People v. Sperber

• Citation: 242 N.Y.S.2d 652,40 Misc.2d 13
• Parties: The PEOPLE of the State of New York, Appellant, v. William SPERBER and Sidney Sperber, Defendants-Respondents.
• Decision Date: 22 July 1963
• Court: New York Supreme Court — Appellate Term

Page 652

242 N.Y.S.2d 652

40 Misc.2d 13

The PEOPLE of the State of New York, Appellant, v. William SPERBER and Sidney Sperber, Defendants-Respondents.

Supreme Court, Appellate Term, First Department.

July 22, 1963.

Isidore Dollinger, Dist. Atty. of Bronx County, for the People, by Bertram Gelfand, Asst. Dist. Atty., of counsel.

Otto F. Fusco, New York City, for defendants.

Before HOFSTADTER, J. P., and HECHT and TILZER, JJ.

TILZER, Justice.

Police Officer Miltenberg testified to having had the defendants' candy store under observation. On the following day, April 13, 1962, at about 8:00 P.M., the officer gained access through an adjoining building to the rear yard of the building housing the candy store. He then climbed to the roof of a structure located behind the candy store and separated from the store premises by some two feet. The officer placed the base of a ladder on the structure and leaned the top of the ladder against the outer wall of the store. From this position he could look through an open window into the rear room of the defendants' store. While thus standing on the ladder, Miltenberg observed and overheard four men place bets upon the results of horse races with each of the defendants. The officer then entered the premises and placed the defendants under arrest.

It is unnecessary to detail the further circumstances of what transpired in the store premises, since if the police officer's evidence of what he saw and heard from his vantage point was unlawfully obtained, it was properly suppressed and the subsequent arrest and search were both unlawful. Evidence discovered as the result of an unreasonable governmental intrusion 'is now constitutionally tainted and inadmissible in a State court' as the result of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (People v. Loria, 10 N.Y.2d 368, 372, 223 N.Y.S.2d 462, 466, 179 N.E.2d 478, 481). On the other hand if the evidence was lawfully obtained, not only is it admissible, but the subsequent arrest (based on the commission of a misdemeanor in the officer's presence [Code of Cr.Proc. § 177]) was lawful and the search incident thereto proper.

Incisely put, the appeal presents the all-important question as to when the right of privacy shall be sacrificed in the interest of law enforcement. Put differently, the query is: Should we in the absence of any direct decision in this matter expand the protection given by Mapp v. Ohio to cover the precise facts in this case? No statute has been called to our attention nor have we been able to find any case specifically holding that the evidence in the instant case should be excluded on the ground that there was an unlawful search and seizure.

We note that on the one side we have the admirable purpose for which men established government--the right to be secure in their person and property. On the other, the very preservation of that society against the formidable forces of crime. The right of the individual embodied in the common-law principle that a man's house is his castle, reaffirmed in the United States Constitution, ¹ must be balanced against the rights of organized society in the welfare and protection of its people. While constitutional guarantees for the security of persons and property against searches and seizures will be liberally interpreted, a construction should not be indulged in which would defeat the reasonable and proper efforts to enforce the criminal law.

We must determine here whether there was any trespass by the police officer, and also whether evidence of criminality procured by such an act of trespass is to be rejected as incompetent. The question remains the identical question asked by our Court of Appeals in the case of People v. Defore, 242 N.Y. 13, at pages 24-25, 150 N.E. 585, at page 589:

'The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice.'

It is to be recalled that Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, reversed the law enunicated by People v. Defore, supra, which had controlled our State courts for over six decades.

