The People of the State of New York




Alexander J. Molnar,



Frank J. Clark, Esq.

Erie County District Attorney

BY: Patricia I. Carrington, Esq.

Assistant District Attorney

Attorney for the People

Daniel J. Henry, Jr., Esq.

Attorney for the Defendant



The defendant is charged by this Indictment with two counts of Murder in the Second Degree, Penal Law § 125.25(1) and (2) and two counts of Criminal Possession of a Weapon in the Third Degree, Penal Law § 265.02(1). The defendant moves to suppress the physical evidence seized, the identification made of him and the statements made by him pursuant to Section 710.20 of the Criminal Procedure Law. A Suppression, Wade and Huntley hearing was conducted. Officers Stretha Stroud, Robert Salamone and Detectives Andres Ortiz, Mark Stambach and James Giardina of the City of Buffalo, New York Police Department testified at the hearing.

The credible testimony at the hearing revealed that on August 7, 1999 at approximately 10:00 a.m. Officers Stroud and Michelle McCelvin received a police radio call of a strange odor coming from Apartment #2 at 116 Herkimer Street in the City of Buffalo. The officers responded to that location and were met by a tenant of that building, Grimaldi Pomales, who told them that he was the person that had called the police to complain about the odor. The officers went inside the building at 116 Herkimer Street where Officer Stroud immediately smelled a strong odor. Mr. Pomales told her that the odor was so bad he was unable to sleep in his apartment the night before. His apartment is directly above Apartment #2. Officers Stroud and McCelvin knocked on the door of Apartment #2 and received no response. The officers asked Mr. Pomales the name of the tenant who lived in Apartment #2. He only knew the tenant was a male who recently moved there. The officers tried to open the door to Apartment #2 but it was locked. Officer Stroud then contacted a maintenance man for the building in order to go into Apartment #2 and determine what was causing the odor. Shortly thereafter, the maintenance man arrived and told Officer Stroud that he did not have a key to Apartment #2 but that there was a fire escape which might allow entry. An examination of the fire escape revealed that it was unsafe for such an attempt. Officer Stroud then directed the maintenance man to force the lock open. Officers Stroud and McCelvin donned charcoal masks for their safety before they entered Apartment #2 because the odor was so strong. They did not know what was causing the odor. Apartment #2 was small with a kitchen area as you enter it, a livingroom area with an alcove and a bathroom. There was a door between the kitchen and livingroom area that was open. Once inside Apartment #2, the officers checked all the rooms to see if anyone was in distress or in need of assistance. No one was found inside the apartment. The officers' attention was drawn to a closet door in the livingroom area which was stuffed around the frame with a blanket. It was clear to them that the odor was coming from within that closet. Officer Stroud opened the closet door and discovered a decomposing body with maggots on it. This body was later identified as that of Janice Johnson. Officer Stroud then closed the closet door, secured Apartment #2 and evacuated 116 Herkimer Street. She then radioed her lieutenant who responded to the scene with other police personnel. From the time Officers Stroud and McCelvin entered Apartment #2 until the time they discovered the decomposing body and secured Apartment #2, no evidence was seized and no property was destroyed.

At approximately 11:20 a.m. Detective Ortiz arrived at the scene and immediately detected what was to him the unmistakable odor of a decomposing body. No search warrant was sought or obtained before he entered Apartment #2. Once inside Apartment #2, Detective Ortiz ventilated it by opening the windows and using a fan that was already in the apartment and a large, powerful fan that was supplied by the fire department. He observed all stages of vermin present throughout Apartment #2. One of the windows he opened was entirely covered by vermin and appeared to be blackened. He observed blood on the walls, ceiling and carpets. Detective Ortiz initially examined the decomposing body. He followed a trail of blood on the floor to a mattress. The mattress was laying on the floor in the livingroom area. Detective Ortiz then moved the mattress and uncovered a mallet. He went into the kitchen and opened a plastic garbage bag which was tied shut and covered with vermin. Inside the bag, he saw clothing and what appeared to be hair. He also saw hair on a shelf in the kitchen. Detective Ortiz also discovered personal papers of the defendant on a dish in the livingroom area. Apartment #2 was the defendant's residence. The mallet, contents of the plastic garbage bag, hair on the shelf and personal papers were seized. The police then attempted to locate and question the defendant.

