People v. Nieves

• Decision Date: 26 March 1975
• Citation: 369 N.Y.S.2d 50,330 N.E.2d 26,36 N.Y.2d 396
• Parties: , 330 N.E.2d 26 The PEOPLE of the State of New York, Respondent, v. Jesus NIEVES, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 50

369 N.Y.S.2d 50

36 N.Y.2d 396, 330 N.E.2d 26

The PEOPLE of the State of New York, Respondent, v. Jesus NIEVES, Appellant.

Court of Appeals of New York.

March 26, 1975.

Edwin Ira Schulman, Brooklyn, for appellant.

Henry G. Wenzel, III, Dist. Atty. (Ronald E. Lipetz, Hauppauge, of counsel), for respondent.

FUCHSBERG, Judge.

Defendant was convicted, on his guilty plea, of the crime of attempted possession of gambling records (Penal Law, Consol.Laws, c. 40, §§ 110.00, 225.15) in satisfaction of charges of promoting gambling, second degree (Penal Law, § 225.05) and possession of gambling records (Penal Law, § 225.15). He was charged and convicted on the basis of evidence seized from his person pursuant to a search warrant authorizing the search of certain premises, a named individual not the defendant, and 'any other persons occupying said premises'. Defendant was one of two such 'other persons' on the premises. Prior to his plea, he had moved to suppress the evidence so seized on the ground that the search warrant did not meet the particularity requirements of the Fourth Amendment and was in fact an impermissible general warrant. The motion was denied. The Appellate Term affirmed the conviction and defendant appeals. For reasons which follow, we conclude that defendant's conviction must be set aside.

The essential facts are not in dispute. On December 14, 1972, a Detective John Smith, a 16-year veteran of the Suffolk County Police Department, obtained a search warrant commandi 'any peace officer in the County of Suffolk' to make a daytime search of the 'El Parador Restaurant & Cocktail Lounge located at 1647 Fifth Avenue, North Bayshore, New York * * * occupied by Elizar Vidal and of the person of Elizar Vidal and any other persons occupying said premises (,) and of any other person who may be found to have such property in his possession or under his control or to whom such property may have been delivered, for the following property: what are commonly known as policy slips and certain writing representing and being runners records, collectors records and tally sheets and money connected thereto in violation of Section 225.05, Section 225.10 (promoting gambling, second and first degrees, respectively), Section 225.15, subd. 2 and Section 225.20, subd. 2 (possession of gambling records, of a kind commonly used in a lottery or policy scheme or enterprise, second and first degrees, respectively) of the New York State Penal Law'.

The warrant was issued based upon Detective Smith's sworn warrant application in which he stated that he had made over two hundred arrests in the illegal gambling area of policy and that the application was based upon his personal knowledge and investigation and upon information supplied by an undisclosed informant whose previously furnished information had led to arrests and convictions in the gambling field.

The detective further stated that on December 7, 1972 between the hours of 5:30 and 6:30 P.M., while stationed in a parked undercover police van, he observed Vidal, 'a known and convicted policy operator', on the sidewalk in front of the El Parador Restaurant & Cocktail Lounge (hereinafter El Parador). He went on to say that during this time, 'I observed Puerto Rican male subjects go up to ELIZAR VIDAL, hold a short conversation and then pass papers and monies to him. This transaction was repeated with each of the four subjects that I observed talking with ELIZAR VIDAL. Each subject left the area after giving slips of paper and monies to ELIZAR VIDAL, who, after each transaction would enter the El Parador Restaurant & Cocktail Lounge via the front door, staying inside a short time and then returning to the outside of the restaurant. One of the subjects is a known and convicted policy runner (naming a person not the defendant) * * * At approximately 6:20 P.M., the aforementioned informant walked into view, stopping directly in front of the van in my line of vision. I watched as he took a piece of paper from his pants pock and opened it. On the paper in question was policy plays or wagers for three number policy. After consulting the paper for a short time informant then went up to ELIZAR VIDAL and handed it, along with the money to ELIZAR VIDAL. After a short conversation the informant left the area. As before, after the transaction, ELIZAR VIDAL went inside the El Parador Restaurant & Cocktail Lounge. At this point I left the area.'

