People v. Glen

CourtNew York Court of Appeals
Writing for the CourtBREITEL; FULD
Citation282 N.E.2d 614,331 N.Y.S.2d 656,30 N.Y.2d 252
Decision Date24 March 1972
Parties, 282 N.E.2d 614 The PEOPLE of the State of New York, Respondent, v. J. Christopher GLEN, Appellant. The PEOPLE of the State of New York, Respondent, v. Stanford T. BAKER, Jr., Appellant.

Page 656

331 N.Y.S.2d 656
30 N.Y.2d 252, 282 N.E.2d 614
The PEOPLE of the State of New York, Respondent,
v.
J. Christopher GLEN, Appellant.
The PEOPLE of the State of New York, Respondent,
v.
Stanford T. BAKER, Jr., Appellant.
Court of Appeals of New York.
March 24, 1972.

Page 658

[282 N.E.2d 615] [30 N.Y.2d 254] Robert C. Napier and John J. La Duca, Rochester, for appellant in the first above-entitled action.

Willard C. Best, Dist. Atty., for respondent in the first above-entitled action.

[30 N.Y.2d 255] William H. Gardner, Buffalo, for appellant in the second above-entitled action.

Michael F. Dillon, Dist. Atty. (Judith Blake Manzella, Buffalo, of counsel), for respondent in the second above-entitled action.

BREITEL, Judge.

These cases present the common question whether a search warrant may be issued prior to the imminent or scheduled arrival of seizable property designated in the warrant, marijuana in these instances, on the premises or person to be searched. Appellants, defendants in unrelated possession prosecutions, argue that a warrant for the search and seizure of [30 N.Y.2d 256] contraband in transit may not issue until the seizable property has come to rest with the person or at the place designated to be searched. Subordinate issues presented in Glen's appeal turn on the sufficiency of affidavits on a motion to nullify the warrant and suppress evidence seized.

Defendants were separately convicted of lesser degrees of possession of dangerous drugs. Baker was fined $250 following a jury trial for possession in the sixth degree (Penal Law, Consol.Laws c. 40, § 220.05). Glen was sentenced upon a guilty plea to a maximum of four years for possession in the fifth degree (Penal Law, § 220.10). Both convictions were unanimously affirmed by the Appellate Division on separate appeals (Baker judgment affd. with opn. 37 A.D.2d 139, 322 N.Y.S.2d 374, Glen judgment affd. 37 A.D.2d 692, 323 N.Y.S.2d 400). Both defendants raised the basis issues in unsuccessful pretrial motions to suppress.

Page 659

The convictions should be affirmed. Neither the Constitution nor relevant sections of the former Code of Criminal Procedure forbid issuance of a search warrant in advance of the imminent or scheduled receipt of seizable property by the person or at the premises designated in the warrant. In the Glen case a hearing was properly denied on the original motion to suppress since the supporting affidavits did not raise issues of fact and the papers in support of the warrant were legally sufficient. Denial of subsequent motions by Glen seeking identical relief rested in the discretion of the hearing court.

The facts are not in dispute. In Baker a narcotics detective in the Buffalo Police Department averred before the issuing Judge on January 9, 1970 that an overseas package addressed to Barbara Fay Baker, defendant's wife, had been inspected by customs in San Francisco and found to contain marijuana. The package was resealed and shipped to Buffalo, where it [282 N.E.2d 616] was examined by postal authorities and its contents confirmed. The police officer stated that the package was scheduled for delivery on January 16, one week later. Upon these averments a warrant issued authorizing a search of defendant's premises. The warrant did not specify a particular time for the search although the statutory form warrant directs immediate execution (former Code Crim.Proc., § 797). In fact the search under the warrant was made, as obviously intended by the issuing Judge, on January 16, the delivery date specified in the affidavit. The [30 N.Y.2d 257] police officers, after observing delivery of the parcel, entered and searched the premises, confiscated the marijuana, and arrested defendant and his wife.

In the Glen case the warrant affidavit averred that a package containing narcotics and consigned to Glen, a known drug possessor, was due to arrive at the local Greyhound Bus Depot in Canandaigua, New York. The affidavit added that Glen had called for the package earlier that morning but it had not yet arrived. The affiant's information was based on a tip from an informer whose reliability was adequately demonstrated. The warrant issued October 29, 1969 and the officers were shortly advised by a Greyhound clerk that the package had arrived. When the parcel went uncalled for that day, the officers removed it and examined it at the Sheriff's office. They found marijuana. The package was returned to the depot the following morning and the surveillance continued. At midday Glen arrived, accepted delivery, and was arrested leaving the depot.

The principal issue turns on defendants' argument that a necessary condition precedent to the issuance of a search warrant is the present unlawful possession of seizable property on the person or at the place designated in the warrant. Defendants urge that the warrants are invalid because no crime had been committed prior to their issuance

Page 660

and there was no present and continuing possession of the contraband at the time of issuance. The Appellate Division in the Baker appeal stated, and correctly so it would seem, that a showing of possession to occur shortly is sufficient (37 A.D.2d, at p. 141, 322 N.Y.S.2d at p. 376). In the Glen appeal a separate grievance is the denial of a hearing on the first motion to suppress and the summary disposition of renewed motions.

The validity of delayed execution warrants for seizable property in transit, supported by probable cause of imminent or scheduled arrival at a designated place or by a designated person, has been rarely considered. Indeed, evidently only two reported cases have discussed the issue, both sustaining the warrant (Alvidres v. Superior Ct., 12 Cal.App.3d 575, 90 Cal.Rptr. 682; cf. United States ex rel. Beal v. Skaff, 418 F.2d 430, 433).

