People v. Mangialino

• Decision Date: 17 October 1973
• Citation: 348 N.Y.S.2d 327,75 Misc.2d 698
• Parties: The PEOPLE of the State of New York v. Thomas Charles MANGIALINO, Jr., Defendant.
• Court: New York County Court

Page 327

348 N.Y.S.2d 327

75 Misc.2d 698

The PEOPLE of the State of New York v. Thomas Charles MANGIALINO, Jr., Defendant.

Monroe County Court.

Oct. 17, 1973.

[75 Misc.2d 699] Jack B. Lazarus, Monroe County Dist. Atty. (Lewis A. Vallone, Rochester, of counsel), for the People.

Charles F. Crimi, Rochester, for defendant.

DECISION

DAVID O. BOEHM, Judge.

This is an application brought by the defendant for an order suppressing property seized pursuant to Criminal Procedure Law § 710.60(2)(a) or (b) of for a hearing pursuant to § 710.60(4).

The grounds for the motion § 710.60(2)(a) or (b) or for a without probable cause and was improperly executed in (a) authorizing a general search for 'records, mail, correspondence and communications' without a showing of probable cause therefor; (b) authorizing a night-time search without any specified reason therefor; (c) authorizing a 'no-knock' entry absent the recital of facts justifying the same.

In addition, the defendant alleges that the search warrant issued on the basis of a police officer's affidavit incorporating information given to him by an undisclosed informant and by the police officer's independent verification of the informant's information was not sufficient because of the failure to set forth the informant's previous reliability and because the informant's physical and telephone identification of the person from whom he allegedly purchased marijuana was not confirmed or otherwise independently verified.

The defendant disputes the existence of an informant but asks if there is one that he be produced and subjected to examination under oath at a suppression hearing.

The defendant further attacks the warrant and the application therefor because the items to be seized are pre-printed on the search warrant as are a number of paragraphs in the affidavit relating to the items to be searched for and requesting both a day- or night-time search and a no-knock entry.

The affidavit supporting the search warrant states that an undisclosed informant advised police that the defendant was dealing in drugs. The police then checked with the Rochester Telephone Company and obtained the telephone number of defendant's apartment. The telephone company records indicated that an individual named Thomas Mangialino lived at No. 1169 St. Paul Street in Rochester. On February 20, 1973 the police officer who drew the affidavit dialed the number listed for Mangialino and listened in on an extension while the informant spoke with a person identifying himself as 'Tom' who offered to sell drugs to the informant.

Again on February 26, 1973 the same police officer dialed Mangialino's telephone number and listened in on an extension while the informant spoke with the person identifying himself as 'Tom' and the discussion again concerned the sale of drugs by 'Tom'. The same thing happened again on March 5, 1973.

Upon the execution of the search warrant Thomas Mangialino, the defendant, was in fact the occupant of the apartment at No. 1169 St. Paul Street. Found in his premises were marijuana and hashish totalling 6 lb. .66 oz. and three pipes containing marijuana residue in their bowls.

In reviewing the defendant's arguments it is necessary to begin with the fundamental rule that a warrant describing property to be seized in vague or general terms does not meet constitutional requirements. In the words of the U.S. Supreme Court in Marron v. United States:

'The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.' (275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231).

Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431, cited by the defendant, is probably the classical illustration of what happens when a warrant lacking specificity is combined with shotgun police action. There the warrant called for the seizure (pp. 477, 478, 85 S.Ct. p. 508) of 'books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas.' Pursuant to the warrant, the police seized some three hundred books and pamphlets, including (p. 479, 480, 85 S.Ct. p. 509) 'works by such diverse writers as Karl Marx, Jean Paul Sartre, Theodore Draper, Fidel Castro, Earl Browder, Pope John XXIII, and Mr. Justice Hugo L. Black.' Also taken were the defendant's marriage certificate, his insurance policies, and miscellaneous household and personal papers. The Supreme Court, in an extended discussion of the historical background of the Fourth Amendment, held the search unreasonable because of the warrant's defectiveness as a general warrant (see also, Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; People v. Matherson, 16 N.Y.2d 509, 260 N.Y.S.2d 448, 208 N.E.2d 180).

