People v. Carroll

• Citation: 238 N.Y.S.2d 640,38 Misc.2d 630
• Parties: The PEOPLE of the State of New York v. Warren Paul CARROLL.
• Decision Date: 28 February 1963
• Court: United States State Supreme Court (New York)

Page 640

238 N.Y.S.2d 640

38 Misc.2d 630

The PEOPLE of the State of New York v. Warren Paul CARROLL.

Supreme Court, Criminal Term, Kings County, Part I.

Feb. 28, 1963.

Edward S. Silver, Dist. Atty., Kings County, Aaron Nussbaum, Asst. Dist. Atty., of counsel, for the People.

C. Joseph Hallinan, Jr., New York City, for defendant.

HYMAN BARSHAY, Justice.

The defendant moves to suppress and for the return of property seized under a search warrant. He contends that there was no probable cause for the issuance of the warrant; that the evidence seized under the warrant must be suppressed and returned because the statute under which the warrant was issued (Code Criminal Procedure § 792, subd. 4, as enacted by the Laws of 1962, ch. 542), authorizing the seizure of property 'constituting evidence of crime or tending to show that a particular person committed a crime', is unconstitutional; finally, the defendant further contends that all things seized but not described in the search warrant must be suppressed and returned.

The search warrant was issued on the affidavit of William C. McKeever of the Brooklyn South Homicide Squad, reading as follows:

'That upon investigation, and from the records in the Police Department, your deponent ascertained the following information:

'That, on or about January 7, 1963, about 4:00 A.M., the deceased and one Warren Paul Carroll were present in a bar and grill, known as Bezy's located at 969 Rogers Avenue, Brooklyn, New York. At that time an argument ensued between the deceased and the said Warren Paul Carroll, as a result of which the deceased, being a Correction Officer, having the right to carry a revolver, drew the same and pointed it at the said Warren Paul Carroll. After the said argument, the said Warren Paul Carroll left the bar and grill. That from interrogation of witnesses in the neighborhood, your deponent further ascertained that shots were heard at approximately 5:00 A.M. outside of the said bar and grill, and a man was seen running from the direction of the bar and grill to the other side of the street and enter a 1956 Turquoise and White Ford automobile. Further investigation by the police discloses that an automobile of the type aforementioned is registered under the name of Warren Paul Carroll, who resides at 1052 East 37th Street, Brooklyn, New York.

'Another significant fact which your deponent ascertained was that the murder weapon consisting of a Hawthorne Bolt Action 20 gauge shot-gun was found at the foot of Gerritsen Avenue, Brooklyn, New York and that the parents of the said Warren Paul Carroll reside in Gerritsen Beach, within close proximity of the area where the murder weapon was found.

'It is also important to note that the said Warren Paul Carroll appeared at the District Attorney's office on the afternoon of January 7, 1963 and he stated that he was sure that the police were looking for him for a crime, however, upon the advice of his attorney, he refused to answer any further questions.'

It is clear that the recitals in the foregoing affidavit fully established the requisite probable cause for the issuance of a search warrant (Code Crim.Proc. § 793; Fourth Amendment of United States Constitution; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757; Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327).

It is the court's opinion that Code Crim.Proc. § 792, subd. 4, as amended by the laws of 1962, ch. 542, is an exercise of legislative power. It was clearly within the competence of the Legislature, under the state's police power, to extend the right of search and seizure to 'property constituting evidence of crime or tending to show that a particular person committed a crime.'

The police power of the state applies to all matters affecting the lives and security of its citizens. Within constitutional limitations the exercise of the state's police power is of wide latitude. (Bacon v. Walker, 204 U.S. 311, 27 S.Ct. 289, 51 L.Ed. 499; Weaver v. Palmer Bros. Company, 270 U.S. 402, 46 S.Ct. 320, 70 L.Ed. 654; Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923.) What the Constitution only forbids is an unreasonable search and seizure. It does not delineate the types of property subject to seizure--whether it be the fruits of crime, the instrumentalities, matter of contraband, or the evidence as to its Commission. (Fourth Amendment, Constitution of the United States; Art. 1, § 12, New York State Constitution.)

'The prohibition of the Fourth Amendment is against all unreasonable searches and seizures.' (Italics supplied) (Gouled v. United States, 255 U.S. 298, 305, 41 S.Ct. 261, 263, 65 L.Ed. 647.) 'Reasonable searches, therefore, may be allowed, and if the thing sought be found, it may be seized.' (Boyd v. United States, 116 U.S. 616, 641, 6 S.Ct. 524, 538, 29 L.Ed. 746).

Although Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, supra, cited by the defendant, flatly holds that property evidentiary in character may not be seized, either under a search warrant or as incident to an arrest, (see also Harris v. United States, 331 U.S. 145, 154, 67 S.Ct. 1098, 91 L.Ed. 1399), it will be noted that the Supreme Court has departed from this principle as an inflexible rule. For example, in Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668, a prosecution for conspiracy to commit espionage, the following items of evidence were seized as incident to a lawful arrest, and ruled admissible against a motion to suppress: (1) a piece of graph paper, carrying groups of numbers arranged in rows, allegedly a coded...