People v. Cohen
| Decision Date | 29 July 1968 |
| Citation | 292 N.Y.S.2d 706,57 Misc.2d 366 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Kenneth A. COHEN, Bruce Pellman, Sheldon W. Raskin and Frank Weiner, Defendants. |
| Court | New York District Court |
My review of the facts and the governing decisional precedents persuades me that the motion to suppress the evidence must be granted.
As a Judge and a parent, I am sensitive to the need for adequate, but reasonable, surveillance of students by school authorities. I am not certain, however, that our educators understand either the causes for, or the character of, the current revolt by students against what have been perhaps uncritically, accepted as socially useful institutions. Undoubtedly, the thrust and objectives of the rebellion are ill-defined. Neither the theoreticians of the so-called new left nor their adherents are able to describe the scope and the ambit of their anti-institutional attack. . The notion of participatory democracy may be inviting and challenging but it is not advanced by smoking marijuana in dormitories or shooting heroin in obscure corners of the campus. This kind of irresponsibility not only arrests progress but threatens the whole structure of a democratic society. Anti-social behavior which pretends to strike a blow for independence is a matter of the most immediate concern for all citizens. This kind of conduct must be resisted; but the attack must be on a Constitutional battleground.
The price of a modern education is not the waiver or surrender of Constitutional privileges. One does not salvage a democratic society by adopting undemocratic techniques. The Bill of Rights is not a sometime thing; the Founding Fathers spoke not in relative, but in absolute, terms. An unlawful search and seizure is unlawful; it cannot be partially lawful and partially unlawful. The slightest intrusion on the rights of one citizen endangers the security of all citizens.
We cannot escape our responsibilities by resorting to the coercive weapons of a police state. We cannot stamp out drug addiction, marijuana smoking, glue sniffing and assorted illegal practices at a campus by breaking into dormitories. Abandonment of constitutional protections and reliance upon illegal methods can lead only to the destruction of democratic processes.
The case at bar suggests the whole complex of problems which have emerged on American college campuses. No Judge approaches the issues posed by this case without an awareness of the significant implications of a decision. But we are not free agents. This Court does not mark out the boundaries of Constitutionally permissible conduct. We follow the mandate of the higher courts of our State and of the United States Supreme Court and we test the facts by reference to the fundamental principles of law they have enunciated. These teach us that the search here was unlawful.
The relevant facts are that Hofstra University authorities were apprehensive about the use of marijuana in the dormitories. Accordingly, they arranged with the police authorities for a survey of the dormitory premises. Accompanied by two University officials, the police entered the dormitory room of one of the defendants without announcing their purpose and without a search warrant. There was no evidence that anyone, including the defendants, was in the room at the time of the entry, since neither the police nor the University officials observed the defendants entering the room.
What motivated the police and the school authorities was the odor in the hallway leading to the room and information previously provided by an unidentified informant about one of the defendants. Once inside, the incriminating evidence was observed and seized.
The Court expresses no opinion as to whether any of the boys who were present in the room were and had been smoking marijuana. The record is entirely silent on that point. One thing, however, is clear: at the time they entered the room, there was no immediate danger that the evidence, if any, would be removed and destroyed, nor was there a lack of time within which to obtain a search warrant.
It is palpable that the mainspring of the police action was a suspicion that a crime was being or had been committed. Suspicion, however, is not an alternative to, or a substitute for, probable cause that a crime was or is being committed.
In the circumstances of a case such as this, an entry and search is lawful only if there was consent or if the search was an incident to a lawful arrest. No claim is made that there was express consent to the entry.
Can consent be implied? It has been argued that a student impliedly consents to entry into his room by University officials at any time, except at late hours. This contention is not supportable even though there may be circumstances under which entry is permissible; but these circumstances are not present here nor does the Court intend to catalogue the occasions which might permit entry into the room of a college student.
The police and the Hofstra University officials admitted that they entered the room in order to make an arrest, if an arrest was warranted. This was, in essence, a fishing expedition calculated to discover narcotics. It offends reason and logic to suppose that a student will consent to an entry into his room designed to establish grounds upon which to arrest him. Certainly, there can be no rational claim that a student will self-consciously waive his Constitutional right to a lawful search and seizure. Finally, even if the doctrine of implied consent were imported into this case, the consent is given, not to police officials, but to the University and the latter cannot fragmentize, share or delegate it.