In determining whether or not the protection afforded defendants under Mapp v. Ohio should cover the facts in the case at bar, we must give careful consideration to the facts in Mapp v. Ohio. We recall that the evidence in Mapp. v. Ohio was so revolting and bizarre that the Supreme Court was compelled to abandon the law heretofore enunciated by People v. Defore, supra. In determining whether the rationale of the decision in Mapp v. Ohio should be controlling in the case at bar, it is necessary to consider what Judge Crane said in Dougherty v. Equitable Life Assurance Society of United States, 266 N.Y. 71, at page 88, 193 N.E. 897, at page 902:

'* * * The language of any opinion must be confined to the facts before the court. No opinion is an authority beyond the point actually decided and no judge can write freely if every sentence is to be taken as a rule of law separate from its association. * * *'

The facts in this case do not show that the police officer was guilty of a trespass. We must be mindful of the fact that the conversations testified to by him could have been testified to by anyone who was in the store and who was within hearing distance of what transpired. If the police officer was not apprehensive that his presence in the store would have aroused the suspicion of the defendants, he would not have gone to the trouble of climbing to the roof and using the ladder in order to overhear the conversation. What a person can testify to by using his senses (sight and hearing) violates no law. To hold that this evidence is inadmissible is to say in effect that a person may use his business premises to violate the law with a canopy of protection to assure that prosecution is impossible. If we analyze what the police officer sought to obtain we realize that this could not essentially be obtained by obtaining a search and seizure warrant. What the police officer was trying to obtain was not the usual search and seizure. He would not have been able to obtain the evidence by a search and seizure. The police officer attempted to avoid suspicion and detection as a police officer so as to enable him to obtain the evidence which conclusively established the guilt of the defendants in this case. We would be embarrassing the law enforcement authorities in coping with their peculiar problems of criminal law enforcement, if we hold such evidence inadmissible.

Thus, balancing the rights of an individual against the interest of the public, how wide is the mantle of the Fourth Amendment? First, it does not cover a business establishment with the same degree of protection as that afforded a bona fide dwelling place (Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 [1946]). The premises involved in the instant appeal are business premises.

Second, the blanket of protection falls short of the grounds surrounding a building (Davis v. United States, supra; Monnette v. United States, 299 F.2d 847 [5th C.A., 1962]). As noted above, Officer Miltenberg was standing on the ladder which was based on a structure independent of the defendants' building.

Third, the fabric of protection has not been enlarged to embrace those eavesdropping devices and techniques of the electronic age which do not physically penetrate home or office. To constitute a violation of the Fourth Amendment there must be an unauthorized physical encroachment into the premises. In the situation before us, there was no actual physical intrusion by Officer Miltenberg--the ladder but rested against the wall of the store premises.

The Supreme Court of the United States, in the case of Lopez v. United States, 373 U.S. 427, 440, 83 S.Ct. 1381, 1388, 10 L.Ed.2d 462, laid down the following rule:

'It is urged that whether or not the recording violated petitioner's constitutional rights, we should prevent its introduction in evidence in this federal trial in the exercise of our supervisory powers. But the court's inherent power to refuse to receive material evidence is a power that must be sparingly exercised.i Its application in the present case, where there has been no manifestly improper conduct by federal officials, would be wholly unwarranted.

'The function of a criminal trial is to seek out and determine the truth or falsity of the charges brought against the defendant. Proper fulfillment of this function requires that, constitutional limitations aside, all relevant, competent evidence be admissible, unless the manner in which it has been obtained--for example, by violating some § atute or rule of procedure--compels the formulation of a rule excluding its introduction in a federal court. See, e. g., McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479.

'When we look for the overriding considerations that might require the exclusion of the highly useful evidence involved here, we find nothing. There has been no invasion of constitutionally protected rights, and no violation of federal law or rules of procedure. Indeed, there has not even been any electronic eavesdropping on a private conversation which government agents could not otherwise have overheard. There has, in short, been no act of any kind which could justify the creation of an exclusionary rule.' (emphasis supplied)

The danger in stating in theory a remedy for a concrete condition such as occurred in Mapp v. Ohio, supra, is that the theory is apt to run wild and outstrip the sound purpose which gave it life. If we adopt the old common-law rule protecting a man in his castle to cover the facts in this case, it would afford protection or...