People v. Swanberg

Decision Date14 December 1964
PartiesThe PEOPLE of the State of New York, Respondent, v. Gilbert SWANBERG, Appellant.
CourtNew York Supreme Court — Appellate Division

Robert C. LaBorde, Jr., New York City, for appellant.

Aaron E. Koota, Acting Dist. Atty., Brooklyn, for respondent; David Diamond, Brooklyn, of counsel.

Before BELDOCK, P. J., and CHRIST, BRENNAN, UGHETTA and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered January 31, 1964 after a jury trial, convicting him of criminally concealing and withholding stolen and wrongfully acquired property, as a felony, and imposing sentence.

Judgment affirmed.

This appeal brings up for review the court's denial, after a hearing, of the defendant's motion to suppress the evidentiary use of the alleged fruits of the crime on the ground that they were obtained by the police pursuant to an illegal search and seizure.

It appears that on May 16, 1963 the police were notified that 330 suits had been stolen from a Ripley clothes store.

It also appears that on May 21, 1963, at approximately 12:30 P.M., a detective received information from a confidential informant that the stolen suits could be found in a private garage at a designated address. The detective proceeded to the premises at that address and apprised the owner of his mission. He received permission from the owner to enter the premises and to look into a detached garage, which had been leased to the defendant, at the rear of the owner's private house. When the detective looked between the double hung doors, which were loose fitting, he observed a number of suits containing Ripley tags and hung on Ripley hangers. The owner broke off the lock on the doors; the detective entered the garage and seized and removed therefrom 310 suits. All contained Ripley tags and were on Ripley hangers. Three hundred of these suits were returned to the Ripley clothing store and ten were retained as evidence. It is conceded that the detective made no attempt to obtain a search warrant. At approximately 6:00 P.M. that evening (May 21, 1963) he arrested the defendant who admitted his complicity in the theft.

We are of the opinion that the act of the detective in looking through an existing aperture and observing the stolen merchandise--merchandise which was obviously stolen--did not constitute an unlawful search. His purpose thereafter in entering the garage was not to search for the stolen suits (cf. Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828) but lawfully to seize them (People v. Manzi, 38 Misc.2d 114, 117, 237 N.Y.S.2d 738, 741; United States v. Jankowski, 2 Cir., 28 F.2d 800; Busby v. United States, 9 Cir., 296 F.2d 328).

Moreover, it is clear from the record before us that the subject garage was not used by the owner in conjunction with his residence and thus is not to be classified as a house within the protection of the Fourth Amendment to the United States Constitution (Carney v. United States, 9 Cir., 163 F.2d 784; United States v. Thomas, D.C., 216 F.Supp. 942, 947-948; cf. Walker v. United States, 5 Cir., 225 F.2d 447; United States v. Mullin, 4 Cir., 329 F.2d 295).

We have examined the defendant's remaining contentions and have found them to be without merit.

BELDOCK, P. J., and CHRIST and BRENNAN, JJ., concur.

UGHETTA and HOPKINS, JJ., dissent and vote to reverse the judgment and to order a new trial, with the following memorandum:

...

To continue reading

Request your trial
12 cases
  • People v. Brosnan
    • United States
    • New York Court of Appeals Court of Appeals
    • 2 Mayo 1973
    ...out in Coolidge (p. 469, 91 S.Ct. 2022) and contrary to the circumstances in the seminal New York 'plain view' case of People v. Swanberg (22 A.D.2d 902, 255 N.Y.S.2d 267, mod. and affd. 16 N.Y.2d 649, 261 N.Y.S.2d 82, 209 N.E.2d 122) and the seminal Federal case of Ker v. California, 374 U......
  • People v. Doerbecker
    • United States
    • New York Supreme Court — Appellate Division
    • 19 Mayo 1975
    ...L.Ed.2d 114; United States v. Swann, Md., 377 F.Supp. 1305; United States v. Wolfe, E.D.Pa., 375 F.Supp. 949; but see People v. Swanberg, 22 A.D.2d 902, 255 N.Y.S.2d 267, mod. 16 N.Y.2d 649, 261 N.Y.S.2d 82, 209 N.E.2d 122). If this be the case, it follows that the failure to obtain a warra......
  • People v. Boyd
    • United States
    • New York District Court
    • 28 Agosto 1968
    ...561, 271 N.Y.S.2d 453, 454; People v. Manzi, 38 Misc.2d 114, 237 N.Y.S.2d 738, aff'd 21 A.D.2d 57, 248 N.Y.S.2d 306; People v. Swanberg, 22 A.D.2d 902, 255 N.Y.S.2d 267, modified in other respects and aff'd 16 N.Y.2d 649, 261 N.Y.S.2d 82, 209 N.E.2d It must be noted that, although Section 2......
  • People v. Grande
    • United States
    • New York Supreme Court — Appellate Division
    • 22 Febrero 1977
    ...unopened boxes in the back of an unlighted garage. * * * This is not a case of seizing contraband in open view as in People v. Swanberg (22 A.D.2d 902, (255 N.Y.S.2d 267), mod. on other grounds 16 N.Y.2d 649 (261 N.Y.S.2d 82, 209 N.E.2d 122)). Here, a search was necessary before it could be......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT