People v. Colvert
| Decision Date | 10 April 1962 |
| Citation | 226 N.Y.S.2d 750,33 Misc.2d 714 |
| Parties | The PEOPLE of the State of New York v. Cyrano COLVERT, Defendant. |
| Court | New York County Court |
Edward Devlin and Eugene Feldman, Asst . Dist. Attys., Frank D. O'Connor, Dist. Atty., of Queens County, Kew Gardens, for the People.
Leonard Gordon, Far Rockaway, for defendant.
This is a motion for an order to suppress evidence with respect to the third and fourth counts of the indictment on the grounds that the evidence was obtained by and was the product of an unlawful search and seizure in violation of defendant's constitutional rights, and for a dismissal of said counts.
The first two counts of the indictment charge defendant with feloniously selling a narcotic drug on September 11 and September 15, 1961, respectively; the third count charges him with unlawfully possessing a narcotic drug on February 1, 1962; and the fourth count with violating Section 1747-d of the Penal Law, the unlawful possession on February 1, 1962, of narcotic instruments and implements adapted in the administering of narcotic drugs.
The Court ordered a hearing on said motion which was held on March 22, 1962.
So far as material to the issues before the Court, the testimony of the police officers called as witnesses by defendant established that on September 11, 1961, and September 15, 1961, an undercover police officer assigned to the Narcotic Squad of the Police Department made separate purchases of narcotics from the defendant outside of premises 107-15 Sutphin Boulevard, Jamaica, New York. That officer made no on-the-spot arrest on either occasion. However, defendant was arrested for these offenses in his home several miles from where the sales took place on February 1, 1962, at about 7:30 or 8:30 P.M. by another police officer accompanied by the undercover officer who made the purchases. On that day, and prior to the arrest, the arresting officer was directed by his superior officer to accompany the undercover officer for the purpose of locating and apprehending the defendant. Both officers went to defendant's home at 129-11 157th Street, Jamaica. When they arrived, they rang the doorbell which was answered by a girl who lived on the first floor of the premises and who admitted them through the outer door and into the foyer. Upon being asked by the officers if the defendant lived there, the girl told them he lived on the second floor. While this conversation, was taking place, the defendant is alleged to have come down to the first floor and was identified by the undercover officer through the glass panel in the door which separated the foyer from the inner area of the first floor. The officers then asked the defendant his name and he gave it. Defendant opened the door and the officers entered the hallway. The officers then identified themselves as police officers and told defendant he was under arrest for the sale of narcotics. Defendant wanted to know 'when and where', and denied knowing anything about the charge. Defendant was in his bare feet at the time and then proceeded up the stairs to the second floor, apparently to put on his shoes and socks. The officers followed. There was no objection or resistance to this by the defendant. The doors to the defendant's apartment and to his bedroom were open and when he entered the officers followed the defendant into the bedroom without objection. There was a tub of water on the floor, and the officers testified that the defendant told them he was having trouble with his feet. One of the officers saw a knife resting on a piece of furniture close to where the defendant was then standing in the bedroom and placed it in a part of the room away from the defendant. Both officers then proceed to search the room. Defendant asked what they were doing 'there' and objected to their disrupting his room. The officers continued the search and in a drawer of the night-table, they found a 'silver package held together by a rubber band and two eyedroppers, a cooker and three hypodermic needles which were placed in a matchbox.' According to the officers, when defendant was asked what these things were, the defendant said 'these are my works, man.' The police officers then seized the silver package and the instruments and implements they had found. The defendant did not testify, and these facts were not contradicted by any other witnesses at the hearing.
Defendant contends that under the circumstances, the police action taken and the articles seized constituted an unlawful search and seizure of the defendant's home in violation of his Constitutional rights and seeks to suppress this evidence. Concededly, the police had no warrant of arrest and had no search warrant at the time.
The defendant, among other things, stresses the fact that although the alleged sales of the narcotics by the defendant to the police officer took place in September, 1961, he was not arrested until February 1, 1962, and there was sufficient time to procure a search warrant.
The evidence discloses that the undercover officer did not ascertain the name or address of the defendant until some time between September and December of 1961, and that although he made several attempts to locate the defendant in his home between September and February, he was unsuccessful. He also testified that after he made the purchases of the narcotics from the defendant, he checked the police files and found a photograph of the defendant who had a prior record. He had other photographs of defendant made, and distributed the same to the area Narcotic Squad officers who as of February 1st, had not located the defendant. In addition, the undercover officer at the time in question was assigned to the Boroughs of Brooklyn and Manhattan as well as in Queens and was not able to devote all of his time to this case. Moreover, in the war against the unlawful sale of narcotics, it is often essential for the undercover officer to protect his identity, and he does not always make an on-the-spot arrest in order to enable him to continue his daily battle with these criminals. This satisfactorily explains the delay in making the arrest in this case. There was no deliberate delay here for the purpose of justifying an incidental search of defendant's premises.
...
To continue reading
Request your trial
-
People v. Cassone
...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 ......
-
People v. Messier
...to effect the apprehension. Ker v. California, 374 U.S. 23, pp. 39-41, 83 S.Ct. 1623, 10 L.Ed.2d 726). In People v. Colvert, 33 Misc.2d 714, 717-718, 226 N.Y.S.2d 750, 753, Judge Scileppi said: 'The Supreme Court of the United States has held that the Fourth Amendment to the Constitution pr......
-
People v. Rind
...search and seizure becomes unreasonable and illegal. See McKnight v. United States, 87 U.S.App.D.C. 151, 183 F.2d 977; People v. Colvert, 33 Misc.2d 714, 226 N.Y.S.2d 750. While this phase of the testimony at the hearing was not elaborated upon, it does appear that the Police Department had......