People v. Marshall

• Decision Date: 06 June 1963
• Citation: 241 N.Y.S.2d 417,191 N.E.2d 798,13 N.Y.2d 28
• Parties: , 191 N.E.2d 798 The PEOPLE of the State of New York, Respondent, v. Joseph MARSHALL, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 417

241 N.Y.S.2d 417

13 N.Y.2d 28, 191 N.E.2d 798

The PEOPLE of the State of New York, Respondent, v. Joseph MARSHALL, Appellant.

Court of Appeals of New York.

June 6, 1963.

Andrew R. Tyler, New York City, for appellant.

Frank S. Hogan, Dist. Atty. (Richard R. Lutz and H. Richard Uviller, New York City, of counsel), for respondent.

DESMOND, Chief Judge.

On this appeal there are presented questions, quite new to our court, as to the requirements of form for the sworn statements on which a search warrant may be issued, as to the quantum of proof necessary for a showing of 'probable cause' for such a warrant under the State and Federal Constitutions and title II of part VI of the Code of Criminal Procedure, and as to the area limits of premises permitted to be searched. Defendant-appellant argues two other points: as to the sufficiency of the information or pleading on which he was tried and as to the fairness of his trial. Those latter issues will be discussed at the end of this opinion.

Defendant was convicted before a New York City Magistrate of violations of sections 974 and 975 of the Penal Law, Consol.Laws, c. 40 (keeping a place for operating a policy game and possessing policy records) and ordered fined and imprisoned. He does not question the adequacy for establishment of guilt of the evidence produced against him at trial but rather attacks the form, the method of issuance and the sufficiency of the grounds for issuance of the search warrant under which the evidence was seized, and the seizure itself.

On the afternoon of October 17, 1961 several police officers went to a rear room of defendant Marshall's Seventh Avenue (Manhattan) restaurant, showed defendant a search warrant and, searching defendant's person, found on him slips of paper containing notations testified to as representing policy bets and records of amounts owed by a policy 'controller' to his collectors. Defendant was then arrested. In a metal cabinet in a rear room of the restaurant other such slips were discovered. Defendant was taken to a police station but then returned to the restaurant. A basement storeroom was next opened by an officer with a key obtained from defendant's wife. In the storeroom there was a pail containing a number of other pieces of paper, similarly marked and similarly identified by an expert as betting records. Defendant took the witness stand and admitted his ownership of the restaurant but denied that any of the papers turned up by the search had anything to do with gambling.

Before the trial defendant moved to invalidate the search warrant and the resulting search, which motion was denied after a hearing. He renewed on the trial and renews on this appeal his objections to the warrant and to the way in which it was used.

Taking up defendant's arguments in inverse order, we deal first with his assertion that the officers searched a larger area of the building than the warrant described. The warrant recites that there is probable cause for believing that there is located on the persons of defendant and his wife and son 'in the rear room of premises 2207 Seventh Avenue, and on the premises 2207 Seventh Avenue' in Manhattan and known as Marshall's Restaurant, books and papers used in playing policy and that said property is concealed on those persons 'and on the premises 2207 Seventh Avenue', etc. The command of the warrant, addressed to 'Any Peace Officer in the County of New York', is that such officer 'make an immediate search' of defendant and his wife and son and all persons in said rear room 'and on the premises' for any and all books and papers used in policy playing. Defendant would read this document as excluding the basement from the area to be searched and as limiting the search to the 'rear room' at 2207 Seventh Avenue. The three-times used word 'premises' is more reasonably construed as meaning the whole area, including the basement storeroom used by defendant in his restaurant business. Of course, the evidence as to the basement search and its results was cumulative, anyhow.

Next, we inquire as to whether before issuance of the warrant 'probable cause' was shown to the issuing Magistrate as required by the Fourth Amendment and by section 793 of the New York Code of Criminal Procedure. On the day before the search two New York City police officers came to the Magistrate with their affidavits which the Magistrate examined and as to the truth of which the officers made oath before the Magistrate who then signed the jurats. Besides his objections (hereinafter discussed) to this method of taking the proofs, defendant argues insufficiency of the affidavits as statements of 'probable cause' for a search. The affidavit of Detective Hodun said that 18 days earlier a 'confidential informant' had told Hodun that the rear room of defendant's restaurant at 2207 Seventh Avenue was a 'Policy Bank', that defendant was the 'Banker', that defendant's wife and son were 'comptrollers' of the policy operation, that male and female 'collectors 'took bets at two other described places in New York City and turned in the bets and money collected to defendant or his wife or son in defendant's restaurant, that 'Comptroller's Ribbons' were kept in a cabinet in the rear room of the restaurant and that the informer said that he had or numerous occasions placed policy bets with the 'collectors' at the three places described.

The other affidavit was made by Patrolman Coy who swore that between September 29 and October 16 he had defendant's restaurant under observation during various daytime hours, that he had many times seen four persons believed by him to be policy collectors orally accept policy plays from unknown persons who handed money to the collectors who made notations on papers and then entered defendant's restaurant carrying the slips of paper, went into the rear room of defendant's restaurant, conversed with defendant in that room and then left without the slips of paper, that defendant's wife was there in some instances and that another person believed to be defendant's son sometimes took the money and slips from the alleged collectors. Coy's affidavit contained allegations that he had verified the identity of defendant and could recognize defendant and his wife and the person believed to be defendant's son. The patrolman's affidavit concluded with his statement that, based on the information thus presented, there was reason to believe that gambling papers and apparatus were concealed in the rear room of the restaurant and on the persons of defendant, and his wife and the other man, that defendant was a policy banker assisted by his wife and son and that his restaurant was being used as a clearing house for policy operations.

The two affidavits established probable cause. Although the informer's name was withheld, his information was tested by independent observations (see People v. Coffey, 12 N.Y.2d 443, 240 N.Y.S.2d 721, 191 N.E.2d 263, decided May 9, 1963; Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 83 L.Ed. 151; Miller v. United States, 5 Cir., 273 F.2d 279, cert. den. 362 U.S. 928, 80 S.Ct. 756, 4 L.Ed.2d 747). What Officer Coy saw and swore to was not enough for an arrest without a warrant (People v. Moore, 11 N.Y.2d 271, 228 N.Y.S.2d 822, 183 N.E.2d 225) especially since all this occurred before the 1963 amendment to section 177 of the Code of Criminal Procedure. But what had to be exhibited here was no more than probable cause for a search, that is, 'reasonable ground for belief' (Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879; Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697; United States v. Heitner, 2 Cir., 149 F.2d 105, 106). As to search generally the Supreme Court has said: 'It is enough if the apparent facts which have come to his (the officer's) attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched' (Husty v. United States, 282 U.S. 694, 701, 51 S.Ct. 240, 242, 75 L.Ed. 629). Probable cause exists when there is reasonable ground of suspicion supported by facts and circumstances strong enough in themselves to warrant a cautious man in the belief that the law is being violated on the premises to be searched (Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Dumbra v. United States, 268 U.S. 435, 45 S.Ct. 546, 69 L.Ed. 1032; Aderhold v. United States, 5 Cir., 132 F.2d 858). It is not a matter for technical rules or tight and exact definition. The question always is: what in the common judgment of reasonable men would be regarded as good, sound cause, remembering that we seek only probable, not absolute cause? Only the 'unreasonable' searches and the warrants signed without 'probable cause' are forbidden by the Fourth Amendment. 'We are concerned only with the question whether the affiant had reasonable...