People v. Finn

• Citation: 340 N.Y.S.2d 807,73 Misc.2d 266
• Parties: The PEOPLE of the State of New York, v. Joseph FINN, Defendant.
• Decision Date: 08 January 1973
• Court: New York City Court

Page 807

340 N.Y.S.2d 807

73 Misc.2d 266

The PEOPLE of the State of New York, v. Joseph FINN, Defendant.

Criminal Court of City of New York, Bronx County, Part 1D.

Jan. 8, 1973.

[73 Misc.2d 267] Burton B. Roberts, Dist. Atty., Bronx County, by Paul Stark, Asst. Dist. Atty., for the People.

Richard D. Friedman, New York City, for defendant.

OPINION

JOEL J. TYLER, Judge.

The fact situation in this case appears to be one unreported in this State; and, accordingly, may possibly be one of first impression.

Defendant is charged with the illegal possession of a loaded hand gun in violatiion of P.L. § 265.05.

The defendant moves for the suppression of the contraband, in that, the officer had no probable cause to search his person. Upon the hearing of the motion, arresting Detective Forte, the People's sole witness, testified that, under the authority of a no-knock search warrant, he and several brother officers entered a certain apartment, designated in the warrant, to search for narcotics. The warrant directed also the search of the named female occupant. The officers entered the apartment with guns drawn, and as Officer Forte so entered the first room--the living room--, he confronted the said female and he also saw defendant standing at the threshold between that room and the kitchen, with arms held erect over his head. He then patted down defendant's clothing, 'for my protection,' as the officer stated, discovered the gun as a result thereof, removed it from defendant's person, and arrested him.

Defendant, as the sole witness on his own behalf, essentially confirmed the officer's testimony. It varies only, in that, defendant claims to have driven home the female occupant of the apartment that evening, and upon her invitation, he went into the apartment to sup with her. While he was so engaged in the kitchen, the officers entered and Officer Forte ordered him to stand, with one hand against the wall, the other raised, whereupon he was frisked and the gun discovered.

Admittedly, neither the search warrant nor the supporting affidavit upon which its issuance was justified, named the defendant. The only person named therein to be searched was the female tenant. The warrant, however, did permit the search 'of any other person who may be found' in the premises to possess heroin, under the aegis of C.P.L. § 690.15, subd. 2. Neither the warrant nor its supporting affidavit were introduced in evidence. The validity of the warrant is not in question.

The Issues

The position of the defendant, succinctly, is as follows:

1. Since the warrant and its supporting affidavit were not placed in evidence, the Court may not consider them, and particularly, cannot do so in the light of the conceded validity of the warrant. Of course, the Court seeks to examine them to ascertain the extent of the warrant's authority, if any, as it relates to defendants.

2. The police acted illegally in frisking the defendant, in that, such action, not predicated upon probable cause, constituted an unreasonable search, condemned by the Fourth Amendment.

3. C.P.L. § 690.15, subd. 2, insofar as it permits the extension of a search under a warrant, to 'any other person who may be found' in specified premises is unconstitutional under the Fourth Amendment, and in conflict with C.P.L. § 690.15, sbud. 1(c) and § 690.45, subd. 4, which require particularization of the persons to be seized and searched.

I The Court Takes Judicial Notice of the Warrant

It is unfortunate that the prosecution failed to introduce into evidence the warrant and its supporting affidavit. But the existence thereof was made known to the Court in at least two respects. The officer testified concerning it, without objection, and the complaint clearly alludes to it, by indicating that the search was made 'under the authority of a search warrant.'

It would violate sound sense to prohibit the Courts' examination of these necessary documents. Truth abhors mystery, and '. . . a right sense of justice . . .' (People v. Rosario, 9 N.Y.2d 286, 289, 213 N.Y.S.2d 448, 450, 173 N.E.2d 881, 882--883 (1961)) impels to the logic and militates for full disclosure in the ascertainment of the facts. People v. Graf, 59 Misc.2d 61, 65, 298 N.Y.S.2d 224, 229--230 (1969). This basic ligicality has been recognized and given support by the courts and legal scholars, as it relates to our situation, by establishing the principal that a court may take judicial notice of 'all prior proceedings in the case,' notwithstanding that some of those proceedings were held in another court of the State. ¹ United States v. Casino, 286 F. 976 (1923); Susquehanna Silk Mills v. Rebora, 238 App.Div. 100, 103, 263 N.Y.S. 858, 861--862 (1st Dept., 1933), rev'd other grounds, 263 N.Y. 539, 189 N.E. 687; Kane v. Walsh, 295 N.Y. 198, 204, 66 N.E.2d 53, 55 (1946); C.P.L.R. Rule 4511; Wigmore On Evidence, Vol. IX, pp. 3614--15; Wharton's Criminal Evidence, 12 Ed., Vol. I, § 6; Mottla, New York Evidence, Vol. I, § 283.

