People v. Floyd

• Decision Date: 15 June 1970
• Citation: 26 N.Y.2d 558,312 N.Y.S.2d 193,260 N.E.2d 815
• Parties: , 260 N.E.2d 815 The PEOPLE of the State of New York, Respondent, v. Herman FLOYD, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 193

312 N.Y.S.2d 193

26 N.Y.2d 558, 260 N.E.2d 815

The PEOPLE of the State of New York, Respondent, v. Herman FLOYD, Appellant.

Court of Appeals of New York.

June 15, 1970.

Abraham Werfel, Jamaica, for appellant.

Thomas J. Mackell, Dist. Atty. (Sandra C. Katz, Kew Gardens, of counsel), for respondent.

BREITEL, Judge.

Because the police, otherwise authorized to make a lawful arrest, effected the arrest by unlawful means, the evidence obtained as a result of the arrest may not be used and defendant's conviction must be reversed and the indictment dismissed. This result is required as a consequence of the application of the search and seizure provision of the Federal Constitution to the States under the Fourteenth Amendment (U.S. Const., 4th Amdt.; 14th Amdt.), and the exclusionary rule applied to the States under the holding in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

Defendant, after a jury trial, was convicted of a felony and two misdemeanors based on his possession of narcotics (heroin) and a hypodermic instrument ('eyedropper' and 'spike'). The conviction was affirmed by the Appellate Division, two Justices dissenting. Prior to the trial, defendant's motion to suppress the seized evidence upon which his conviction was subsequently based, was denied, and the present appeal brings that denial up for review (Code Crim.Pro., § 813--c).

Defendant's arrest was precipitated by an anonymous telephone call to the New York City Police to the effect that he was wanted for forgery on a Federal warrant. After verifying the accuracy of the information three policy officers went to the hotel where defendant sojourned, obtained a passkey from the clerk, and entered defendant's room at 7:00 o'clock in the morning, without knocking and without notice to him of their authority or the purpose of their entry. Upon entry the police observed in open display a narcotic 'fix', described as an eyedropper, spike, and a bottle cap with a piece of cotton. After arresting and handcuffing defendant, a thorough search of the room yielded the packages of heroin-containing glassine envelopes, secreted in a pillowcase, upon which defendant had been lying before the entry.

In this State, for a long time by statute, and at the common law, police in breaking open and entering premises for the purpose of making an otherwise lawful arrest must give notice to the occupants of who they are and the purpose for which they seek entry (Code Crim.Pro., §§ 175, 178, 187; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623 10 L.Ed.2d 726, dissenting opn. by Brennan, J., at pp. 46, 47--52; People v. Gallmon, 19 N.Y.2d 389, 392, 280 N.Y.S.2d 356, 359, 227 N.E.2d 284, 286, cert. den. 390 U.S. 911, 88 S.Ct. 832, 19 L.Ed.2d 884). It makes no difference whether the arrest is with or without a warrant, or whether it is an escaped prisoner who is being recaptured (Code Crim.Pro., §§ 175, 178, 187).

Case law has made exceptions from the statute or common-law rules for exigent circumstances which may allow dispensation with the notice. Thus, in Ker v. California (supra) it was made clear that if there were reason to believe that the occupants might dispose of the contraband or evidence, in that case--marijuana, if given notice of the police presence and purpose, it was not necessary to give notice. It has also been held or suggested that notice is not required if there is reason to believe that it will allow an escape or increase unreasonably the physical risk to the police or to innocent persons (Ker v. California, Supra, dissenting opn., at p. 47, 83 S.Ct. 1623, cited with approval in Sabbath v. United States, 391 U.S. 585, 591, n. 8, 88 S.Ct. 1755, 20 L.Ed.2d 828; People v. Wojciechowski, 31 A.D.2d 658, 296 N.Y.S.2d 524; People v. McIlwain, 28 A.D.2d 711, 281 NY.S.2d 218; United States v. Sharpe, 8 Cir., 322 F.2d 117, 120).

True, in this case there was matter that was both contraband and evidence, but before entry the police did not have the slightest reason to believe that the matter was present in the presmises. Defendant was wanted for a crime but there was no reason to believe that he would or could escape. Nor was the crime for which he was wanted a violent one. Nor was there any reason to believe that he was armed or would offer violence or resistance to the offices. ^* That he occupied a second-story room in the hotel did not increase the risk of escape but provided the police, three in number, an excellent and obvious opportunity to post one of their number outside the widow of the room if they believed defendant might try to escape. That defendant had once eluded a Federal officer on the street is quite irrelevant to predicting what he might do when cornered in a room. Nor does the circumstance that the arresting officers drew their guns before entering defendant's room prove anything, especially since they were...