People v. Young

• Decision Date: 07 April 1982
• Citation: 55 N.Y.2d 419,434 N.E.2d 1068,449 N.Y.S.2d 701
• Parties: , 434 N.E.2d 1068 The PEOPLE of the State of New York, Respondent, v. Warren YOUNG, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 701

449 N.Y.S.2d 701

55 N.Y.2d 419, 434 N.E.2d 1068

The PEOPLE of the State of New York, Respondent, v. Warren YOUNG, Appellant.

Court of Appeals of New York.

April 7, 1982.

Barry D. Leiwant, William E. Hellerstein and Thomas H. Busch, New York City, for appellant

Mario Merola, Dist. Atty. (Philip Foglia and Peter D. Coddington, New York City, of counsel), for respondent.

OPINION OF THE COURT

WACHTLER, Judge.

The question presented for our review on this appeal is whether in a criminal proceeding police officers may properly be allowed to testify to the underlying facts and circumstances surrounding appellant's unlawful arrest notwithstanding the suppression of both physical evidence seized from appellant at the time of his arrest and testimony regarding an unlawful showup conducted immediately after the arrest. We hold that they may.

On the morning of March 22, 1978 Thomas Pimentel was working alone at his cousin's grocery store in The Bronx. At approximately 10:30 a. m. appellant entered the store, bought chewing gum and left. A few minutes later appellant reentered the store, still occupied only by Mr. Pimentel, produced a knife and announced a robbery. Appellant removed the contents of the cash register, consisting of money and food stamps, and fled.

At approximately 10:50 a. m. on the same morning, Officers Scanlon and Calise who were parked nearby, observed appellant walking quickly and continually looking over his shoulder. They watched him enter a subway station, emerge from it looking up and down the street, reenter into and reemerge from the station, and finally run from the station to catch a bus. As the officers followed the bus they received a radio alarm informing them that the grocery store near where they first observed appellant had been robbed.

Appellant rode the bus for only two blocks, after which the officers observed him walk for three blocks and enter a construction site. At that point the officers approached him, identified themselves and told him to stop. Appellant put his hand in his pocket, but Officer Calise restrained him before he could remove his hand. Appellant was then arrested and searched, and the officers seized a knife, $69.08 in cash and $11 in food stamps. Appellant was taken back to the grocery store, where Mr. Pimentel identified him as the person who committed the robbery. Both Mr. Pimentel and appellant were then removed to the local precinct.

At the pretrial hearing, the court determined that appellant was arrested without probable cause and granted his motion to suppress the knife, the money and the food stamps seized at the time of arrest. In addition, and for the same reason, the hearing court also suppressed the testimony by Mr. Pimentel regarding his identification of appellant at the showup immediately following the arrest. The court ruled, however, that testimony proving that appellant was arrested could be elicited. The court also permitted Mr. Pimentel to identify appellant at trial, finding that his observation of appellant immediately before and at the time of the robbery established a sufficient source independent of the illegal showup. ¹

At trial the officers testified to the facts described above, except that they did not refer to the seizure of the knife, money or food stamps or to the showup identification of appellant by Mr. Pimentel. Mr. Pimentel testified to the circumstances of the robbery and identified appellant as the perpetrator, but similarly did not discuss the postarrest showup identification. After beginning its deliberations the jury asked the court whether it was entitled to know if the knife or the money was found on the defendant at the time of arrest. The court told the jury that this information could not be disclosed.

Appellant was convicted of robbery in the first degree (Penal Law, § 160.15, subd. 3) and criminal possession of a weapon in the fourth degree (Penal Law, § 265.01, subd. ). We agree with the Appellate Division, 79 A.D.2d 896, 435 N.Y.S.2d 618, that the judgment of conviction should be affirmed.

