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PEOPLE STATE NEW YORK v. KENNETH A. COHEN (07/29/68)
DISTRICT COURT OF NEW YORK, FIRST DISTRICT, NASSAU COUNTY
1968.NY.42753 <http://www.versuslaw.com>; 292 N.Y.S.2d 706; 57 Misc. 2d 366
July 29, 1968
THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.KENNETH A. COHEN, BRUCE PELLMAN, SHELDON W. RASKIN AND FRANK WEINER, DEFENDANTS
Joseph F. Soviero, Jr., for Kenneth A. Cohen, defendant.
Jesse Moss for Bruce Pellman, defendant.
William G. Kerwick for Sheldon W. Raskin, defendant.
Lawrence Cohen for Frank Weiner, defendant.
William Cahn, District Attorney (William Corbett of counsel), for plaintiff.
Beatrice S. Burstein, J.
My review of the facts and the governing decisional precedents persuade me that the motion to suppress the evidence must be granted.
As a Judge and a parent, I am sensitive to the need for adequate, but reasonable, surveillance of students by school authorities. I am not certain, however, that our educators understand either the causes for, or the character of, the current revolt by students against what have been, perhaps uncritically, accepted as socially useful institutions. Undoubtedly, the thrust and objectives of the rebellion are ill-defined. Neither the theoreticians of the so-called new left nor their adherents are able to describe the scope and the ambit of their anti-institutional attack. (Glazer, "The New Left and Its Limits", July, 1968, p. 31 et seq. Commentary). The notion of participatory democracy may be inviting and challenging but it is not advanced by smoking marijuana in dormitories or shooting heroin in obscure corners of the campus. This kind of irresponsibility not only arrests progress but threatens the whole structure of a democratic society. Antisocial behavior which pretends to strike a blow for independence is a matter of the most immediate concern for all citizens. This kind of conduct must be resisted; but the attack must be on a constitutional battleground.
The price of a modern education is not the waiver or surrender of constitutional privileges. One does not salvage a democratic society by adopting undemocratic techniques. The Bill of Rights is not a sometime thing; the Founding Fathers spoke not in relative, but in absolute, terms. An unlawful search and seizure is unlawful; it cannot be partially lawful and partially unlawful. The slightest intrusion on the rights of one citizen endangers the security of all citizens.
We cannot escape our responsibilities by resorting to the coercive weapons of a police State. We cannot stamp out drug addiction, marijuana smoking, glue sniffing and assorted illegal practices at a campus by breaking into dormitories. Abandonment of constitutional protections and reliance upon illegal methods can lead only to the destruction of democratic processes.
The case at bar suggests the whole complex of problems which have emerged on American college campuses. No Judge approaches the issues posed by this case without an awareness of the significant implications of a decision. But we are not free agents. This court does not mark out the boundaries of constitutionally permissible conduct. We follow the mandate of the higher courts of our State and of the United States Supreme Court and we test the facts by reference to the fundamental principles of law they have enunciated. These teach us that the search here was unlawful.
The relevant facts are that Hofstra University authorities were apprehensive about the use of marijuana in the dormitories. Accordingly, they arranged with the police authorities for a survey of the dormitory premises. Accompanied by two university officials, the police entered the dormitory room of one of the defendants without announcing their purpose and without a search warrant. There was no evidence that anyone, including the defendants, was in the room at the time of the entry, since neither the police nor the university officials observed the defendants entering the room.
What motivated the police and the school authorities was the odor in the hallway leading to the room and information previously provided by an unidentified informant about one of the defendants. Once inside, the incriminating evidence was observed and seized.
The court expresses no opinion as to whether any of the boys who were present in the room were and had been smoking marijuana. The record is entirely silent on that point. One thing, however, is clear: at the time they entered the room, there was no immediate danger that the evidence, if any, would be removed and destroyed, nor was there a lack of time within which to obtain a search warrant.
It is palpable that the mainspring of the police action was a suspicion that a crime was being or had been committed. Suspicion, however, is not an alternative to, or a substitute for, probable cause that a crime was or is being committed.
In the circumstances of a case such as this, an entry and search is lawful only if there was consent or if the search was an incident to a lawful arrest. No claim is made that there was express consent to the entry.
Can consent be implied? It has been argued that a student impliedly consents to entry into his room by university officials at any time, except at late hours. This contention is not supportable even though there may be circumstances under which entry is permissible; but these circumstances are not present here nor does the court intend to catalogue the occasions which might permit entry into the room of a college student.
The police and the Hofstra University officials admitted that they entered the room in order to make an arrest, if an arrest was warranted. This was, in essence, a fishing expedition calculated to discover narcotics. It offends reason and logic to suppose that a student will consent to an entry into his room designed to establish grounds upon which to arrest him. Certainly, there can be no rational claim that a student will selfconsciously waive his constitutional right to a lawful search and seizure. Finally, even if the doctrine of implied consent were imported into this case, the consent is given, not to police officials, but to the University and the latter cannot fragmentize, share or delegate it.
Was the search an incident to a lawful arrest? Obviously, no. The police had no grounds for a lawful arrest when they entered the room. Indeed, it was admitted that if the evidence had not been found when they entered the room, no arrest could have been made. Simply stated, ...