People v. Johnson
| Decision Date | 03 August 1962 |
| Citation | 231 N.Y.S.2d 689 |
| Parties | PEOPLE v. Joseph JOHNSON. |
| Court | New York Court of General Sessions |
Frank S. Hogan, Dist. Atty., by Edward M. Davidowitz, Asst. Dist. Atty., for the People.
William G. Wall, New York City, for defendant.
This is a motion to suppress certain evidence obtained through a search warrant on the ground that said evidence was illegally seized . A search warrant was issued by this court on April 4, 1962, for the purpose of making a search of Apartment 5D, of premises 304 West 144th St., New York County, N. Y., occupied by the defendant, the object of the search being narcotics. The warrant permitted the search to be made in the daytime or in the night time.
The defendant alleges that the officers executed the warrant when no one was present in the apartment, and upon his return, he was apprehended, by the officers who were in the apartment, and searched, and that nothing was found on his person. The police have filed a return to the search warrant which lists the inventory of the property found in the apartment, and the narcotics found therein constitute the corpus delicti of the crimes charged.
The defendant does not attack the validity of the issuance of the search warrant or the return of the warrant and inventory of the court. He claims, however, that his constitutional rights under the Fourth Amendment to the United States Constitution were violated because the police entered his apartment when no one was present and that they had no warrant for his arrest. He claims that the failure of the police to observe the requirements of the Code of Criminal Procedure, section 799, in that they did not announce their authority and purpose prior to breaking into the premises, invalidated the subsequent search, seizure and arrest.
Section 799 of the Code of Criminal Procedure reads as follows:
It certainly requires no further comment then to state that the Felony Court complaint must contain sufficient facts to show that the defendant has committed an act or acts in violation of the Penal Law. There is no requirement, however, that the officer executing the search warrant state the means whereby he entered the premises. It is presumed that the officer performed his duty according to law (People of the State of New York v. Ryan, 230 App.Div. 252, 258, 243 N.Y.S. 644), and the defendant must set forth facts to overcome the presumption of regularity (People of the State of New York v. Richetti, 302 N.Y. 290, 298, 97 N.E.2d 908, 912).
Implicit in defendant's motion is the fallacious premise that an officer should not execute a search warrant if no one is present. The defendant admits he was not present when...
To continue reading
Request your trial
-
State v. Iverson
...... The Roth opinion quoted United States v. Johnson, 461 F.2d 285 (10th Cir.1972), for the proposition that "the vitality of probable cause cannot be quantified by simply counting the number of days ... officers "frustrated or made nugatory any of the purposes and policies previously enumerated." See Steingraber, 296 N.W.2d at 546 (citing People v. Peterson, 9 Cal.3d 717, 108 Cal.Rptr. 835, 511 P.2d 1187 (1973)). It is clear that the officers' execution of the warrant in this case did not ......
-
U.S. v. Nolan
...... United States Court of Appeals, . Third Circuit. . Argued Jan. 11, 1983. . Decided Sept. 30, 1983. . Page 590 . J. Alan Johnson, U.S. Atty., Constance M. Bowden (argued), Paul J. Brysh, Michael A. Cauley, Asst. U.S. Attys., Pittsburgh, Pa., for appellee. . H. ...952(a) and 841(a)(1) (1976), respectively, and 18 U.S.C. Sec. 2. . In January 1980, Danko returned to India with a group of people to purchase morphine. While there he encountered appellant, who invited Danko's party to join his own party to go to Benares to buy morphine. Danko ......
-
State v. Farber
......denied, 414 U.S. 864, 94 S.Ct. 39, 38 L.Ed.2d 84 (1973); Diamond v. State, 363 So.2d 109 (Ala.Cr.App.1978); People v. Peck, 38 Cal.App.3d 993, 113 Cal.Rptr. 806 (1974); Kraft v. State, 19 Md.App. 108, 309 A.2d 643 (1973); State v. Gutierrez, 91 N.M. 542, 548-49, ...Johnson, 231 N.Y.S.2d 689, 691 (N.Y.Gen.Sess.1962), aff'd, 19 A.D.2d 946, 245 N.Y.S.2d 311 (1963). The New York statute does not require the officers before ......
-
State v. Gutierrez
......Raboy, 24 Ariz.App. 586, 540 P.2d 712 (1975); Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973); People v. Alfinito, 16 N.Y.2d 181, 264 N.Y.S.2d 243, 211 N.E.2d 644 (1965). Writers on the subject have uniformly pointed to the necessity ...28, 299 P. 230 (1931); Collins v. State, 184 Tenn. 356, 199 S.W.2d 96 (1947); Goodman v. State, 178 Md. 1, 11 A.2d 635 (1940); People v. Johnson, 231 N.Y.S.2d 689 (Misc.1962); People v. Law, 55 Misc.2d 1075, 287 N.Y.S.2d 565 (1968); Hart v. Superior Court, County of San Mateo, 21 Cal.App.3d . ......