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June 10, 1966

UNITED STATES of America ex rel. Lloyd JACKSON, Petitioner,

The opinion of the court was delivered by: TYLER

TYLER, District Judge.

 On March 10, 1966, this court denied an application of Lloyd Jackson for a writ of habeas corpus. See United States ex rel. Jackson v. Warden of Green Haven State Prison, Civ. no 65-3266, S.D.N.Y., March 10, 1966. On March 17, 1966, Jackson filed a petition for a certificate of probable cause and an affidavit for leave to appeal in forma pauperis. With Jackson's consent, this court treated this petition as a motion for reargument and assigned Leon Polsky, Esq. of the Legal Aid Society to represent Jackson on the motion for reargument.

 Jackson is presently incarcerated in Green Haven State Prison pursuant to a sentence imposed after a plea of guilty to the charge of felonious possession of narcotic drugs with intent to sell. Jackson alleges that his detention is in violation of his rights as guaranteed by the Fourth Amendment.

 After being indicted by a grand jury sitting in New York County, Jackson moved to suppress the evidence which was seized as a result of a search of his person on the night of his arrest. He contended, and still contends, that the search of his person was unlawful because it was not executed pursuant to a search warrant or incident to a valid arrest. The motion to suppress was denied after a hearing. Jackson then entered a plea of guilty and was sentenced to a term of 3 to 6 years. Following this, Jackson appealed the judgment of conviction, which, though predicated upon a plea of guilty, under New York law may be appealed for the purpose of obtaining a review of the denial of the motion to suppress. See N.Y.Code Crim. Procedure ┬ž 813-c. The Appellate Division, First Department, affirmed the judgment of conviction - i.e., found that the search of petitioner was not unlawful. Leave to appeal to the Court of Appeals was denied.

 In denying petitioner's application for habeas corpus, this court followed the well-settled federal rule that a plea of guilty, voluntarily entered, is a waiver of all non-jurisdictional defects. See United States ex rel. Glenn v. McMann, 349 F.2d 1018, 2 Cir., 1965; United States v. Cariola, 323 F.2d 180, 3 Cir., 1963; United States v. Hetherington, 279 F.2d 792, 793, 7 Cir., 1960. Thus, I earlier held that Jackson, by pleading guilty, had waived the right to challenge in the federal courts the legality of the arrest and subsequent search and seizure.

 Upon re-examination of the conceptual problems involved in this case, however, I have become convinced that the aforementioned federal rule is not applicable to Jackson's case.

 In the federal courts, a plea of guilty, if accepted, is an admission of all of the allegations charged in the indictment or information. Before a federal district judge can accept a plea of guilty, he must be satisfied that the defendant is voluntarily entering the plea of guilty with full understanding of the nature of the charges made in the indictment (or information), his available defenses and the consequences of such a plea. *fn1" See United States v. Cariola, 323 F.2d 180, 3 Cir., 1963; United States v. Hetherington, 279 F.2d 792, 7 Cir., 1960; Bloombaum v. United States, 211 F.2d 944, 4 Cir., 1954. If a federal court is satisfied that a conviction is based upon a plea of guilty which was entered voluntarily and with knowledge of its consequences, either in a state or federal forum, then it will not permit a collateral attack on that conviction. United States ex rel. Boucher v. Reincke, 341 F.2d 977, 2 Cir., 1965; United States ex rel. Glenn v. McMann, 349 F.2d 1018, 2 Cir., 1965. The only way in which the conviction may be attacked after a voluntary plea of guilty is for the defendant to show that the court which entered the judgment of conviction had no jurisdiction so to do. Michener v. United States, 170 F.2d 973, 8 Cir., 1948. The reasoning which supports this rule is simply that when a person pleads guilty knowingly, he admits all of the non-jurisdictional facts contained in the indictment or information, thus eliminating the need for the prosecutor to prove guilt beyond a reasonable doubt. LaFever v. United States, 257 F.2d 271, 7 Cir., 1958; Bloombaum v. United States, 211 F.2d 944, 4 Cir., 1954. In short, a plea of guilty is an admission of the violation of law charged in the indictment. United States v. Cariola, 323 F.2d 180, 3 Cir., 1963; Bloombaum v. United States, supra.

