Sackler v. Sackler

• Decision Date: 28 May 1962
• Citation: 229 N.Y.S.2d 61,16 A.D.2d 423
• Parties: Abraham M. SACKLER, Appellant, v. Gloria SACKLER, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 61

229 N.Y.S.2d 61

16 A.D.2d 423

Abraham M. SACKLER, Appellant, v. Gloria SACKLER, Respondent.

Supreme Court, Appellate Division, Second Department.

May 28, 1962.

Charles Rothenberg, New York City, of counsel (Sidney Rothenberg, New York City, with him on the brief; Rothenberg & Atkins, New York City, attorneys), for appellant.

Morris H. Halpern, New York City (Edward J. Bloustein, New York City, with him on the brief), for respondent.

Before BELDOCK, P. J., and UGHETTA, CHRIST, HILL and HOPKINS, JJ.

BELDOCK, Presiding Justice.

On April 5, 1961, in the Supreme Court, Kings County, the defendant wife obtained a judgment of separation from the plaintiff husband and thereafter moved into her own apartment. Some four months later, on August 20, 1961 at about 3:30 A. M., plaintiff and other members of a raiding party (none of whom was a police officer) entered defendant's apartment without her consent and without a search warrant, and allegedly obtained evidence of her adultery.

In this action for divorce, defendant moved to suppress and exclude the evidence so gathered. Special Term granted the motion on the grounds: (a) that although the Federal and State constitutional protection against unreasonable search applies only to official acts, the New York State statutory protection against unreasonable search, which is contained in section 8 of the Civil Rights Law, applies both to private and official persons; (b) that evidence gathered by private persons in violation of section 8 of the Civil Rights Law is inadmissible in civil suits; (c) that the search by plaintiff and his raiding party was unreasonable because it was the result of uninvited entry; and (d) that the exclusion of the evidence is not contrary to public policy because it will protect the innocent spouse from nightly visitation even at the risk of protection of the adulteress.

In our opinion, the order of Special Term was erroneous because the exclusionary rule does not apply (a) to evidence gathered by private persons, or (b) to civil causes.

The Fourth Amendment of the Constitution of the United States protects against 'unreasonable governmental intrusion' into the privacy of a person's home (Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734); and any evidence discovered as a result of such governmental intrusion is now constitutionally tainted and inadmissible in a State court criminal trial (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478). The similar provisions of the Constitution of New York State (N.Y.Const. art. I, § 12) also relate solely to the sovereign authority and to its agencies (People v. Appelbaum, 277 App.Div. 43, 97 N.Y.S.2d 807, affd. 301 N.Y. 738, 95 N.E.2d 410).

However, the Federal and State constitutional protection against unreasonable search and seizure by governmental action is not intended to be a limitation upon other than governmental agencies. Where evidence is gathered by private individuals in a manner which would be unlawful if done by governmental authority, there is no invasion of the constitutional security and the evidence is admissible (Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048). The Burdeau case, although decided some forty years ago, has never been overruled.

Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, held that evidence obtained by State officers during a search which, if conducted by Federal officers, would have violated defendant's immunity from unreasonable searches and seizures, is inadmissible over defendant's timely objection in a Federal criminal trial, and thus overruled the contrary holding in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. But Elkins did not overrule Burdeau, contrary to the opinion of the Special Term in the case at Bar and to the dictum in Williams v. United States, 6 Cir., 282 F.2d 940.

Although section 8 of the Civil Rights Law of this State (which contains the same language as the Federal and the New York State constitutional provisions against unreasonable search and seizure) has been held to apply to both official and private trespass (People v. Defore, 242 N.Y. 13, 150 N.E. 585, cert. denied 270 U.S. 657, 46 S.Ct. 353, 70 L.Ed. 784), the Defore case held merely that trespasses by police officers and private individuals in unreasonable search are on an equality only in that both are subject to certain liabilities and penalties. However, it was clearly stated that the public policy of the State is that evidence obtained by such unreasonable search is admissible in evidence because the Legislature did not provide for its exclusion.