Accordingly, this Court has taken judicial notice of these documents and has examined the warrant and supporting affidavit, which was sworn to by the testifying officer, Forte.

II

The Search Was Reasonable Under The Circumstances And

Conforms With Constitutional Mandates

The Fourth Amendment of our federal constitution and Article 1, § 12 of our conforming New York Constitution, clearly prohibit only those searches and seizures deemed 'unreasonable.' Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446--1447, 4 L.Ed.2d 1669 (1960); People v. Taggart, 20 N.Y.2d 335, 340, 283 N.Y.S.2d 1, 6--7, 229 N.E.2d 581, 584--585 (1967). This wholesome limitation was conceived to guarantee '. . . a right of personal security against arbitrary intrusion by official power.' Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971); Wolf v. Colorado, 338 U.S. 25, 27--28, 69 S.Ct. 1359, 1361--1362, 93 L.Ed. 1782 (1949). Also, Chimel v. California, 395 U.S. 752, 760--761, 89 S.Ct. 2034, 2038--2039, 23 L.Ed.2d 685 (1969).

It is a 'basic constitutional rule' (Coolidge v. New Hampshire,supra, 403 U.S. p. 454, 91 S.Ct. 2022, 2031--2032) and a natural consequence of the clear language of these constitutional mandates, that warrantless searches 'are Per se unreasonable . . . subject only to a few specifically established and wll delineated exceptions.' Katz v. United States, 389 U.S. 348 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). We have been further instructed by our highest tribunal, that a warrantless search may be excused and permitted, as one such 'well-defined exception,' where 'the exigencies of the situation made that course imperative.' McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948); Trupiano v. United States, 334 U.S. 699, 705, 708, 68 S.Ct. 1229, 1332, 1333--1334, 92 L.Ed. 1663 (1948); United States v. Jeffers, 342 U.S. 48, 52, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 1197--1198, 2 L.Ed.2d 1332 (1958); Terry v. Ohio, 392 U.S. 1, 17--18, fn. 15, 19--20, 88 S.Ct. 1868, 1877--1878, fn. 15, 1878--1879, 20 L.Ed.2d 889 (1968).

What then is the quality and measure of such exigent circumstances, which would justify a warrantless search and constitute a permissible exception to the requirement of a warrant? Firstly, we must beign with the oft-repeated premise that there is no firm, fast and unchanging criteria to determine the limits of a reasonable search or the exceptions that would allow it without a prerequisite warrant. As Mr. Justice Black aptly stated, 'Each case must be judged on its own particular facts.' Coolidge v. New Hampshire, supra, 403 U.S. pp. 503--504, 509--510, 91 S.Ct. p. 2056; Chimel v. California, supra, 395 U.S. p. 765, 89 S.Ct. 2034; Terry v. Ohio, supra, 392 U.S. p. 15, 88 S.Ct. 1868.

Further, as it applies to our case, Mr. Justice Stewart supplies an answer to our question, when he reminds us that one such exigency, giving rise to such well-delineated exception, 'arises from the dangers of harm to the arresting officer.' Coolidge v. New Hampshire, supra, 403 U.S. p. 478, 91 S.Ct. p. 2044. ² In this connection, we should not close our eyes to the actualities and practicalities of a specific confrontation faced by the officer in performing his hazardous public duty. People v. Rivera, 14 N.Y.2d 441, 446, 252 N.Y.S.2d 458, 462, 463, 201 N.E.2d 32, 35 (1964), cert. denied 379 U.S. 978, 85 S.Ct. 679, 13 L.Ed.2d 568; People v. Rosemond, 26 N.Y.2d 101, 104, 308 N.Y.S.2d 836, 838--839, 257 N.E.2d 23 (1970). What is unusual enough to call for action must rest in the professional experience of the police. Since encounters with police and citizens are 'incredibly rich in diversity' (Terry v. Ohio, supra, 392 U.S. p. 13, 88 S.Ct. 1868), we should not readily succumb to second-guessing, but rather we must judge the facts before us in the light of constitutional requirments.

The courts have long recognized that a policeman may and should, as a matter of right, take every reasonable precaution to assure his own safety and that of others. Accordingly, he may search for weapons (without a warrant), a person lawfully arrested. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145 (1925); Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Chimel v. California, supra, 395 U.S. pp. 762--763, 89 S.Ct. 2034. He may extend such warrantless search from the arrestee's person to any area "within his immediate control'--construing that phrase to mean the area from within which he might gain possession of a weapon . . ..' Chimel v. California, supra, 395 U.S. pp. 763, 766, 89 S.Ct. p. 2040; Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). ³

Further, the public and governmental concern for the protection of the police officer, under...