Opinion
July 11, 1983
Appeal from the Oneida County Court, Darrigrand, J.
Present — Hancock, Jr., J.P., Denman, Boomer, Green and Schnepp, JJ.
Judgment unanimously reversed, motion to suppress granted and defendant remanded to Oneida County Court for further proceedings on the indictment. Memorandum: The warrantless entry of the police into defendant's apartment to arrest him for the sale of drugs was unlawful (see Payton v New York, 445 U.S. 573) and the contraband seized as a result of the police search of the premises after the arrest must be suppressed. Defendant was arrested upon completion of the sale to an informant who had been equipped by the police with a hidden transmitter. The police monitored the entire transaction via the transmitter and they moved in to make the arrest when the informant broadcasted a prearranged signal. The police had no indication that defendant was aware either that he was dealing with an informant or that the transaction was being monitored, and they had no evidence that defendant was armed or that the informant was in any danger. The arrest was made pursuant to a preconceived plan and not in response to any exigency (see United States v Velasquez, 626 F.2d 314; cf. People v Clements, 37 N.Y.2d 675, cert den sub nom. Metzger v New York, 425 U.S. 911). Further, by allowing the informant into his apartment, defendant did not consent to a police entry. This case is distinguishable from United States v Ruiz-Altschiller ( 694 F.2d 1104), United States v White ( 660 F.2d 1178) and United States v Collins ( 652 F.2d 735, cert den 455 U.S. 906), since the defendant here did not invite an undercover police officer into his residence. After the arrest, search and seizure, the police secured the apartment and sought a search warrant. Thus, the independent source rule (see People v Arnau, 58 N.Y.2d 27) has no application, since the evidence had already been seized before the search warrant was obtained (cf. People v Lee, 83 A.D.2d 311, affd 58 N.Y.2d 771). Analysis of the facts here permits only one conclusion: that the evidence seized "was come at by exploitation of the illegal police activity" ( People v Arnau, supra, p 37) and was the product of the illegal entry of the police into defendant's home.