People v. Gonzales

• Decision Date: 09 November 1961
• Citation: 31 Misc.2d 486,221 N.Y.S.2d 846
• Parties: PEOPLE of the State of New York v. Gilbert GONZALES, Defendant.
• Court: New York Court of General Sessions

Page 846

221 N.Y.S.2d 846

31 Misc.2d 486

PEOPLE of the State of New York v. Gilbert GONZALES, Defendant.

Court of General Sessions, New York County.

Nov. 9, 1961.

Supplemental Opinion Nov. 20, 1961.

Frank Hogan, Dist. Atty., New York County, by H. Richard Uviller, Melvin Glass and David Goldstein, Asst. Dist. Attys., New York City, for the People.

Anthony F. Marra, New York City, Philip R. Edelbaum, New York City, of counsel, for defendant.

ABRAHAM N. GELLER, Judge.

This is one of a number of motions brought in this court following the recent landmark decision of the Supreme Court of the United States holding that all evidence obtained by searches and seizures in violation of the Constitution is inadmissible in a state court. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (June 19, 1961). Thus the exclusionary rule barring the use in the federal courts of evidence procured by means of unreasonable searches and seizures prohibited by the Fourth Amendment, which was first promulgated in 1914 (Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652), has finally been imposed upon the states by the Supreme Court through the operation of the Due Process clause of the Fourteenth Amendment.

New York has been one of the states which has applied the traditional common-law rule that relevant and competent and, therefore, reliable evidence is admissible, even though procured by wrongful or even illegal methods (see 8 Wigmore on Evidence [3rd ed.] § 2184; McCormick on Evidence, p. 296). While certain exceptions to that rule were recognized as in the case of evidence obtained in violation of the constitutional privilege against self-incrimination, our courts admitted evidence obtained by unlawful searches and seizures. People v. Adams, 176 N.Y. 351, 68 N.E. 636, 63 L.R.A. 406 (1903); People v. Defore, 242 N.Y. 13, 150 N.E. 585 (1926).

It is now incumbent upon all state courts to exclude such evidence in accordance with the mandate of the Supreme Court. The present motions before this court request suppression of such evidence and ultimate relief in the form of dismissal of the respective indictments on the ground of alleged unconstitutional searches resulting in the procuring of the evidence upon which the grand jury returned indictments. In the absence of any statute or court rule governing this situation--an unprecedented one for this state--I believe that some guiding principles may become apparent upon a review of the pertinent factors involved in the problem.

Preliminarily it should be observed that, even in the absence of statute or rule, our courts have the inherent right and duty 'to protect the citizen in his constitutional prerogatives, and to prevent oppression or persecution.' People v. Glen, 173 N.Y. 395, 400, 66 N.E. 112, 114; People v. Gersewitz, 294 N.Y. 163, 167, 61 N.E.2d 427, 428.

(1) General Considerations

Necessary procedures to implement the Mapp directive, consonant with the particular problems and requirements of individual states, must be devised in the courts of those states which previously adhered to the common-law rule. While the states are now compelled to follow the same 'constitutional standards' and 'fundamental criteria' in their approaches to the solution of crime as the federal government (367 U.S., at 658, 81 S.Ct. at 1693), it was explicitly noted that, 'as is always the case, however, state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected.' 367 U.S., footnote 9 at 659, 81 S.Ct. at 1693. The court also observed that there could be 'no fixed formula' for the 'recurring questions of the reasonableness of searches.' At p. 653, at p. 1690 of 81 S.Ct.

When California's highest court decided in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513 (1955) to adopt the federal exclusionary rule, it pointed out that 'if the federal cases indicate needless limitations on the right to conduct reasonable searches and seizures or to secure warrants, this court is free to reject them,' that the objective was to develop 'workable rules governing searches and seizures and the issuance of warrants that will protect both the rights guaranteed by the constitutional provisions and the interest of society in the suppression of crime.' At pp. 450-451, at p. 915 of 282 P.2d.

The problem of law enforcement standards in the several states involving almost every conceivable type of minor and major crimes as compared with the highly specialized crimes cognizable federally can be solved better by each state than by compelling uniformity in all respects. But the 'workable rules' developed by any state must satisfy the constitutional imperative and be carried out in good faith for the protection of the right of all persons to be free from unreasonable searches and seizures.