On August 18, 1999 in the afternoon hours, Detectives Giardina and Robert Chella went to 1902 Niagara Street, Apartment #3, in the City of Buffalo to interview Kelly Long. They talked to Ms. Long in the hallway outside her apartment. Ms. Long told them that the defendant was in her apartment and allowed the detectives to enter. Once inside, Detective Giardina asked the defendant if he was Alexander Molnar. The defendant replied that he was and agreed to come to police headquarters to talk to the detectives. The defendant was handcuffed and brought outside the apartment to await a marked car crew. The defendant was cooperative. Shortly thereafter, Officers Salamone and Warren Dombliskey arrived for the purpose of transporting the defendant to police headquarters. Detectives Giardina and Chella directed Officer Salamone to transport the defendant to police headquarters and to meet them there. The ride from 1902 Niagara Street to police headquarters took only minutes. The defendant was not advised of any Miranda warnings and no conversation took place between him and the transporting officers. While in Central Booking at police headquarters, Officer Salamone said to the defendant, "I don't know what you're here for but as soon as those guys get here, we'll get you out of those cuffs." Officer Salamone said this because it appeared to him that the defendant was uncomfortable since it was a very hot day. The defendant stated, "I know what I'm here for, I did something stupid and now I gotta pay for it." The defendant was in Officer Salamone's presence for approximately 40 minutes.

Detective Giardina arrived at police headquarters and met the defendant who was brought to an interview room in the Homicide Unit. He advised the defendant of the appropriate Miranda warnings and the defendant understood them. The defendant appeared to be nervous, but he was not intoxicated or under the influence of any drugs. No threats or promises were made to the defendant. The defendant did not ask for an attorney. Shortly thereafter, Detective Stambach again advised the defendant of the appropriate Miranda warnings and again he understood them. Detective Stambach took a written statement from the defendant in Detective Giardina's presence. Throughout the statement, the defendant was offered food, drink and the use of the bathroom facilities. Detective Chella was present at some point during the statement. Detective Stambach initiated the statement by telling the defendant that he knew about the death of Janice Johnson and asked the defendant to tell his side of the story. The statement began at 9:50 p.m. and ended at 10:56 p.m. The defendant was not handcuffed and acknowledged that he was treated kindly by the police.

On August 27, 1999, Detectives Stambach and Michael Lyons showed a six (6) picture photo array to Cleavon Scott. Mr. Scott was the property manager of 438 Richmond Street in the City of Buffalo. This address was the residence of Janice Johnson. Mr. Scott had contacted the police after seeing a picture of the defendant on television to advise them that he had seen the defendant and Janice Johnson together in July, 1999. The photo array was shown to Mr. Scott and he was asked if he recognized anyone. There was neither any suggestion as to whom to select nor any promises or threats made to Mr. Scott. Mr. Scott selected photograph number five (5), the defendant, as the person that was with Janice Johnson a couple weeks before her body was discovered.

The defendant argues that the odor of a decomposing body without more is insufficient to permit the warrantless entry into a person's home under the emergency doctrine exception to the warrant requirement. The People argue that the emergency doctrine exception justified the police conduct and that the role of the police was not their traditional detection and prevention of crime role but, rather, their community caretaking role. They contend the officers' entry was designed to assist any person or persons in Apartment #2 and aid other tenants by abating an offensive nuisance.

A person must allege standing to suppress evidence by establishing a reasonable expectation of privacy in the place or items searched, People v. Ramirez-Portoreal, 88 NY2d 99 (1996). The defendant has established standing in Apartment #2 because society respects one's expectation of privacy in his home.

Warrantless entries into a person's home are presumptively unreasonable, Payton v. New York, 445 US 573 (1980). However, this general rule has exceptions. Once the defendant has established standing and the police enter without a warrant, the People have the burden to overcome the presumption, People v. Pettinato, 69 NY2d 653 (1986).

The community caretaker doctrine is an exception to the warrant requirement. New York State, as well as other jurisdictions, has recognized and applied all or part of the doctrine. The community caretaker doctrine is similar to the exigent circumstances exception to the warrant requirement. Although both exceptions involve situations in which police officers must act immediately, they have distinctly different purposes. The exigent circumstances exception involves the law enforcement or crime fighting role of police officers. The community caretaker doctrine involves the role of police officers which relates to their duty to protect persons and property. When acting pursuant to the community caretaker doctrine, police officers are not motivated by an intent to make an arrest or to seize evidence. They may not even know that criminal activity is involved.


