People v. Marahan

• Decision Date: 15 April 1975
• Citation: 81 Misc.2d 637,368 N.Y.S.2d 685
• Parties: PEOPLE of the State of New York, Plaintiff v. Henry MARAHAN and Henry Charles Marahan, Defendants.
• Court: New York Supreme Court

Page 685

368 N.Y.S.2d 685

81 Misc.2d 637

PEOPLE of the State of New York, Plaintiff v. Henry MARAHAN and Henry Charles Marahan, Defendants.

Supreme Court, Criminal Term, Kings County.

April 15, 1975.

Eugene Gold, Dist. Atty., Kings County (Daniel J. Penofsky, Brooklyn, of counsel), for the People.

Greenfield & Baker, New York City, for defendants.

Townley, Updike, Carter & Rodgers, New York City (Richard J. Barnes, New York City, of counsel), for petitioner on motion to quash.

MEMORANDUM

M. MICHAEL POTOKER, Justice.

At the suppression hearing in this case Thomas Raftery, a reporter for the Daily News, moved pursuant to CPLR 2304 to quash a subpoena and a subpoena duces tecum served on him to testify to any conversations he held with the arresting officers and to produce any notes or memos that he made at the time of his coverage of the story reporting the arrest of the two defendants and the seizure of weapons.

Petitioner's resistance is bottomed on the ground that any order compelling him to respond to said subpoenas would be in direct contravention of his constitutional and statutory rights under the First Amendment of the United States Constitution, Article 1, Section 8 of the New York State Constitution (freedom of press), and Section 79--h of the Civil Rights Law of the State of New York (newsman's privilege).

A witness may challenge a subpoena because it infringes upon any right guaranteed to him by law (see, e.g., Matter of City Council of New York v. Goldwater, 284 N.Y. 296, 31 N.E.2d 31 (1940); Dunham v. Ottinger, 243 N.Y. 423, 154 N.E. 298 (1926), app. dismd., 276 U.S. 592, 48 S.Ct. 212, 72 L.Ed. 721 (1928); Matter of Hirshfield v. Hanley, 228 N.Y. 346, 349, 127 N.E. 252, 252--253 (1920)).

The claim of a constitutional or statutory privilege is one of many grounds for moving to quash subpoenas and subpoenas duces tecum prior to appearances or to production of the records demanded. In such cases the burden rests upon the petitioner to demonstrate that the material is privileged (see Matter of Cepeda, D.C., 233 F.Supp. 465).

Courts have disposed of obvious cases on motions to quash (Matter of Hooper-Holmes Bureau, Inc., 173 Misc. 735, 19 N.Y.S.2d 456).

The defendants herein were arrested pursuant to the execution of a search warrant on April 24, 1974. According to the testimony adduced at the suppression hearing thus far, two detectives signed an 'Affidavit for Search Warrant' earlier that day. The affidavit asserted, and the detectives so testified, that information establishing probable cause to believe that weapons were seen at the defendants' home came from a confidential informant, whom they had known previously and considered reliable as evidenced by arrests and convictions based upon information he furnished to them, who had observed the weapons in defendants' home between April 18 and April 24.

On April 26, 1974, a news article appeared in the New York Daily News under the by-line of Thomas Raftery reporting that the defendants were arrested and charged with possession of weapons. The article also contained the following information:

'Cops said that as a result of an anonymous phone tip Monday, they put the house under surveillance for two days before three detectives raided it at 10:30 last night.'

Defendants seek to controvert the search warrant and to suppress the evidence seized on the grounds, Inter alia, that the affidavit in support of the search warrant was based on perjured and erroneous statements. Since the police officers concede that they made no personal observations of defendants' home prior to the execution of the search warrant, the major premise upon which the affidavit is founded is on their assertion that they received information from a 'reliable confidential informant' to the effect that 'on or about April 18, 1974 in the AM said informant was present at 183 15th St. Brooklyn, NY in the County of Kings, which is a dwelling belonging to one, HENRY MARAHAN, male white, 50 years of age and did observe the same in possession of numerous heavy artillery weapons, i.e. tank guns, howitzers, mortars and mines. Weapons were also on the floor of said dwelling.'