In this state the Joint Legislative Committee on Privacy of Communications has held a public hearing to consider legislation to establish rules to enable the defendant to make a motion to suppress evidence obtained by unconstitutional search and seizure.

Such a rule presently governs federal procedure. Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. provides:

'A person aggrieved by an unlawful search and seizure may move * * * for the return of the property and to suppress for the use as evidence anything so obtained * * *. The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.'

This rule is a crystallization of the decisions of the Supreme Court that in the interest of normal procedural orderliness the motion to suppress should be made prior to trial to avoid interrupting the course of the trial and breaking the continuity of the jury's attention (Nardone v. United States, 308 U.S. 338, 342, 60 S.Ct. 266, 84 L.Ed. 307) by raising a collateral issue requiring protracted proceedings before the court not in the presence of the jury. But, if the objection to the use of such evidence is made for the first time at the trial, the trial judge may excuse the delay if in his judgment that would not unduly interfere with the trial (see United States v. Di Re, 2 Cir., 159 F.2d 818). It has been said: 'The rule is one of practice; and is not without exceptions.' Cogen v. United States, 278 U.S. 221, 223, 49 S.Ct. 118, 119, 73 L.Ed. 275; see also Gouled v. United States, 255 U.S. 298, 312, 313, 41 S.Ct. 261, 65 L.Ed. 647. Mr. Justice Frankfurter expressed the same view in Jones v. United States, 362 U.S. 257, 264, 80 S.Ct. 725, 732, 4 L.Ed.2d 697:

'As codified, the rule is not a rigid one, for under Rule 41(e) 'the court in its discretion may entertain the motion [to suppress] at the trial or hearing.' This qualification proves that we are dealing with carrying out an important social policy and not a narrow, finicky procedural requirement. This underlying policy likewise precludes application of the Rule so as to compel the injustice of an internally inconsistent conviction.'

In People v. Berger, 44 Cal.2d 459, 282 P.2d 509, the California court, referring to the relaxation of the requirements in the federal courts as the result of their experience, pointed out that there were no compelling reasons why an exception should be made in the case of illegally obtained evidence from the ordinary practice that preliminary questions of law and fact governing the admissibility of evidence, such as privileged communications, are determined by the trial court when objection is raised at the trial. The court took the view that 'a requirement that a preliminary motion be made to suppress the evidence would inevitably result in delaying the trial while the motion was being noticed, calendared, heard, argued, and determined.' At p. 464, at p. 512 of 282 P.2d.

In Illinois, another state which prior to Mapp voluntarily adopted the federal exclusionary rule, it has been held that the court has the right to defer consideration of a motion to suppress made prior to trial to the time when that evidence is offered at the trial. People v. Kissane, 347 Ill. 385, 179 N.E. 850.

On analysis it seems clear that, when a defendant moves to suppress the product of an alleged illegal search and seizure, the governing procedure should take into account the practice and necessities of the particular court, keeping in mind the constitutional requirement for dispatch, not not only in defendant's case, but in all criminal proceedings before that court.

It seems to me that the solution would appear to be: a statutory rule along the lines of Rule 41(e), but providing simply that 'the motion shall be made before trial' without specifying the conditions excusing the failure to make the motion before trial, and that 'the court in its discretion may entertain the motion at the trial'--thereby giving the court wide latitude to entertain the motion at the trial and prevent an injustice to defendants upon any showing of excuse for the delay, a broad provision more in keeping with the actual experience in the federal, California and Illinois courts and the underlying policy; an added provision that 'the court in its discretion may defer consideration of the motion until the trial'; and a final provision authorizing the courts affected to make such further rules as they may deem necessary not inconsistent with the statutory rule--this last being in line with the joint legislative court supervision over court procedure in this state (cf . Judiciary Law § 83; Rule 2, Rules of Civil Practice; Civil Practice Act, § 63, subd. 3).

It seems clear that if the motion for the return of the property illegally seized is made prior to indictment, which represents the formal commencement of the criminal proceeding, relief must be obtainable (Go-Bart Importing...