He concluded, '(b)ased on the above stated facts and my experience in the illegal gambling field, it is my opinion that ELIZAR VIDAL is conducting a policy operation at the above stated location and is using the El Parador Restaurant & Cocktail Lounge for the keeping and storing of policy records for said operation. The evidence being sought is of such a nature that it can be easily any quickly destroyed.'

Seven days later the warrant was issued and, at about 6:30 P.M. that same day, it was executed. Detective Smith and five or six fellow officers were about to enter the El Parador when two men came out, apparently recognized the detective, dropped papers to the pavement and fled. Picking up the papers, the detective discovered they were policy slips. He proceeded inside the El Parador, which was open, and saw Elizar Vidal seated at the bar next to one Florencio Riverra. Defendant was seated alone at a table in the restaurant. According to the detective's testimony at the suppression hearing, these three were the only people present in the premises. There is no indication that defendant made any attempt to flee or resist, any threatening move, or that the officer saw any policy slips or other evidence linking defendant in any manner to the commission of a crime. The officer said he stated that he had a search warrant, showed it only to Vidal and told all three to empty their pockets. When defendant complied, policy contraband was recovered from his possession. All three persons were placed under arrest.

Thereafter, defendant moved to suppress the evidence seized on the ground that he was not named or described in the warrant and that the search of his person violated his constitutional rights. As stated, the motion was denied and, following his guilty plea, the Appellate Term affirmed his conviction.

The challenged language of the warrant in this case--'and any other persons occupying said premises'--would appear to be authorized by a recently enacted section of the CPL (690.15 subd. 2), which provides: 'A search warrant which directs a search of a designated or described place, premises or vehicle, may also direct a search of any person present thereat or therein.' There were no provisions of similar effect in the former Code of Criminal Procedure. (Report, N.Y. Temporary Commission on Revision of the Penal Law and the Criminal Code, 1967, § 365.15, Staff Comment, p. 395; McKinney's Cons.Laws of N.Y., Book 11A, Practice Commentary, CPL 690.15, pp. 210--211.)

Defendant contends first that, as written, this statute authorizes general searches in contravention of the Fourth Amendment and should be struck down, and second that the particular search of his person was unreasonable.

The issue is whether mere presence at a specified place may be a sufficiently particular description of a person in a search warrant to meet the standards of the Fourth Amendment. We agree with defendant's second contention and have concluded that the warrant in this case, insofar as it commanded the search of the defendant, was too general and that the things seized from him should have been suppressed. We decline, however, to strike down the statute, in conformity with our traditional policy to construe statutes, if possible, in such a manner as to uphold their constitutionality (People v. Kaiser, 21 N.Y.2d 86, 103, 286 N.Y.S.2d 801, 815, 233 N.E.2d 818, 828; People v. Epton, 19 N.Y.2d 496, 281 N.Y.S.2d 9, 227 N.E.2d 829, cert den., 390 U.S. 29, 88 S.Ct. 824, 19 L.Ed.2d 808; People v. Finkelstein, 9 N.Y.2d 342, 214 N.Y.S.2d 363, 174 N.E.2d 470; McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 150, p. 322, n.4 and cases cited therein).

The Fourth Amendment of the United States Constitution and section 12 of article I of the New York Constitution provide: 'The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

The amendment was enacted in reaction to the evils associated with the use of general warrants in England and the detested writs of assistance in the Colonies. By requiring particularity of description of the persons or places to be searched and the things to be seized, it precludes the use of such general warrants. (For discussion of the important history of the amendment see Stanford v. Texas, 379 U.S. 476, 481--485, 85 S.Ct. 506, 509, 13 L.Ed.2d 431; Frank v. Maryland, 359 U.S. 360, 363--365, 79 S.Ct. 804, 807, 3 L.Ed.2d 877; see, generall Lasson, History and Development of the Fourth Amendment to the United States Constitution, 55 Johns Hopkins Univ. Studies in Historical and Political Science 35--36 (245--246); see, also, Go-Bart Co. v United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374; Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746.) The amendment's protections are enforceable against the States by virtue of the due process clause of the Fourteenth Amendment (Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081).

Particularity is required in order that the executing officer can reasonably ascertain and identify (Steele v. United States No. 1, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757) the persons or places authorized to be searched and the things authorized to be seized. To protect the right of privacy from...