People v. Kortwright
| Decision Date | 16 October 1962 |
| Parties | The PEOPLE of the State of New York v. Augusto KORTWRIGHT, Defendant. |
| Court | New York Supreme Court |
Frank S. Hogan, Dist. Atty., by Irving Lang, Asst. Dist. Atty., for the People.
Albert J. Krieger, New York City, for defendant.
Motion to suppress certain evidence seized by the police officers on the grounds of an alleged illegal search of the premises in question. Concededly the search of the apartment and the seizure of the contraband was made without a search or arrest warrant.
A hearing on the issues revealed that three officers went to the apartment in question, arriving at about 5:30 P.M. They waited outsaid in the hall for about ten or fifteen minutes. Their purpose in so waiting was to observe and determine the nature of the traffic, if any, entering and exiting from the apartment (they wanted to determine if known addicts were frequenting the premises).
After about fifteen minutes of waiting, the apartment door was opened by the tenant in response to a ring from one of two children.
The officers testified that when the door was opened, one of them, Detective Kuhn, identified himself as a police officer and he asked for permission to search the apartment. The tenant readily consented thereto and stated that they could come in and look around as she had nothing to hide. After a prolonged search, contraband drugs were found concealed in a bureau drawer in a baby's bedroom and another cache of drugs was found hidden on the bottom of certain canisters in a kitchen cabinet. The officers waited in the apartment for some six hours. When the defendant entered the apartment, he was questioned with respect to the drugs. The defendant admitted that the drugs were his, and he was then formally arrested.
The tenant categorically denied the testimony of two Federal and one New York City narcotics officers, stating that when she opened the door for the children, the three officers rushed in--made no declaration of their official status--and commenced their search, ultimately locating the drugs in question. A similar story was told by the child who rang the bell. The tenant did state that the defendant was merely a friend of the family who visited the apartment on occasion and, from her testimony, it must be concluded that he had no possessory status whatsoever in relation to the searched premises.
She further stated that she was completely unaware of the presence of the drugs in the apartment and could not account for their presence therein, and the conclusion is inescapable that she gave no one any permission to conceal any drugs in the premises. The defendant himself did not testify.
The main questions presented for decision are whether consent to the search conducted was validly obtained, and, if so, whether that consent could legally subject the defendant's property to seizure.
The first question, of course, is one of fact which is to be decided by the weight of the evidence [United States v. Dornblut, 261 F.2d 949 (2d Cir., 1958); United States v. Martin, 176 F.Supp. 262 (S.D. N.Y.1959)]. In the case at bar, the evidence as to the voluntariness of consent is in clear conflict, and where that situation arises this court is entitled to inquire into credibility [United States v. Martin, supra; United States v. Ziemer (7th Cir.) 291 F.2d 100; cert. den. 368 U.S. 877, 82 S.Ct. 120, 7 L.Ed.2d 78]. Moreover, in an appraisal of this question, the courts may take into consideration the probability of the defendant's knowledge that contraband would be found as a result of the search [United States v. MacLeod, 207 F.2d 853 (7th Cir., 1953); United States v. Martin, supra; United States v. Dornblut, supra]. In cases where an individual is under the misapprehension that nothing damaging will be discovered by a search, an inference may arise as to voluntary consent [see Honig v. United States, 208 F .2d 916 (8th Cir., 1953); United States v. Dornblut, supra]. Here, the testimony of the occupant of the apartment clearly indicates that she had no knowledge of the presence of narcotics on her premises....
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