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UNITED STATES EX REL. MISHKIN v. THOMAS

April 2, 1968

UNITED STATES ex rel. Edward MISHKIN, Petitioner,
v.
James A. THOMAS, Warden of the City Penitentiary of the City of New York, Respondent



The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

 This habeas corpus proceeding poses as its first question a puzzling study in chronology and constitutional law. The subject is an allegedly unlawful series of searches and seizures in 1959 and 1960; the use of evidence thus obtained to produce a judgment of conviction on December 14, 1960; the petitioner's claim for relief in this collateral attack under the rule announced on June 19, 1961, in Mapp v. State of Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081; and the effect upon this claim of the doctrine of limited prospectivity laid down in Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), as this doctrine may in turn have been affected by Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966), and Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). The nature of the riddle requires more than customary attention to the dates in the litigation itself as potentially critical operative facts.

 For reasons canvassed under headings I-III of the following discussion, the court reaches the merits. On grounds thereafter stated (see "IV," infra), the writ is granted.

 I.

 Late in 1959 and early in 1960, New York City police conducted some four or five searches and seizures - one ostensibly with a warrant, the others allegedly incidental to lawful arrests - by which they gathered a substantial quantity of books and cartoons claimed to be obscene. On March 8, 1960, the New York County District Attorney filed an information in numerous counts, based upon the seized materials, charging petitioner with violating Section 1141 of the New York Penal Law, McKinney's Consol.Laws, c. 40 (obscenity) and Section 330 of the General Business Law, McKinney's Consol.Laws, c. 20 (failure to imprint publisher's or printer's name). Following a trial in the City Court of Special Sessions, petitioner was found guilty on some 172 counts - about 140 under the obscenity statute, the remaining 32 or so under the General Business Law. *fn1" On December 14, 1960, he was sentenced to a total of three years in prison and fines aggregating $12,000 on the obscenity counts, and to fines of $500 on the General Business Law counts. The obscenity convictions were affirmed by the Appellate Division, First Department, 17 A.D.2d 243, 234 N.Y.S.2d 342, on November 27, 1962, and by the Court of Appeals, 15 N.Y.2d 671, 255 N.Y.S.2d 881, 204 N.E.2d 209, on December 3, 1964. *fn2"

 In the trial court - having failed, like others, to foresee the decision in Mapp v. State of Ohio, supra, - petitioner took only incipient and insufficient steps to ground a full assault upon what was then the still authoritative rule of Wolf v. State of Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949). Although his counsel raised a question as to the adequacy of the search warrant and supporting affidavit involved in one of the seizures, the matter was left as only a partially developed issue. Explaining this, petitioner's Memorandum here says (p. 2):

 
"In view of the then posture of the law in the State of New York concerning the matter of search and seizure as enunciated in People v. Defore, 242 N.Y. 13 [150 N.E. 585] (1926), the question of the adequacy of the search warrant was not pursued to an ultimate finding at the trial level nor was the Warrant or the Affidavit made part of the record."

 Similarly, to support his contention that the subject of the seizures was in general left incompletely explored by the state courts, petitioner points out (id. at 2-3) that "no findings of facts or conclusions of law were made by the Trial Court as to the basis on which it admitted into evidence the 17,000 books in question."

 Thus, the trial record appeared to be in less than ideal shape for Mapp purposes when the Mapp decision came down in June of 1961 - while petitioner's direct appeal was pending in the Appellate Division, and well over a year before that Court's affirmance of the convictions here in question. Nevertheless, it is undisputed that petitioner acted promptly to preserve his Fourth Amendment contentions. Although the topic was not mentioned by the Appellate Division in its brief per curiam decision, and the affirmance by the Court of Appeals was without opinion, the latter tribunal later amended its remittitur to make clear that the point had been raised and decided. 15 N.Y.2d 724, 256 N.Y.S.2d 936, 205 N.E.2d 201 (Jan. 7, 1965).