In People v. Mitchell, 39 NY2d 173 (1976), the court held there are three requirements for the application of the emergency doctrine. First, 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. Second, the search must not be primarily motivated by intent to arrest and seize evidence. Finally, there must be some reasonable basis approximating probable cause to associate the emergency with the area or place to be searched. In overcoming the presumption of unreasonableness regarding to warrantless entries into a person's home, the People must meet all three (3) requirements of the Mitchell, supra, emergency doctrine test, People v. Angus, 256 AD2d 588 (2nd Dept. 1998).

Initially, Officers Stroud and McCelvin did not believe there was an emergency. However, once they were inside the building at 116 Herkimer Street, they were overcome by the odor. The odor was so strong they had to wear charcoal masks in order to remain inside. Contrary to the defendant's assertions, Officers Stroud and McCelvin's entry into Apartment #2 was not based on their belief that the odor was caused by a decomposing body. They did not know what was causing the odor. They considered the health and welfare of anyone in Apartment #2 and the other tenants at 116 Herkimer Street to be an important concern. While there were no prior complaints, screams or reports of any criminal activity occurring in Apartment #2 and Officers Stroud and McCelvin did not observe anything that would have led them to conclude that there was criminal activity afoot, the existence of an emergency is grounded in empirical facts rather than subjective feelings. An emergency may have existed when a police officer believed the contrary. To this extent, the defendant's reliance on caselaw from this State and other jurisdictions involving solely the odor of what was believed to be a decomposing body in arguing that no emergency existed is misplaced. That caselaw holds that solely the odor of a decomposing body without more is insufficient to justify the warrantless entry into a citizen's home under the emergency doctrine, People v. Scully, 176 Colo. 212 (Sup. Ct. 1971), People v. Pereyda, NYLJ September 24, 1993 (Sup. Ct., NY Cty.). However, in State v. York, 159 Wis. 2nd 215 (Ct. of Appeals 1990) and in People v. Brooks, 7 Ill. App. 3rd 767 (1st Dist. 1972), each court held that the odor of a decomposing body when taken with other circumstances, such as a report of a missing person or other suspicious events, was sufficient to justify the warrantless entry into a citizen's home under the emergency doctrine. In York, supra, quoting State v. Kraimer, 99 Wis.2nd 306 (Ct. of Appeals 1980), the court upheld the application of the emergency doctrine because frequently the report of death proves inaccurate and a spark of life remains sufficient for the need of emergency police aid. A person, or animal for that matter, inside Apartment #2 may have been seriously burned or ill and immediate action to help may have been necessary, People v. Grillo, 102 Wis.2d 632 (Ct. Appeals, Wis. 1991) and State v. Conant, 1999 Wash. App. Lexis 1480. As the court wrote in People v. Brooks, 7 Ill.App.3d 767, 776 (App. Ct. Ill. 1st Dist. 1972),


An emergency may be said to exist whenever the police have credible information that an unnatural death has or may have occurred and the criteria is the reasonableness of the belief of the police as to the existence of an emergency not the existence of an emergency in fact. The touchstone of the emergency doctrine is reasonableness.2


The actions of Officers Stroud and McCelvin were consistent with the perception that there was an emergency. When going to the scene, they did not activate their lights and siren nor exceed the speed limit or immediately break down the door upon their arrival. However, they did personally sense the odor and proceed to conduct an investigation into its source. The passing of an hour from the time the officers arrived until the time they entered Apartment #2 is not dispositive, York, supra. The officers discovered that no tenants knew the defendant nor had seen him recently. They learned the odor had persisted for at least a day and neither maintenance personnel nor the landlord had done anything to ameliorate the situation. Furthermore, there was a failure of any person in Apartment #2 to answer the door. Therefore, the totality of the circumstances escalated to an emergency concerning the health and welfare of anyone in Apartment #2.