However, absent such a flagrant situation, courts have not required absolute linguistic precision in describing the items to be seized and have approved descriptions such as 'lottery tickets and other paraphernalia', 'letters, tickets, papers, records and books', 'instruments of the crime', 'narcotics consisting of dangerous drugs, heroin and marijuana, together with paraphernalia instrumental in the use of said contraband', 'cooking utensils', and 'blood stained clothes'. (Cook, Requisite Particularity in Search Warrant Authorizations, 38 Tenn.L.Rev. 496, 505--506; see also Searches and Seizures, 68 Am.Jur.2d § 82).

A good analysis of when such broad language may permissibly be used is contained in People v. Schmidt, 172 Colo. 285, 290, 473 P.2d 698, 700:

'If the purpose of the search is to find a specific item of property, it should be so particularly described in the warrant as to preclude the possibility of the officer seizing the wrong property; whereas, on the other hand, if the purpose is to seize not a specific property, but any property of specified character, which by reason of its character is illicit or contraband, a specific particular description of the property is unnecessary and it may be described generally as to its nature or character.'

What is required is a recital of information which will reasonably the conclusion that certain property which may be made the subject of a search under a warrant is located in particular premises. Essentially, the line required to be drawn is that between mere suspicion and probable cause. Where probable cause exists, the balance between necessity and the benefit to society on the one hand and the invasion of the privacy of the home on the other is weighted in favor of the former, and in a doubtful or marginal case, a search under a warrant will be sustained where without one it would be defective (Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684).

In Ventresca, Justice Goldberg discussed the policy reason for this:

'Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts towards warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.' (380 U.S. at 108, 85 S.Ct. at 746); see also Mascolo, Specificity Requirements for Warrants under the Fourth Amendment: Defining the Zone of Privacy, 73 Dickinson L.Rev. 1, 7--8).

As one commentator has observed: 'The warrant ought not to be an obstacle in a game but only a protection against arbitrary and capricious police action.' (Paulsen, Safeguards in the Law of Search and Seizure, 52 Northwestern L.Rev. 65, 66).

Turning to what the proper subjects of seizure are, we find that they fall within several broad categories; (1) fruits of the crime, (2) contraband, (3) instrumentalities of the crime, and (4) evidence.

Books, papers and correspondence have been held to be legally seizable both as instrumentalities of the crime and as evidence (see, People v. Givens, 21 N.Y.2d 929, 289 N.Y.S.2d 761, 237 N.E.2d 80, books and records in loan shark operation; Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231, supra, ledgers and bills for gas, water and power seized in speakeasy; Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668, a spy's code books; People v. Thayer, 63 Cal.2d 635, 47 Cal.Rptr. 780, 408 P.2d 108, cert. den. 384 U.S. 908, 86 S.Ct. 1342, 16 L.Ed.2d 361, records of false billings of welfare cases).

As stated in Gouled v. United States, 255 U.S. 298, 309, 41 S.Ct. 261, 265, 65 L.Ed. 647, which is the case that established the prohibition against the seizure of mere evidence (since over-ruled by Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782):

'There is no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure, if only they fall within the scope of the principles of the cases in which other property may by seized.'

It is evident, then, that even after Gouled and prior to Warden, books, records, papers and correspondence were the proper subject of seizure provided they fell within the classification of instrumentalities of a crime. Essentially, the Pre-Warden test was whether the papers of the accused were seized upon a search solely for use as evidence of the crime which he was then accused or suspected of. If so, the search was regarded as unreasonable and invalid. After Warden, books and papers became seizable for their value as evidence as well.

Two years after Warden, the U.S. Court of Appeals for the Second Circuit, per Judge Friendly, in holding admissible a letter which was evidence of a conspiracy, anticipated the defendant's raising of the Fifth Amendment as an alternate ground for suppressal, as follows:

'We find no...