People v. Gonzalez
| Decision Date | 11 May 1966 |
| Citation | 50 Misc.2d 508,270 N.Y.S.2d 727 |
| Parties | PEOPLE, etc., Respondent, v. Joseph GONZALEZ, Appellant. |
| Court | New York Supreme Court — Appellate Term |
Anthony F. Marra, Kalman Finkel, Legal Aid, New York City, for appellant.
Aaron E. Koota, Dist. Atty., Michael Schwartz, Brooklyn, for respondent.
Before MARGETT, BRENNER and OLLIFFE, JJ.
Judgment of conviction and order denying motion to suppress evidence reversed on the law and facts, motion granted and complaint dismissed.
The search of the defendant's dwelling for contraband, without a warrant, cannot be sustained upon this record (Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 42 L.Ed. 436; Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145). While the original entry was with the permission of defendant's wife, she could not validly consent to a search of his personal effects which were not exposed to open view (State v. Evans, 45 Haw. 622, 372 P.2d 365; cf. Roberts v. United States, 8 Cir., 332 F.2d 892, cert. den. 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274. Since consent is the weakest possible basis for a search and must be shown to have been freely and voluntarily given (Pekar v. United States, 5 Cir., 315 F.2d 319; Hall v. Warden, Md. Penitentiary, 4 Cir., 313 F.2d 483; United States v. Viale, 2 Cir., 312 F.2d 595; United States v. Smith, 2 Cir., 308 F.2d 657), it is even less persuasive when given by one's wife to effect a waiver of his constitutional right against unreasonable search. Consequently the motion to suppress should have been granted and the complaint must be dismissed for lack of the required proof of guilt.
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United States v. Robinson
...People v. Carter, 48 Cal.2d 737, 312 P.2d 665 (1957); State v. McCarthy, 20 Ohio App.2d 275, 253 N.E. 789 (1969); People v. Gonzalez, 50 Misc.2d 508, 270 N.Y.S.2d 727 (1966); see Reeves v. Warden, 346 F.2d 915 (4th Cir. 1965); Holzhey v. United States, 223 F.2d 823 (5th Cir. 1955); Cass v. ......
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People v. Erdman
...(1965)). It is the weakest possible basis for a search and must be shown to have been freely and voluntarily given (People v. Gonzalez, 50 Misc.2d 508, 270 N.Y.S.2d 727). The burden of proof is on the State (People v. Austin, 53 Misc.2d 963, 280 N.Y.S.2d 433) to show by clear and convincing......
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People v. Mortimer
...without parents' knowledge and it was opened with their consent); cf. Holzhey v. United States, 5 Cir., 223 F.2d 823; People v. Gonzalez, 50 Misc.2d 508, 270 N.Y.S.2d 727). In this case, defendant, age 21, had been arrested at his home at 1:00 a.m., taken to the police station and booked on......
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State v. Johnson, 1097
...has been advanced, nor can we think of one. A number of cases from other jurisdictions support our conclusion. In People v. Gonzalez, 50 Misc.2d 508, 270 N.Y.S.2d 727 (1966), the court flatly '. . . While the original entry was with the permission of defendant's wife, she could not validly ......