An emergency also existed concerning the health and welfare of the other tenants at 116 Herkimer Street. Mr. Pomales was unable to sleep in his apartment the night before August 7, 1999 due to the odor. He, as well as others, had called the landlord and maintenance personnel and nothing was done. The police, in responding to these complaints and their own observations, were confronted with an emergency as contemplated by the first requirement of the Mitchell test. There existed an immediate need to protect other tenants and there existed an immediate need to protect property, that is, the building itself, which could have been irreparably damaged if the police left to apply for a warrant when the information available to them at the time did not necessarily rise to the level of probable cause to obtain one. In State v. Dube, 655 A.2d 338 (Sup. Ct. Maine 1995), the court held that the police were authorized under their community caretaker role to enter the defendant's apartment without a warrant at the request of a custodian who was attempting to stop sewage or water from leaking into the apartments below. The police had no suspicion of criminal activity and entered only to protect life or property. While inside the defendant's apartment, the officers observed human and animal feces throughout it and soiled diapers and garbage beside a baby's crib. The defendant was charged with endangering the welfare of a child. The court distinguished exigent circumstances under the police crime fighting role from the community caretaking doctrine's emergency and public servant roles in holding that,


Dube, supra, at page 340.

The second and third requirements of the Mitchell test were also present. Officers Stroud and McCelvin entered Apartment #2 to find the source of the odor and protect the health and welfare of other tenants at 116 Herkimer Street. They did not enter to search for evidence or make an arrest. Since it was clear that the odor was coming from Apartment #2, there was a causal link approximating probable cause between the emergency and the place to be searched. Therefore, under all the circumstances, the police were justified in entering Apartment #2 without a warrant pursuant to the emergency doctrine to protect the health and welfare of other tenants at 116 Herkimer Street as well as anyone in Apartment #2.

In Cady v. Dombrowski, 413 U.S. 433 (1973), the court recognized the automobile impoundment, inventory exception in distinguishing a police officer's law enforcement role from his community caretaking role. The former is the detection and prevention of crime, while the latter is protecting the health and welfare of the citizenry. The community caretaking role includes investigating motor vehicle accidents. The court emphasized that local police officers, as opposed to Federal officers, have frequent non-criminal, non- investigatory contact with automobiles. The court's recognition of a separation between investigatory and non-investigatory functions of the police has allowed federal and state courts to extend the application of the community caretaker doctrine beyond the automobile impoundment, inventory exception to justify initial encounters and subsequent intrusions in other circumstances.3


In U. S. v Rohrig, 98 F.3d 1506 (6th Cir. 1996), the court recognized the public servant doctrine where the police were contacted by neighbors of the defendant and told that loud music was emanating from the defendant's house. As the police approached within a block of the defendant's house, they began to hear the loud music. Shortly after the officers arrived at the defendant's house, between four and eight pajama-clad neighbors emerged from their houses to complain about the loud music. The police knocked on the door of the defendant's house in attempting to talk to any person inside. Their attempts were unsuccessful. They investigated further by looking in the house and checking other doors and windows. They could see no persons inside, but they did see stereo speakers with wire leading to the second floor. They found the back door was opened and entered in order to abate the loud music. They observed the speakers downstairs to be inoperable and not the source of the loud music. They searched further to ascertain where the loud music was coming from and during their search, they located several marijuana plants and other processed marijuana. They finally went upstairs where the music was playing and found the defendant who had apparently just awoken and appeared to be under the influence of alcohol. The court concluded that in their community caretaker role, it would be poor police work to leave a situation like the one they faced to go apply for a search warrant. The loud music that had caused several neighbors not only to call the police, but also to approach them upon their arrival would have continued throughout the time it took the police to go apply for a search warrant in order to eliminate the offending nuisance.

If Officers Stroud and McCelvin were motivated by an intent to seize evidence or make an arrest, there would have been an insufficient basis to enter Apartment #2 under the exigent circumstances exception. In State v. Dull, 211 Wis.2d 652 (Ct. of App. Wis. 1997), the arresting deputy took the minor brother of the defendant into custody for underage drinking outside his home. Rather than take the boy to police headquarters before releasing him to his parents who were not home at the time, the deputy asked if any other adult family members were home. The deputy could not enter the home without a

warrant. The minor was not permitted to go inside the house without the deputy to summon the defendant. Once inside, the deputy entered the defendant's room and found him engaged in sexual relations with a minor female. The court held that because the deputy was enforcing a specific statute, he was not acting as a bonafide community caretaker but, rather, he was acting in the role of crime fighter and there was no emergency or need to enter the defendant's house in relation to his minor brother's arrest. Officers Stroud and McCelvin, on the contrary, were acting as public servants in their community caretaker role and not enforcing a specific statute when they entered Apartment #2 to find the cause of the odor and protect the health and welfare of other tenants at 116 Herkimer Street.

