People v. Roach

• Decision Date: 28 September 1964
• Citation: People v. Roach, 253 N.Y.S.2d 24, 44 Misc.2d 40 (N.Y. Sup. Ct. 1964)
• Parties: PEOPLE of the State of New York v. Bobby ROACH.
• Court: New York Supreme Court

Page 24

253 N.Y.S.2d 24

44 Misc.2d 40

PEOPLE of the State of New York v. Bobby ROACH.

Supreme Court, Criminal Term, Kings County, Part I.

Sept. 28, 1964.

Edward S. Silver, Dist. Atty., Ira London, Asst. Dist. Atty., for the people.

Hanft & Pelcyger, Brooklyn, for defendant.

NATHAN R. SOBEL, Justice.

This is a motion to suppress. It raises an issue which has recurred with some frequency in this Court but which has not been decided by any appellate court in this state.

The facts developed at the hearing may be briefly stated. One M. P., a girl of 16, was arrested with others in a raid upon a house of prostitution. She was immediately brought to the District Attorney's office and questioned in the presence of the police officers. She related that she had been 'forced' to enter and remain in the house of prostitution by the defendant Roach. The police officer was ordered by the District Attorney to arrest Roach. This he did a few hours later without a warrant (C.C.P. § 177).

Upon the 'original' arrest for the felonies of compulsory prostitution and abduction, an incidental search was made by the police officer. That search uncovered upon the person of Roach a revolver. An arrest was immediately made for the 'unrelated' crime of possession of a dangerous weapon, a crime then and there being committed in the presence of the police officer.

Roach was separately indicted (Ind. 988-64) for the felonies of compulsory prostitution (Penal Law, § 2460, subd. 2) and abduction (Penal Law, § 70); and for the instant crime (Ind. 1035-64) for possession of a dangerous weapon (Penal Law, § 1897) as a felony.

The indictment charging compulsory prostitution and abduction was dismissed on motion by another judge of this Court. Although M.P.'s testimony before the grand jury was not quite the same as related to the District Attorney, the dismissal was based mainly on the lack of 'supporting' evidence required by statute for the crimes of compulsory prostitution and abduction (see Penal Law, §§ 2460, subd. 9; 71).

I treat the dismissal under the circumstances as an acquittal. The issue therefore is whether an acquittal of the 'original' crime ipso facto invalidates the search which uncovered the 'unrelated' crime.

The assistant district attorney informs me that our justices have consistently so held on the authority of People v. Dreares, 15 A.D.2d 204 221 N.Y.S.2d 819, affd. 11 N.Y.2d 906, 228 N.Y.S.2d 467, 182 N.E.2d 812. He has requested that I write an opinion as a basis for appellate determination of the issue. My ruling however is in favor of the People.

I rule that an acquittal of the 'original' crime does not necessarily invalidate the search which uncovered the 'related' crime. I do so with some misgivings--not alone because of the disagreement of my colleagues but also because the rule enunciated by them finds at least oblique support in Dreares, supra, and is both practical and just.

I therefore discuss the law at some length.

THE UNRELATED CRIME

The specific problem obviously will arise most frequently in the 'unrelated' crime area of the law of search and seizure. It can also occur in a 'primary taint' issue. For most frequently in other areas the motion to suppress will be made prior to any ultimate acquittal or conviction.

The general principle is that if the 'original' search is reasonable, any fruits, instrumentalities or contraband of an 'unrelated' crime observed or uncovered in the course of that reasonable search may reasonably be seized provided a contemporaneous arrest (State v. Taylor, 81 N.J.Super. 296, 308-309, 195 A.2d 485, 492) is then and there made for the 'unrelated' crime. That general principle is always applicable if the 'original' incidental search is confined to the person. Other considerations concerning the 'conduct' of the search enter the problem when the search is of fixed premises. (Harris v. United States, 331 U.S. 145, 154-155, 67 S.Ct. 1098, 91 L.Ed. 1399; United States v. Sorenson, 2 Cir., 330 F.2d 1018; United States v. Lee, 4 Cir., 308 F.2d 715, 718; Charles v. United States, 9 Cir., 278 F.2d 386, 387.) The instant search was confined solely to the person of applies. The issue therefore is kapplies. The issue therefore is whether the 'original' incidental search was reasonable. If it was so was the 'unrelated' search.

The two indispensable absolutes of a reasonable incidental search are (1) statutory authority to arrest, and (2) probable cause to search.

Probable cause is a specific requirement of the Fourth Amendment. In the instant case it presents no problem. For what the police officer heard from the lips of the complainant, presented abundant probable cause to sustain the search if the other absolute 'statutory authority to arrest' was present.

