People v. Bowen

The defendant moves to compel the return to him of certain papers which he charges were illegally taken from his possession. He also moves for a copy of the minutes of the grand jury upon which an indictment was found against him for forgery in the second degree, that he may move to set aside such indictment on the ground that illegal evidence was received on Avhich such indictment Avas found.

The defendant was arrested by a police officer without a warrant, and a roll of papers taken from his pocket. He was taken to police headquarters where he was held on the charge of grand larceny. Later the officer who made the arrést proceeded to defendant’s house and, on being admitted by a maid, passed into his office and took possession of certain papers, Avhich it is contended establishes the crime against the defendant for Avhich he is indicted.

The defendant is not only charged with a serious crime, but one that is particularly obnoxious. If the charge against him is true, he has been engaged in a scheme whereby he procured signatures to an innocent looking order for a book, which was so ingeniously' printed on one plate that when returned to the defendant from the party signing the order, was converted by him into a printed'contract, by placing it on another plate so prepared that it fitted into the original order, whereby its signer promised to pay a substantial sum for the book and for an advertisement which it contained.

It is provided in amendments (Arts. IV, V) to the Constitution of the United States that the right of the people to be secure in their persons, houses, papers and effects, against

A novel situation is presented by these motions. An appeal is made to the court to aid the defendant in escaping pxxnishment by placing in his hands the opportunity for destroying the proofs of his crime, and if he shall receive sxxch proofs and not destroy them, he cannot be compelled to produce them xxpon his trial, betiaxxse he cannot be forced to furnish evidence against himself.

The constitxxtioixal rights of the defendant may have been violated by the search at 'the hoxxse of the defendant, bxxt for that the officer making the search may be reqxxired to answer. The invasion of the defendant’s constitutional rights, however, is entirely separate from the civil right by motion to compel the officers of the law to return to him the fruits of his crime or the proof which may convict him of sxxch crime. When stolen property shall have passed into the custody of the law and is held for the rightful owner, the thief may ixot question the right of the officers of the law to hold it or the manner of their acqxxiring its possession. So, too, officers of the law coming into the possession of that which is xxsed to commit crime, may not be compelled to restore it to him who claims its ownership, althoxxgh the officers have obtained it from him by illegal means.

A party may not. rightfully have the possession of instrumentalities xxsed for the commission of crime or used in the commission of crime, and since he may not rightfully have the possession of such instrumentalities, he has not the right to require their possession.

In the case under consideration the seizure was not. illegal for the reason that the papers seized, on the proofs presented on

Papers or articles, fruits of a crime, or which constitute tokens or devices for the commission of crime; are legitimate evidence for the people even though taken from the possession of the alleged criminal and may be used as evidence against him without reference to the manner of their taking. (People v. Adams, 176 N. Y. 351 , 192 U. S. 585 ; State v. Edwards, 51 W. Va. 220 , 59 L. R. A. 465 .)

This leads to a denial of these motions. Many cases may be found, as well as articles recently appearing in law periodicals, touching upon the questions here considered. It is not necessary, however, for a disposition of these motions, to refer to them, as it seems to me this disposition of the motions is placed upon reasons which must control in this day and age of the world- when the genius of the criminals is often of such a nature

The decisions of the United States courts, to which my attention has been directed by defendant’s counsel, determining the effect of constitutional provisions referred to, apply only to seizures under federal authority. (Twining v. New Jersey, 211 U. S. 78 , 53 L. Ed. 97 ; Brown v. New Jersey, 175 U. S. 172 , 44 L. Ed. 119 ; Consolidated Rendering Co. v. Vermont, 207 U. S. 541 , 52 L. Ed. 327 .) These decisions might require the granting of these motions, if the seizure had been made by federal authority or federal officials and was in an action or proceeding pending in a federal court (Weeks v. United States, 232 U. S. 383 , 58 L. Ed. 652 ), but the seizure was made by an officer who derived whatever authority he had from the laws of the State of New York. This application is made to a court of that State and-is an appeal to the courts which construe the laws of that State, and the federal decisions, as before noted, do not control. (Twining v. New Jersey, supra.) If any of the constitutional provisions referred to, or of the laws of this State, have been violated, the remedy is to punish the wrongdoers, not to secure to a defendant immunity from punishment, by restoring to him the means with which he committed a crime.

A draft order may, therefore, be submitted denying the motions.

Ordered accordingly.