In Rohrig, supra, the police were summoned to the defendant's residence by neighbors who were suffering from a nuisance. When the police arrived, they themselves heard the nuisance and attempted to eliminate it or at least find its source. No one responded to their knock on the door. A further investigation was conducted with the objective of finding out who, if anyone, lived in the premises. Officers Stroud and McCelvin did the same thing. The defendant in Rohrig, supra, and this defendant argue that the emergency doctrine did not apply and that there was insufficient probable cause to obtain a search warrant. This Court agrees with the court in Rohrig, supra, that the defendant's position is undermined by that claim because it would have been imprudent for the police to leave the scene of a crisis in order to obtain a search warrant when such exercise would have been futile. Under all the circumstances, the public servant doctrine of the community caretaker role of the City of Buffalo Police Department also required Officers Stroud and McCelvin to enter Apartment #2 in order to eliminate the offending nuisance. Therefore, the totality of the circumstances allowed Officers Stroud and McCelvin to enter Apartment #2 in their role as public servants to protect the health and welfare of anyone in Apartment #2 and the other tenants at 116 Herkimer Street.

While no reported decisions in New York have used the term community caretaker, this role was defined in People v. Gallman, 19 NY2d 389, 394 (1967), where the court wrote,

"Perhaps it is of the greatest significance to this case that the police officer's entry was pursuant to his general obligation to assist people in distress - a purpose often independent of considerations affecting the criminal law. Police are expected, and often required, to investigate the unquelled crying of babies, sounds and blows in what turns out to be a matrimonial dispute, to assist in child deliveries and to resolve the causes of unusual sounds suggesting harm to persons, animals and property. Their functions are not just confined to criminal law enforcement, a matter frequently of great concern to those seeking to make limited police resources more effective. In this context, it has been suggested that an officer's entry is based neither on consent nor license in that even the refusal of consent may be of no avail."

The police officer's duty of aiding persons is an accepted role. Such functions as traffic control, providing escorts in funeral processions, climbing trees to retrieve cats and speaking to students about the dangers of drugs are commonplace in today's society. It is police conduct related to this role that is separate and apart from crime fighting and does not necessarily implicate the same protections under the exclusionary rule.

After Officers Stroud and McCelvin entered Apartment #2 and discovered the decomposing body, they had probable cause to apply for a search warrant for the apartment. When they entered, they could have legally seized any contraband or evidence of a crime in plain view, People v. Diaz, 81 NY2d 106 (1993). Even though they discovered a decomposing body, they were not authorized to conduct a warrantless search of the entire apartment. A murder scene exception to the warrant requirement has been rejected, Filppo v. West Virginia, 120 S.Ct. 7 (1999) and Mincey v. Arizona, 437 U.S. 385 (1978). The police were authorized to make certain that no other persons were in need of immediate aid and to make sure no suspects were in the apartment. The scope and duration of the search must be, as the court in People v. Cohen, 87 AD2d 77, 82-83, aff'd. 58 NY2d 844 (1983) held,

"limited by and reasonably related to the exigencies of the situation."

During the initial entry Officers Stroud and McCelvin did just that and then secured Apartment #2, evacuated 116 Herkimer Street and called their superiors. Their conduct was reasonable and lawful. Once this was done, the police had ample time to apply for a search warrant since the emergency no longer existed. Instead, they proceeded to conduct a search without a warrant. Incriminating evidence was discovered during that search, namely, the mallet, the contents of the plastic garbage bag, hair on the shelf, blood on the walls, ceiling and carpets and personal papers of the defendant. None of this evidence was in plain view.

The People argue that because the police had probable cause after discovering the decomposing body to obtain a search warrant for Apartment #2, the other evidence would have inevitably been discovered, People v. Turriago, 90 NY2d 77 (1997). The defendant argues the seizures were unlawful and all of the evidence flowing from them must be suppressed as fruit of the poisonous tree, Wong Sun v. U.S., 371 U.S. 471 (1963). The defendant also argues that the inevitable discovery doctrine does not protect against the suppression of primary evidence found pursuant to the unlawful activity of the police, People v. Stith, 69 NY2d 313 (1987).

