People v. Niemczycki

• Decision Date: 16 April 1979
• Citation: 415 N.Y.S.2d 258,67 A.D.2d 442
• Parties: The PEOPLE, etc., Appellant, v. John Peter NIEMCZYCKI, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 258

415 N.Y.S.2d 258

67 A.D.2d 442

The PEOPLE, etc., Appellant, v. John Peter NIEMCZYCKI, Respondent.

Supreme Court, Appellate Division, Second Department.

April 16, 1979.

Patrick Henry, Dist. Atty., Riverhead (Daniel J. Murphy, Riverhead, of counsel), for appellant.

Shlimbaum, Gordon & Samuels, Islip (Howard J. Samuels, Islip, of counsel), for respondent.

Before MOLLEN, P. J., and SUOZZI, RABIN and MARTUSCELLO, JJ.

MARTUSCELLO, Justice.

The People appeal from an order of the County Court, Suffolk County, which, after a hearing, granted the defendant's motion to suppress certain physical evidence seized upon the execution of a search warrant, including eight bags of plant material. The order should be modified, by deleting so much thereof as suppressed the eight bags of plant material and substituting therefor a provision denying the motion as to said evidence. As so modified, the order should be affirmed.

Armed with an affidavit signed by a named informant who had been arrested on burglary charges, the police applied to a District Court Judge for a warrant to search the defendant's home. The informant alleged in his affidavit that he had seen 12 bags of marijuana in the defendant's home the day before and that the defendant was known to the informant to be a dealer in marijuana. The affidavit described the bags, their location, the premises and the occupants of the premises in great detail.

Based primarily upon the informant's signed affidavit, the District Court issued a warrant authorizing the search for, and the seizure of, "(t)welve large plastic bags containing marijuana And any other contraband which is unlawfully possessed " (emphasis supplied).

The detailed affidavit of the informant, whose identity and whereabouts were given to the issuing magistrate, was a sufficient basis for a finding of probable cause and for a warrant to issue authorizing the executing officers to search for 12 bags of marijuana and to seize them (see People v. Hicks, 38 N.Y.2d 90, 378 N.Y.S.2d 660, 341 N.E.2d 227).

The defendant's only meritorious argument is that by adding the gratuitous phrase, "And any other contraband which is unlawfully possessed" to the warrant, the District Court Judge turned it into a general warrant which violated the constitutional requirement that a warrant describe the things to be seized with particularity (see U.S.Const., 4th Amdt.).

We agree with the County Court that the disputed phrase made the warrant too broad. While an officer conducting a proper search is free to seize any contraband he finds while looking for the items particularly described (see, generally, Coolidge v. New Hampshire, 403 U.S. 443, 469, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh. den. 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120; People v. Moss, 34 A.D.2d 986, 312 N.Y.S.2d 417), this warrant authorized the officer to search for any contraband on the premises and not merely to seize contraband found in the course of his search for the marijuana. Taken literally, the warrant would authorize the search for, and the seizure of, anything from illegal gambling equipment to machine guns on the strength of an affidavit showing only probable cause to believe that marijuana could be found on the premises.

This court has long expressed its intolerance of general search warrants (see, e. g., People v. Yusko, 45 A.D.2d 1043, 358 N.Y.S.2d 176). The only question is whether the admittedly overbroad...