People v. Evans
| Decision Date | 15 April 1976 |
| Citation | 52 A.D.2d 32,382 N.Y.S.2d 399 |
| Parties | PEOPLE of the State of New York, Respondent, v. Allen EVANS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Nathaniel A. Barrell, Buffalo (Henrietta Wolfgang, and Craig Peterson, Law Student, of counsel), for appellant.
Edward C. Cosgrove, Buffalo (John DeFranks, Buffalo, of counsel), for respondent.
Before MARSH, P.J., and SIMONS, DILLON, GOLDMAN and WITMER, JJ.
Defendant appeals from a judgment convicting him of criminal sale of a dangerous drug in the third degree. He contends that testimony of his possession of three $10 bills was improperly received against him and should have been excluded as being the product of an unconstitutional search. The issue is whether a police officer, in the circumstances here, may testify concerning observations made by him during a warrantless search of the defendant's person made at a time when he had probable cause to seize and search the defendant but where a formal arrest was not made until one month later.
At trial Deputy Sheriff Scirri testified that on October 4, 1974, while he was working as an undercover officer, he had a conversation with defendant about the purchase of heroin. When he asked defendant how much heroin he had, defendant replied content and verified that it was heroin. Scirri gave Guadagno a full description of the defendant and advised him of the details of the purchase. Guadagno immediately went to the vicinity of the alleged sale and confronted the defendant. He frisked the exterior of defendant's clothing and then ordered defendant to empty his pockets on the hood of the police car. Guadagno testified that among the items defendant removed from his pockets were three $10 bills which he did not seize and which had not previously been marked or made identifiable. After a further street detention while Guadagno determined whether there was any outstanding warrant, the defendant was released and was not formally arrested until his indictment one month later. The time lapse between Scirri's purchase and Guadagno's search was approximately 45 minutes.
It is Guadagno's testimony at trial that the defendant had three $10 bills on his person shortly after the sale to Scirri that is the subject of this appeal. The defendant urges that since the search was not made incidental to and contemporaneous with a lawful arrest, the testimony should have been excluded.
We cannot agree that the circumstances here warrant the application of the exclusionary rule. The Fourth Amendment provides:
'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'
The constitutional protection afforded the citizenry does not forbid all searches and seizures but only those which are unreasonable (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Elkins v. United States,364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669). The question presented here, then, is whether in all the circumstances the defendant's 'right to personal security was violated by an unreasonable search and seizure' (Terry v. Ohio,supra, 392 U.S. at p. 9, 88 S.Ct. at 1873).
The test is one of reasonableness. The exclusionary rule represents a judicial response to unlawful, overbearing and unreasonable police conduct. When the police are found to have engaged in constitutionally proscribed conduct, the court is obligated to whthhold judicial approval of that conduct by application of the exclusionary rule. The rule, however, 'cannot properly be invoked to exclude the products of legitimate police investigative techniques . . .' (Terry v. Ohio, supra, at p. 13, 88 S.Ct. at 1875).
It cannot be doubted that while Guadagno did not formally arrest the defendant, he restrained his freedom of movement and thus did 'seize' him within the meaning of the Fourth Amendment (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917; People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872; People v. Earl, 50 A.D.2d 289, 377 N.Y.S.2d 649). It is unquestioned that he had probable cause to seize and search the defendant for the possession of narcotics. Had he found narcotics on the defendant's person and formally arrested the defendant for that crime, his conduct would receive judicial approval as reasonable and proper.
In determining the reasonableness of a search or seizure we must weigh (People v. Cantor, supra, 36 N.Y.2d at p. 111, 365 N.Y.S.2d at 514, 324 N.E.2d at 876, citing Terry v. Ohio, supra, 392 U.S. at p. 19, 88 S.Ct. 1868; Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900; People v. Kuhn, 33 N.Y.2d 203, 351 N.Y.S.2d 649, 306 N.E.2d 777).
The government has a deep and abiding interest in the flow of illicit narcotics in this state and nation. There is no greater scourge upon the public, particularly the young, than the insidious cultivation of new disciples to heroin euphoria and the corruption and human misery that are its inevitable result. The use of undercover police, disguised as addicts, has long been recognized as a reasonable, though perilous, method of ferreting out those who sell and distribute this venomous commodity.
The postponement of arrests of sellers of narcotics in order that an undercover policeman may pursue his work to its maximum potential before the revelation of his true identity is an established and legitimate police practice, provided the delay thereby occasioned does not prejudice other constitutional guarantees of the defendant.
Guadagno had a legitimate reason for seizing and searching the defendant, but on failing to find narcotics in his possession he did not formalize an arrest. To have done so would have required him to charge the defendant with the sale of narcotics to his fellow deputy, an act which would have revealed the identity of that deputy as an undercover policeman.
The defendant contends that since the search here cannot be justified as incident to a lawful arrest, testimony as to its fruits must be excluded. We note, however, that the rationale upon which detention searches may constitutionally be permissible recently has been refined (People v. Perel, 34 N.Y.2d 462, 358 N.Y.S.2d 383, 315 N.E.2d 452) and the rule of reasonableness reaffirmed (cf. People v. Fustanio, 35 N.Y.2d 196, 360 N.Y.S.2d 245, 318 N.E.2d 466).
'The right to search the person incident to arrest always has been recognized in this country and in England' (United States v. Rabinowitz, 339 U.S. 56, 60, 70 S.Ct. 430, 432, 94 L.Ed. 653; see also Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652). 'The rule allowing contemporaneous searches is justified, for example, . . . by the need to prevent the destruction of evidence of the crime . . . which might easily happen where the . . . evidence is on the accused's person . . .' (Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777).
The dissenting opinion relies upon the language of Justice Black in Preston that the justification for a contemporaneous search is 'absent where a search is remote in time or place from the arrest.' The circumstances of each case, however, determine the applicability of that language and it is sufficient to note that the facts in Preston differ greatly from those at bar. There the court was confronted with justifying a search of an automobile, not a person, several hours after the arrest of the defendants, who were in jailhouse custody.
The broad rules of Fourth Amendment constitutionality to be derived from Preston were set forth by Justice Black in his dissenting opinion in Vale v. Louisiana, 399 U.S. 30, 36, 90 S.Ct. 1969, 1973, 26 L.Ed.2d 409:
It is now well-settled that a pre-arrest search of the person will be permitted where subsequent thereto the defendant is arrested, provided that at the time of the search there was probable cause to arrest (United States v. Riggs, 2 Cir., 474 F.2d 699; United States v. Skinner, 8 Cir., 412 F.2d 98, cert. den., 396 U.S. 967, 90 S.Ct. 448, 24 L.Ed.2d 433; Henderson v. United States, 5 Cir., 405 F.2d 874, cert. den., 395 U.S. 906, 89 S.Ct. 1747, 23 L.Ed.2d 219).
The postponement of the intrusion of formal arrest does not remove the justification for the search and 'in no way prejudices the individual's Fourth Amendment rights' (United States v. Riggs, supra, at p. 704). As Mr. Justice Harlan wrote in his concurring opinion in Peters v. New York (decided with Sibron v. New York, 392 U.S. 40, 77, 88 S.Ct. 1889, 1908...
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