People v. Eastman

• Decision Date: 27 April 1962
• Parties: PEOPLE of the State of New York v. Cuthbert EASTMAN.
• Court: New York County Court

Page 156

228 N.Y.S.2d 156

33 Misc.2d 583

PEOPLE of the State of New York v. Cuthbert EASTMAN.

Kings County Court.

April 27, 1962.

Edward S. Silver, Dist. Atty., Wm. I. Siegel, Asst. Dist. Atty., for the People.

Cuthbert Eastman, in pro. per.

NATHAN R. SOBEL, Judge.

This defendant, convicted and sentenced in 1956, now seeks in this coram nobis proceeding to vacate the judgment of conviction on the ground that unconstitutionally seized evidence was used on the trial to convict him. He appealed the judgment of conviction but his appeal was dismissed for failure to prosecute. I have examined the minutes of trial. Although the issue of search and seizure was not fully explored, it is clear that the seizure was unreasonable and in violation of the State and Federal Constitutions. Since this was a pre-Mapp conviction, it may also be assumed that on the constitutional issue, the appeal would have been unsuccessful.

A general objection was taken to the admission of the evidence. (Cf. People v. O'Neill, 11 N.Y.2d 148, 227 N.Y.S.2d 416, 182 N.E.2d 95.) O'Neill discusses the general objection on appeal--not in connection with post-conviction remedies.

I.

We have here a clear-cut issue whether coram nobis is available as a post-conviction remedy to vacate a conviction on what was then constitutional evidence but which would now be unconstitutional evidence by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, standards; and where the remedy of appeal from the conviction would have afforded no relief.

Confronted with a similar fact situation, I held in People v. Figueroa (Co.Ct., 220 N.Y.S.2d 131) decided soon after Mapp, that it was the intention of the Supreme Court to impose the 'exclusionary rule' as a constitutional command upon the States, prospectively only. I said:

'Prior to Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 1362, 93 L.Ed. 1782, it had never been certain whether the exclusionary rule as applied in the Federal courts was a constitutional command of the Fourth Amendment or a rule of evidence adopted by the Supreme Court in its supervisory capacity over the Federal courts.

'Wolf resolved all doubts in that regard. Wolf stated that the exclusionary rule was a constitutional command to the Federal courts.

'With respect to the States the Court held that the Fourth Amendment's protection against unreasonable search and seizure has been 'absorbed' into the Fourteenth and is therefore a restraint against the States. It thus held that the security of one's privacy against arbitrary intrusion by the police is implicit in the concept of ordered liberty and is therefore one of the specifics of the Bill of Rights which is enforceable against the States under the Due Process Clause.

'But despite the holding that the 'exclusionary rule' was a constitutional command of the Fourth to the Federal courts, the Wolf court refused to hold that it was a command of the Due Process Clause to the States.

'After considering other sanctions available to the citizen against State officials violating the right of privacy--criminal prosecution, civil suit for trespass, Federal civil right suits--the Court in Wolf concluded that the 'contrariety of views of the States' on the adoption of the exclusionary rule was 'particularly impressive'; therefore it could not 'brush aside the experience of States which deem the incidence of such conduct * * * too slight to call for a deterrent remedy * * * by overriding the [States'] relevant rules of evidence'.

'As summed up briefly in Mapp, the holding in Wolf with respect to the exclusionary rule was----

"The [Wolf] Court decided that the Weeks exclusionary rule would not then be imposed upon the States as 'an essential ingredient of the right.'' (Italics mine.) [367 U.S. 643, 81 S.Ct. 1689.]

'Thus the decision in Wolf as construed by Mapp was that the Court decided it was not necessary at that time to impose the 'exclusionary rule' upon the States.

'To make the holding clearer, between Wolf and Mapp the Court in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 1441, 4 L.Ed.2d 1669, in outlawing the 'silver platter' doctrine stated----

"Then came Wolf v. [People of State of] Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782. With the ultimate determination in Wolf--that the Due Process Clause of the Fourteenth Amendment does not itself require state courts to adopt the exclusionary rule * * *--we are not here directly concerned.'

'Mapp itself removes the last vestige of doubt as to the intent of the Supreme Court to impose the rule prospectively and not retroactively----

"Today we once again examine Wolf's constitutional documentation * * * and, after its dozen years on our books, are led by it to close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right * * *. We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.'

