People v. Di Bernardo

• Decision Date: 21 March 1977
• Citation: 392 N.Y.S.2d 1001,89 Misc.2d 931
• Parties: The PEOPLE of the State of New York v. Salvatore DI BERNARDO et al., Defendants.
• Court: New York Supreme Court

Page 1001

392 N.Y.S.2d 1001

89 Misc.2d 931

The PEOPLE of the State of New York v. Salvatore DI BERNARDO et al., Defendants.

Supreme Court, Suffolk County.

March 21, 1977.

Henry F. O'Brien, Dist. Atty. of Suffolk County, Hauppauge, for the People; Albert E. Araneo, Riverhead, of counsel.

Schulman & Laifer, Brooklyn, for defendants; Stephen Laifer, Brooklyn, of counsel.

JASPAN, Justice.

The defendants move to suppress evidence seized upon the execution of a search warrant. The challenge is directed only to the manner in which it was executed and not to the sufficiency of the warrant itself.

On November 18, 1976 at about 6:50 p.m. four or five police officers armed with the search warrant knocked on the storm door of the one-family house located at 120 S. Evergreen Drive, Selden. In the absence of a reply, they opened the storm door and knocked on the inner door. A female, later identified as Mrs. Florence Annecca and the owner of the home, answered the door and the officers identified themselves. They were then admitted into the house and after entry exhibited the search warrant to her. Mrs. Annecca, who is not a defendant, then showed the officers the way to reach the basement in which the suspects were later found and the allegedly incriminating evidence of gambling activities seized.

The narrow issue presented is whether the entry of the police inside the premises before stating their purpose was in violation of the requisites of C.P.L. 690.50, thereby requiring a suppression of the property thereafter seized.

The threshold question is the significance of a provision in the warrant which read as follows:

'Officers need not announce his (sic) purpose and authority prior to the execution of this search warrant.'

However, the supporting papers do not contain statements in support of such a remedy nor is that relief expressly sought in the application.

In People v. De Lago, 16 N.Y.2d 289, 266 N.Y.S.2d 353, 213 N.E.2d 659, the Court upheld a no-knock warrant without specific application therefore where the Court took or could take judicial notice of the fact that delay could permit the destruction of gambling records. But in that case the Court's warrant contained these words, 'sufficient proof having been given under oath that the gambling records and other paraphernalia sought may easily and quickly be destroyed and disposed of, the executing peace officer is not required to give notice of his authority and purpose prior to executing this order.'

The language of the De Lago order was in compliance with C.P.L. 690.50, subd. 2(b) which authorizes a no-knock warrant and with C.P.L. 690.45 which provides that a search warrant may contain:

'6. An authorization, Where the Court has specially so determined, that the executing police officer enter the premises to be searched without giving notice of his authority and purpose.'

In the instant case there was no finding that the Court made such a determination. It is thus distinguishable from De Lago.

Accordingly, I hold the no-knock provision was not legally operative.

Consideration must therefore be given to the question of whether the momentary 'entry' before announcement of purpose invalidates the search.

Applying the doctrine of 'Substantial Compliance', I find that the police officers did not violate any statutory or constitutional rights of the defendants.

The basic purposes of the knock-and-announce rule in connection with the search of private premises are to protect the individual's right of privacy and to reduce the possibility of harm to the police inherent in an unannounced entry. 70 A.L.R.2d 226 and cases cited thereunder.

The rule was first announced in Semayne's case (1604) 5 Goke 91, 77 Eng. Reprint 194 and has been followed since as part of the common law and incorporated into the United States statutes and into many state statutes, including New York (C.P.L. 690.50). The constitutional requirement for such notice is set forth in Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.

The relevant New York statute reads as follows:

'1. In executing a search warrant directing a search of premises or a vehicle, a police officer must, except as provided in subdivision two, give, or make reasonable effort to give, notice of his authority and purpose to an occupant thereof before entry and show him the warrant or a copy thereof upon request. If he is not thereafter admitted, he may forcibly enter such premises or vehicle and may use against any person resisting his entry or search thereof as much physical force, other than deadly physical force, as is necessary to execute the warrant; and he may use deadly physical force if he reasonably believes such to be necessary to defend himself or a third person...