Sackler v. Sackler

• Decision Date: 25 January 1962
• Citation: Sackler v. Sackler, 33 Misc.2d 600, 224 N.Y.S.2d 790 (N.Y. Sup. Ct. 1962)
• Parties: Abraham M. SACKLER v. Gloria SACKLER.
• Court: New York Supreme Court

Page 790

224 N.Y.S.2d 790

33 Misc.2d 600

Abraham M. SACKLER v. Gloria SACKLER.

Supreme Court, Special Term, Kings County, Part V.

Jan. 25, 1962.

Rothenberg & Atkins, New York City, for plaintiff.

Morris H. Halpern, New York City, for defendant.

BENJAMIN BRENNER, Justice.

The defendant-wife, legally separated by a decree of this court, moves to suppress evidence of her alleged adultery. The evidence, complete with photographs, is claimed to have been secured by the plaintiff-husband upon his forceful entry and raid of the wife's separately maintained apartment. She contends that her right to exclude the evidence has newly arisen by virtue of the decisional mandate of the U.S. Supreme Court in Mapp v Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, which, she says, now gives real effect to her constitutional and statutory rights to the privacy of her person. In effect, she maintains the a spouse may no longer establish the adultery of the other if it be uncovered through unreasonable search of her legally established private residence.

The husband, opposing suppression, claims that Mapp has made no such drastic change of the exclusionary rule in this state as to evidence obtained by a private individual and offered in a civil case. He says it has been altered only to the extent of requiring all State courts to exclude evidence in criminal cases secured by police and governmental authorities through unreasonable search and seizure. Moreover, the husband denies the use of force and contends that evidence of his wife's adultery in the separately maintained residence may not be suppressed as she has no constitutional right to commit it. In essence the defendant insists upon the right to invade the legally established separate residence of the spouse and to uncover and prove adultery committed therein, intimating that he may at least take one look and tell what he saw, whether or not he was invited to do so.

Mapp did indeed radically alter the exclusionary law in this and other states which had not previously adopted their own exclusionary rule (see Appendix in Elkins v. United States, 364 U.S. 206, 80 S.Ct . 1437, 4 L.Ed.2d 1669.) It now requires all state courts to apply the exclusionary rule, previously confined to Federal courts by the Supreme Court, to evidence procured by law officers and governmental officials through unreasonable search and seizure in violation of the 4th amendment to the Federal Constitution. [The requirements of the 4th amendment had previously been made operative against the states by virtue of the due process clause of the 14th amendment (Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782). But there the court specifically refused to apply the rule to State courts to effectuate those requirements (Wolf v. Colorado, supra, at page 33, 69 S.Ct. 1359)].

The Court of Appeals in People v. Loria, decided 11/30/61, 223 N.Y.S.2d 462, 179 N.E.2d 478 acknowledged and confirmed this change in the rule. The decision went further declaring 'There appears to be no bar to defendant's making an application to the court in advance of trial to suppress the challenged evidence'. Thus, if the exclusionary rule may now, as the wife urges, be extended to evidence procured by a private individual through unreasonable search when offered in a civil trial, then there is authority for suppression upon motion prior to trial.

In arguing for the extension of the rule, the wife frankly admits riding the crest of these current holdings. Her observation that New York is on the threshold of applying the doctrine of the exclusionary rule in civil suits is a tacit admission that Mapp did not directly do so nor did the Court of Appeals in People v. Loria, do so. Moreover, unreasonable search by law officials and intrusion by Government authority are the plain concern and objectives of the safeguards provided by the first ten amendments to the United States Constitution and particularly to the 4th amendment. (Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734; People v. Tarantino, 45 Cal.2d 590, 290 P.2d 505; Marshall v. State, 182 Md. 379, 35 A.2d 115). Moreover, the defendant cannot rely upon Article 1, Sec. 12 of our State Constitution which bars unreasonable searches and seizures as it is settled law that 'The provisions of article I, section 12 of the State Constitution, * * * relate solely to the sovereign authorities and its agencies and not to individuals * * *.' (People v. Appelbaum, 277 App.Div. 43, 97 N.Y.S.2d 807, 810, affd. 301 N.Y. 738, 95 N.E.2d 410.)

