People v. Glen

• Decision Date: 24 March 1972
• Citation: 282 N.E.2d 614,331 N.Y.S.2d 656,30 N.Y.2d 252
• 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.
• Court: New York Court of Appeals Court of Appeals

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.

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.

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 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.

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 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 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 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 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, 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 laudable efforts by the police to anticipate the undoubtedly imminent or early-scheduled arrival of seizable articles, if warrants were to be used and application made with opportunity to add to the supporting evidence as the issuing Judge might require. With these considerations in mind, the issue is whether there is a constitutional or statutory bar to a prospective warrant.

The State Constitution contains no limitations of time or strictures on present possession with respect to search warrants. It 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.' (art. I, § 12). The Federal constitutional provision is identical (4th Amdt.). The remaining question then is whether a prospective warrant, by not being sufficiently limited, may allow an unreasonable search, particularly because it involves some discretion in the executing officer whether and when to execute it. Of course, even when there is present possession of the seizable property the officer has a minimal discretion not to execute the warrant if it should appear to him, from whatever source, that the possession is no longer the fact at the time of expected execution. At best, present possession is only probative of the likelihood of future possession. In cases like these the certainty of future possession is greater or is often greater than that based on information of past and presumably current possession. Indeed, warrants based on stale information have been upheld (see People v. Holton, 326 Ill. 481, 158 N.E. 134, 10-day interval; People v. DeGeovanni, 326 Ill. 230, 157 N.E. 195, 5-day interval; Syrakas v. State, 227 Wis. 59, 277 N.W. 621, 9-day interval; United States v. Fitzmaurice, 45 F.2d 133, 19-day interval; see, generally, Ann., Search Warrant--Affidavit--Sufficiency, 100 A.L.R.2d 526).

The ultimate answer to the problem is that as long as the evidence creates substantial probability that the seizable property will be on the premises when searched, the warrant should be sustained. To be sure, where there is no present possession the supporting evidence for the prospective warrant must be strong that the particular possession of particular property will occur and that the elements to bring about that possession are in process and will result in the possession at the time and place specified. Otherwise, the hated general writs of assistance of pre-Revolutionary times would be revived, in effect, despite the constitutional limitations. Moreover, the issuing Judge should be satisfied that there is no likelihood that the warrant will be executed prematurely. In the Baker case the fact...