
    The People of the State of New York, Respondent, v Jim Henley, Jr., Appellant. The People of the State of New York, Respondent, v Willie Norman Henley, Appellant.
    Argued May 1, 1981;
    decided June 18, 1981
    
      POINTS OF COUNSEL
    
      Joseph B. Mistreet and Rose H. Sconiers for appellants.
    I. Appellant’s right to be free from unreasonable seizures, guaranteed by the Federal and State Constitutions (US Const, 4th Amdt; NY Const, art I, § 12), was violated by the police action which, in turn, vitiated his alleged, subsequent consent to enter and search the apartment at 24 Spiess Street. (Dunaway v New York, 442 US 200; People v Lypka, 36 NY2d 210; People v Howard, 50 NY2d 583; Matter of Kwok T., 43 NY2d 213; People v Jennings, 45 NY2d 998; People v Boodle, 47 NY2d 398.) II. The search cannot be justified as having been conducted pursuant to appellant’s consent. (United States v Como, 340 F2d 891; People v Gonzalez, 39 NY2d 122; People v Gorsline, 47 AD2d 273; People v Benitez, 76 AD2d 196.) III. The guilty pleas, entered by appellant subsequent to the lower court’s erroneous suppression ruling, must be vacated. (People v Grant, 45 NY2d 366.)
    
      Edward C. Cosgrove, District Attorney (Timothy R. Harvey of counsel), for respondent.
    I. Defendant, Jim Henley, Jr., was properly stopped based upon a reasonable suspicion, and properly arrested based upon probable cause. (People v De Bour, 40 NY2d 210; People v Brady, 16 NY2d 186; People v Hook, 15 NY2d 776; People v Oden, 36 NY2d 382.) II. The trial court’s affirmed determination that defendant Jim Henley, Jr., consented to a search of his apartment is not reviewable by this court. (People v Gonzalez, 39 NY2d 122; People v Tutt, 38 NY2d 1011; People v Concepcion, 38 NY2d 211.) III. Defendant’s pleas should not be vacated. (People v Grant, 45 NY2d 366.)
   OPINION OF THE COURT

Jones, J.

The lack of probable cause to sustain the custodial detention and transportation of one defendant operates to vitiate his ensuing consent to the search of the defendants’ apartment. As to the other defendant, however, that consent is valid. The evidence seized in the apartment should therefore be suppressed as to one defendant but not as to the other.

Based on a radio call that a burglary was in progress at the Mercury Radio and Battery Company received about 4:00 A.M. on December 6, 1976 the police proceeded to the scene. About one block away defendant Jim Henley, Jr., was observed walking from a yard onto the street with nothing in his hands. With gun drawn one of the officers, Officer Szczur, stopped him and asked where he was going. Szczur testified that Henley, Jr., replied that he was going to buy a loaf of bread.

Officer Szczur asked Henley, Jr., to get into the patrol car and drove him to the scene of the burglary. When no officers were found there, Henley, Jr., was asked where he lived and he informed Szczur that he lived at 24 Spiess Street. Henley, Jr., stated that he could verify the fact that he did live there and that he was on an errand for a loaf of bread.

Officer Szczur took Henley, Jr., to 24 Spiess Street. After it appeared that he did not live on the ground floor, Henley, Jr., said that he actually lived upstairs, and they proceeded to the second floor. Other police officers then arrived and Henley, Jr., was placed under arrest. In response to a request from the police, Henley, Jr., consented to their entry into the upstairs apartment. Defendant Willie Norman Henley, Henley, Jr.’s, brother, was among those found to be present in the apartment.

Once in the apartment one of the officers saw a marijuana cigarette on an end table. As he picked up the cigarette he happened to look into a cubbyhole area, the door to which was half open, and saw various boxes which had the stamping or printing of the name of Mercury Radio and Battery Company on them. The police thereupon seized this physical evidence.

