People v. Russell
| Decision Date | 04 May 1962 |
| Citation | 227 N.Y.S.2d 826,33 Misc.2d 851 |
| Parties | The PEOPLE of the State of New York v. John RUSSELL, Defendant. |
| Court | New York Court of Special Sessions |
Victor J. Herwitz, New York City, for defendant.
Frank S. Hogan, Dist. Atty., New York County (Jeremiah McKenna, Asst. Dist. Atty., of counsel), for the People.
Before RINGEL, P. J., and ROHAN and POTTER, JJ.
The defendant is a member of the New York City Police Department with the rank of patrolman. By information field pursuant to an order of the Grand Jury of this county, he is charged with the unlawful possession of a narcotic drug, in violation of Section 1751-a of the Penal Law, and Section 3305 of the Public Health Law.
The People allege that on December 5, 1961, the defendant unlawfully had in his possession three glassine envelopes containing heroin. The defendant seeks to suppress the admission in evidence of this alleged contraband on the ground that same was obtained by reason of an unlawful search and seizure in contravention of the defendant's constitutional rights , and the rule enunciated in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
A hearing was held in support of that motion.
The facts established at the hearing are as follows: The defendant is a patrolman assigned to the 30th Precinct in Manhattan. About November 5, 1961 a certain informant, of poor reputation, complained to the Police Department that a patrolman of the 30th Precinct had offered to sell narcotics and had shown the said informant five glassine envelopes, containing alleged narcotics, which he had had in a pouch of the binder of his police memorandum book. The informant at that time could not otherwide identify the alleged seller. Nevertheless, the police arranged with the informant to make two different appointments with the suspected patrolman to see if a sale of a narcotic drug could be effected. On both occasions no police officer appeared.
On December 2, 1961, the date of the second abortive appointment, the informant, for the first time, definitely identified the suspected patrolman as this defendant. December 2nd was a Friday, on which date the defendant's tour of duty had ended at midnight. His next tour of duty commenced on Monday, December 5, 1961, at 8 a.m.
On that morning the defendant reported to the 30th Precinct. After the usual morning muster and before he was dismissed from the muster to report to his post, Lt. Matthews of Police Headquarters identified himself to the defendant, and told him he wanted to inspect his memorandum book. The defendant complied, and after glancing at some of the notations in the book, Lt. Matthews removed a rubber band and looked into a pouch in the binder of this book and removed therefrom a glassine envelope, believed to contain heroin. As he pulled this envelope out, he asked the defendant if he had anything else 'illegal.' The defendant allegedly replied, 'Yes, I have two other envelopes.' Whereupon, Lt. Matthews looked further and found a total of three glassine envelopes, all allegedly containing a narcotic drug. In the same pouch Lt. Matthews found a picture of defendant's wife together with personal and official papers.
Lt. Matthews then took the defendant to the New York County District Attorney's office where the defendant gave the assistant district attorney a statement. He was then taken before the Grand Jury where he testified, having waived immunity. He again testified before the Grand Jury on December 7th, but was not arrested until December 14, 1961. Lt. Matthews had no arrest warrant or search warrant.
It was stipulated during the hearing that the Court take judicial notice of the Police Department regulation which requires members of the police force to keep a memorandum book in a binder; that the pages of this memorandum book, known as UF 16, are supplied free of charge to each patrolman; that the binder for same must be purchased by the officer at his own cost and expense but said binder must conform to a type approved by the Police Department, and that said memorandum book is subject to inspection by the patrolman's superior officers. (See Rules & Procedures of Police Department, City of New York, Chapter 2, Section 2.0: Chapter 3, Sections 12.0, 19.0, 26.0, 38.0; Chapter 25, Sections 1.1, 28.0, subd. a.)
The police force of our city is a quasi-military organization. Its chief function is to maintain law, order, and the public peace in the community. (City Charter, City of New York, Chapter 18, Sec. 435; Matter of Moriarity v. Kennedy, 20 Misc.2d 593, 192 N.Y.S.2d 32, 1959; Butler v. Monaghan, 200 Misc. 327, 329, 106 N.Y.S.2d 861, 862.)
