People v. Belcher

• Decision Date: 07 March 1966
• Citation: 49 Misc.2d 631,268 N.Y.S.2d 148
• Parties: PEOPLE of the State of New York, Plaintiff, v. Merwin R. BELCHER, Jr., Defendant.
• Court: New York County Court

Page 148

268 N.Y.S.2d 148

49 Misc.2d 631

PEOPLE of the State of New York, Plaintiff, v. Merwin R. BELCHER, Jr., Defendant.

Nassau County Court, Special Term, Part I.

March 7, 1966.

William Cahn, Dist. Atty., Nassau County, Mineola, for the people.

William Richter, New York City, for defendant.

ALBERT A. OPPIDO, Judge.

The defendant moves for an order suppressing certain tangible evidence. (U.S.Const. Amendments XIV, IV; N.Y.State Const., Art. I, Section 12; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478.) The People maintain that the search and seizure was conducted contemporaneous to and incidental to a lawful arrest. Pursuant to an order of this Court, a hearing has been held to inquire into the facts and circumstances surrounding the aforesaid search and seizure. (Code of Criminal Procedure, Section 813--c)

At the hearing, the following facts were established: On the evening of September 19th, 1965, at approximately 7:30 P.M., Officer Rogers and a brother police officer went to the defendant's home in Seaford, Nassau County, New York. The purpose of their visit was to investigate a dog-bite complaint of one of the defendant's neighbors. Officer Rogers knocked on the door and rang the bell. At first, there was no response. Then a light went on and Mr. Belcher came to the door. However, the defendant did not open the door. Officer Rogers called to the defendant, identified himself as a patrolman of the Nassau County Police Department, and said he would like to talk to him. According to the police officer's testimony, the defendant turned from the door and walked into a more interior portion of the house. The police officers, who were outside of the house, then walked around the side of the house. Officer Rogers heard a voice saying 'All right, come on, where are you?' (SM p. 19) Officer Rogers then returned to the front of the house. As he came around the side to the front of the house, Officer Rogers observed the defendant standing in front of his house brandishing a shotgun. Mr. Belcher was, at this time, waving a shotgun horizontally--left to right--pointed in the direction of the two (2) police officers. Officer Rogers told the defendant not to get excited and that he just wanted to talk to the defendant. At this time, the defendant stated, 'I don't have to talk to you. I don't have to talk to anybody. Get off my property. I'll blow your head off.' (SM p. 24) Then, the police officers, backed away, and Mr. Belcher backed away in the direction of the house, went into the house and turned off the lights. Then Officer Rogers left the premises, returned to his patrol car, and called for assistance.

In response to Officer Rogers' call, Sergeant Jorgenson arrived at the scene at about 8:00 p.m. A light went on in the house. Sergeant Jorgenson and Officer Rogers approached the window, in which there was now a light. Sergeant Jorgenson called out to the defendant. He identified himself and said 'I would just like to talk to you, Mr. Belcher, we won't harm you or your dogs. Just please come out.' (SM p. 44) The defendant came to the window and looked out. He then went away from the window. When the defendant came back to the window, he had a shotgun with him. Sergeant Jorgenson continued talking to the defendant. The Sergeant said, 'We don't want to harm you, no one wants to harm you, we just want to ask you some questions.' (SM p. 45) The Sergeant then told the defendant that he had a complaint that his dog bit a neighbor. The defendant left the window again and extinguished the lights.

At this point, Sergeant Jorgenson called for assistance. Thirty (30) police officers arrived at the scene. A police inspector using a bullhorn, called out to the defendant, saying they wanted to talk to him concerning the dog-bite complaint. Meanwhile, the police surrounded the defendant's house and illuminated the area with floodlights. At approximately 11:30 p.m., the defendant opened the door and set free his two (2) German Shepherd dogs. About this time, tear gas was used. In addition, there was some shooting, during which the defendant was wounded in the shoulder. The defendant then walked out of his house. Officer Rogers arrested the defendant for the Assault, in the Second Degree, which allegedly occurred at approximately 7:30 p.m. that evening.

