People v. Salerno

• Decision Date: 27 December 1962
• Citation: 235 N.Y.S.2d 879,38 Misc.2d 467
• Parties: PEOPLE of the State of New York, v. Michael SALERNO, Defendant.
• Court: New York Supreme Court

Page 879

235 N.Y.S.2d 879

38 Misc.2d 467

PEOPLE of the State of New York, v. Michael SALERNO, Defendant.

Supreme Court, Special and Trial Term, Bronx County, Part XVII.

Dec. 27, 1962.

Isidore Dollinger, Dist. Atty., Bronx County (Newton Poyer, New York City, of counsel), for the People.

Philip Peltz, New York City, for defendant.

WILLIAM RAND, Jr., Justice.

The defendant moves to suppress evidence seized from his possession at the time of his arrest. Although there was considerable conflict in the testimony elicited at a hearing held on the motion, the following facts were established.

At about 3:15 a. m. on the morning of July 29, 1962, two police officers in a patrol car saw the defendant walking south on Havemeyer Avenue near Powell Street, in Bronx County, wearing a sport coat, 'chino' pants and low shoes, and carrying in his hand a gun case of a size used for a rifle or shotgun. When questioned, the defendant first said he was going to hunt ducks, but upon being told that there was no duck season in July said that he was going to hunt woodchucks. One officer then asked to see the kind of a gun the defendant was going to use, and the defendant took a shotgun out of the case. While the shotgun was still in the defendant's hands, the officer released the catch causing the gun to open and permitting the officer to see that it was loaded. At this point the officer told the defendant he would have to come to the station house for further questioning, and before putting him in the patrol car touched the outside of the defendant's clothing and felt a hard object the size of a pistol near the defendant's waist. A more formal search of the defendant's person revealed that the object was a loaded Mauser automatic pistol concealed in the defendant's belt and that the defendant also had on his person a fountain-pen-type tear gas gun loaded with a blank cartridge and two hunting knives. The defendant was then formally arrested and subsequently booked on two charges, one relating to his possession of the shotgun, the other relating to his possession of the concealed weapons. After a hearing before a Magistrate, the shotgun charge was dismissed on the ground that it had erroneously been brought under a provision of the Conservation Law which was not applicable.

The defendant now contends that the officer at no time had a right to arrest or search him and that the evidence discovered by the illegal search should be suppressed, under the exclusionary doctrine of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

The suppression of evidence obtained by an unlawful search and seizure is provided for in Section 813-c of the Code of Criminal Procedure, which was enacted in 1962 to provide an orderly procedure for the application of the exclusionary rule mandated by the Fourth and Fifth Amendments to the United States Constitution. The rule requires that evidence obtained by State or Federal officers in violation of such Amendments be excluded from a criminal trial. Its purpose is to deter over-zealous law enforcement officers from infringing upon the rights of privacy guaranteed to every citizen by the Bill of Rights. (Mapp v. Ohio, supra; Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652.) Despite respected opinion that it would merely permit the 'criminal to go free because the constable has blundered' (People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587), the rule was made applicable to State courts on the theory that there was pragmatic evidence that it would not seriously fetter law enforcement and that the history of the criminal law proves that 'tolerance of shortcut methods in law enforcement impairs its enduring effectiveness.' (Mapp v. Ohio, supra, 367 U.S. pp. 658-659, 81 S.Ct. p. 1693.) If the exclusionary rule is to succeed in its overall purpose of improving law enforcement, it must be applied intelligently so as to create the greatest possible deterrence to illegal police activity while at the same time permitting as few criminals as possible to go free. Certainly, the object of the rule is not to free guilty persons or to deter enterprising and vigilant police officers, but if it is applied by the trial courts in a blind or technical way without the use of wise discretion, its unintended result could be to induce perjury, destroy police morale and endanger the public. 'We are not to strain an immunity to the point at which human nature rebels against honoring it in conduct'. (People v. Chiagles, 237 N.Y. 193, 197, 142 N.E. 583, 584, 32 A.L.R. 676.)

