People v. Cassone

• Decision Date: 10 August 1962
• Citation: 230 N.Y.S.2d 822,35 Misc.2d 699
• Parties: The PEOPLE of the State of New York v. Edward CASSONE, Dominick LaMonica, Francis Carbonaro and Pasquale Russo, Defendants.
• Court: New York Court of General Sessions

Page 822

230 N.Y.S.2d 822

35 Misc.2d 699

The PEOPLE of the State of New York v. Edward CASSONE, Dominick LaMonica, Francis Carbonaro and Pasquale Russo, Defendants.

Court of General Sessions, New York County.

Aug. 10, 1962.

Frank S. Hogan, Dist. Atty. (Richard A . Nachman, New York City, of counsel), for People.

J. M. Solomon, New York City, for defendants LaMonica and Russo.

Samuel Segal, New York City, for defendant Cassone.

Anthony F. Marra, Legal Aid Society (Thomas Brett, New York City, of counsel), for defendant Carbonaro.

THOMAS DICKENS, Judge.

This motion is aimed at suppressing evidence allegedly seized by the police without a search warrant. The seizure followed the arrest of defendants after each of the defendants had been first cast in the role of an arrectatus by the arresting officer.

At the testimonial hearing of this motion, the arresting officer stated on the stand that on January 1, 1962, about 12:30 A.M., at which time snow was falling, he had noticed a stationary automobile parked directly in front of a branch store of the Western Union Telegraph Company, situated on Nassau Street at a point just off the north side of Beekman Street. The trunk of the car was open. Two men were lifting a heavy object, which he could not make out, preparatory to placing it into the trunk, and a third man was walking toward the car and was slipping on the snow as he walked. The faces of the men, he could not see at that time. The distance from his point of vantage to the parked car, was about four hundred feet.

When the parked car with the three men in it started to pull away from the curb, he commandeered a car traveling in a northerly direction on Nassau Street and directed its autoist to follow the car that, as he told the autoist, had just pulled away from the curb . Although he had lost sight of the car several times during the pursuit, he eventually overtook it at Pearl Street and Park Row, where, as the result of a red traffic light, the pursued car had to stop.

At this place he got out of the commandeered car, and approaching the men, defendants herein, with drawn gun, ordered them out of their car, and proceeded to detain them at the point of his gun until the arrival of additional police officers. The other police officers, after their arrival, made a cursory search of the persons of defendants. He in turn sent someone to check his beat, which covered the vicinity of the Western Union store in question, and that that someone, on his return, informed him that the door of the Western Union had been forced. Defendants were thereupon transported to the Fifth Division Police Precinct, where they again, and the car too, underwent a search. When the police learned, in the course of the search, that defendants did not have the key to the trunk, which was locked, they called in a police technician to open it. When the trunk was opened, they found therein a safe upon which were inscribed the words 'Western Union,' and they also found an assortment of tools, the kind used by burglars.

This procedure I regard as a restraint of liberty, and therefore, as a resulting arrest. See People v. Esposito, 118 Misc. 867, 194 N .Y.S. 326.

On the basis of the foregoing summary of the policeman's testimony, the question that I am to resolve is, Was the arrest a lawful one prior to the search of the automobile and of the persons of defendants? Simply stated, if the arrest was lawful, then the motion must be denied. On the other hand, if the arrest was unlawful, then the motion must be granted. In other words, did the police officer have probable cause, within the principles as laid down by the ruling authorities, for the making of the arrest?--the arrest being the foundation as the prior act to the making of the search, and the search being the superstructure or the structure as the subsequent act to the making of the arrest. For, as it is written in Wharton's Legal Maxims (English translation), page 229, No. 113, 'A weak foundation destroys the superstructure,' and as written in another way in Ballentine's Law Dictionary (English translation), page 1243 top, 'With the removal of the foundation, the structure falls.'

Both the Federal law and the State law require a warrant for the search of the premises or of the person of an individual, unless the circumstances are such that they justify an arrest without a search warrant. The Fourth Amendment of the Constitution of the United States prohibits unreasonable searches and seizures; therefore, as the converse, if searches and seizures are reasonable and are in compliance with the law, they are permissible. See People v. Colvert, 33 Misc.2d 714, 226 N.Y.S.2d 750.

Under Federal jurisdiction an arrest without a warrant is permitted if there is probable cause to believe that a crime had been committed, and that the person accused had committed it or that he was in the act of committing it. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (National Prohibition Act violation involved).

Probable cause is a reasonable belief that a crime has been committed based on knowledge on the part of the officer, although such knowledge might in value be less than evidence. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879. See also People v. Lane, 10 N.Y.2d 347, 223 N.Y.S.2d 197, 179 N.E.2d 339; People v. Politano, 32 Misc.2d 526, 224 N.Y.S.2d...