Thereafter, the defendant was taken to Meadowbrook Hospital. At this time, Police Officer Eiseman and another officer, who were among the many police officers present at the scene, searched the defendant's home. During the search the police seized two (2) shotguns.

It is conceded that the police had neither a search warrant nor an arrest warrant. The People to not claim that the search was conducted pursuant to the defendant's consent.

I. ENTRY UPON THE DEFENDANT'S PROPERTY

The defendant contends that his arrest was unlawful. He claims that the testimony of Police Officer Rogers to the effect that Mr. Belcher, was brandishing a shotgun and threatening to blow off the police officers' heads, neither constituted a crime nor furnished probable cause for an arrest. The defendant argues, in substance, that his actions were proper in that he was protecting his property from the invasion of trespassers.

It should be noted that Police Officer Rogers, Sergeant Jorgenson and their brother officers did not attempt to, nor did they in fact, forcibly enter the defendant's home. It is uncontroverted that all officers remained outside the defendant's home until the questioned search was conducted. Therefore, this is not a case of forcible entry such as occurred in People v. Field, City Ct., 15 N.Y.S.2d 561; People v. Vest, 11 A.D.2d 1080, 206 N.Y.S.2d 471; People v. Singleton, Mag.Ct., 117 N.Y.S.2d 114; or Titcomb v. State of New York, 30 Misc.2d 902, 222 N.Y.S.2d 596.

Generally, the entry into one's home, without a search warrant, by a municipal officer, pursuant to an ordinance enforceable by criminal prosecution has been held unlawful. People v. Laverne, 14 N.Y.2d 304, 251 N.Y.S.2d 452, 200 N.E.2d 441. However, here the police originally came upon the property to investigate a dog-bite complaint. It has also been held that entry for the purpose of administrative correction of a hazard immediately dangerous to health and public safety is constitutionally valid. Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877. It is clear to all, that it is the duty of the police to prevent crime or injury, if they can, and prompt inquiry into suspicious or unusual occurrences is indispensable, if orderly government is to continue. This duty certainly extends to circumstances arising upon a specific complaint.

In the instant case, a neighbor of the defendant complained to the police that he had been bitten by the defendant's dog. Certainly, a dog-bite or maintenance of vicious dogs might tend to disrupt public health and safety. Therefore, this Court is of the opinion that the police may enter upon the private property of another for the purpose of investigating a potential hazard to the public health and safety although no crime has been committed. This holding, however, does not mean that the police may forcibly enter a person's home under such described circumstances. (Cf. Frank v. State of Maryland, supra.)

II. THE ARREST

Since this Court has decided that Police Officer Rogers, and his brother officers, were lawfully on the defendant's private property, it must now turn to the question of whether the arrest of the defendant was lawful.

Section 177 of the Code of Criminal Procedure provides in relevant part:

'A peace officer may, without a warrant, arrest a person,

1. For a crime, committed or attempted in his presence. * * *

4. When he has reasonable cause for believing that a felony has been committed, and that the person arrested has committed it, though it should afterward appear that no felony has been committed * * *.'

In the case at bar, the police officers were lawfully on the defendant's property at 7:30 p.m. The testimony of the police officer clearly established that the defendant pointed a shotgun at him and threatened to blow his head off. No matter what definition of probable cause is employed, (Locke v. United States, 7 Cranch (11 U.S.) 339, 348, 3 L.Ed. 364; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 98 L.Ed. 1879; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; People v. Lane, 10 N.Y.2d 347, 353, 223 N.Y.S.2d 197, 198, 179 N.E.2d 339, 340) this Court concludes that Officer Rogers had authority to arrest the defendant shortly before midnight for the crime of Assault, in the Second Degree. (Code of Crim.Proc., Sec. 177, subd. 1 and subd. 4; Penal Law, Sec. 242)

The cases cited by the defendant are distinguishable. In People v. Dreares, 11 N.Y.2d 906, 228 N.Y.S.2d 467, 182 N.E.2d 812, the defendant had been arrested for loitering. Then the defendant allegedly assaulted the police officer. Subsequently, the defendant was acquitted of the charge of loitering. The acquittal, said the Court of Appeals and...