People v. Wesley

• Decision Date: 17 January 1975
• Citation: 363 N.Y.S.2d 301,80 Misc.2d 581
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Stephen WESLEY, Defendant.
• Court: New York City Court

Page 301

363 N.Y.S.2d 301

80 Misc.2d 581

The PEOPLE of the State of New York, Plaintiff, v. Stephen WESLEY, Defendant.

City Court of White Plains.

Jan. 17, 1975.

James Murray, Asst. Dist. Atty., for plaintiff.

Joseph Hirschfield, White Plains, for defendant.

DECISION

LESLIE I. LEVINE, Judge.

This is a motion to suppress evidence obtained as the result of an alleged unlawful search. Defendant is charged with the offense of Falsely Reporting an Incident, in violation of Section 240.55, subd. 1 of the Penal Law, a Class A Misdemeanor. In simple fact, defendant is charged with turning in a false fire alarm on October 23, 1974 in the vicinity of Maple Avenue and South Broadway in the City of White Plains.

The papers read on this motion include the information and a supporting affidavit of a Deputy Fire Chief, Notice of Motion, Supporting Affirmation by defendant's attorney and an Affidavit in Opposition submitted by the People.

The facts appear to indicate that a Deputy Fire Chief, while answering a false alarm, '. . . noticed a suspect walking . . .' and '. . . apprehended the suspect and used the ultraviolet light on him which revealed paste on his right hand.' Apparently, this type of paste is put on fire alarm box handles by the Fire Department as a means of detection.

Was the search valid or illegal? Clearly, no search warrant was ever sought or obtained. Was the search incident to a lawful arrest? It would appear not. The arrest followed the search, and if the search was illegal Ab initio, it cannot be retroactively justified 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 precedents. The fire officer did not simply shine a light on defendant. On the papers before the Court, he swore that he '. . . apprehended the suspect and used the ultraviolet light on him . . .'. This is as much of a search as if he required the suspect to strip, pumped his stomach, etc. The variations in the technology of detection cannot affect the protections afforded by the Bill of Rights. The common denominator between the search herein and any other illegal search is the lack of consent thereto. Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649.

The People further assert that suppression does not lie because there was no 'seizure' of evidence. This is a distinction that lacks meaning. The evidence is the testimony alluding to the fruits of the search and to require it to be movable, tangible contraband would be analogous to saying that an X-Ray picture or fluoroscope could...