The first question to be decided on this motion is whether the police violated the Fourth Amendment at the time the officer released the catch on the shotgun which the defendant was holding. While such a touching might technically constitute an assault if not authorized by law, the protection of the Fourth Amendment does not require the exclusion of evidence because of police action which is de minimis with respect to the right of privacy and essential to the safety of the officer. 'That every temporary restriction of absolute freedom of movement is not an illegal police action demanding suppression of all resultant evidence is accepted in federal courts, though it is a proposition incompletely articulated.' (United States v. Bonanno, D.C., 180 F.Supp. 71, 78, revd. on other grounds United States v. Bufalino, 2 Cir., 285 F.2d 408.)

Secondly, it must be decided whether the police had the right to search the defendant at the time the officer touched the defendant's clothing and felt the Mauser pistol. Such a right would exist if the officer then had a right to arrest the defendant, and it matters not that the search preceded the formal arrest. (Husty v . United States, 282 U.S. 694, 700, 51 S.Ct. 240, 75 L.Ed. 629.) Under the applicable New York law, the officer was authorized to arrest if a crime was being committed or attempted in his presence, regardless of the state of his personal knowledge or belief. (Code Crim.Pro., § 177(1).) Of course, the defendant's concealed possession of the loaded pistol was such a crime, but evidence of such possession obtained by means of the contested search may not under the exclusionary rule be considered in deciding this motion. Instead, we must resolve the Constitutional question as to whether a reasonable officer would have had probable cause under the circumstances to believe that he was authorized to make a search, and if it is found that he would not have had such probable cause the evidence should be suppressed as a deterrent to similar action by the police in the future.

Probable cause originally meant 'circumstances which warrant suspicion'. (Locke v. United States, 7 Cranch 339, 11 U.S. 339, 3 L .Ed. 364.) More recently it has been defined as existing 'if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed'. (Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134.) The standard represents a compromise between, on the one hand, safeguarding citizens from rash and unreasonable interference with privacy and from unfounded charges of crime and, on the other hand, giving fair leeway for enforcing the law in the community's protection recognizing that ambiguous situations often confront police officers and that room must be allowed for reasonable mistakes on their part. (Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879.)

Even where probable cause does exist, a search warrant is required by the Fourth Amendment except under exceptional circumstances. Since, it is well established that the Fourth Amendment imposes more stringent requirements for a warrant where the object of the search is a stationary home rather than a moveable person or object (Carroll v. United States, 267 U.S. 132, 147, 153, 45 S.Ct. 280, 69 L.Ed. 543), the numerous cases holding searches of homes without a warrant to be unreasonable in the absence of exceptional circumstances are readily distinguishable from the instant case where a warrant was impossible. (Mapp v. Ohio, supra; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; People v. Yarmosh, 11 N.Y.2d 397, 230 N.Y.S.2d 185, 184 N .E.2d 165; People v. O'Neill, 11 N.Y.2d 148, 227 N.Y.S.2d 416, 182 N .E.2d 95; People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478.) Likewise the deserted street and the hour of the night are to be considered in determining probable cause. 'Nighttime presents problems different from those of daytime'. (Bell v. United States, 102 U.S.App.D.C. 383, 254 F.2d 82, cert. denied 358 U.S. 885, 79 S.Ct. 126, 3 L.Ed.2d 113.)

It would also appear that the reasonableness of the search depends to some extent upon the seriousness of the crime suspected and the degree of public danger involved. A greater degree of probability is required where the search is aimed at a violation of gambling or obscenity laws (Mapp v. Ohio, supra [obscenity]; McDonald v. United States, supra [gambling]; People v. Moore, 11 N.Y.2d 271, 228 N.Y.S. 822, 183 N.E.2d 225 [gambling]; People v. O'Neill, supra, [obscenity]; see United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 [ration coupons]) and a lesser degree of probability is required where the search relates to a burglary, robbery or other crime involving a dangerous weapon. (People v. Carfas, 11 N.Y.2d 891, 227 N.Y.S.2d 926, 182 N.E.2d 413 [burglary]; People v. Lane, 10 N.Y.2d 347, 223 N.Y.S.2d 197, 179 N.E .2d 339 [murder]; People v. Wilson, 16 A.D.2d 207, 229 N.Y.S.2d 685 [robbery]; Busby v. United States, 9 Cir., 296 F.2d 328, cert. denied 369 U.S. 876, 82 S.Ct. 1147, 8...