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PEOPLE STATE NEW YORK v. KURT FIEDLER (10/31/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT 1968.NY.43360 <http://www.versuslaw.com>; 294 N.Y.S.2d 368; 30 A.D.2d 476 October 31, 1968 THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.KURT FIEDLER, APPELLANT Appeal from a judgment of the County Court of Erie County (William G. Heffron, J.), rendered March 13, 1968 convicting defendant upon his plea of guilty of violating section 3305 of the Public Health Law. Lipsitz, Green, Fahringer, Roll, Schuller & James (Herald Price Fahringer of counsel), for appellant. Michael F. Dillon, District Attorney (Leslie G. Foschio of counsel), for respondent. Henry, J. Williams and Witmer, JJ., concur with Henry, J.; Goldman, J., dissents in opinion in which Bastow, P. J., concurs. Author: Henry


Appeal from a judgment of the County Court of Erie County (William G. Heffron, J.), rendered March 13, 1968 convicting defendant upon his plea of guilty of violating section 3305 of the Public Health Law.

Henry, J. Williams and Witmer, JJ., concur with Henry, J.; Goldman, J., dissents in opinion in which Bastow, P. J., concurs.

Author: Henry

 On defendant's appeal from a judgment convicting him of illegal possession of narcotic drugs, we have before us for review an order of Erie County Court denying his motion to suppress evidence seized under the authority of a search warrant. The warrant is based on an affidavit of police officer Giambrone and a verified statement of Marsha Van Dervoort. Giambrone avers that he had information that the Fiedler residence was used for the purpose of smoking marijuana and of taking hallucinatory drugs; that a reliable informant had observed such conduct; that he had observed a number of known narcotic users entering the premises on two occasions, and that a known major narcotic distributor had been observed entering the premises. Marsha Van Dervoort's statement recites that she had visited the Fiedler home on a number of occasions and had smoked marijuana supplied by the Fiedlers; that on April 18, 1967 she negotiated for a buy of marijuana from one Levinson at the Fiedler residence to be delivered to her there and when she returned with the money she found appellant and others smoking marijuana in a room in the Fiedler residence. This proof was sufficient to establish that probable cause existed to support the issuance of the warrant. (Code Crim. Pro., ยง 793; People v. Smith, 21 N.Y.2d 698; People v. Montague, 19 N.Y.2d 120; People v. Rodger, 28 A.D.2d 625.)

On the suppression hearing appellant adduced evidence showing that Miss Van Dervoort carried a hidden radio device while she was in the Fiedler home which transmitted conversations occurring in her presence, and he claims that the use thereof was illegal. Although there is authority supporting the use of the transmitter under the circumstances of this case (Osborn v. United States, 385 U.S. 323; Hoffa v. United States, 385 U.S. 293; Lopez v. United States, 373 U.S. 427; On Lee v. United States, 343 U.S. 747; United States v. Knohl, 379 F. 2d 427; see, also, Katz v. United States, 389 U.S. 347, footnote p. 363; Lewis v. United States, 385 U.S. 206), that question is not before us on this record. (People v. Alfinito, 16 N.Y.2d 181; People v. Solimine, 18 N.Y.2d 477.) Nothing that the police heard transmitted by the electronic device was used to obtain the warrant. If appellant had stood trial and the police had attempted to corroborate Miss Van Dervoort's testimony by disclosing what they heard transmitted by the device, an objection to their testimony could properly have been based on the claimed illegal use of the transmitter. Here, however, appellant withdrew his plea of not guilty, admitted that he had marijuana in his possession and entered a plea of guilty. Here the motion was "for an order suppressing certain evidence [pipes and marijuana] obtained as a result of a search". The motion was not to suppress evidence of what the police heard transmitted by the device. On the evidence adduced at the hearing, County Court properly denied the motion.

The judgment of conviction should be affirmed.

Disposition

Judgment affirmed.

Goldman, J. (dissenting).

Defendant appeals from a judgment of Erie County Court convicting him, upon a plea of guilty, of illegal possession of narcotic drugs in violation of section 3305 of the Public Health Law, and from an intermediate order denying defendant's motion to suppress certain evidence. Section 813-c of the Code of Criminal Procedure provides defendant's right to appeal under the circumstances in this record "notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty".

Defendant and others were arrested after the police had secured a search warrant for premises owned by defendant's father, one Dr. Leslie Fiedler, also a co-defendant. The search of the house resulted in the seizure of a quantity of marijuana. Defendant was indicted for the felony of giving a narcotic drug to a person under 21 years of age and the other five persons arrested were charged with various violations which are misdemeanors.

Defendant presents two questions as to the issues in this appeal:

"1. Was the intermittent electronic surveillance of the Fiedler family for two months, without judicial authorization or probable cause unlawful under Section 813(a) and the Fourth Amendment to the Federal Constitution?

"2. Was the planting of a police agent in the Fiedler home for two months without prior judicial authorization or probable cause unconstitutional under the Fourth Amendment to the Federal Constitution?"

In denying defendant's motion to suppress the County Court held that the action of the police was not violative of the Fourth Amendment of the Federal Constitution. The facts surrounding the use of the electronic eavesdropping device by an agent of the police, ...


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