Though members of the police force are civil service employees who are appointed only after successful completion of a competitive civil service examination and certification (Rule 4, N.Y.C. Civil Service Comm.), yet unlike most other civil service employees they are subject to strict discipline and special proceedings, sanctions, and punishments. (Rules & Procedures of Police Department, Chapter 2, Sec. 2.0; Chapter 3, Secs. 12.0, 19.0; Chapter 25, Sec. 1.1; Administrative Code of the City of New York, Sec. 434a-14.0, subds. a, b, c, d; Sec. 434a-20.0; City Charter, ibid., Chapter 18, Sec. 434, subds. a, b; Patrolmen's Benevolent Association of City of New York v. Kennedy, 25 Misc.2d 63, 201 N.Y.S .2d 536 (1960); Flood v. Kennedy, 26 Misc.2d 172, 211 N.Y.S.2d 488 (1961); Tucker v. Adams, Sup., 141 N.Y.S.2d 235 (1955); Rubenstein v . Monaghan, Sup., 124 N.Y.S.2d 76 (1953), appeal dismissed 285 App.Div. 949, 141 N.Y.S.2d 525; Matter of Patrolmen's Benevolent Association v. Wagner, 7 N.Y.2d 813, 196 N.Y.S.2d 694, 164 N.E.2d 715; Brenner v. City of New York, 9 A.D.2d 729, 192 N.Y.S.2d 449, aff'd. 9 N.Y.2d 447, 214 N.Y.S.2d 444, 174 N.E.2d 526.)
Subjecting himself to these departmental rules, regulations, disciplines and sanctions is implicit in his acceptance of his designation as a member of the police force and his oath of office (Art. 13, Sec. 1, New York State Constitution; Sec. 435, New York City Charter.)
In view of the stipulation and citations, ibid., the right to inspect the defendant's memorandum book, or any other part of his equipment, by a superior officer, at the time, place, and under the circumstances herein, is unquestioned. His failure to consent to such inspection would subject him to such disciplinary action and procedure as in the opinion of the Police Commissioner would be warranted. But such action that might be taken by the Police Commissioner and the punishment, if any, that he might impose, could only be those authorized as against the defendant as a member of the police force, subject to review by the courts. (Simon v. Kennedy 5 Misc.2d 17, 159 N.Y.S.2d 995; Matter of Grottano v. Kennedy, 5 N.Y.2d 381, 184 N.Y.S.2d 648, 157 N.E.2d 632; Matter of Kelly v. Monaghan, 9 A.D.2d 92, 191 N.Y.S.2d 632; Matter of Kaminsky v. Kennedy, 9 A.D.2d 541, 196 N.Y.S.2d 520.) This must be the rule, since ours is a government of laws and not of men. (People v. Brim, 22 Misc.2d 335, 199 N.Y.S.2d 744, 748; Matter of Moriarity v. Kennedy, 20 Misc.2d 593, 192 N.Y.S.2d 32.)
This defendant is now before us not for any alleged violation of police department rules and regulations, but for a violation of the Penal Law and Public Health Law of this state. Such prosecution must be conducted according to the laws of this state and the rules of evidence which are in force and effect at this time. (People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478.) If convicted, the defendant will receive such punishment as is prescribed by the laws of this state, although he may be subject to other punishment or penalties by the Police Commissioner, even if acquitted. (Brenner et al. v. City of New York, 9 A.D.2d 729, 192 N .Y.S.2d 449, supra.)
In the case at bar, the defendant is being prosecuted as an ordinary citizen, and not as a policeman. In this prosecution he will be protected by the same legal safeguards as any other citizen--no more and no less, and his prosecution will be based on the law as it is now interpreted (People v. Loria, supra). (Art. 1, Sec. 11, N.Y.S. Constitution.)
What is that law in respect to searches and seizure with reference to criminal prosecutions in this state?
Overruling a long line of cases (Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; People v. Richters Jewelers, Inc., 291 N.Y. 161, 51 N.E.2d 690, 150 A.L.R. 560; People v. Defore, 242 N.Y. 13, 150 N.E. 585; cert. den., 270 U.S. 657, 46 S.Ct. 353, 70 L.Ed. 784; People v. Adams, 176 N.Y. 351, 68 N.E. 636, 63 L.R.A. 406, aff'd. 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575,) the United States Supreme Court, in Mapp v. Ohio (367 U.S. 643, 655, 81 S.Ct. 1684, 1691, supra), 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 New York State is now commanded by Mapp to follow the 'exclusionary rule' by virtue of the Fourth Amendment to the Constitution of the United States made applicable to all the States via the Fourteenth. (P. 2 'A comment on the Law of Search and Seizure,' by Judge Sobel, County Judge, Kings County, appearing in the Pleader--a very fine treatise on the subject.)
The Fourth Amendment of the Constitution of the United States provides:
'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.'
This language in haec verba, protects the 'person' as well as the 'house.' The same provision is found in our State Constitution (Art . 1, Sec. 12).
The...
To continue reading
Request your trial
-
People v. Hargrave
...the case. Thus a police officer is deemed to consent to an inspection of items of equipment by his superior officer (People v. Russell, 33 Misc.2d 851, 227 N.Y.S.2d 826). Similarly subjecting a draftee reporting for induction to physical examination to determine whether he had taken drugs t......
-
Geary, In re
...is implicit in his acceptance of his designation as a member of the police force and his oath of office . . .' (People v. Russell, 33 Misc.2d 851, 854, 227 N.Y.S.2d 826, 829). The Appellate Division, Second Department, has held that the denial of a motion to adjourn an administrative hearin......