the drugs that she and the police had known to be in the apartment. The defendants do not contend that the agents actually abused them, either physically or verbally. A careful reading of the transcript of the suppression hearing discloses that the testimony of the various officers is consistent and credible, while the versions proffered by the defendants vary and are cluttered with contradictions and asserted lapses of memory. Thus, there is support in the record that at the time the consent was executed, the atmosphere in the apartment was relaxed and the defendants were cool and rational. The Appellate Division did not question the veracity of the agents. Nor did the court find any evidence of overbearing police conduct. Rather, that court refused to accept, as a matter of law, the fact that defendants, faced with the possibility of a mandatory life sentence, would voluntarily consent to a search of their apartment. (46 AD2d 882, 883.) I cannot accept this reasoning. Defendants, caught with the goods, might well imagine that co-operation with authorities might earn them at least a small measure of leniency, whereas an obstinate refusal in the face of harsh reality would serve little purpose. Moreover, the defendants offered several conflicting claims at the hearing as to why they had signed the consent form. One of their claims was that they had signed the form because the agents told them that they would obtain a search warrant if the defendants had refused to sign the form. Assuming that the statement was made, it would not affect the voluntariness of the consent since there was sufficient evidence to justify the issuance of a warrant. (See United States v Miley, 513 F2d 1191.) Upon this evidence, I believe that the trial court could properly find that the defendants did voluntarily consent to the search of their apartment, and that it cannot be said, as a matter of law, that there is no view of the evidence to sustain such a finding.

Even, if we were to assume, as a matter of fact, that the consent was given involuntarily, I do not believe that the fruits of the search should be suppressed. As the majority concedes, the agents certainly had probable cause to search the apartment. A narcotics agent had purchased drugs from the occupants of the apartment and had observed, only fifteen minutes earlier, that a large quantity of drugs was stored in the apartment. If the agents had applied for a warrant, their application would surely have been granted (p 131). However, the agents did not have the time to obtain a warrant. Agent Horn testified that, while he was purchasing the sample from Joseph Gonzalez, Gonzalez felt the agent’s gun and became extremely nervous. The defendant already knew that his "connection” had refused to deal with the undercover agent. Thus, the agent had a valid ground for believing that, once he left the apartment, the defendants might well destroy the drugs or remove them from the premises.

In People v Clements (37 NY2d 675, supra), we were confronted with a similar situation. An informer had agreed to make a buy for the police and had told the police that bricks of marijuana were kept in the bottom drawer of a dresser in a particular apartment. The informer made the buy, but reported that the sellers had become suspicious. The officers went to the apartment, arrested the sellers, and saw marijuana in open view. They proceeded to the location of the dresser, as described by the informer, and found the bricks of marijuana the informer had said were there. We held the warrantless search to be valid. We noted that the police might have sealed off the defendants’ apartment while a warrant was obtained. However, this would have involved an intrusion of greater magnitude than that engendered by an immediate search. We concluded that "a fair or sensible balancing of the competing private and public interests” did not demand that "the greater intrusion be preferred over the lesser.” (37 NY2d, at p 681.)

In my view, Clements is fully applicable to this case. The police had probable cause to arrest Gonzalez and his wife and to search their apartment for drugs. The arrest had to be made quickly for Gonzalez had become nervous about the identity of the undercover agent. Once having arrested Gonzalez, there was a grave danger that the drugs would be disposed of before a warrant could be obtained. Indeed, the defendant’s wife, immediately upon the arrest of her husband, flushed the previously observed cocaine down the toilet. Her grandfather was found waiting outside the door when the police concluded their search. "In sum the situation was sufficient to create, and evidently did create, a perceived likelihood” that the narcotics which the police knew to be in the apartment "might be destroyed”. (People v Clements, supra, at p 680.)

I would reverse the orders of the Appellate Division, sustain the validity of the search, and reinstate the judgments of conviction.

Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur with Chief Judge Breitel; Judge Jasen dissents and votes to reverse in a separate opinion.

Orders affirmed.  