All this does not mean that Mapp is not helpful to the wife's cause, or that it does not justify a logical extension and liberalization of the rule. On the contrary, I think it does. While Mapp is no authority for the proposition that the State and Federal Constitutions offer safeguards against the actions of private individuals, it surely does point the way to a reexamination of those very same rights protected by the statutory law of this state (Civil Rights Law, § 8, McKinney Consolidated Laws). For, it seems to me, Mapp does give rise to the reasonable inference that if states may no longer accept evidence which tends to 'flout the insolence of office' (People v. DeFore, 242 N.Y. 13, 25, 150 N.E. 585, 589, cert. den. 270 U.S. 657, 46 S.Ct. 353, 70 L.Ed. 784) despite the salutory need to protect society against crime, that evidence of invasion of privacy by nonofficials should also be rejected even in private litigation. In other words, if the state courts may no longer permit disclosure of crime ferreted out by unreasonable search, in the name of crime prevention and detection, is there any further necessity or incentive to give judicial sanction or to lend the forum of the civil courts to individuals who would use evidence obtained in the course of flouting basic civil rights? So, too, if decisional law in this state, prior to Mapp, is relied upon, it seems fair to say that this body of law rests upon what was, until Mapp, thought to be a need to give a freer hand to governmental authority to ferret out crime and thereby protect society. (People v. DeFore, supra). As such motivation can no longer be urged the courts of this state would appear to be free to give force to the plain intendment of the strictures of our civil rights law against unreasonable search if such law can fairly be said to be applicable to private conduct. For, as urged here 'the protection is even more necessary against a private citizen, who is not especially trained or enjoined to enforce the law, as is a public officer, who is less likely to stray.'

This leads to a close examination of Section 8 of the Civil Rights Law which employs the precise language found in Article 1, Section 12 of the State Constitution and of the 4th amendment to the United States Constitution forbidding unreasonable intrusion upon privacy. This statute antedated our constitutional provision by some 100 years. (It first appeared in the revised statutes of 1828 [Part I, Chapt. 4, sec. 11]), and even when the constitutional convention of 1938 added Article 1 Sec. 12 in words identical to that of Section 8 of the Civil Rights Law, the statute was not eliminated. I believe that the statute was permitted to remain intact because the constitutional provision has applicability only to official acts (People v. Appelbaum, supra) while Section 8 of the Civil Rights Law affects both private persons and representatives of the sovereig state. This is evidenced by the fact that other sections of Article 2 of the Civil Rights Law, known as the Bill of Rights, of which section 8 is a part, apply to both private and official action (Secs. 3, 5, 9, 16 and 17, Civil Rights Law).

In People v. DeFore, supra, Judge Cardozo long ago recognized the applicability of the Civil Rights Law to private conduct, stating, 242 N.Y. at page 21, 150 N.E. at page 588: 'We find nothing in the statute (Civil Rights Law, § 8) whereby official trespassers and private are differentiated in respect of the legal consequences to follow them. All that the statute does is to place the two on an equality. * * *' It is true, of course, that the conclusion of that revered Jurist was that evidence obtained by unreasonable search or seizure, whether private or official, was admissible, but it does demonstrate an awareness by him that Section 8 was directed to private as well as official acts. So, if we are to be consistent, as he urged in his opinion, we should presently exclude evidence obtained by private persons as the natural consequence of the new rule excluding evidence obtained by officials.

In Michigan, the exclusionary rule has been applied to evidence obtained by private persons sought to be introduced in a civil suit (Lebel v. Swincicki, 354 Mich. 427, 93 N.W.2d 281), while other states have rejected it (People v. Johnson, 153 Cal.App.2d 870, 315 P.2d 468; Walker v. Penner, 190 Or. 452, 227 P.2d 316; Kendall v. Commonwealth, 202 Ky. 169, 259 S.W. 71; State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A.L.R. 383). It should be pointed out however that the decisions in other states which have refused to apply the rule to the acts of individuals, were all prior to the Mapp decision and, what may be more significant, they all relied heavily upon Burdeau v . McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, which appears to have been overruled by Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (Williams v. United States, 6 Cir., 282 F .2d 940, 941). They cannot therefore be considered as guide posts upon this unmarked road.

The facts must now be examined to determine whether the husband's intrusion was unreasonable, in violation of the Civil Rights Law (or of any penal provision as to unlawful entry) for, clearly, if no unreasonable intrusion was perpetrated, the wife could not suppress the evidence...