People v. Hill

• Decision Date: 10 November 1961
• Citation: 221 N.Y.S.2d 875,31 Misc.2d 985
• Parties: PEOPLE of The State of New York, Plaintiff, v. Floyd HILL, Defendant.
• Court: New York County Court

Page 875

221 N.Y.S.2d 875

31 Misc.2d 985

PEOPLE of The State of New York, Plaintiff, v. Floyd HILL, Defendant.

Onondaga County Court.

Nov. 10, 1961.

Joseph A. Ryan, Dist. Atty., of Onondaga County, Syracuse, I. Birnbaum, Syracuse, of counsel, for plaintiff.

Henry E. Taylor, Syracuse, for defendant.

DONALD H. MEAD, Judge.

Defendant moves for an order permitting him to inspect the Grand Jury minutes, or, in the alternative, that the Court inspect the minutes and upon such inspection by the Court, that an order be granted dismissing the indictment. Upon stipulation of counsel, the Court has examined the Grand Jury minutes in its consideration of this motion. The defendant was indicted by the Grand Jury of the County of Onondaga (indictment No. 9137) charging a violation of section 975 of the Penal Law in that, on or about the 7th day of January, 1961, at the City of Syracuse, in this county, the said Floyd Hill being then and there a private citizen and not a public officer, did on or about said 7th day of January, 1961, at the City of Syracuse, in this County have in his possession, knowingly, certain writings, papers, documents, representing or being records of more than 10 chances, bets or wagers upon numbers sold in what is commonly called 'Policy' or the 'Numbers game', and did knowingly have in his possession more than 10 policy slips, papers, writings and other articles such as are commonly used in carrying on, promoting and playing the game commonly called 'Policy'. The crime charged in the indictment is by law a misdemeanor under section 975 Penal Law.

Defendant in his moving affidavit alleges:

'That the arrest of your deponent book place in the following manner: That on or about January 7, 1961 between 9:30 and 10:00 o'clock in the morning of that day, your deponent was driving an automobile on Jefferson Street between the intersection of that street with Montgomery and State Streets. That the car which he was driving was halted by persons unknown by name to your deponent but who identified themselves as members of the Syracuse Police force. That no warrant was exhibited to your deponent at the time of his arrest. That one of the officers stated to him in substance, 'Let me see your registration and license?' That your deponent produced his wallet in which these documents were kept whereupon the person identifying himself as a police officer grabbed the wallet from your deponent, and went through the contents of same. That certain items alleged to be policy slips were taken from deponent's wallet. That your deponent was then and there placed in a police car and questioned as to where he lived. That upon giving said address, he was driven there and accompanied inside by the officers. That your deponent did not give permission for the officers to enter his home, nor was any search warrant or other type of process exhibited to him.'

Since the aforesaid allegations of defendant are not denied nor controverted in the People's answering affidavit and since the testimony before the Grand Jury is barren of any circumstances leading to and surrounding the defendant's arrest, the allegations contained in defendant's affidavit must be deemed to be true.

Prior to 1938, in New York State, the immunity against unreasonable searches and seizures was statutory. (Civil Rights Law, § 8). In 1938 section 12 of Article 1 of the New York State Constitution was adopted which provides in part as follows:

'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.'

Thus, the statutory immunity so conferred, was incorporated into the State Constitution. However, the immunity is not from all search and seizure, but from such search and seizure unreasonable in the light of common law traditions. (People v. Chiagles, 237 N.Y. 193, 195, 142 N.E. 583, 32 A.L.R. 676). The Government may 'search and person of the accused when legally arrested, to discover and seize the fruits or evidences of crime'. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652; People v. Chiagles (supra). (Emphasis supplied.)

