People v. Stewart

• Decision Date: 22 July 1970
• Parties: The PEOPLE of the State of New York v. William STEWART and Desmond Maxwell, Defendants.
• Court: New York City Court

Page 253

313 N.Y.S.2d 253

63 Misc.2d 601

The PEOPLE of the State of New York v. William STEWART and Desmond Maxwell, Defendants.

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

July 22, 1970.

[63 Misc.2d 602] Frank S. Hogan, Dist. Atty., New York County, for the People; Richard Printz, Asst. Dist. Atty., of counsel.

Donald Gilbert, for defendant Stewart.

William S. Ellis, New York City, for defendant Maxwell.

OPINION

EDWARD K. PINCUS, Judge.

This is an application, prior to the trial of the defendants as youthful offenders, to suppress the introduction of certain narcotic drugs as evidence upon the ground of an illegal search and seizure.

Upon the hearing, which was granted by the Court, the prosecution called as a witness, Mr. Edward Hom, who stated that he was employed by the N.Y.C. Board of Education in the position of Dean of Boys at Brandeis High School. He testified that on September 16, 1969, some time between 10 a.m. and 11 a.m. a student-informer, from whom he had previously received information ¹ (resulting in three arrests and three convictions) concerning the unlawful possession of narcotics, told him that the defendant Maxwell (also a student at the school) '* * * had stuff on him' (transcript, p. 9).

The witness stated that he went to Maxwell's class, accompanied by Mr. Roth, another Dean of Boys in the school, and requested Maxwell to come to the Social Studies office. Upon arriving there, the witness continued, he directed Maxwell to empty his pockets. The student complied with this direction and 'envelopes with a rubber-band around it fell out.' (Transcript, p. 20) Mr. Hom said he observed that there were fifteen envelopes containing a 'white powder' (p. 21) and he immediately summoned a city policeman who was stationed in the building. The patrolman arrived, was given the envelopes, and after arresting Maxwell, escorted him to the local precinct, accompanied by Mr. Roth as a complaining witness.

Mr. Hom further testified that half an hour later the same student-informer told him that defendant Stewart was up on the third floor. Accompanied by an urban worker in the school, Mr. Hom went there and brought Stewart to his office where Stewart was also directed to empty his pockets. When the student did so, sixteen envelopes containing a white powder, a hypodermic needle, bottle cap, and an eyedropper were uncovered (p. 27). Again, the same procedure was followed: a patrolman was summoned who arrested Stewart and escorted him to the precinct.

It is observed that Mr. Hom stated that he had never taken any formal training concerning narcotic addiction but has had some experience in catching students in the school who were in possession of drugs. His efforts have been assisted, he testified, by the receipt of information from student-informers in the school. Upon this application, counsel for the defendants object to the use of the evidence upon the ground that the Dean failed to give the required warnings pursuant to the decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and complaint is made that the Dean was unauthorized to act without a search warrant.

It is noteworthy, under the circumstances in this case, that no admissions or other inculpatory statements were made by either defendant and consequently the doctrine of Miranda concerning the inadmissibility of confessions obtained without the giving of the constitutional warnings has no application here.

Hence, the sole question presented is whether the exclusionary rule against unreasonable searches and seizures contained in the Fourth Amendment is applicable to private persons who obtain evidence for a criminal prosecution.

It is noted that, although the Dean admits the defendants remained with him in his office, he denied that he had made any citizen's arrest, or restrained them of their liberty as is inferred by the defense. Although that issue is not material here, it is true that the point at which an arrest is made does not depend upon the presence or absence of any formal words by the witness, but is an issue of fact to be determined by the Court. (People v. Butterly, 25 N.Y.2d 159, 303 N.Y.S.2d 57, 250 N.E.2d 340.) Therefore, upon a review of the circumstances of this case, I find as a fact that the defendants were not placed under arrest until the arrival of the policemen who took them into custody. There was no contention advanced at the hearing, and I find no suggestion from the records, that the Dean of Boys was either an agent of the police or in some fashion jointly endeavoring with them to uncover crime in his school. Although defense counsel, ² in his Brief on the motion, argues that the Dean 'was acting for the police' (Brief, p. 8) and that the 'Dean and the urban worker were tools of the Police Department' (Brief, p. 9) I find no basis in the record in support of such a belief. We do not have in this case any 'joint-venture' between the Dean and the police to assist a criminal prosecution, as was the fact in Stapletone v. Superior Court, 1968, 70 Cal.2d 97, 73 Cal.Rptr. 575, 447 P.2d 967. Consequently, it may not be said that he was a law enforcement official. On the contrary, he, as an educator, being responsible for the safety and welfare of students at Brandeis High School, sought, not on his own whim or caprice, but on the...