Jim Henley, Jr., and Willie Norman Henley were indicted for burglary in the third degree and grand larceny in the third degree. Willie Norman Henley was also charged with criminal possession of a controlled substance in the seventh degree. Under another indictment relative to a separate incident which occurred on November 27,1976, Willie Norman Henley was further charged with possession of burglar’s tools and attempted burglary in the third degree. Following denial of defendant’s motions to suppress the physical evidence seized at 24 Spiess Street, Jim Henley, Jr., pleaded guilty to attempted burglary in the third degree in full satisfaction of .all charges against him, and Willie Norman Henley pleaded guilty to grand larceny in the third degree in full satisfaction of the charges against him arising out of the events of December 6, 1976. Willie Noman Henley also pleaded guilty to criminal trespass in the second degree in full satisfaction of the charges relative to the November 27, 1976 incident. On appeal the Appellate Division in three separate orders affirmed all judgments of conviction of both defendants. We now affirm the convictions of Willie Noman Henley and reverse the conviction of Jim Henley, Jr.

While there was sufficient evidence to find that Officer Szczur was warranted, on the basis of reasonable suspicion, to stop Henley, Jr., and to inquire what he was doing on the street at that time in the morning, no action on the part of Henley, Jr., in the circumstances furnished probable cause to take him into custody and then, after proceeding to the scene of the burglary, to take him on to where he lived at 24 Spiess Street. That Henley, Jr., was observed entering the street from a yard about a block away from the reported burglary in no way provided evidence of his commission of the crime. While his . statement that he was out to buy bread was sufficient to arouse Officer Szczur’s suspicion because the officer knew of no stores in the area which were open at that time of night, it did not provide probable cause to link Henley, Jr., to the burglary at Mercury Radio and Battery Company.

The custodial detention and transportation having violated Henley, Jr.’s, constitutional rights to be free from unreasonable seizure, his subsequent consent to the police to enter the upstairs apartment was fatally tainted. Without effective consent from Henley, Jr., the police entry into the Henley apartment was illegal, and the seizure of the boxes violated the constitutional rights of Henley, Jr., to be free from unreasonable searches and seizures. The evidence seized therefore should have been suppressed as to him.

With respect to defendant Willie Norman Henley the legal situation is otherwise. He has no standing to challenge the illegality of his brother’s custodial detention or transportation. Deprived of that premise, he has no other basis to question the validity of the consent given by Henley, Jr., to the police to enter the Henley apartment. Except for the fact of the illegality of his detention, there is no predicate in the record for us to conclude that Henley, Jr.’s, consent was involuntarily given. In this circumstance, the entry of the police into the Henley apartment was duly authorized as to Willie Norman Henley and the consequent seizure of the physical evidence did not violate any of his constitutional rights.

Accordingly, the two orders affirming the judgments of conviction of defendant Willie Norman Henley should be affirmed, and the order affirming the judgment of conviction of defendant Jim Henley, Jr., should be reversed, his plea vacated, the physical evidence seized at 24 Spiess Street suppressed as to him, and his case remitted to Supreme Court for further proceedings on the indictments against him.

Chief Judge Cooke

(dissenting in part). I concur with the majority that the order affirming the judgment of conviction of Jim Henley, Jr., should be reversed, his plea vacated, the physical evidence seized at 24 Spiess Street suppressed as to him and his case remitted to Supreme Court for further proceedings on the indictment against him. This is because the custodial detention and transportation of Jim Henley, Jr., was illegal and his consent, being the product of that illegality, cannot justify the warrantless entry into and search of the apartment.

I disagree, however, that Willie Norman Henley lacks standing to assert the illegality and that the same consent may be effective as to him. In my view there should also be a reversal of the order affirming the judgment of conviction of Willie Norman Henley for grand larceny in the third degree. I concur with the majority in affirming the order upholding the conviction of Willie Norman Henley upon his plea of guilty of criminal trespass in the second degree. I therefore respectfully dissent in part.

The majority recognizes that Willie Norman Henley has standing to challenge the warrantless entry and search as a violation of his Fourth Amendment rights. And there is no question that the entry was per se unlawful absent some applicable exception to the warrant requirement (see Schneckloth v Bustamonte, 412 US 218, 219). The People justified the entry on the basis of consent given by Henley, Jr. Both defendants challenged the offered justification on the grounds that Henley, Jr., never gave his consent and, if he did, it was the product of his illegal arrest and thus inadequate to support the entry. The majority today holds that, notwithstanding the invasion of Willie Norman Henley’s rights, only Henley, Jr., may assert the latter ground. I cannot agree with such a limitation.