Appellant's primary contention on this appeal is that the officers' testimony concerning events which occurred after they stopped appellant at the construction site was the direct product of an illegal arrest and should have been suppressed in accordance with the exclusionary doctrines espoused by the Supreme Court in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 and its progeny. Appellant does not challenge the admissibility of testimony regarding the officers' observations up to the point he entered the construction site, nor could he, for it is clear that even though the police lack probable cause, they may unobtrusively observe and follow a suspect as long as the suspect's freedom of movement is not limited by doing so (People v. Howard, 50 N.Y.2d 583, 592, 430 N.Y.S.2d 578, 408 N.E.2d 908). Appellant argues, however, that the officers' testimony that they drew their guns and stopped appellant, that he reached into his pocket and was immediately arrested, and that he was taken to the scene of the crime and thereafter along with Pimentel to the local precinct, should have been excluded. We do not agree that the exclusionary rule should be applied to this testimony.

It may well be, as is the view of some members of our court, that the testimony of the police officers in this instance was not the product or the exploitive consequence of any search or seizure falling within the proscriptive scope of the Fourth Amendment, but rather that the testimony was of observations made prior and with respect to the arrest (later determined to have been made without probable cause). On this analysis it is said that the proscription of the Fourth Amendment, and thus the constraint of its associated exclusionary rule, were irrelevant and that the hearing court accordingly properly differentiated between testimony as to certain events which occurred (the facts of the police surveillance and the arrest of defendant)--which was admitted--and evidence obtained as a result of that arrest (the knife, the money and the food stamps seized at the time and the identification testimony of Mr. Pimentel elicited as a consequence of the arrest)--which was suppressed.

But those members of the court who believe that the testimony of Officers Scanlon and Calise falls within the broad ambit of Fourth Amendment proscription, nevertheless hold the view that the concomitant exclusionary rule should not be invoked in this instance to preclude admission of their testimony. Their position may be expressed as follows. The exclusionary rule was originated to effectuate the Fourth Amendment's guarantee that all citizens "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". The rule prohibits the use of evidence obtained in violation of an accused's Fourth Amendment rights in a criminal proceeding against him (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081) and this prohibition applies to any tainted fruits, whether tangible or verbal, of illegally seized evidence (Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, supra ).

The underlying purpose of the exclusionary rule is not to redress the injury to the accused's privacy for that privacy once invaded, may never be restored. Rather, the rule's primary objective is to deter future unlawful police conduct and thereby effectuate the Fourth Amendment's proscription against unreasonable searches and seizures (Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601; Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669). "In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generated through its deterrent effect, rather than a personal constitutional right of the party aggrieved" (United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561).

The Supreme Court, however, has readily acknowledged that the exclusionary rule has never been interpreted to preclude the "use of illegally seized evidence in all proceedings or against all persons" (United States v. Calandra, supra, at p. 348, 94 S.Ct. at p. 620; see, also, United States v. Ceccolini, 435 U.S. 268, 275, 98 S.Ct. 1054, 1059, 55 L.Ed.2d 268; Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067). Noting that in some cases the societal costs of applying the exclusionary rule are too substantial when compared to limited benefits derived from it, both this court and the Supreme Court have held that the application of the rule must be restricted to those areas where its remedial objectives are most "efficaciously served" and not merely "tenuously demonstrable" (United States v. Calandra, supra, 414 U.S. at p. 348, 94 S.Ct. at p. 620; People v. McGrath, 46 N.Y.2d 12, 21, 412 N.Y.S.2d 801, 385 N.E.2d 541). It is clear that the exclusionary rule has never been considered a fundamental right of constitutional dimensions requiring automatic application whenever the Fourth Amendment has been violated. Rather, it has always been incumbent upon the courts to balance the societal cost of losing reliable and competent evidence against the probable effectuation and enhancement of Fourth Amendment principles, for as our court unanimously found, the application of the exclusionary rule is dependent "upon a balancing of its probable deterrent effect against its detrimental impact upon the truth-finding process" (People v. McGrath, supra, at p. 21, 412 N.Y.S.2d 801, 385 N.E.2d 541).

The members of the court who consider the officers' testimony regarding the underlying facts of the unlawful arrest to be within the proscription of the Fourth Amendment would also conclude that the testimony was properly received in evidence. The suppression of the knife, money, food stamps and postarrest showup identification transformed an arguably strong case into a weak...