 One who pleads guilty is deemed to have "waived" his right to challenge anything which occurred prior to trial which is non-jurisdictional. United States v. Hetherington, supra; Berg v. United States, 176 F.2d 122, 9 Cir., 1949. One of the non-jurisdictional defects which is waived by a plea is evidence which, according to the defendant, was unconstitutionally seized. Mahler v. United States, 333 F.2d 472, 10 Cir., 1964; Hoffman v. United States, 327 F.2d 489, 9 Cir., 1964; Thomas v. United States, 290 F.2d 696, 9 Cir., 1961. The rationale here is that no evidence was used against the defendant to obtain his conviction. His conviction was based squarely upon his plea of guilty. The defendant, therefore, "waived" his right to challenge the constitutionality of use of the evidence against him. Although the voluntariness of a guilty plea may be challenged in a collateral proceeding, *fn2" a defendant therein may not claim that his plea of guilty was involuntary in the sense that the denial of his suppress motion was "coercive". *fn3" See United States v. Doyle, 348 F.2d 715, 2 Cir., 1965; Winston v. United States, 224 F.2d 337, 2 Cir., 1955; Alexander v. United States, 290 F.2d 252, 5 Cir., 1961. Thus, the traditionally proper way for a defendant to challenge evidence which he contends was unconstitutionally obtained has been to make a pre-trial motion to suppress and, if this motion is denied, to go to trial, where he can again move to suppress the evidence. At least in those states permitting the procedure of a suppress motion, a defendant, if convicted, usually may then raise the issue on appeal, and may also raise this issue in a collateral proceeding in the state and federal courts.

 Although this is the procedure used in the federal system and in most states, New York recently has provided, by statute, an alternative procedure for litigating the issue of whether or not evidence in a criminal case was obtained unconstitutionally. Section 813-c of the New York Code of Criminal Procedure states that:

"A person claiming to be aggrieved by an unlawful search and seizure and having reasonable grounds to believe that the property, papers or things, hereinafter referred to as property, claimed to have been unlawfully obtained may be used as evidence against him in a criminal proceeding, may move for the return of such property or for the suppression of its use as evidence. The court shall hear evidence upon any issue of fact necessary to determination of the motion.
If the motion is granted, the property shall be restored unless otherwise subject to lawful detention, and in any event it shall not be admissible in evidence in any criminal proceeding against the moving party.
If the motion is denied, the order denying such may be reviewed on appeal from a judgment of conviction notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty."

 This statute went into effect on April 29, 1962. A major impetus for the enactment of this statute was the Supreme Court's ruling in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) that evidence obtained by searches and seizures in violation of the United States Constitution is inadmissible in state courts. Accordingly the enactment of Section 813-c was designed to provide a procedural vehicle by which a criminal defendant can challenge the constitutionality of evidence which might be used against him. *fn4" A motion made pursuant to Section 813-c must be made prior to trial unless a defendant is able to come within one of the three exceptions, not pertinent here, provided by the statute. *fn5" Once the motion is decided, the determination is binding upon the trial judge, unless the defendant obtains additional evidence after the determination of the motion which he could not have obtained with due diligence before the making thereof. *fn6" It has been held that, pursuant to this statute, a defendant may appeal a denial of a motion to suppress although the evidence in question does not relate to the (counts) of the indictment to which the defendant pled guilty. *fn7" People v. Lakin, 21 A.D.2d 902, 251 N.Y.S.2d 745 (2d Dept. 1964).

 Section 813-c apparently has the effect of deracinating the traditional meaning and ramifications of a plea of guilty. Its effect is to preserve the alleged non-jurisdictional defect of an unlawful search and seizure, which is a federal question, beyond the plea and allow it to be further litigated in the state appellate courts. Thus, if this court were to literally follow the long-pertaining federal rule, a defendant who pleads guilty pursuant to Section 813-c is placed in the anomalous position of on the one hand preserving a federal constitutional issue for further litigation in the state courts while at the same time ...

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