The evidence the defendant seeks to suppress is the primary evidence found by Detective Ortiz during his unlawful entry into Apartment #2. The suppression of evidence seized as a result of unlawful police activity is designed to prevent future police misconduct. The police should have obtained a search warrant. Turriago, supra, is distinguishable because it involved a vehicle which could have been seized, impounded and inventoried despite an impermissible search. Although Apartment #2 was secured, it could not be seized, impounded and inventoried like the vehicle in Turriago, supra.

From the seizure of the personal papers of the defendant, the police learned the defendant's name. The People argue that the defendant's name would have inevitably been discovered by a very high degree of probability through lawful means, Turriago, supra, and Stith, supra. A simple conversation with the landlord or a check of post office records would have revealed the defendant's name. Therefore, the inevitable discovery doctrine does apply to this limited issue. The People have met their burden with respect to this secondary evidence. However, the primary evidence, namely the personal papers of the defendant, must be suppressed.

The People have the burden of proving the voluntariness of a person's statements beyond a reasonable doubt, People v. Witherspoon, 66 NY2d 973 (1985) and People v. Rosa, 65 NY2d 380 (1985). Miranda warnings are a prerequisite to custodial interrogation, Miranda v. Arizona, 384 U.S. 436 (1966). The defendant was in custody on August 18, 1999. He was handcuffed and not free to leave. Officer Salamone did not know why the defendant was in custody. His role was simply to transport the defendant to police headquarters. No interrogation was conducted by Officer Salamone. Officer Salamone made a comment to the defendant. Under all the circumstances, the comment was not designed to elicit a response. The defendant made a statement after this comment. This statement was voluntary. It was not made in response to a police question but was spontaneous, People v. Maerling, 46 NY2d 289 (1978).

The defendant was advised of the appropriate Miranda warnings on two different occasions before he gave the written statement to Detective Stambach. The defendant understood them. He also read the warnings contained on the written statement form and reviewed the written statement before he signed it. Under all the circumstances, the defendant's written statement was voluntary.

The People have the initial burden of going forward to establish that the identification procedure was not unduly suggestive, People v. Oritz, 90 NY2d 533 (1997) and People v. Berrios, 23 NY2d 361 (1971). If they meet their burden, the defendant has the burden of persuasion by a preponderance of the evidence, to establish a basis for suppression, People v. DiStefano, 38 NY2d 640 (1976). The six (6) picture photo array was fair in that it contained photos of individuals with characteristics similar to the defendant. Furthermore, no suggestion was made by the police as to whom to select and there was no improper conduct on the part of the police, People v. Chipp, 75 NY2d327 (1990). The witness had seen a picture of the defendant on television before the identification procedure. This observation of the defendant on television was a coincidence not arranged by the police and did not lead to a danger of mistaken identification, People v. Hall, 258 AD2d 892 (4th Dept. 1999). Furthermore, the defendant did not argue this viewing on television as a basis for suppression. Under all the circumstances, the defendant did not meet his burden of establishing that the identification procedure was unduly suggestive.

Accordingly, the defendant's motion to suppress the decomposing body of Janice Johnson is DENIED. The defendant's motion to suppress the oral and written statements made by him is DENIED. The defendant's motion to suppress the identification of him is DENIED. The defendant's motion to suppress the mallet, the contents of the plastic garbage bag, the hair evidence, the blood evidence and the defendant's personal papers is GRANTED.

This decision constitutes the Order of this Court.

DATED: Buffalo, New York

April , 2000



Supreme Court Justice


1 Naumann, The Community Caretaker Doctrine - Yet Another Fourth Amendment Exception, 26 Am.J.Crim.L. 325, Spring, 1999, footnote 35.
2 Bell, Emergency Circumstances, Police Responses and Fourth Amendment Restrictions, 89 Journal for Criminal Law & Criminology 433, Winter, 1999.
3 Naumann, The Community Caretaker Doctrine - Yet Another Fourth Amendment Exception, 26 Am.J.Crim.L. 325, Spring, 1999, footnote 70.