People v. Smith

• Decision Date: 01 August 1962
• Citation: 35 Misc.2d 533,230 N.Y.S.2d 894
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Harold SMITH, Defendant.
• Court: New York County Court

Page 894

230 N.Y.S.2d 894

35 Misc.2d 533

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

Kings County Court.

Aug. 1, 1962.

Edward S. Silver, Dist. Atty. (Frank Di Lalla, Brooklyn), for the people.

Joseph P. Addabbo, Ozone Park, for defendant.

NATHAN R. SOBEL, Judge.

A hearing has been held on this motion to suppress (Code Cr.Proc. § 813-c).

The search was made without a search warrant. And, although probable cause to arrest existed, the search was not incidental to and contemporaneous with an arrest. (People v. O'Neill, 11 N.Y.2d 148, 227 N.Y.S.2d 416, 182 N.E.2d 95) In fact the defendant was not arrested until many days later. Such a search without a search warrant and not incidental to an arrest is a general search and therefore unreasonable. (Weaver v. United States, 5 Cir., 295 F.2d 360)

The sole issue raised is with respect to the 'standing' of the defendant to move to suppress.

It was hoped that Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, had settled most issues with respect to 'standing'. Obviously it has not. Confusion still exists. (See cases discussed under Point II) But a good part of the confusion results from a misunderstanding of the nature of the Jones decision.

I

What is obviously not understood is that Jones is a decision of a dual nature. It prescribes one test to determine 'standing' when the product of the search is 'contraband'. It suggests quite a different test when the product of the search is either 'fruits' or 'instrumentalities'. Once this is understood, the problem becomes relatively simple of solution.

Searches and seizures are confined to 'fruits' of a crime, 'instrumentalities' used in the commission of a crime and 'contraband' which it is unlawful to possess. (See my discussion in The Law of Search and Seizure, N.Y.L .J., Dec. 26, 1961, p. 4.)

Jones, itself, was a 'contraband' case. The Court laid down a fixed and definite rule to determine standing in this area. But since the courts below had applied an 'interest in the product or premises' test (which is applicable only in the 'fruits' and 'instrumentalities' area) the Court discussed that test too--but in a negative manner--holding that even under such a test, Jones had sufficient 'interest in the premises' to confer standing.

We thus have a definite rule in the 'contraband' cases. But only a suggested rule for the 'fruits' and 'instrumentalities' area. The latter too however is reasonably liberal so as to leave little doubt with respect to the required 'interest in the product or premises' required.

Before discussing the two 'standing' rules of Jones, it may be briefly noted why separate rules are necessary in the 'contraband' and 'fruits and instrumentalities' areas.

In the 'contraband' cases (mainly possession of gambling paraphernalia or narcotics) mere finding of possession generally convicts. (Penal Law, §§ 971, 973, 974, 974-a, 975, 982, 986, 986-a, 986-b, 986-c, 1751, 1751-a, 1752) But in the fruits (e. g. stolen property) or instrumentalities (e. g., forged instruments, marked money, blood stained weapons) mere possession may be completely innocent.

Thus in the 'contraband' cases to require a defendant to show ownership or possession of 'contraband' as a condition precedent to confer standing, in effect requires an admission of guilt. But no such admission results from a requirement that a defendant show 'an interest in the product or premises' searched as a condition to confer 'standing' in the 'fruits' or 'instrumentalities' area.

The dual nature of the Jones rule and the necessity for separate rules is made evident in the Jones opinion (p. 263, 80 S.Ct. p. 732):

'(1) The same element in this prosecution which has caused a dilemma, i. e., that possession both convicts and confers standing, eliminates any necessity for a preliminary showing of an interest in the premises searched or the property seized, which ordinarily is required when standing is challenged.

'(2) Even were this not a prosecution turning on illicit possession, the legally requisite interest in the premises was here satisfied, for it need not be as extensive a property interest as was required by the courts below.'

