People v. Defore

A police officer arrested the defendant on a charge that he had stolen an overcoat. The crime, if committed, was petit larceny, a misdemeanor, for the value of the coat was not over fifty dollars (Penal Law, §§ 1296, 1298; Cons. Laws, ch. 40). The defendant when taken into custody was in the hall of his boarding house. The officer after making the arrest entered the defendant’s room and searched it. The search produced a bag, and in the bag was a blackjack. The defendant after trial at Special Sessions was acquitted of the larceny. In the meantime he had been indicted as a second offender for the possession of the weapon (Penal Law, § 1897). He made a motion before trial to suppress the evidence obtained through search without a Warrant. The motion was denied. He made objection again upon the trial when the bag and the contents, i. e., the blackjack and a hat, were offered in evidence by the People. The objection was overruled. He contends that through these rulings he has suffered a denial of his rights under the statute against unreasonable search and seizure (Civil Rights Law, § 8; Cons. Laws, ch. 6); a denial of his rights under the provision of the State Constitution which gives immunity against compulsory self-incrimination (Con

(1) The search was -unreasonable “ in the light of common law traditions ” (People v. Chiagles, 237 N. Y. 193 ). A different conclusion might be necessary if the defendant had been lawfully arrested. As an incident to such an arrest, his person might have been searched for the fruits or evidences of crime (People v. Chiagles, supra; Carroll v. U. S., 267 U. S. 132 , 158). So, it seems, might the place where the arrest was made (Agnello v. U. S., 269 U. S. 20 ; People v. Cona, 180 Mich. 641 ). But the arrest was not lawful. One who, acting without a warrant, arrests for a misdemeanor, exceeds the bounds of privilege, whether he be a private person or an officer, unless the crime has been committed or attempted in his presence (Code Crim. Pro. §§ 177, 183). The defendant had neither committed the crime of petit larceny in the presence of the officer, nor there attempted to commit it. He had not committed nor attempted it anywhere. There was no lawful arrest to which the search could be an incident.

The People stress the fact that the weapon was contraband, a nuisance subject to destruction (Penal Law, § 1899). This might have justified the seizure, the abatement of the nuisance, if the weapon had been exposed to view. It might even have justified the refusal to return the weapon, though discovered by unlawful means. It did not justify the search. There is no rule that homes may be ransacked without process to discover the fruits or the implements of crime. To make such inquisitions lawful, there must be the support of a search warrant issued upon probable cause. Search even then is “ confined under our statute [Code Grim. Pro. § 792] to property stolen or embezzled, or used as the means of committing a felony, or held with the intent to use it as an instrument of crime ” (People v. Chiagles, supra, at

We hold, then, with the defendant that the evidence against him was the outcome of a trespass. The officer might have been resisted, or sued for damages, or even prosecuted for oppression (Penal Law, §§ 1846, 1847). He was subject to removal or other discipline at the hands of his superiors. These consequences are undisputed. The defendant would add another.' We must determine whether evidence of criminality, procured by an act of trespass, is to be rejected as incompetent for the misconduct of the trespasser.

The question is not a new one. It was put to us more than twenty years ago in People v. Adams ( 176 N. Y. 351 ), and there deliberately answered. A search warrant had been issued against the proprietor of a gambling house for the seizure of gambling implements. The police did not confine themselves to the things stated in the warrant. Without authority of law, they seized the defendant’s books and papers. We held that the documents did not cease to be competent evidence against him though the seizure was unlawful. In support of that holding, we cited many authorities, and notably a series of decisions by the courts of Massachusetts. “A trespasser may testify to pertinent facts observed by him, or may put in evidence pertinent articles or papers found by him while trespassing. For the trespass, he may be held responsible civilly, and perhaps criminally, but his.

