People v. Politano
| Decision Date | 12 December 1961 |
| Citation | 32 Misc.2d 526,224 N.Y.S.2d 401 |
| Parties | The PEOPLE of the State of New York v. George POLITANO, Defendant. |
| Court | New York County Court |
Richard A. Insogna, Amsterdam, for defendant.
On December 4, 1961, the day this case was reached for trial the defendant made oral motions to inspect the Grand Jury minutes and for a dismissal of the indictment, to suppress evidence seized under a search warrant and to dismiss the indictment on the ground that Section 975 of the Penal Law is unconstitutional.
The District Attorney stipulated that the court could hear these motions without the necessity of the usual formal written motions.
The defendant previously, on October 31, 1961, made a formal motion to inspect the minutes of the Grand Jury, and on November 3, 1961, the court rendered its decision stating that 'the court, having examined said minutes, has found the indictment is based upon sufficient legal evidence' and denied the motion. The court, now, on this oral motion again denies the defendant's motion to inspect the Grand Jury minutes and to dismiss the indictment upon the grounds previously stated.
The defendant's oral pre-trial motion to suppress evidence is based on the contention that the search warrant was defective and null and void.
The search warrant was issued by Supreme Court Justice Charles M. Hughes. The defendant subsequently made a motion before Justice Hughes to have the warrant declared null and void and Justice Hughes rendered his decision on November 25, 1961, holding that the question of its validity should be raised upon the trial.
This court will comply with that decision and will not entertain a motion seeking to reverse it. It would be as presumptious to hear such a motion as it would be to make it. The motion is therefore denied.
However, I presume that the purpose of this motion is to obtain a pretrial decision on the ruling to be made by this court if, on the trial, a motion were made to preclude evidence seized by virtue of said search warrant. It is based upon that premise that I express the following.
After an examination of the search warrant and the affidavit upon which it was granted it is my opinion that the search warrant was issued on probable cause supported by a sworn affidavit describing the person, and particularly the property, and the place to be searched and the property to be seized. The property to be seized was contraband. The return indicates that the property actually seized was contraband connected with the crime for which the defendant was arrested. The search warrant was legal.
Upon the information now before me I would not preclude the evidence seized were it offered upon the trial. It is to be understood, however, that if other pertinent evidence is introduced on the trial, a different ruling may be made at that time.
Upon the argument of this matter defendant's attorney stated that the property seized was not contraband and that none of the elements necessary to justify the issuing of the search warrant was contained in the supporting affidavit. In other words, that the affidavit was insufficient to warrant the issuing of the search warrant. I differ with that contention. The probable cause is based upon an investigation made by the affiant since April 15, 1961, by eavesdropping, recording of telephone calls to and from the defendant's premises during which he overheard conversations that persons in the residence of the defendant were keeping a place for transferring money in a game of policy. The person operating the place was described as 'John Doe', being fictitious, his true name being unknown; the property and place to be searched was described as the residence of the defendant, George Politano, located at 140 and 142 East Main Street, Amsterdam, New York. The property sought to be seized was equipment and paraphernalia used in playing the game of policy. The property subsequently seized by virtue of the search warrant, among other things, was policy slips. Policy slips are contraband. The finding of policy slips in possession of a person by an officer constitutes the commission of a crime in his presence.
It is true that a search warrant may not be issued for papers, books, records and documents which are 'mere evidence'. The search warrant here was not issued for 'mere evidence'. It was issued to seize contraband. The Fourth Amendment of the Constitution sanctions reasonable searches for contraband (Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399). Contraband is weapons, narcotics, counterfeit and includes policy slips and bookmaking plays and records. The very possession of contraband described as policy slips is a crime under the statute.
A search warrant, to be constitutional, must be issued for 'probable cause' or 'reasonable ground to believe' and 'reasonable cause for believing' all meaning the same thing.
Upon the affidavit of the officer, Supreme Court Justice Hughes was justified in his determination that probable cause was in reasonable existence for the issuance of the search warrant. The United States Supreme Court in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, said Continuing, the court also stated '* * * Probable cause exists where 'the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been, or is being committed. * * *'
The case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, cited by the defendant ruled 'that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court'. In other words the State courts are commanded to exclude in criminal trials all unconstitutional evidence obtained as a result of unreasonable search.
This decision overrules the common law or 'admissibility rule' previously followed by New York State, in permitting the admission in a criminal trial of...
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...175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879. See also People v. Lane, 10 N.Y.2d 347, 223 N.Y.S.2d 197, 179 N.E.2d 339; People v. Politano, 32 Misc.2d 526, 224 N.Y.S.2d 401, 403 bottom. When the police arrest without a warrant the duty devolves upon the People to show that the arrest was lawful ......
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People v. DiCarlo
...636, confirmed, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575; People ex rel. Wilson v. Flynn, 72 A.D. 67, 76 N.Y.S. 293; People v. Politano, 33 Misc.2d 526, 224 N.Y.S.2d 401, reversed on other grounds, 17 A.D.2d 503, 235 N.Y.S.2d 712, affirmed, 13 N.Y.2d 852, 242 N.Y.S.2d 491, 192 N.E.2d Readin......
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