People v. McErlean

• Decision Date: 31 October 1962
• Citation: 235 N.Y.S.2d 657,38 Misc.2d 634
• Parties: The PEOPLE of the State of New York v. James McERLEAN, Gerhard M. Callahan, Jr., Salvatore Collucci.
• Court: New York City Court

Page 657

235 N.Y.S.2d 657

38 Misc.2d 634

The PEOPLE of the State of New York v. James McERLEAN, Gerhard M. Callahan, Jr., Salvatore Collucci.

City Criminal Court, Queens County, Part 2B.

Oct. 31, 1962.

Frank D. O'Connor, Dist. Atty., County of Queens (Vincent Naro, Asst. Dist. Atty., of counsel), Robert Sparrow, New York City, for James McErlean.

Martin L. Baron, New York City, for defendant, Gerhard M. Callahan, Jr.

John J. Murray, New York City, for defendant, Salvatore Collucci.

Before CREEL, P. J., and GRAY, and POTTER, JJ.

JAMES RANDALL CREEL, Presiding Judge.

Informations charging James McErlean and Gerhard M. Callahan, Jr., with violations of the Narcotics law (3305 of the Public Health Law and Sections 1751-a and 1747-d of the Penal Law) and Gerhard M. Callahan, Jr., and Salvatore Collucci with unlawful entry of a building (Section 405 of the Penal Law), where by stipulation tried together. Also by stipulation, and to expedite the trial of these long pending informations, it was agreed that during the trial, the Court would hear defendants' motions to suppress evidence allegedly obtained by an illegal search and seizure. At the conclusion of the trial decisions were reservd on motions to suppress and to dismiss, and briefs were requested.

The arguments of defense counsel in support of these motions bring into sharp question the propriety of certain patrol and pre-arrest crime prevention practices of the New York City Police Department, it being strongly urged that such practices herein violated basic constitutionally protected civil rights of these defendants. (Fourth Amendment to the Constitution of the United States, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081). It is the contention of the defense that the Fourth Amendment is such an absolute protection of defendant's rights as to render 'poison' and inadmissible all evidence secured by police officers herein, during their performance of patrol and crime prevention duties.

The following facts were developed upon the hearing and the trial: On the evening of March 7, 1962, acting upon a report, relayed to the police officers on radio patrol, that a burglary might be in progress at a pet supply shop at 43-01 Queens Boulevard, uniformed patrolman Crist and Youth Squad plainclothesman Barry immediately proceeded to these premises. They observed that the lights were turned on in the back of pet supply store, where the patrolman knew lights were not usually kept burning at night. They looked through the window but clear view of the rear of this store was obstructed by a partition of shelves. The door was locked and they knocked upon the door, having first stationed other police officers at the rear doors and windows. They observed from behind the partition of the rear of the store, the head of the defendant Callahan, a young man of 20 years of age, protrude from behind the partition, looking in their direction, and then withdrawn . They continued knocking and the defendant Callahan and another young man O'Donnell, whose case has been disposed of heretofore, came to the door and opened it. The patrolman entered and proceeded to the rear of the store, during which time they observed the defendant McErlean climb up the shelved partition and place something on the top thereof. At the back of the store, behind the partition, they found four more youths, including the defendants McErlean and Collucci. In response to the question as to what the said youths were doing in the pet shop at this hour of the night, the defendants each stated that they were playing a game of cards. No card tables or chairs were present. The physical condition of O'Donnell attracted the particular attention of the patrolmen and caused them to question him as to his recent use of narcotics. O'Donnell's arm was examined and a blood spot and other physical observation gave indication of a very recent hypodermic injection of heroin. The shelves which defendant McErlean had been observed to climb were examined and on the top thereof were found a hypodermic needle, eyedropper syringe, a spoon and a bottle cap equipment, that which is referred to by users as a 'set of works'. The arms of each of the defendants were then examined and those of the defendants McErlean and Callahan gave indication of very recent hypodermic injections, but the arms of the defendant Collucci were unmarked. The immediate area was searched and behind a box where each of those defendants had been standing, they found a number of glassine envelopes, some containing a powder now known to be heroin, and some empty envelopes. Each of the defendants, when first observed, was standing within a distance of seven feet from the places when the works and the glassine envelopes were found. The defendants McErlean and Callahan were arrested for narcotic charges, and the defendant Collucci was arrested for unlawful entry. Later that night in the station house, admissions were made by the defendants McErlean and Callahan as to the purchase of the glassine bags of heroin and as to their use of hypodermic shots administered in the pet supply store immediately prior to the arrival of the patrolmen. The defendant Collucci made no admissions but the uncontroverted testimony established that this defendant had entered and been present upon the premises for a period of approximately fifteen minutes while shots of narcotics were taken by others.

