People v. Smalls
| Citation | 311 N.Y.S.2d 354,63 Misc.2d 322 |
| Parties | The PEOPLE of the State of New York v. Galen SMALLS, Defendant. |
| Decision Date | 03 June 1970 |
| Court | New York Court of Special Sessions |
IRVING B. KENDALL, Associate City Judge.
On March 19, 1970, members of the Narcotics Squad of the Mount Vernon Police Department including Dets. Howard Tempro and Nicholas Columbo raided an apartment occupied by Rodney Smalls and his brother Galen Smalls at 241 South 9th Avenue.
The officers were armed with two warrants, one a warrant authorizing the arrest of Rodney Smalls on a charge of violation of probation, the other a search warrant authorizing the search of his person and of his apartment for narcotics.
Concededly the officers had no arrest warrant for the defendant Galen Smalls, nor did the search warrant authorize the search of his person.
The door to the Smalls apartment was opened by Rodney Smalls who ushered the raiding party into the apartment and was promptly advised by Det. Tempro that he was under arrest and that the officers had a search warrant for the premises.
In the course of the search which immediately followed in the Smalls' bedroom, the defendant Galen Smalls, who was in the bedroom occupied by he and his brother, lying on top of a double-deck bunk bed in his pajamas, was observed by Det. Columbo reaching behind the bed and extracting from an area between the upper and lower levels of the bed what appeared to be a package of cigarettes and placing same in the breast pocket of his pajamas.
Observing this maneuver by the defendant, which was made while he was searching the bed area, Det. Columbo seized the package from the defendant's pajama pocket, examined its contents, found five bags of heroin therein and placed the defendant under arrest on a charge of possession of dangerous drugs. The same charge was filed against Rodney Smalls in an information naming both brothers as co-defendants.
At the opening of the trial of the two brothers on the drug possession charge, counsel for the defendants moved to sever the trials on the ground that the defendant Galen Smalls by reason of his age was eligible to apply for youthful offender treatment. The motion to sever was granted and the separate trial of Rodney Smalls commenced. It was later revealed that Galen Smalls was 21 years of age and therefore ineligible for youthful offender treatment.
At the end of the People's case, the complaint against Rodney Smalls was dismissed on the ground that the People had failed to prove actual or constructive possession by Rodney Smalls of the package of heroin taken from his brother Galen.
When the trial of the defendant Galen Smalls opened a week later, defense counsel moved to controvert the search warrant.
The motion to controvert was granted and the search warrant was struck down by the Court because of the fatal omission of an essential detail relating to the reliability of the informant. The People concede that this Court 'had no choice' except to grant the motion to controvert.
Since the search warrant authorizing the search of the Smalls' apartment for narcotics has been struck down for legal insufficiency, the question presented to this Court on the motion to suppress is whether the police had a legal right to search Galen Smalls when all they had (as a result of the contravention of the search warrant) was a valid arrest warrant for his brother Rodney Smalls.
I have not found, nor have either the prosecution or defense presented to me any cases directly in point. However, it is my considered judgment that the question should be answered in the affirmative.
The cases hold that a search is either good or bad at its inception and that its character cannot be changed by the fact that it is successful.
Putting it another way, the cases on the law of search and seizure make the point that a search cannot be justified by what it turns up.
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, 373, 223 N.Y.S.2d 462, 179 N.E.2d 478;
Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142.
Applying case law to the facts herein, it would seem incumbent upon this Court to rule that the concededly warrantless search of Galen Smalls was not validated by the fact that Det. Columbo happened to hit the jackpot.
However, this Court 'cannot close (its) eyes to the realities of the situation' * and after examining the facts and circumstances in the instant case, this Court finds:
(a) Dets. Tempro and Columbo and their...
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People v. Wesley
...by the fruit that it bears. Silverthorne Lumber Company v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, and People v. Smalls, 63 Misc.2d 322, 311 N.Y.S.2d 354. The People assert that the use of an ultraviolet light does not constitute a 'search' within the scope of relevant prec......