People v. Christman
| Decision Date | 07 January 1970 |
| Citation | 307 N.Y.S.2d 545,61 Misc.2d 1084 |
| Parties | The PEOPLE of the State of New York v. Miles S. CHRISTMAN and Thomas J. Kress, Defendants. |
| Court | New York County Court |
Defendants were previously convicted of the crimes of Assault, Second Degree, with Intent to Commit Rape; Assault, Second Degree, with Intent to Commit Sodomy; Sodomy, First Degree and Attmepted Rape, First Degree. By decision dated January 13, 1969, the Court of Appeals reversed the judgments of conviction of both defendants and ordered a new trial (23 N.Y.2d 429, 297 N.Y.S.2d 134, 244 N.E.2d 703).
Defendant Christman now brings this motion prior to trial for an order:
(A) Declaring illegal the searches made of his 1965 Sting-Ray Corvette Chevrolet automobile;
(B) Declaring illegal the seizure thereafter made of said defendant's automobile, a blanket found therein, any fingerprints found therein, any photographs of said automobile, and any other property found therein (C) Suppressing from use in evidence of said automobile, the blanket and other property found therein, fingerprints and photographs of said automobile.
In its decision, the Court of Appeals held in part:
(23 N.Y.2d 429, 433, 297 N.Y.S.2d 134, 135, 244 N.E.2d 703, 704).
The People concede that this language requires, directly or implicitly, the granting of defendant's entire motion except as it deals with the photographs of defendant's car which were taken while it was in police custody. In order to avoid prejudicing defendant, the People have agreed to suppress all photographs which indicate in any way that the car was in the possession of the police when the pictures were taken. This stipulation covers all of the photographs but one, a rear view shot showing clearly the license plate bearing New York license number 1709 WN. Except for the fact that the photograph indicates that the car was then in the interior of some building, there is nothing in it which would show what building it is. Although the location of the car at that time was the police garage in the Public Safety Building in Rochester, as far as the photograph itself is concerned, the setting could be any garage or any building.
The question before the Court is whether this photograph, admittedly taken during a period of unlawful detention, must be suppressed.
The defendant's position is that the police were not authorized by him to examine or take his automobile and taking and holding the car in the police garage was violative of his Constitutional rights; therefore, any evidence obtained, such as the photograph in question, at that time and place, must be barred, citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 24 A.L.R. 1426.
A hearing was ordered to more fully reveal the circumstances on the day the defendant's automobile was towed by the police from the defendant's home to the police garage. The facts brought out at the hearing make it clear that the photograph is not a 'fruit of the poisonous tree' in the Silverthorne sense. It is not 'knowledge' which, But for an unlawful search and seizure, the police would not have had; nor is it evidence which derived solely therefrom or which came to light only as a result of an originally wrongful trespass.
The defendant on May 22, 1965 lived with his parents on Inglewood Drive in the City of Rochester, New York. The house is located on the north side of Inglewood Drive. There is a driveway immediately to the east of the house, running from Inglewood Drive northerly to the rear of the lot up to a detached garage located on the northeast corer of the property. The driveway is straight and fairly level, rising slightly from the street grade to the garage. The lot is 30 feet wide and extends back 130 feet from the north line of the sidewalk to the rear lot line. The rear of the garage is on the rear lot line and, from front to rear, is approximately 20 feet long. There is a distance of approximately 40 feet from the front of the garage to the rear of the house. The house is set back a distance of 90 feet from the north curb of the street and 60 feet from the north line of the sidewalk. The driveway is approximately 9 feet wide.
In the morning of May 22, 1965, the Rochester police were investigating a complaint involving charges which were subsequently brought against the defendant. An automobile was directly connected with and involved in the criminal conduct.
That afternoon, about 3:30 P.M., in the course of their investigation, the police drove to the defendant's home on Inglewood Drive and pulled into the driveway. The weather was clear and the visibility excellent. On their arrival, they observed the defendant's automobile, a 1965 Chevrolet Corvette, parked in the driveway in front of the east bay of the garage, facing north, with its rear facing south toward the street. There were no other vehicles in the driveway at the time and the police had a clear, unimpeded view to the defendant's car, the back end of which was between 75 to 85 feet from the north curb of Inglewood Drive. The police parked their vehicle a short distance behind the defendant's car but were able to read its license number even before they entered the area of the curtilage.
Earlier that day, the police had spoken to the complainant and obtained from her a license number which compared to the license number they observed on defendant's car. From a license check, also conducted earlier, the police had already ascertained that a car with that license number was registered to the defendant.
At the defendant's home the police spoke to defendant and his mother and on their departure took the defendant with them, although they did not place him under arrest just then. When they left the defendant's home, his car was still in the same place where it had been on their arrival.
Later that day, a police tow truck was dispatched to bring the defendant's car to the police garage. At that time there were at least two other cars in the driveway behind defendant's vehicle. However, these had arrived after the defendant was taken into police custody.
The People introduced evidence, which was uncontroverted, by a police photographer that the camera then in use by the Rochester Police Department, a 4 5 Graflex using Tri-X film, could have clearly photographed the defendant's vehicle as it was parked in the driveway that afternoon when the police first arrived; that it would have been able to get a negative and a print from such negative; that such print would have reproduced a legible license number and the distinguishable characteristics of the defendant's vehicle, particularly the rear portion thereof. The witness testified that such a photograph could be taken from an even greater distance--as far as 500 feet away, and that a negative so obtained could be enlarged so as to preserve the distinguishable characteristics of the car and the numerals and letters of the license number. The People's proof in this respect made it obvious that such a photograph, taken from the street or from the public sidewalk, would have fairly and accurately reproduced on film the automobile and license plate with its letters and numerals at least as, if not more, clearly as what would be observed by the naked eye from that position.
Regardless of the fact that a photograph was not actually taken at that time and place, it is nevertheless quite apparent that any such photograph would have disclosed the same information as the photograph taken in the police garage. Were this a photograph taken of the front end of the car, the Court would have been obliged to take judicial notice of the fact that in 1965 vehicles registered in New York State bore only one license plate--and that on the rear. Consequently, a view or photograph from the street or sidewalk would not have disclosed any license identification were the front of the car facing the street. But that is not the situation here, because it was the rear of the car with the license plate affixed thereto that was, on May 22, 1965, openly visible to all visitors or passersby. It is obvious, therefore, that seeing what was there to be so seen violated no right of privacy which the defendant had.
This is the test which must be applied under Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, which emphasized that it is not the physical invasion of property which distinguishes a proper from an improper search or seizure, but rather the invasion of one's reasonable expectation of privacy. (See also, Chief Judge Traynor's trenchant and scholarly opinion in People v. Thayer, 63 Cal.2d 635, 47 Cal.Rptr. 780, 408 P.2d 108, which anticipated by several years both Katz and Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782).
Here, as already noted, the automobile was in plain and open view to the neighbors, to the pedestrians and to the police. One neighbor testified she could see it from her house. It can hardly be argued that one's privacy is invaded when one, by his own conduct, explicitly disclaims that right. Thus, if one grows marijuana in his yard, may a police officer snap a picture of it from the street? May he take a photograph of the same marijuana where, after seeing it, he goes on the land without the authority of a warrant, cuts the marijuana and brings it to the police station? May he retain the photograph as a...
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