People v. Hill

Section 169 of the Conservation Law (added by Laws of 1912, chap. 318, as amd. by Laws of 1921, chap. 328) reads, in

Section 1851 of the Penal Law reads as follows: “ A person who, in any case or under any circumstances not otherwise specially provided for, wilfully resists, delays, or obstructs a public officer in discharging, or attempting to discharge, a duty of his office, is guilty of a misdemeanor.”

The defendant was indicted for violation of the last section.

The indictment charges the defendant with the crime of violating section 1851 and alleges the crime was committed as follows: “ That on or about the 23d day of October, 1927, at about five-thirty o’clock in the afternoon of said day, on the Number Four Road, so-called, in the town of Watson, county of Lewis, aforesaid, the said Charles Hill, with force and arms did wilfully, maliciously and unlawfully resist, delay and obstruct a public officer, to wit: State Game Protectors and a member of the State Police in attempting to discharge the duties of their office in that the said Charles Hill while operating a Ford automobile on said day in a westerly direction, upon said highway, did fail to stop or bring said automobile to a standstill at the signals and commands of said Game Protectors and State Police in order that said Game Protectors and State Police might examine the contents of said automobile to ascertain whether the Conservation Law of the State of New York had been or was being violated.”

The defendant demurred to the indictment on the ground “ that the facts stated in said indictment do not constitute a crime.”

The facts are briefly: The defendant, while driving an automobile along a highway, was signaled and commanded to stop by the officers mentioned in the indictment in order that they might examine the contents of said automobile to ascertain whether the Conservation Law had been or was being violated, and the defendant did not stop.

The presumption is that the defendant had not violated any

The defendant had the right to pass along the highway, as he Was doing, and these officers had no right to stop him or search his automobile unless they were authorized so to do by the sovereign power of this State. Were they so authorized?

It is claimed that section 169 of the Conservation Law, above quoted, gives authority to the officers in question in cases where they have no cause to believe said law is being violated, to stop automobiles being driven along the highway and search the same to ascertain whether the said law is being violated; but a careful reading of said section shows that it is only when the officer “ has cause to believe ” that said law has been or is being violated that he has authority to stop a car and search the same.

Section 8 of the Civil Rights Law, as amended by chapter 80 of the Laws of 1923, and the Fourth Amendment to the Constitution of the United States read substantially as follows: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

General searches are unlawful (Marron v. United States, 275 U. S. 192 ; 48 Sup. Ct. 74 ) and all unlawful searches are unreasonable within the meaning of said section and amendment. (State v. Wills, 91 W. Va. 659 .)

It would be intolerable and unreasonable if these officers were authorized to stop and search every automobile on the chance of finding evidence of a violation of the Conservation Law. But they have no such authority. It is only when they have reasonable cause to believe that an automobile contains evidence of a violation of the Conservation Law that they are authorized to stop and search the same. (Carroll v. United States, 267 U. S. 132 ; People v. Didonna, 124 Misc. 873 .)

Probable cause has been defined as follows: “ If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient.” (Stacey v. Emery, 97 U. S. 642 , 645.)

Briefly stated, these officers have no right to stop an automobile

It follows that the demurrer herein must be sustained, the indictment dismissed, and since, from the statement of the district attorney, it appears that there is no evidence of probable cause, and, therefore, the defect in this indictment cannot be cured, the defendant is discharged.