All that Mapp v. Ohio (supra) held was that evidence gathered by State officers as the result of unreasonable search and seizure was inadmissible in a State court criminal trial. It did not overrule and was not intended to overrule the public policy of this State as laid down in People v. Defore (supra) or the public policy of the United States as laid down in Burdeau v. McDowell (supra), namely: that a prosecutor might make such use as he pleased of information acquired from a trespasser if persons other than Federal or State officers were guilty of the trespass. Perhaps, as stated in Defore, the rule is logically subject to the criticism: (a) that the object of the trespass rather than the official character of the trespasser should test the rights of government; and (b) that we exalt form above substance when we hold that the use is made lawful because the intruder is without a badge of office. But until the Defore and Burdeau cases are directly overruled by courts of equal authority in respect to the use of evidence gathered by private trespassers, we as an intermediate appellate court should not take that forward step (People v. Dinan, 7 A.D.2d 119, 181 N.Y.S.2d 122, affd. 6 N.Y.2d 715, 185 N.Y.S.2d 806, 158 N.E.2d 501, cert. denied 361 U.S. 839, 80 S.Ct. 71, 4 L.Ed.2d 78).

None of the reasons given by the courts for excluding in criminal trials the evidence gathered by unreasonable search and seizure applies to civil causes. The admission of the evidence would not constitute a violation of the privilege against self incrimination (People v. Defore, 242 N.Y. 13, 150 N.E. 585, supra; People v. Richter's Jewelers, 291 N.Y. 161, 51 N.E.2d 690, 150 A.L.R. 560). Where evidence unlawfully seized is admitted in a criminal trial, there is encouragement of the lawless enforcement of the criminal law, with the government condoning violations of law by officers sworn to observe and enforce it. Here there is no government involved which, on the one hand, seeks to uphold the law, and, on the other, seeks to punish others for not obeying it.

Nor is the plaintiff in this action seeking to profit through his wrong by basing his action on the illegally obtained evidence. Plaintiff's intrusion into defendant's apartment did not affect 'the equitable relations subsisting between the two parties' or arise 'out of the transaction' so as to bring into play the doctrine of unclean hands (2 Pomeroy's Equity Jurisprudence [5th ed.], § 399). The relief to which plaintiff is entitled is not founded in any way on his wrongful conduct, but on defendant's alleged wrongful conduct.

In this State the rule is that evidence illegally obtained is admissible and competent in a civil action (Bloodgood v. Lynch, 293 N.Y. 308, 56 N.E.2d 718, and cases there cited). Even if it be assumed that evidence obtained by physical assault is inadmissible in a civil trial (Lebel v. Swinicki, 354 Mich. 427, 93 N.W.2d 281; cf. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183), there was no physical assault here. Nor would the admission of the evidence of the event of August 20, 1961 be violative of defendant's rights under the equal protection clause of the Fourteenth Amendment to the Federal Constitution (cf. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161).

The order insofar as appealed from should be reversed, without costs, and defendant's motion to suppress and exclude the evidence should be denied.

Order, insofar as appealed from, reversed, without costs, and defendant's motion to suppress and exclude the evidence denied.

UGHETTA and HILL, JJ., concur with BELDOCK, P. J.

CHRIST AND HOPKINS, JJ., DISSENT

AND VOTE TO AFFIRM IN SEPARATE OPINIONS.

CHRIST, Justice.

I dissent and vote to affirm.

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 does not decide whether evidence obtained by the commission of a crime may be used by the perpetrator in a civil suit. It is concerned only with a criminal prosecution in a State court. The United States Supreme Court, however, now compels our State to recognize the principle that a court of law should not accept as evidence the fruits of a crime (People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478).

The fact of this recent pronouncement by the highest court in our land and its application in all Federal and State courts in criminal prosecutions gives new vitality to the claim for exclusion of tainted evidence in all lawsuits, civil as well as criminal. It is a strange concept which would permit a court of law to encourage the commission of illegal acts by honoring the fruits of the illegality, and which would permit the perpetrator to win a lawsuit by deliberately violating the law.

It would be a still greater anomaly to bar tainted evidence in a criminal case but at the same time permit its introduction in a civil suit. There is no sound reason for a different rule of admissibility between civil and criminal cases. It should be the same in both. Evidence obtained by the deliberate commission of a crime should be inadmissible on behalf of the perpetrator in the trial of a civil action.

HOPKINS, Justice.

I dissent from the majority view on the ground so ably and succinctly stated by Mr. Justice CHRIST...