Third-party consent is a recognized exception to the Fourth Amendment warrant requirement (People v Cosme, 48 NY2d 286; United States v Matlock, 415 US 164). This exception requires actual consent of a person having or reasonably appearing to have the requisite degree of access to and control over the premises to be searched (People v Adams, 53 NY2d 1; People v Cosme, 48 NY2d 286, supra). Where either element is lacking, an entry and search violate the Fourth Amendment command.

There is no dispute that Henley, Jr., had the authority to consent to the warrantless search. The only question here is the validity of the consent. The majority holds that the consent was invalid, vitiated by the illegal arrest. That consent, the majority holds, nonetheless may support the warrantless entry and search as to Willie Norman Henley.

This anomalous, result is said to be founded upon principles of standing. Since Fourth Amendment rights are personal and “may not be vicariously asserted” (Alderman v United States, 394 US 165, 174; Rakas v Illinois, 439 US 128, 133-134; People v Hansen, 38 NY2d 17, 22), the majority reasons that Willie Norman Henley may not object to the unconstitutional seizure of his brother. Under the majority’s standing analysis, a party against whom another’s consent is to be used may deny only that the third party had authority or that voluntary consent in fact was given. How the consent was obtained is now immaterial, for only the third party’s rights are implicated by the means employed.

There is no dispute that a defendant may not seek suppression of evidence obtained by the police from a third party in. violation of the third party’s rights. Nor is issue taken here with the proposition that even if the police consciously violate the third party’s rights solely to obtain evidence against another, the defendant does not have standing under the Fourth Amendment to challenge the illegality (United States v Payner, 447 US 727, 731-732) and a court is unjustified in exercising its supervisory power to suppress evidence so obtained (id., at pp 733-737). A challenge is open only to the victim of the illegality. These principles, however, do not justify the majority’s conclusion.

Contrary to the majority’s determination, an objection to the means by which a third party’s consent has been obtained is not an assertion of third-party rights. The objection is made to challenge an invasion of protected rights personal to the nonconsenting party. The warrantless entry can be justified only if the police have obtained valid consent; if the consent is invalid, the entry is unlawful. That the invalidity has its genesis in illegal conduct against the consenting party should not render the consent any less constitutionally infirm as to the nonconsenting party. The non-consenting party simply cannot be viewed as a legal stranger to the initial police encounter. In a real sense Willie Norman Henley, as the nonconsenting party, is a victim of the initial illegality. His own Fourth Amendment rights have been compromised by its product — Henley, Jr.’s, consent. The antecedent illegality is inextricably intertwined with the entry and is critical to its validity. By the warrantless entry, there has been a common invasion of the rights of both the consenting and nonconsenting parties. There has been asserted against both the same justification for the invasion — consent. When that justification falls, for whatever reason, it must fall for both.

In my view, separating the fact of consent from the means by which it is obtained, as the majority has done, dilutes substantially the value of the consent requirement itself. In a challenge by one whose own rights have been affected by the consent, such a bifurcated analysis is unwarranted and unjustified.

Accordingly, I dissent in part and would reverse the order affirming the judgment of conviction of grand larceny in the third degree against Willie Norman Henley, vacate his plea, suppress the physical evidence and remit the case for further proceedings on the indictment.

In People v Henley (Jim): Order reversed, conviction and plea vacated, physical evidence seized at 24 Spiess Street suppressed as to appellant, and case remitted to Supreme Court, Erie County, for further proceedings on the indictments.

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

In People v Henley (Willie): Orders affirmed.

Judges Jasen, Gabrielli, Wachtler and Meyer concur with Judge Jones; Chief Judge Cooke dissents in part and votes to reverse the order affirming the judgment of conviction for grand larceny in the third degree and to affirm the order affirming the judgment of conviction for criminal trespass in the second degree, in a separate opinion in which Judge Fuchsberg concurs. 
      
      . At the suppression hearing a minor discrepancy appeared when Henley, Jr., testified that he had responded that he was going to buy butter. There was no testimony, however, that on the night he was arrested Henley, Jr., had given varying answers to the police questioning.
     
      
      . No argument is advanced on this appeal for reversal of the judgment of conviction based on this separate, unrelated plea. Accordingly, the order of the Appellate Division affirming that judgment should be affirmed.
     