STATUTORY AUTHORITY TO ARREST

The cases, state and Federal, uniformly hold that the arrest to be 'lawful' must be authorized by statute. For example, People v. Caliente, 12 N.Y.2d 89, 94, 236 N.Y.S.2d 945, 947-948, 187 N.E.2d 550, 551-552:

'Section 177 of the Code of Criminal Procedure which sets forth the standard for a lawful arrest is clear and unambiguous.

It authorizes an arrest for a misdemeanor only if the crime is committed in the arresting officer's presence. The lawfulness of the arrest does not depend upon the officer's suspicions, or even upon a reasonable belief of his part that a crime has been committed. In this respect the statute distinguishes between an arrest for a misdemeanor and an arrest for a felony. Unless the misdemeanor is committed in the officer's presence, he is not privileged to arrest the defendant, and evidence thereafter obtained as the result of a search is inadmissible (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; People v. Moore, 11 N.Y.2d 271, 228 N.Y.S.2d 822, 183 N.E.2d 224).'

See also State v. Mercurio [R.I.], 194 A.2d 574; Hicks v. State [Fla.App.], 156 So.2d 22; Stanley v. State 230 Md. 188, 186 A.2d 478; Staples v. United States, 5 Cir., 320 F.2d 817.

Few cases however discuss the reason for that requirement. That reason is basic to the issue before me.

It may be observed that while the Fourth Amendment mandated 'probable cause', it makes no mention whatsoever of the 'incidental' search or the requirement of a 'lawful' arrest.

Nevertheless the Supreme Court has held that a search incidental to a lawful arrest may be made without a search warrant. The underlying reason is that exigent circumstances frequently require an immediate arrest without resort to a warrant. But such a search, becuase it is exceptional, is limited in many respects. (Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856; Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514.) The most important limitation is that the search must be truly 'incidental', i. e., incidental to a primary purpose to arrest. (United States v. Robinson, 2 Cir., 325 F.2d 391; Palmer v. United States [D.C.App.], 192 A.2d 801.) Thus if the arrest is a 'pretext' to search (People v. Scalegnio, 14 N.Y.2d 744, 250 N.Y.S.2d 429, 199 N.E.2d 509) or if the purpose is to search for evidence to justify the arrest (People v. Loria, 10 N.Y.2d 368, 373, 223 N.Y.S.2d 462, 466, 179 N.E.2d 478; United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 92 L.Ed. 210) or to search for evidence of another crime (Jones v. United States, supra, 357 U.S. 493, 78 S.Ct. 1253; State v. Taylor, 81 N.J.Super. 296, 308-309, 195 A.2d 485, 492; United States v. Harris, 6 Cir., 321 F.2d 739), the search is no longer incidental to a primary purpose to arrest. When the primary purpose is to search, the Fourth Amendment commands a search warrant (People v. Shelton, 60 Cal.2d 740, 36 Cal.Rptr. 433, 388 P.2d 665; People v. Haven, 59 Cal.2d 713, 31 Cal.Rptr. 47, 381 P.2d 927).

In my opinion, it is from these basic limitations on the incidental search that the rule has emerged that the search must be incidental to a 'lawful' arrest (Staples v. United States, 5 Cir., 320 F.2d 817) but 'lawful'only in the sense that it is authorized by statute. For a police officer like any citizen is presumed to know the law and if he makes an 'unlawful' arrest unauthorized by the arrest statutes, the law conclusively presumes that his primary purpose was to search rather than arrest.

The Fourth Amendment is not concerned with acquittals or convictions. It is only concerned with searches. It commands that probable cause and statutory authority to arrest precede every search. As a sanction it excludes the product of an unreasonable search. Thus if both absolutes are established the search is reasonable unless it be held that an acquittal works an 'estoppel' against the People. (See People v. Dreares, supra, 15 A.D.2d at 204, 206, 221 N.Y.S.2d at 819, 821.). But since an acquittal may follow a perfectly lawful arrest based on abundant probable cause, the finding of a collateral estoppel would be inconsistent with holdings in other areas of criminal law (People v. Lo Cicero, 14 N.Y.2d 374, 380, 251 N.Y.S.2d 953, 957, 200 N.E.2d 622, 625).

Therefore the inquiry should solely be directed toward determining whether the arrest was authorized by statute rather than to ultimate acquittal or conviction.

THE ARREST STATUTES

But the inquiry whether statutory authority to arrest exists is confused by the fact that most state felony arrest statutes make ultimate acquittal or conviction the test of the lawfulness of the arrest. There are many decisions so holding (e. g., Dreares, supra) where civil or criminal sanctions are sought against the arresting officer.

Most state arrest statutes are of ancient origin and merely codify the common law. (See Revision Notes, Ch. 3, Title I, Part IV of the Code of Criminal Procedure.)

Our arrest statutes were drafted in 1849 (see Report of the Commissioners on Practice and Pleading, p. 76, dated December 31, 1849) and added to the Code in ...