People v. Estrialgo

Citation233 N.Y.S.2d 558,37 Misc.2d 264
PartiesThe PEOPLE of the State of New York v. Jose ESTRIALGO.
Decision Date29 October 1962
CourtNew York Supreme Court

Legal Aid Society, Anthony F. Marra, by Caroline Davidson, New York City, for defendant.

Edward S. Silver, Dist. Atty., Kings County (Frank DiLalla, Asst. Dist. Atty.,) for the People.


A hearing has been held on this motion to suppress (Code Cr.Proc. § 813-c).

The facts developed are these:

A police captain while cruising in a police car observed the defendant and another (not before this court) carrying luggage at 4:30 P.M. in the Brooklyn Heights section of his command. To this experienced police officer with a finely developed radar for criminal activity, this seemed suspicious--but only in the sense that Puerto Rican youngsters carrying expensive looking luggage in the particular neighborhood presented an incongruous situation. He took what appeared to him the only course open. He detained the defendant and questioned him. The defendant informed him that the luggage belonged to a friend whom he inadequately identified. The police captain took the defendant and the luggage with him into the police car to locate the 'friend.' There was no such person. The captain delivered the defendant and the luggage to a detective in the squad office. The detective soon elicited from the defendant a confession that he had broken into and stolen from an automobile the luggage in question. The luggage belonged to a distinguished visitor to our community.

The defendant is charged with grand larceny.

Thus, despite the fact that the police took what is ostensibly proper action under the circumstances, the fact that a felony had been committed was not ascertained until the defendant and the luggage had been in the custody of the police for half an hour. Of significance also is the fact that the product of the alleged search, the luggage, was the motivating influence in the detention and arrest of the defendant.

The issue presented is narrow and simple of solution. The result turns on whether at the time of first detention, the police had probable cause to believe that a felony had in fact been committed and had statutorv authority to arrest.

The People, however, on oral argument raise two issues.

'I. Did the facts and circumstances known to the police constitute probable cause to make the arrest and the incidental search?

'II. Do the police under suspicious circumstances (not amounting to probable cause) have the right to detain a suspect for questioning or investigation and during such investigation and before formal arrest, obtain the probable cause to make the contemporaneous arrest and incidental search?'

Because these issues relating to probable cause recur with great frequency (these are estimated to represent 90% of all search and seizure issues) and because some of our trial courts have reached inconsistent conclusions on similar fact situations, it may be helpful to place the narrow issue of probable cause as it affects detentions, investigations and formal arrests within a proper perspective in the law of search and seizure.

There are some excellent definitions of probable cause by high courts. The most often quoted is that of Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879. A recent decision in the District of Columbia Circuit, Jackson v. United States, 112 U.S.App.D.C. 260, 302 F.2d 194, contains some pertinent observations. These are helpful.

However, these are general rules sufficiently elastic to justify opposite conclusions on identical facts. The endeavor of this opinion will be to establish, from the federal and state cases, a fact pattern from which a more precise finding of the existence of probable cause can readily be made by our trial judges.

To place the issue in proper perspective some general observations may first be made.


Probably much of the uncertainty (Commonwealth v. Richards, 198 Pa.Super. 39, 182 A.2d 291) in the narrow issue of probable cause (as well as other issues in the law of search and seizure) has been caused by a statement of the court in United States v. Rabinowitz, 339 U.S. 56, at page 63, 70 S.Ct. 430, at p. 434, 94 L.Ed. 653:

'What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are 'unreasonable' searches and, regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case.'

This paragraph has been quoted out of context to establish that there is much unconstancy and as a result inconsistency in the law of search and seizure. In context, it is clear that the court was referring to a small area of the law of search and seizure in which an issue rarely arises. In fact, since Mapp [v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081], such an issue has not been raised in any appellate court of this state.

The Rabinowitz search was an incidental search conducted after an arrest pursuant to an arrest warrant. Probable cause to arrest had been predetermined by the 'magistrate' and ample cause existed because the police had made previous purchases of forged stamps from Rabinowitz. No issue of probable cause to arrest was involved or raised in Rabinowitz. Nor was there an issue with respect to statutory authority to arrest. Pursuant to a federal warrant of arrest, 'police' may arrest for any crime, felony or misdemeanor, in or out of fixed premises and for crimes not committed in the presence of the officer.

Thus, the two most frequent search and seizure issues, (1) probable cause, and (2) statutory authority to arrest, were not in issue in Rabinowitz.

These two are the 'indispensable absolutes' of a reasonable search. Without these no search is ever reasonable.

The sole issues before the Rabinowitz court were in what may be termed generally the 'relative variables' area of the law of search and seizure. Specifically these issues were (1) the physical area encompassed in the incidental search; (2) the 'exploratory' nature of the incidental search by reason of its duration and intensity; and (3) the practicability of first obtaining a search warrant. (The police had obtained an arrest but not a search warrant.)

Thus the Rabinowitz court was discussing the relative and variable character of these three pertinent factors when it held that with respect to these relative variables, there is no 'fixed formula' and no 'litmuspaper test' to be applied but the 'total atmosphere' of the conduct of the search and the practicability of obtaining a warrant should be considered.

The point here emphasized is that with respect to the indispensable absolutes of probable cause and statutory authority to arrest, there is no uncertainty. These must be established before an incidental search may be reasonable.

It is important not only with respect to establishing a fact pattern of probable cause but also to determine whether 'detention and investigation' may precede probable cause, to establish the relationship between the two indispensable absolutes of (1) probable cause and (2) statutory authority to arrest.

The Fourth Amendment and its state counterpart (Art. I § 12) command that no search is reasonable except upon probable cause and by a search warrant. The decisions of the U. S. Supreme Court, all of constitutional dimension, hold that the only exception to search by search warrant is an incidental search pursuant to a lawful arrest (People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478). The exception is justified by practical necessity (Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514; United States v. Rabinowitz, 359 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653).

Thus, it is the Constitution which requires probable cause not only to obtain a search warrant but also to conduct an incidental search. On the other hand, it is the statutes, state or federal, which define the authority of the 'police' to arrest. Yet the Constitution declares that no incidental search is reasonable unless both the constitutional requirement of probable cause to search and the statutory authority to arrest are established.

Often state and federal arrest statutes also require the existence of probable cause before a lawful arrest may be made. In such a case, both the constitutional command of probable cause before search and the statutory demand of probable cause before arrest run into each other. In such case the single proof of probable cause satisfies both standards.

But it is essential that both indispensable absolutes be established. For example, we have no state statute which authorizes an arrest for a misdemeanor not committed in the presence of the police officer. (People v. Yarmosh, 11 N.Y.2d 397, 230 N.Y.S.2d 185, 184 N.E.2d 165; People v. Foster, 10 N.Y.2d 99, 217 N.Y.S.2d 596, 176 N.E.2d 397; People v. DeFore, 242 N.Y. 13, 150 N.E. 585.) Thus while the constitutional standard of probable cause may exist in abundance before the misdemeanor arrest, the indispensable absolute of statutory authority to arrest is not present. Such a [37 Misc.2d 269] search is unconstitutional and unreasonable under the construction given the Fourth Amendment by the courts. However, a state may, as a few states have, authorize by statute arrests for misdemeanors not committed in the officer's presence. In such states such incidental searches are reasonable.

In a reverse situation, many state arrest statutes, including our own (C.C.P. 177, subds. 2 and 3) permit arrests for felonies without probable cause. However, if the constitutional standard of probable cause is not established prior to the search and contemporaneous arrest, the search is unreasonable although statutory authority to arrest exists.



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