Preliminarily, the issue is peculiar to seizable property in transit. The police problem will often be whether to obtain a warrant in advance, or to seize the property, especially if contraband, on arrival without a warrant. The surveilling officers [30 N.Y.2d 258] who intercepted Glen assuming no intervening illegality, could have done so without obtaining a warrant (see People v. Reisman, 29 N.Y.2d 278, 327 N.Y.S.2d 342, 277 N.E.2d 396; Hernandez v. United States, 353 F.2d 624, cert. den. 384 U.S. 1008, 86 S.Ct. 1972, 16 L.Ed.2d 1021, for warrantless searches in other shipment cases). In the Baker case the power to make a warrantless search may be less certain, but often the possibility of removal, destruction, or concealment by the occupants may justify an immediate search without a warrant (cf. Chapman v. United States, 365 U.S. 610, 614--615, 81 S.Ct. 776, 5 L.Ed.2d 828; United States v. Jeffers, 342 U.S. 48, 51--52, 72 S.Ct. 93, 96 L.Ed. 59; Hernandez v. United States, 353 F.2d 624, Supra). Greater latitude is indicated where the police resort to warrant procedure rather than relying on the power to search without a warrant. The purpose, of course, is to encourage the use of warrants (Jones v. United States, 362 U.S. 257, 270, [282 N.E.2d 617] 80 S.Ct. 725, 4 L.Ed.2d 697, accord, United States v. Ventresca, 380 U.S. 102, 106--107, 85 S.Ct. 741, 13 L.Ed.2d 684). Hence, the instant cases present...

To continue reading

Request your trial
87 practice notes
  • State v. Wright, No. 17057
    • United States
    • Court of Appeals of Idaho
    • April 6, 1989
    ...People v. Shapiro, 37 Cal.App.3d 1038, 113 Cal.Rptr. 54 (1974); State v. Mier, 147 N.J.Super. 17, 370 A.2d 515 (1977); People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 282 N.E.2d 614, cert. denied, 409 U.S. 849, 93 S.Ct. 58, 34 L.Ed.2d 91 (1972); Commonwealth v. Soares, 384 Mass. 149, 424 N......
  • Kostelec v. State, No. 2005
    • United States
    • Court of Special Appeals of Maryland
    • December 6, 1996
    ...(1981); People v. Shapiro, 37 Cal.App.3d 1038, 113 Cal.Rptr. 54 (1974); Johnson v. State, 617 P.2d 1117 (Alaska 1980); People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 282 N.E.2d 614, cert. denied sub nom. Baker v. New York, 409 U.S. 849, 93 S.Ct. 58, 34 L.Ed.2d 91 (1972); State v. Folk, 74......
  • Com. v. Glass
    • United States
    • United States State Supreme Court of Pennsylvania
    • June 20, 2000
    ...at the premises rests also on the expectation that the contraband will remain there until the warrant is executed"); People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 282 N.E.2d 614, 616 (1972) ("At best, present possession is only probative of the likelihood of future possession."). The str......
  • Dondi v. Jones
    • United States
    • New York Court of Appeals
    • June 3, 1976
    ...Division (see People v. Grennan, 283 App.Div. 987, 131 N.Y.S.2d 321, affd. 307 N.Y. 691, 120 N.E.2d 861, see, also, People v. Glen, 30 N.Y.2d 252, 262--263, 331 N.Y.S.2d 656, 663--664, 282 N.E.2d 614, 619--620). It is fundamental that, in the absence of a statutory exception (e.g., CPL 710.......
  • Request a trial to view additional results
87 cases
  • State v. Wright, No. 17057
    • United States
    • Court of Appeals of Idaho
    • April 6, 1989
    ...People v. Shapiro, 37 Cal.App.3d 1038, 113 Cal.Rptr. 54 (1974); State v. Mier, 147 N.J.Super. 17, 370 A.2d 515 (1977); People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 282 N.E.2d 614, cert. denied, 409 U.S. 849, 93 S.Ct. 58, 34 L.Ed.2d 91 (1972); Commonwealth v. Soares, 384 Mass. 149, 424 N......
  • Kostelec v. State, No. 2005
    • United States
    • Court of Special Appeals of Maryland
    • December 6, 1996
    ...(1981); People v. Shapiro, 37 Cal.App.3d 1038, 113 Cal.Rptr. 54 (1974); Johnson v. State, 617 P.2d 1117 (Alaska 1980); People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 282 N.E.2d 614, cert. denied sub nom. Baker v. New York, 409 U.S. 849, 93 S.Ct. 58, 34 L.Ed.2d 91 (1972); State v. Folk, 74......
  • Com. v. Glass
    • United States
    • United States State Supreme Court of Pennsylvania
    • June 20, 2000
    ...at the premises rests also on the expectation that the contraband will remain there until the warrant is executed"); People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 282 N.E.2d 614, 616 (1972) ("At best, present possession is only probative of the likelihood of future possession."). The str......
  • Dondi v. Jones
    • United States
    • New York Court of Appeals
    • June 3, 1976
    ...Division (see People v. Grennan, 283 App.Div. 987, 131 N.Y.S.2d 321, affd. 307 N.Y. 691, 120 N.E.2d 861, see, also, People v. Glen, 30 N.Y.2d 252, 262--263, 331 N.Y.S.2d 656, 663--664, 282 N.E.2d 614, 619--620). It is fundamental that, in the absence of a statutory exception (e.g., CPL 710.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT