People v. Defore

• Decision Date: 12 January 1926
• Citation: 150 N.E. 585,242 N.Y. 13
• Parties: PEOPLE v. DEFORE
• Court: New York Court of Appeals Court of Appeals

242 N.Y. 13

150 N.E. 585

PEOPLE

v.DEFORE ^*

Court of Appeals of New York.

Jan. 12, 1926.

John Defore was convicted of possessing a weapon, in violation of Penal Law, § 1897, and from a judgment of affirmance by the Appellate Division (211 N. Y. S. 134, 213 App. Div. 643), he appeals.

Affirmed.Appeal from Supreme Court, Appellate Division, First department.

James Marshall, of New York City, for appellant.

Joab H. Banton, Dist. Atty., of New York City (Felix C. Benvenga and Edwin B. McGuire, both of New York City, of counsel), for the People.

CARDOZO, J.

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 $50. Penal Law, §§ 1296, 1298; Cons. Laws, c. 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, c. 6); a denial of his rights under the provision of the state Constitution which gives immunity against compulsory self-incrimination (Const. art. 1, § 6); and a denial of his rights under the due process clause of the Fourteenth Amendment to the Constitution of the United States.

[1] (1) The search was unreasonable ‘in the light of common-law traditions.’ People v. Chiagles, 142 N. E. 583, 237 N. Y. 193, 32 A. L. R. 676. 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., 42 S. Ct. 280, 267 U. S. 132, 158, 69 L. Ed. 543, 39 A. L. R. 790. So, it seems, might the place where the arrest was made. Agnello v. U. S., decided October 12, 1925, 46 S. Ct. 4, 70 L. Ed. 145;People v. Cona, 147 N. W. 525, 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 Cr. Proc. §§ 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.

[2][3] 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 Cr. Proc. § 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 page 196 (142 N. E. 584);People ex rel. Robert Simpson Co. v. Kempner, 101 N. E. 794, 208 N. Y. 16, 46 L. R. A. (N. S.) 970, Ann. Cas. 1914D, 169. The warrant does not issue for things of evidential value merely. People v. Chiagles, supra; cf. Gouled v. U. S., 41 S. Ct. 261, 255 U. S. 298, 65 L. Ed. 647;Matter of No. 191 Front Street, Borough of Manhattan, City of New York (C. C. A.) 5 F.(2d) 282;Veeder v. U. S., 252 F. 414, 164 C. C. A. 338. What would be a wrong with a warrant is not innocent without one. To dispense with process in the pursuit of contraband is to dispense with it in the one case in which it may ever issue in the pursuit of anything. Means unlawful in their inception do not become lawful by relation when suspicion ripens into discovery.

[4] 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 20 years ago in People v. Adams, 68 N. E. 636, 176 N. Y. 351,63 L. R. A. 406, 98 Am. St. Rep. 675, 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 testimony is not thereby rendered incompetent.’ Commonwealth v. Tibbetts, 32 N. E. 910, 157 Mass. 519.

On appeal to the Supreme Court, the judgment was affirmed. Adams v. People of State of New York, 24 S. Ct. 372, 192 U. S. 585, 48 L. Ed. 575.

[5] 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. United States, 34 S. Ct. 341, 232 U. S. 383, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, 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. United States, 40 S. Ct. 182, 251 U. S. 385, 64 L. Ed. 319, held that copies of the things so seized, in that case books and papers, must share the fate of the originals. Gouled v. United States, 41 S. Ct. 261, 255 U. S. 298, 65 L. Ed. 647, and Amos v. United States, 41 S. Ct. 266, 255 U. S. 313, 65 L. Ed. 654, 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, 41 S. Ct. 574, 256 U. S. 465, 65 L. Ed. 1048, 13 A. L. R. 1159, 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. United States, 44 S. Ct. 445, 265 U. S. 57, 68 L. Ed. 898, and Carroll v. United States, 45 S. Ct. 280, 267 U. S. 132, 69 L. Ed. 543, 39 A. L. R. 790, drew a distinction between search and seizure in a house and search and seizure in the fields or in automobiles or other vehicles. Finally Agnello v. United States, 46 S. Ct. 70 L. Ed. ——, 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. People of State of New York, for the facts were undisputed there. The procedural condition of a preliminary motion has been substantially abandoned, or, if now enforced at all, is an exceptional requirement. There has been no blinking the consequences. The criminal is to go free because the constable has blundered.

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 45 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 (Commonwealth v. Wilkins, 138 N. E. 11, 243 Mass. 356;Commonwealth v. Donnelly, 141 N. E. 500, 246 Mass. 507); California (People v. Mayen, 205 P. 435, 188 Cal. 237, 24 A. L. R. 1383); Connecticut (State v. Reynolds, 125 A. 636, 101 Conn. 224); Ohio (Rosanski v. State, 140 N. E. 370, 106 Ohio St. 442); Kansas (State v. Johnson, 226 P. 245, 116 Kan. 58; Id., 226 P. 251, 116 Kan. 179); Iowa (State v. Rowley, 195 N. W. 881, 197 Iowa, 977, 979); and Virginia (Hall v. Commonwealth, 121 S. E. 154, 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...