The defendant Collucci and all the other youths had been admitted to the pet shop by O'Donnell, an employee of the shop, who had been in possession with a key thereto, but who had exceeded his authority and acted contrary to instructions in unlocking the door and in permitting it to be used by the defendants. These latter facts, as well as that no permission for the entry or use of these premises had been given to anyone were established by the uncontroverted testimony of the proprietor owner of the pet supply shop.

It may properly be judicially noted by this bench, which is close to the problems of the people, that the facts of this case took place in a county of the City of New York, which until recent years had been almost entirely free of narcotic traffic, and in which there is presently being waged a particular intense battle of wits between the so-called pushers and the police relating to the efforts to the former to introduce narcotic addiction among the youth of Queens County.

At the very outset, attention must be given to the contention of defense counsel herein that the Fourth Amendment to the Federal Constitution was enacted to curb the crime prevention and investigation practices of police departments. This is a contention which is ever increasingly being urged by the criminal bar generally . Historically, this contention is untrue and entirely incorrect. The Fourth Amendment was enacted in 1791; Police Departments, as we know them, did not come into existence until a much later date. New York City's police were first established in 1844; San Francisco's in 1850; Chicago's in 1851; Boston's and Philadelphia's in 1854. The first Police Department was that of London, England, created in 1828 (Fosdick, American Police Systems, 1920, Century Company, N. Y.).

Police Departments were created and have developed in metropolitan areas to meet a need of the citizenry for protection of not only life and property, but of the peace of the community and the social order. Police practices, procedures and systems have evolved over the years to more adequately meet the needs of the communities they serve.

Among these is the crime prevention activities of the police. The citizenry of such areas relies upon this police activity and regards it as a right of citizenship in such areas. There is as much need for crime preventive police activity in metropolitan areas as there is for fire prevention activity of Fire Departments, or for preventive medicine by Health Departments and the medical profession.

These crime preventive activities of metropolitan police have become formulated and established in the Rules and Regulations of Police Departments. For example, the Rules and Procedures of the Police Department of the City of New York in the chapter on patrol, required the police officers in this case, Crist and Barry, 'to note where lights are ordinarily left burning at night and where not'; (Rule 46.0h) 'at night frequently examine all doors on his post'; (Rule 46.0j) 'investigate all suspicious circumstances, persons loitering about or acting suspiciously', (Rule 46.0k) 'when circumstances warrant, a member of the force on patrol may stop any person for the purpose of identification and to satisfy himself that such person is on legitimate business', (Rule 47.0).

These are but characteristic of the pre-arrest crime prevention practices of the Metropolitan Police. And it is such pre-arrest crime prevention practices by police, which defense counsel herein insist are arbitrary infringements of absolute and constitutionally protected rights of the Fourth Amendment.

This contention that the Fourth Amendment is an absolute curb upon evidence obtained by police patrol and crime prevention activity is ever increasingly heard from the criminal bar, and even from the defense attorneys of the public spirited Legal Aid Society and from some of my brethren upon this bench.

Should the Fourth Amendment be interpreted and applied in such absolute and all exclusory a manner?

That which the Fourth Amendment condemns are the 'unreasonable searches and seizures'. Are all police crime prevention activities and practices constitutionally unreasonable as defense contends because they subject a prospective defendant to pre-arrest police inquiries as to identity and reasons for unusual presence at certain places at certain times? The defense counsel contend that the police activities of patrolmen Crist and Barry in this case are not only constitutionally unreasonable, but that they are so ...