The ruling thus broadly made is decisive, while it stands, of the case before us now. It is at variance, however, with later judgments of the Supreme Court of the United States. Those judgments do not bind us, for they construe provisions of the Federal Constitution, the Fourth and Fifth Amendments, not applicable to the States. Even though not binding, they merit our attentive scrutiny. Weeks v. U. S. ( 232 U. S. 383 ) held that articles wrongfully seized by agents of the Federal government should have been returned to the defendant or excluded as evidence if a timely motion to compel return had been made before the trial. Silverthorne Lumber Co. v. U. S. ( 251 U. S. 385 ) held that copies of the things so seized, in that case books and papers, must share the fate of the originals. Gouled v. U. S. ( 255 U. S. 298 ) and Amos v. U. S. ( 255 U. S. 313 ) held that a motion before trial was unnecessary if the defendant had no knowledge until the trial that an illegal seizure had been made. Burdeau v. McDowell ( 256 U. S. 465 ) held that a Federal prosecutor might make such use as he pleased of documents or other information acquired from a trespasser if persons other than Federal officers were guilty of the trespass. Hester v. U. S. ( 265 U. S. 57 ) and Carroll v. U. S. ( 267 U. S. 132 ) drew a distinction between search and seizure iñ a house and search and seizure in the fields or in automobiles or other vehicles. Finally Agnello v. U. S. ( 269 U. S. 20 ) held that the evidence must be excluded though the things seized were contraband and though there had been no motion before trial if the facts were undisputed. This means that the Supreme Court has overruled its own judgment in Adams v. New York, for the facts were undisputed there. The procedural condition of a preliminary motion has been

The new doctrine has already met the scrutiny of courts of sister States. The decisions have been brought together for our guidance through the industry of counsel. In forty-five States (exclusive of our own) the subject has been considered. Fourteen States have adopted the rule of the Weeks case either as there laid down or as subsequently broadened. Thirty-one have rejected it. Typical among these are Massachusetts (Comm. v. Wilkins, 243 Mass. 356 ; Comm. v. Donnelly, 246 Mass. 507 ); California (People v. Mayen, 188 Cal. 237 ); Connecticut (St ate v. Reynolds, 101 Conn. 224 ); Ohio (Rosanski v. State, 106 Ohio St. 442 ); Kansas (State v. Johnson, 116 Kan. 58 ; 116 id. 179 ); Iowa (State v. Rowley, 197 Ia. 977 , 979), and Virginia (Hall v. Comm., 138 Va. 727 ). To what is there written, little of value can be added. The controversy, starting with the courts, has been taken up by the commentators, and with them has been the theme of animated argument. For the most part, there has been adherence to the older doctrine (4 Wigmore on Evidence [2d ed.], §§ 2183, 2184; Harno, Evidence Obtained by Illegal Search & Seizure, 19 Ill. Law Rev. 303; Knox, Self-incrimination, 74 Penn. Law Rev. 139; Fraenkel, Concerning Searches and Seizures, 34 Harv. L. R. 361, 386; contra Chafee, The Progress of the Law, 35 Harv. L. R. 673, 694; Atkinson, Unreasonable Searches & Seizures, 25 Col. Law Rev. 11). With authority thus divided, it is only some overmastering consideration of principle or of policy that should move us to a change. The balance is not swayed until something more persuasive than uncertainty is added to the scales.

We find nothing in the statute (Civil Rights Law, § 8) whereby official trespasses and private are differentiated in respect of the legal consequences to follow them. All

The Federal rule as it stands is either too strict or too lax. A Federal prosecutor may take no benefit from evidence collected through the trespass of a Federal officer. The thought is that in appropriating the results, he ratifies the means (Essgee Co. v. U. S., 262 U. S. 151 , 156). He does not have to be so scrupulous about evidence brought to him by others. How finely the line is drawn is seen when we recall that marshals in the service of the nation are on one side of it, and police in the service of the States on the other. The nation may keep what the servants of the States supply (Weeks v. U. S., supra, p. 398; Schroeder v. U. S., 7 Fed. Rep. [2nd] 60; U. S. v. One Ford Coupe, 3 Fed. Rep. [2nd] 64). We must go farther or not so far. The professed object of the trespass rather than the official character of the trespasser should test the rights of government (Dempsey v. Chambers, 154 Mass. 330 ). The incongruity of other tests gains emphasis from the facts of the case before us. The complainant, the owner of the overcoat, co-operated with the officer in the arrest and the attendant search. Their powers were equal, since the charge was petit larceny, a misdemeanor (Code Crim. Pro. §§ 177, 183). If one spoke or acted for the State, so also did the other. A government would be disingenuous, if, in determining the use that should be made of evidence drawn from such a source, it drew a line between them. This would be true whether they