The Court then proceeds to discuss both rules:--the 'contraband' rule at pages 263 to 265, 80 S.Ct. at pages 732 to 733; the 'fruits and instrumentalities' rule at pages 265 to 267, 80 S.Ct. at pages 733, 734. What evidently has confused the courts in interpreting Jones is the generality of the language used in discussing earlier tests (which Jones discards) used in the separate circuits on issues of standing. But if what is said with respect to 'contraband' cases (pp. 263-265, 80 S.Ct. pp. 732, 733) and 'fruits and instrumentalities' cases (pp. 265-267, 80 S.Ct. pp. 733, 734) is confined exclusively to each area and not applied to one another a logical and sensible 'standing' rule emerges.

The Contraband Rule.

'Ordinarily' says the Court (p. 261, 80 S.Ct. p. 731) 'it is entirely proper to require one who seeks to challenge the legality of a search * * * that he establish that he himself was the victim * * *'.

But, reasons the Court (p. 263, 80 S.Ct. p. 732):

'[W]e are persuaded by this consideration (that acknowledgement of ownership or control convicts): to hold to the contrary, that is, to hold that pertitioner's failure to acknowledge interest in the narcotics or the premises prevented his attack upon the search, would be to permit the government to have the advantage of contradictory positions as a basis for conviction'.

The Court then points out that Jones was convicted at the trial on the theory that he possessed the narcotics at the time of the unreasonable search. But on his pre-trial motion to suppress, he was denied relief on the ground that he did not have possession.

'The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies (motion to suppress) designed for one in that situation. It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government.' (pp. 263-264, 80 S.Ct. p. 732.)

The rule for 'contraband' cases was then stated to be (pp. 264-265, 80 S.Ct. p. 733):

'In cases where the indictment itself charges possession, the defendant in a very real sense is revealed as a 'person aggrieved by an unlawful search and seizure' upon a motion to suppress evidence prior to trial. Rule 41e should not be applied to allow the Government to deprive the defendant of standing * * * by framing the indictment in general terms while prosecuting for possession.'

Thus the rule in the 'contraband' or possession area is clear . The defendant need only show that the People propose to use the 'contraband' evidence against him. That showing ipso facto confers 'standing'. The Court also adds that we must not look to the indictment to determine whether the charge is in the 'contraband' area. Irrespective of how the indictment is framed, if possession of the product or control of the premises convicts, a defendant has standing on a simple showing that the product seized is proposed to be used against him.

It should be noted that this holding of Jones was brought to the attention of the Joint Legislative (Bartlett) Commission which drafted our new state procedural statute (Code Cr.Proc. § 813-c). The Jones court was considering a rather general statute (Rule 41(e) F.R.Crim.P. 18 U.S.C.A.) which confers standing upon 'a person aggrieved'. Our new state statute (Code Crim.Proc. § 813-c) however confers standing upon 'A person claiming to be aggrieved * * * and having reasonable grounds to believe that the property * * * claimed to have been unlawfully obtained may be used as evidence against him'. This is of course the 'contraband' rule of Jones. It was adopted as a liberal 'standing' rule. It is my opinion that the Legislature adopted the same liberal rule to be applicable in both the 'contraband' and 'fruits', etc. areas. The Commission rejected suggested limitations, e. g., 'legitimately on the premises', etc. As demonstrated, infra, this is in my opinion a wise choice since any other limitation on standing to suppress pre-trial does not dispose of but merely postpones decision of the basic constitutional issue of the reasonableness of the search to the trial.

The Fruits and Instrumentalities Rule.

Prior to the Jones decision, the lower federal courts had drawn distinctions between 'guests', 'invitees', those in 'control' or 'occupancy' but who lacked possession, 'lessees', 'licensees', etc.

Jones was either an 'invitee' or 'guest'. He had been permitted to use the apartment occasionally as a friend of the occupant. His home was elsewhere but he had a shirt and a suit in the apartment. He had slept there once. He had been denied 'standing' in the District Court and the Court of Appeals had affirmed.

The Court held (p. 265, 80 S.Ct. p. 733) that Jones 'made out a sufficient interest in the premises to establish him as a 'person aggrieved" by the search. The Court added (pp. 266-267, 80 S.Ct. pp. 733, 734):

'We are persuaded however, that it is unnecessary and illadvised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures, subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical.

* * *

* * *

'No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of...