The information sought by defendants from reporter Raftery is twofold: First, defendants seek to have him reveal the name of the person referred to in the article who gave him the information which led to his reporting that 'Cops said that as a result of an anonymous phone tip Monday, they put the house under surveillance for two days before three detectives raided it at 10:30 last night.' Defendants argue that if Mr. Raftery were to identify that person as either of the two affiant police officers, their previous testimony concerning their obtaining information from a reliable confidential informant would be impeached in a significant manner. Secondly, they contend that even if Mr. Raftery cannot attribute that information to a particular police officer, the testimony of codefendant Henry Charles Marahan, Sr. that he overheard Detective Hantz calling various news agencies and announcing, 'I just got the news,' would again serve to impeach them in view of Detective Hantz' denial on the witness stand that he reported the seizure story to the Daily News by phone.

Further illuminating defendants' objective in this proceeding is defense counsel's statement (Transcript, p. 26). Specifically, counsel stated as follows:

'But, even, Your Honor, what I am trying to say, that even if Your Honor were to quash the subpoena, or essentially say the newsman does have that privilege, we would still want to have him testify as to the fact that he wrote the article and that what is contained in that article was the truth as it was given to him, that he didn't make up any statements in that article. . . .'

Freedom of Press

The right of a free and unfettered press is not of recent vintage. In 1735, John Peter Zenger, a journalist and publisher, was tried for seditious libel after his paper had attacked Governor William Cosby. He was brilliantly defended by Andrew Hamilton, who offered the relatively new defense that Zenger had told the truth and that truth was a defense against libel.

The jury, swayed by Hamilton's declaration that the cause of English liberty was at stake, acquitted 'the morning star of liberty,' as Governeur Morris later called Zenger. Although the Zenger case did not immediately establish freedom of the press, its outcome was of great importance. In the near future liberty of discussion did become an issue and one which prompted James Madison later to propose the First Amendment to the Constitution of the United States forbidding Congress to pass any law abridging the freedom of speech, or of the press (enacted by Congress September 25, 1789 and ratified by three-fourths of the states December 15, 1791).

The Sedition Act of 1798, among other things, made it a misdemeanor punishable by fine or imprisonment to speak or write against President or Congress 'with the intent to defame' or to bring them 'into contempt of disrepute.' Federalist lawyers of the day attempted to extract all meaning from the First Amendment by assuming that freedom of press meant freedom merely from censorship, or by asserting that it was not meant to apply in time of war.

Thomas Jefferson's classic statement still rings in the halls of freedom everywhere. 'The basis of our government being the opinion of the people, the very first object should be to keep the right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate to prefer the latter.'

James Madison continued to champion the cause of freedom of speech and press even after his official retirement from public office:

'A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance. And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.' (To W. T. Barry, Aug. 4, 1822, 9 Writings of James Madison 103 (G. Hunt ed. 1910))

The right to publish without prior governmental approval has long since been recognized (Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822; a right to distribute information, see e.g. Lovell v. Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949; Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; and a right to receive printed matter, Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398).

The right to disseminate news in the printed columns of a news organ is necessarily meaningless without the same guarantee extended to the gathering and collection of the news. As Justice Stewart stated in his dissenting opinion in Branzburg v. Hayes (408 U.S. 665, at p. 728, 92 S.Ct. 2646, at p. 2673, 33 L.Ed.2d 626 (1972)): 'News must not be unnecessarily cut off at its source, for without freedom to acquire information the right to publish would be impermissibly compromised. Accordingly, a right to gather news, of some dimensions, must exist.' (See also, Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179.)

In the same opinion Justice Stewart continued:

'The right to gather news implies, in turn, a right to a confidential relationship between a reporter and his source. This proposition follows as a matter of simple logic once three factual predicates are recognized: (1) newsmen require informants to gather news; (2) confidentiality--the promise or understanding that names or certain aspects of communications will be kept off the record--is essential to the creation and maintenance of a news-gathering relationship with informants; and (3) an unbridled subpoena power--the absence of a constitutional right...