The truth indeed is that the statute says nothing about consequences. It does no more than deny a privilege. Denying this, it stops. Intrusion without privilege has certain liabilities and penalties. The statute does not assume to alter or increase them. No scrutiny of its text can ever evoke additional consequences by a mere process of construction. We must attach them, if at all, because some public policy, adequately revealed, would otherwise be thwarted. But adequate revelation of such a policy it is surely hard to see. This would have been true in the beginning before the courts had spoken. It is more plainly true to-day. In this State the immunity is the creature, not of constitution, but of statute (Civil Rights Law, § 8). The Legislature, which created it, has acquiesced in the ruling of this court that the prohibition of the search did not anathematize the evidence yielded through the search. If we had misread the statute or misconceived the public policy, a few words of amendment would have quickly set us right. The process of amendment is prompt and simple. It is without the delays or obstructions that clog the change of constitutions. In such circumstances silence itself is the declaration of a policy. We scan the statute in vain'for any token of intention that search by intruders wearing a badge qf office shall have any different consequences in respect of the law of evidence than search by intruders generally.

We are confirmed in this conclusion when we reflect how far-reaching in its effect upon society the new consequences would be. The pettiest peace officer would have it in his power through overzeal or indiscretion to confer immunity upon an offender for crimes the most flagitious. A room is searched against the law, and the

(2) There remains a second claim of privilege. “No person shall be * * * compelled in any criminal case to be a witness against himself ” (New York Constitution, art. 1, § 6). This immunity, like the statutory one against unreasonable search and seizure, was considered in the Adams case ( 176 N. Y. 351 , 359). We limited it to cases where incriminatory disclosure had been extorted by the constraint of legal process directed against a witness. The Supreme Court agreed with us (Adams v. N. Y., 192 U. S. 585 , 597, 598). Other courts (e. g., State v. Flynn, 36 N. H. 64 ; Common v. Wilkins, supra) and learned commentators (4 Wigniore Evidence, §§ 2263, 2264) have taken the same ground. Unless that ruling is to be changed, the conclusion is not doubtful.

We put the question aside whether in some other situation differing from the one before us, there may be need to qualify or soften a ruling so comprehensive. In putting it aside, we would not be understood as expressing, even by indirection, a belief that change is called for. Enough for present purposes to decide the case at hand. The weapon discovered through this search was an implement of crime. It was not the kind of thing to be protected against prying inquisition. It was a thing to be ferreted out and brought to light and, when found, wrested from the holder (Code Crim. Pro. § 792). There is no relation in such circumstances between the absence of a search warrant and the constitutional immunity against involuntary disclosure. The production of the Weapon Would have been just as incriminatory and just as involuntary if a warrant had been issued.

Federal decisions until Agnello v. U. S. (supra) kept the two immunities (those of the Fourth and Fifth Amendments) distinct, even though sometimes overlapping. The distinction was of diminishing importance, for evidence was excluded for violation of the one almost as much as for violation of the other. None the less, the seizure of things contraband as the outcome of an unlawful search was classified for many years as a violation of the Fourth Amendment only. The Fifth was not infringed unless the seizure had relation to things innocent in themselves, but supplying evidence of guilt, such as a defendant’s books and papers (Boyd v. U. S., supra; Gouled v. U. S., supra; of. U. S. v. Welsh, 247 Fed. Rep. 239 ). We are uncertain whether Agnello v. U. S. (supra) has abandoned this distinction. What was said as to the Fifth Amendment was not essential to the decision. The result would have been the same though the Fourth only had been applied. We must follow our own rule.

The defendant makes the point that though the blackjack was contraband, the bag and hat were not. Error in admitting these in evidence, even if error were found, might be disregarded as harmless. But in truth the question is not here. All three articles were offered in evidence together. The objection did not discriminate between them. It was a general one to all alike. If any were admissible, the objection fails.

In this state of the record, we are not required to determine the application of the constitutional privilege

The Fourteenth Amendment would not be violated though the privilege against self-incrimination were abolished altogether (Twining v. New Jersey, 211 U. S. 78 ; Banks v. State, 207 Ala. 179 ; certiorari denied, 260 U. S. 736 ). The like must be true of the immunity against search and seizure without warrant in so far as that immunity has relation to the use of evidence thereafter (Comm. v. Donnelly, 246 Mass. 507 ; Banks v. State, supra).

The judgment of conviction should be affirmed.

His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Judgment affirmed.