'(1) I conclude from the foregoing that until Mapp (June 19, 1961) evidence obtained as a result of an unreasonable search and seizure was admissible in the courts of this State to convict. Therefore coram nobis does not lie to vacate a conviction obtained by what was at the time of trial constitutional evidence.'

A further word may be said concerning the Court's intention that the exclusionary rule be prospective only in operation.

In Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 346, 58 L.Ed. 652, decided half a century ago, we may note that some of the articles used as evidence against Weeks had been unlawfully seized by State Police acting on their own account. The Court held that the admission of this evidence was not error for the reason that the 'Fourth Amendment' is not directed to individual misconduct of such officials. Its limitations reach the Federal government and its agencies.

Then came Byars v. United States, 273 U.S. 28, 33, 47 S.Ct. 248, 250, 71 L.Ed. 520, where the Court held that if the search 'in substance and effect was a joint operation of the local and federal officers' the evidence must be excluded. This ruling, on the theory, that Federal officers may not evade the consequences of the exclusionary rule by enlisting State Police to secure the evidence. (See also Gambino v. United States, 275 U .S. 310, 48 S.Ct. 137, 72 L.Ed. 293.) But, nevertheless the rule was reiterated that evidence which had been seized by Federal officers in violation of the Fourth Amendment could not be used in a Federal criminal prosecution and that evidence unlawfully obtained by State officers was admissible since the exclusionary rule was directed solely to the misconduct of Federal officers. Thus, up to 1949 and Wolf, there was no suggestion that either the Fourth Amendment or the exclusionary rule was applicable to the States.

Wolf (338 U.S. 25, 69 S.Ct. 1359, supra) went halfway. There the Court held unanimously that the Federal Constitution by virtue of the Fourteenth Amendment prohibits unreasonable searches and seizures by State Officers. But the Court also held that the Due Process Clause of the Fourteenth Amendment does not itself require state courts to adopt the exclusionary rule. Many States did so. (See Appendix 364 U.S. at pg. 224, 80 S.Ct. 1437.) New York refused on several occasions to adopt the rule (People v. Variano, 5 N.Y.2d 391, 185 N.Y.S.2d 1, 157 N.E.2d 857 [citing People v. Defore, 242 N.Y. 13, 150 N.E. 585, cert. denied 270 U.S. 657, 46 S.Ct. 353, 70 L .Ed. 784]).

In Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 1441, 4 L.Ed.2d 1669, decided one year before Mapp, the Court outlawed altogether the silver platter doctrine. No unreasonably seized evidence by State Officers could be admitted in a Federal prosecution. But in Elkins, the Court again reiterated that the exclusionary rule was not commanded upon the States.

'In states which have not adopted the exclusionary rule, on the other hand, it would work no conflict with local policy for a federal court to decline to receive evidence unlawfully seized by state officers. The question with which we deal today affects not at all the freedom of the states to develop and apply their own sanctions in their own way'. (Pg. 221, 80 S.Ct. pg. 1446)

In his dissent (pg. 240-242, 80 S.Ct. pg. 1457, 1458) Mr. Justice Frankfurther states----

'In the second place, in light of the holding of Wolf that state courts may admit evidence like that involved in these cases, it cannot be said that there is any sufficient justification based upon controlling the conduct of state officers for excluding such evidence from federal courts, as the Court would do, when gathered by state officials whose States would admit it.

* * *

* * *

'Indeed, this impressive insistence of States not to follow the Weeks exclusionary rule was the controlling consideration of the decision in Wolf not to read it into the requirement of 'due process' under the Fourteenth Amendment'.

Thus, as late as 1960, long after this petitioner's conviction we find conclusive proof that there was no intention to impose the exclusionary rule upon the States. What is evident is that the Court moved in that direction, but consideratively and deliberatively refrained from so doing until Mapp. This sequence of decisions does not of course establish that it was the intention of the Court not to make Mapp retroactive. But as noted in People v. Figueroa, 220 N.Y.S.2d 131, supra, the literal import of the language used seems to express such an intention.

However one high court, the Supreme Court of Massachusetts has, at least in dicta, found no such intention. In Commonwealth v. Spofford, 180 N.E.2d 673, 675 [Mass.]), the Court added to its pertinent decision, infra, the dicta not necessary to its holding----

'This complete reversal of so recent a ruling necessarily affecting many State court convictions has led to some...