p. 810The People of the State of New York, Respondent, v. Wayne D. Hughes, Appellant. The People of the State of New York, Respondent, v. Kenneth J. Geising, Appellant. Argued May 4, 1972; decided June 1, 1972.
p. 811
Nicholas P. Varlan, Public Defender (John E. Carter, Jr. of counsel), for appellants.
Jack B. Lazarus, District Attorney (Melvin Bressler of counsel), for respondent.
no opinion.
Concur: Judges Scileppi, Bergan, Beeitel, Jasen and Gibson.
Chief Judge Fuld and Judge Burke dissent and vote to reverse upon the ground that the People failed to sustain their burden of establishing that the defendant Hughes “ freely and voluntarily” consented to the search. (Bumper v. North Carolina, 391 U. S. 543 , 548; see, also, Higgins v. United States, 209 F. 2d 819 , 820.) It follows, therefore, that the search was unlawful and the evidence seized inadmissible.
Cases cited
- Bumper v. North Carolina 391 U. S. 543 at 548 p. 811