Was the search an incident to a lawful arrest? Obviously, no. The police had no grounds for a lawful arrest when they entered the room. Indeed, it was admitted that if the evidence had not been found when they entered the room, no arrest could have been made. Simply stated, the arrest was dependent upon finding the fruits of the unlawful search.
The practice of some students (and the number is far less than is generally believed) who use narcotics and who take trips to the outer world instead of to the library, is appalling enough. But this egregious stupidity and callous irresponsibility should not be matched by the wanton invasion of Constitutional liberties. One need not indulge in an academic debate about the harmfulness or supposed benefits of marijuana and other similar drugs, (Sterba, 'Politics of Pot', Esquire, August, 1968, pp. 58 et seq.), to be shocked and disturbed about the use of these drugs by college and high school students. And the Court does not denigrate from the contributions made by the police and the enormous burdens imposed upon them in the detection and prevention of crime in these disoriented times. We must recognize, at the same time, that there are limits to the use of the police power and that crime detection must comply and conform with permissible constitutional sanctions. A frightened and impotent community cannot ask the police to perform illegal acts because the task of coping with young people is beyond either their willingness or ability to realistically handle it.
The fact is that the police action here offended the Constitutional rights of the defendants. This conclusion does not rest upon the fact that there was adequate time to secure a search warrant. (Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653). The principle inquiry is not whether there was adequate time to obtain a search warrant but whether the search itself was reasonable or unreasonable (Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951). In Chapman v. United States, 365 U.S. 640, 81 S.Ct. 776, 5 L.Ed.2d 828, the police, with the consent of the defendant's landlord, entered defendant's apartment where they conducted a search without a warrant. It was there held that the search was unlawful because it was not an incident to an arrest.
In Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, the police entered defendant's living quarters and conducted a search without a warrant after having detected a smell of burning opium. The search was held to be constitutionally impermissible. Mere suspicion that a crime is being committed is not sufficient to support a search (People v. Abramson, 40 Misc.2d 723, 243 N.Y.S.2d 819). Indeed, consent to enter a room standing alone, is not a sufficient defense to a claim of Constitutional privilege if the consent was obtained as a result of the defendant's submission to, and fear of coercive action by, the authorities. Absent probable cause for the belief that there was a crime being committed, a search cannot be...
To continue reading
Request your trial
-
State v. Rodriguez
...v. Grigel , 422 F.Supp. 988, 997 (D.N.H. 1976) ; Smyth v. Lubbers , 398 F.Supp. 777, 786 (W.D. Mich. 1975) ; People v. Cohen , 57 Misc.2d 366, 292 N.Y.S.2d 706, 713 (Dist. Ct. 1968), aff'd , 61 Misc.2d 858, 306 N.Y.S.2d 788 (Sup. Ct. 1969). The student is the tenant, the college the landlor......
-
Morale v. Grigel
...Troy State Univ., 284 F.Supp. 725 (M.D. Ala.1968); City of Athens v. Wolf, 38 Ohio St.2d 237, 313 N.E.2d 405 (1974); People v. Cohen, 57 Misc.2d 366, 292 N.Y.S.2d 706 (1968). NHTI as part of New Hampshire's university system, has a primary interest in maintaining and promoting an educationa......
-
People v. Superior Court
...received the consent of the defendant (through the college) to enter the dorm room. (Id. at p. 987.) Finally, in People v. Cohen (1968) 57 Misc.2d 366, 292 N.Y.S.2d 706, 709, the court rejected the argument that the (a Hofstra University student) gave his implied consent to a police search ......
-
Piazzola v. Watkins
...We find ourselves in agreement with his view that this search was unreasonable. In a case where the facts were similar, People v. Cohen, 57 Misc.2d 366, 292 N.Y.S.2d 706, aff'd, 61 Misc.2d 858, 306 N.Y.S.2d 788, Judge Burstein "The police and the Hofstra University officials admitted that t......