People v. Loria

• Decision Date: 30 November 1961
• Citation: 179 N.E.2d 478,10 N.Y.2d 368,223 N.Y.S.2d 462
• Parties: , 179 N.E.2d 478 The PEOPLE of the State of New York, Respondent, v. Anthony LORIA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 462

223 N.Y.S.2d 462

10 N.Y.2d 368, 179 N.E.2d 478

The PEOPLE of the State of New York, Respondent, v. Anthony LORIA, Appellant.

Court of Appeals of New York.

Nov. 30, 1961.

Herbert S. Siegal, New York City, for appellant.

Isidore Dollinger, Dist. Atty., New York City (Walter E. Dillon, New York City, of counsel), for respondent.

FROESSEL, Judge.

In January, 1961 defendant was convicted of violations of the narcotics laws (unlawful possession of, and with intent to sell, heroin; Penal Law, Consol.Laws, c. 40, § 1751, subds. 2, 3, felonies; and Public Health Law, Consol.Laws, c. 45, § 3305, a misdemeanor). On June 13, 1961 his conviction was unanimously affirmed by the Appellate Division.

We have examined the several contentions urged upon us by defendant, and, were it not for the subsequent decision of the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, rendered June 19, 1961, we would likewise affirm on the authority of such cases as Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; People v. Richter's Jewelers, 291 N.Y. 161, 51 N.E.2d 690, 150 A.L.R. 560; People v. Defore, 242 N.Y. 13, 150 N.E. 585, cert. den. 270 U.S. 657, 46 S.Ct. 353, 70 L.Ed. 784; People v. Adams, 176 N.Y. 351, 68 N.E. 636, 63 L.R.A. 406, affd. 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575. In Mapp, however, the Supreme Court overruled its former holdings, such as Wolf v. People of State of Colorado (supra), and announced a new rule, deciding for the first time that evidence obtained by search and seizure in violation of the Fourth Amendment, made applicable to the States through the due process clause of the Fourteenth, is inadmissible in a State court.

There can be no doubt that it is the duty of State courts to follow the Mapp holding in all trials taking place after June 19, 1961. However, whether we are commanded to, and if not whether we should, apply it in pending appeals (see Griffin v. People of State of Illinois, 351 U.S. 12, 26, 76 S.Ct. 585, 100 L.Ed. 891; Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 363-366, 53 S.Ct. 145, 77 L.Ed. 360; Warring v. Colpoys, 74 App.D.C. 303, 122 F.2d 642, 136 A.L.R. 1025, cert. den. 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543; 70 Harv. L.Rev. 83, 129), where, as here, the trial was completed and an intermediate appellate court has affirmed before Mapp was decided, is a threshhold question in this case. To do so would likely result in the reversal of many convictions in pending cases, although the trials were free from error and conducted according to the law of this State and the interpretation of the Constitution by the Supreme Court of the United States as of the time of the trials.

While it is the general rule that we give effect to the law as it exists at the time of our decision (Knapp v. Fasbender, 1 N.Y.2d 212, 243, 151 N.Y.S.2d 668, 692, 134 N.E.2d 482, 499; Matter of Tartaglia v. McLaughlin, 297 N.Y. 419, 79 N.E.2d 809; Quaker Oats Co. v. City of New York, 295 N.Y. 527, 536, 68 N.E.2d 593, 596; see, also, Vandenbark v. Owens-Illinois Co., 311 U.S. 538, 542-543, 61 S.Ct. 347, 85 L.Ed. 327), some of the members of this court have felt that we are not required to, and hould not, do so in the instant case particularly because of the language employed by the Supreme Court in Mapp at pages 654-656, 658 of 367 U.S., 81 S.Ct. 1684. The majority, however, are of the opinion that we should adhere to the general rule, and review defendant's conviction in light of the law as it presently exists.

Holding, then, as we do, that the Mapp rule is to be applied in our review of pending appeals from pre-Mapp convictions, we turn now to the question of whether on this record the narcotics introduced at defendant's trial were obtained as the result of an illegal search and seizure.

The evidence shows that at about 10:30 P.M. on June 24, 1959 New York City Detectives Brennan and Short together with two Federal narcotics agents approached defendant in front of a two-story dwelling in the Bronx, the first-floor apartment of which they knew to be the home of Alfred Perillo, defendant's brother-in-law. Defendant was in the process of adjusting the top of his convertible automobile, and his sister, Perillo's wife, was inside the car helping him. Brennan identified himself and said he would like to speak to defendant inside the house. Defendant suggested they go somewhere else, but Brennan said he preferred to talk in the apartment. At this time defendant was not searched, no narcotics were observed in his possesion, and he was not arrested. The officers had no search warrant and apparently no arrest warrant for defendant or Perillo.

The detectives and agents, accompanied by defendant and his sister, entered the hallway outside the first-floor apartment. Someone knocked on the glass door entrance; in response, two slats of the venetian blind covering the inside of the door were parted and two eyes of a then unknown person peered through. The slats were promptly closed, and the officers heard footsteps retreating rapidly within the house, at which time Brennan ran around the house into the back yard. Detective Short told defendant to open the door or he would 'kick it down'.

Defendant stated he did not have a key, whereupon his sister unlocked the door. Short entered the apartment first, and ran to the rear room, where he observed Perillo pick up a green leather vanity case and drop it out a window. Thereupon, Perillo suffered a heart attack. Brennan caught the case and returned with it to the apartment. Out of defendant's sight, he examined its contents, which were later disclosed to be more than three pounds of white powder containing heroin. Brennan closed the case, took defendant to a side bedroom, and asked him if he had seen it before. Defendant said the case belonged to him, and substantially described its contents. He stated he bought the heroin for $5,500, intending to sell it for $350 or $450 an ounce; that he gave Perillo money each month (or paid his rent) to keep the heroin in the apartment. Defendant was arrested, and later, at his own home and at a police station, he repeated his admission of ownership of the narcotics. At trial, over objection, the narcotics were received in evidence. Perillo, named a codefendant, died before trial.

The Fourth Amendment of the Constitution of the United States provides: '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.' It protects against 'unreasonable governmental intrusion' into the privacy of a person's home (Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734; Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 2 L.Ed.2d 1514), and any evidence discovered as a result of such an intrusion is now constitutionally tained and inadmissible in a State court (Mapp v. Ohio, supra). It has been held that it matters not that the evidence was in open view and disclosed by the officers' mere observation (Accarino v. United States, 85 U.S.App.D.C. 394, 179 F.2d 456); that it came to the officers' attention as the result of the defendant's abortive attempt to secrete or dispose of it (Hobson v. United States, 8 Cir., 226 F.2d 890; Work v. United States, 100 U.S.App.D.C. 237, 243 F.2d 660); or that it was turned up after a more conventional search of defendant's premises (Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59; Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; cf. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898).

In the instant case, Detective Short, while in Perillo's apartment, observed the latter pick up the case containing the heroin from the bedroom floor and drop it out of the window. Unless the officer's presence in the apartment can be justified, it constituted an unlawful intrusion into the home, and the evidence thereby discovered would be inadmissible.

The Fourth Amendment, as noted, condemns only those searches and seizures which are unreasonable (Harris v. United States, 331 U.S. 145, 150, 67 S.Ct. 1098, 91 L.Ed. 1399). A search is reasonable if conducted pursuant to a legal search warrant, by consent, or incident to a lawful arrest. In the present case, the search was not made under a search warrant. Nor was there on this record a consent search....