 In the Supreme Court, petitioner again briefed and argued his claims under Mapp. The Court concluded, however (after rejecting his claims on the obscenity question), that the record was insufficient to present his complaints about the seizures. Mishkin v. State of New York, 383 U.S. 502, 512-513, 86 S. Ct. 958, 965-966, 16 L. Ed. 2d 56 (1966):

 
"The far-reaching and important questions tendered by this claim are not presented by the record with sufficient clarity to require or justify their decision. Appellant's standing to assert the claim in regard to all the seizures is not entirely clear; there is no finding on the extent or nature of his interest in two book stores, the Main Stem Book Shop and Midget Book Shop, in which some of the books were seized. The State seeks to justify the basement storeroom seizure, in part, on the basis of the consent of the printer-accomplice; but there were no findings as to the authority of the printer over the access to the storeroom, or as to the voluntariness of his alleged consent. It is also maintained that the seizure in the storeroom was made on the authority of a search warrant; yet neither the affidavit upon which the warrant issued nor the warrant itself is in the record. Finally, while the search and seizure issue has a First Amendment aspect because of the alleged massive quality of the seizures, see A Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 206, 84 S. Ct. 1723, 12 L. Ed. 2d 809 (opinion of Brennan, J.); Marcus v. Search Warrant, 367 U.S. 717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127, the record in this regard is inadequate. There is neither evidence nor findings as to how many of the total available copies of the books in the various bookstores were seized and it is impossible to determine whether the books seized in the basement storeroom were on the threshold of dissemination. Indeed, this First Amendment aspect apparently was not presented or considered by the state courts, nor was it raised in appellant's jurisdictional statement; it appeared for the first time in his brief on the merits.
 
"In light of these circumstances, which were not fully apprehended at the time we took the case, we decline to reach the merits of the search and seizure claim; insofar as notation of probable jurisdiction may be regarded as a grant of the certiorari writ on the search and seizure issue, that writ is dismissed as improvidently granted."

 Having exhausted his avenues of direct review, petitioner then brought a state coram nobis proceeding on his Mapp charges. The petition was denied at nisi prius without a hearing. The Appellate Division affirmed. The Court of Appeals likewise affirmed, in a foursentence per curiam, which says (People v. Mishkin, 20 N.Y.2d 716, 282 N.Y.S.2d 779, 780, 229 N.E.2d 454, 455):

 
"Order affirmed in a memorandum. The decision in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, was announced while this criminal action was pending on appeal, the judgment of conviction was affirmed by this court (15 N.Y.2d 671, 255 N.Y.S.2d 881, 204 N.E.2d 209) and likewise by the Supreme Court of the United States (383 U.S. 502, 86 S. Ct. 958, 16 L. Ed. 2d 56). The Supreme Court stated that the constitutional questions under Mapp v. Ohio were 'not presented by the record with sufficient clarity' (supra, pp. 512-513, 86 S. Ct. p. 965). Moreover, it is not now sought to be raised on appeal from the judgment of conviction but on the postconviction writ of error coram nobis where it is not available (People v. Muller, 11 N.Y.2d 154, 227 N.Y.S.2d 421, 182 N.E.2d 99; Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601)."

 Chief Judge Fuld (joined by Judges Burke and Bergan) wrote a dissent. He noted that other cases, tried before Mapp but still on direct review when that decision came down, had been tested on review by the rule of Mapp, or, if their records were inadequate for that, remanded for hearings and for reversal of the convictions if they could not then be sustained under Mapp. He concluded that denial of the same opportunity to this petitioner could not be justified (20 N.Y.2d at 718, 282 N.Y.S.2d at 781, 229 N.E.2d at 456):

 
"Since we inadvertently neglected to do this with respect to the defendant before us, we should now afford him an opportunity to demonstrate that the evidence against him was illegally obtained. (Cf. United States ex rel. De Forte v. Mancusi, 2 Cir., 379 F.2d 897, 900 n. 4 [decided 6/28/67].) Indeed, to refuse to give him a hearing on that issue when one has been accorded ...

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