In the case of People v. DeFore, 242 N.Y. 13, 150 N.E. 585, 586, the Court, although adhering to the rule which permitted the receipt of illegally obtained evidence upon the trial of the indictment, in affirming the order denying a motion made prior to trial to suppress evidence, nevertheless, held that the search of defendant's room was unreasonable 'in the light of common-law traditions'. In that case a police officer arrested the defendant on a charge that he had stolen an overcoat. The crime, if committed, was petit larceny, a misdemeanor, for the value of the coat was not over fifty dollars (Penal Law, §§ 1296, 1298; Cons.Laws, ch. 40). The defendant when taken into custody was in the hall of his boarding house. The officer after making the arrest entered the defendant's room and searched it. The search produced a bag, and in the bag was a blackjack. The defendant after trial at Special Sessions was acquitted of the larceny. In the meantime he had been indicted as a second offender for the possession of the weapon (Penal Law, § 1897) . He made a motion before trial to suppress the evidence obtained through search without a warrant. The motion was denied. Cardozo, J., writing for the Court, stated at page 18 of 242 N.Y., at page 586 of 150 N.E.:

'(1) The search was unreasonable 'in the light of commonlaw traditions.' People v. Chiagles, 142 N.E. 583, 237 N.Y. 193, 32 A.L .R. 676. A different conclusion might be necessary if the defendant had been lawfully arrested. As an incident to such an arrest, his person might have been searched for the fruits or evidences of crime . People v. Chiagles, supra; Carroll v. U. S., 42 S.Ct. 280, 267 U.S. 132, 158, 69 L.Ed. 543, 39 A.L.R. 790. So, it seems, might the place where the arrest was made. Agnello v. U. S. [269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145]; People v. Cona, 147 N.W. 525, 180 Mich. 641. But the arrest was not lawful. One who, acting without a warrant, arrests for a misdemeanor exceeds the bounds of privilege, whether he be a private person or an officer, unless the crime has been committed or attempted in his presence. Code Cr.Proc. §§ 177, 183. The defendant had neither committed the crime of petit larceny in the presence of the officer nor there attempted to commit it. * * * There was no lawful arrest to which the search could be an incident.'

Clearly, in the case at bar, 'there was no lawful arrest to which search could be an incident'. The crime charged is a misdemeanor. There is no evidence that it was being committed or being attempted in the presence of the officers when the arrest was made. (Sections 177 and 183, Code of Criminal Procedure). Means unlawful in their inception do not become lawful by relation when suspicion ripens into discovery. (People v. DeFore (supra)). In the case at bar, the facts known when the arrest occurred were wholly insufficient to engender reasonable belief that defendant was committing a misdemeanor and the lagality of the arrest cannot be supported by facts ascertained through the search which followed.

The People argued that 'a search of a moving vehicle has been held to be valid upon a finding of probable cause, since the necessity for fast action is satisfied by the inherent mobility of vehicles', citing in support of their contention, Clay v. United States, 239 F.2d 196, (5th Cir.); Carroll v. United States, 267 U.S. 132, 42 S.Ct. 280, 69 L.Ed. 543; Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629. The Carroll and Husty cases cited deal with statutes enacted to enforce the 18th amendment which made it unlawful to have and possess any liquor intended for use in violating the Act and which gave the Government and its duly authorized agents, upon discovery, the right to seize as contraband any intoxicating liquors being transported in violation of the law in any wagon, buggy, automobile, water or aircraft, or other vehicle . Those two cases cited turned upon express provisions of applicable acts of Congress they did not involve the point here presented and afford little, if any, assistance toward its proper solution. This is not a case involving the seizure and forfeiture of contraband goods under a proper legislative enactment. The Legislature has frequently empowered officers to search for contraband and to arrest without warrant for certain offenses, which perhaps tends to show that, in its opinion, no such right exists at common law. Striking examples are statutes permitting the seizure of goods forfeited for a breach of the Revenue laws or concealed to avoid the duties on them; the supervision authorized to be exercised by officers of the revenue over manufacture or custody of excisable articles; the power and authority conferred upon every collector, naval officer and surveyor to enter any ship or vessel in which they have reason to suspect any goods, wares or merchandise subject to duty shall be concealed. So, also, the power and authority to search for and seize contraband liquor and to arrest the possessor as provided in the Prohibition statutes. Carroll v. United States, 267 U.S. 132, 42 S.Ct. 280, 69 L.Ed. 543. These are but a few examples of visitorial powers to search conferred upon officers by statute. However, no statute has been called to our attention nor has the Court been able to discover any statutory authority to justify a search for policy slips (the possession of which constitutes a misdemeanor) upon suspicion and without a warrant.

The facts in the case of Clay v. United States, 5 Cir., 239 F.2d 196, cited by the People, closely parallel the facts in this case. In the Clay case, the...