People v. Smith

• Decision Date: 16 May 1975
• Citation: 368 N.Y.S.2d 954,82 Misc.2d 204
• Parties: The PEOPLE of the State of New York v. Betty SMITH, Defendant.
• Court: New York City Court

Page 954

368 N.Y.S.2d 954

82 Misc.2d 204

The PEOPLE of the State of New York v. Betty SMITH, Defendant.

Criminal Court of the City of New York, New York County,

Jury, Part 1.

May 16, 1975.

Robert Morgenthau, Dist. Atty. (Samuel Linderman, New York City, of counsel), for the People.

Licht & Margolis, New York City (Ronald J. Magrolis, New York City, of counsel), for defendant.

E. LEO MILONAS, Judge:

Defendant was arrested in Macy's department store by a special patrolman employed by the store. After the arrest, defendant's handbag was searched and a key to a locker at the Port Authority Bus Terminal was found in the handbag. Two hours after this search the special patrolman proceeded to the locker, opened it with the key, and removed various property which, allegedly, belonged to Macy's. Defendant was charged with petit larceny and criminal possession of stolen property.

Defendant now moves to suppress the property taken from the locker on the grounds that the search was in violation of the Fourth Amendment of the U.S. Constitution (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)). The applicable portion of the Fourth Amendment states the following:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ..'

While the search incident to defendant's arrest was valid (Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685), it was improper for the special patrolman to take the fruits of the search, i.e., the key, to the locker and open up the locker without a search warrant. However, the Fourth Amendment's protection against unlawful searches and seizures applies solely to governmental action. 'Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies' (Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1920); People v. Horman, 22 N.Y.2d 378, 292 N.Y.S.2d 874, 239 N.E.2d 625 (1968), cert. den., 393 U.S. 1057, 89 S.Ct. 698, 21 L.Ed.2d 699). Thus, if an illegal search and seizure was conducted by a private citizen not connected with any governmental agency, the Fourth Amendment would not be applicable and would not require the exclusion of any evidence illegally seized (Burdeau v. McDowell, supra; People v. Horman, supra; People v. Defore, 242 N.Y. 13, 150 N.E. 585 (1926); People v. Richters Jewelers, 291 N.Y. 161, 51 N.E.2d 690 (1943)).

In the instant case, the search was conducted by a special patrolman employed by Macy's department store. Accordingly, the issue to be determined is whether such special patrolman is a private citizen or an 'agent of the government.'

A 'special patrolman' is appointed pursuant to section 434a--7.0, subdivision e of the Administrative Code of the City of New York. The statute authorizes the New York City Police Commissioner to appoint and swear any number of special patrolmen to do special duty on behalf of their employer, and 'The special patrolmen so appointed shall be subject to the orders of the commissioner and shall obey the rules and regulations of the (police) department and conform to its general discipline and to such special regulations as may be made and Shall during the term of their holding appointment possess all the powers and discharge all the duties of a peace officer while in the performance of their official duties' (emphasis added). Furthermore, the appointment as special patrolman may be revoked at any time by the police commissioner.

The District Attorney states that the motion should be denied under the authority of People v. Horman, supra. In that case, the Court of Appeals held that a department store detective had no connection with the police and was merely a private citizen. Therefore, the Fourth Amendment did not apply, and evidence illegally seized by the detective was admissible in a criminal prosecution. However, the defendant distinguishes Horman from the instant case in that, in this case, special patrolman in New York City are licensed by the City of New York, appointed by the Police Commissioner and possess powers beyond those of an ordinary citizen.

Special patrolmen are not members of the Police Department (Administrative Code, § 434a--7.0, subd. e) and are not 'peace officers' as defined by the Criminal Procedure Law (CPL § 1.20, subd. 33; Velez v. Sugarman, 75 Misc.2d 746, 349 N.Y.S.2d 53 (Sup.Ct., New York County, 1973); People v. Rivera, 72 Misc.2d 985, 341 N.Y.S.2d 157 (Criminal Ct., Kings County, 1973); cf. People v. Perez, 79 Misc.2d 88, 359 N.Y.S.2d 510 (Criminal Ct., Bronx County, 1974)). In both Rivera and Perez, a defendant was charged with resisting arrest in that he prevented a 'peace officer' from effecting an authorized arrest. The arrest had been made by a special patrolman. The issue was whether the special patrolman was a 'peace officer,' which was necessary in order to convict the defendant of the crime of resisting arrest (see Penal Law, § 205.30). Rivera said a special patrolman is not a peace officer, while Perez said that he is. In Velez v. Sugarman supra, the issue was whether special patrolmen have the...