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PEOPLE STATE NEW YORK v. CARLOS ZALDUONDO (11/19/68)

DISTRICT COURT OF NEW YORK, FIRST DISTRICT, SUFFOLK COUNTY 1968.NY.43557 <http://www.versuslaw.com>; 295 N.Y.S.2d 301; 58 Misc. 2d 326 November 19, 1968 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.CARLOS ZALDUONDO, DEFENDANT James D. Saver for defendant. George J. Aspland, District Attorney, for plaintiff. Frank P. De Luca, J. Author: DE Luca


Frank P. De Luca, J.

Author: DE Luca

 This decision is written after a hearing on a motion to suppress all property and information obtained by the Suffolk County Police Department as a result of an alleged illegal search and seizure.

FACTS

An employer, having his suspicions of missing parts, let the air out of the defendant's automobile tire. At quitting time when the defendant got into his automobile and discovered he had a flat tire, the employer came out to the defendant and asked him what the problem was, knowing full well what the problem really was, the employer having let the air out of the tire in the first instance. During a conversation with the defendant the employer let it be known that he expected the defendant to fix the flat tire, thereby allowing the employer to be able to see what was in fact in the trunk to substantiate his suspicions. The defendant stated that he was not going to fix the tire and the employer went to the ignition switch and removed the keys and allegedly asked the defendant to open the trunk.

The testimony was that in the first instance the defendant refused to open the trunk, but after a little persuasion he did in fact open the trunk and the employer, after viewing the fittings and brass parts allegedly taken from the employer's premises, stated that the defendant was under arrest. The employer asked the defendant to come to the office, and called a police officer who arrested the defendant and placed him in a car after giving him the usual warnings.

The police officer, with the keys in his possession, then opened the trunk and obtained the items allegedly stolen.

The question posed is whether a civilian arrest is proper under these circumstances to justify an arrest by a police officer thereafter called, and a further search and the fruits thereof, resulting in charging the defendant with a crime.

DECISION

As to a citizen's authority to arrest, the following sections of the Code of Criminal Procedure are applicable:

A private person may arrest another for an offense, committed or attempted in his presence (Code Crim. Pro., § 183).

A private person before making an arrest must inform the person to be arrested of the cause thereof, except when he is in the actual commission of the offense (Code Crim. Pro., § 184).

A private person who has arrested another for the commission of an offense, must without unnecessary delay deliver him to a peace officer (Code Crim. Pro., § 185).

A peace officer may, without a warrant, arrest a person when he has reasonable cause for believing that a person has been legally arrested by a citizen as provided in section 185 (Code Crim. Pro., § 177, subd. 5).

With respect to search and seizure by a private citizen, it has been held that the constitutional prohibitions against unreasonable search and seizure "relate solely to the sovereign authority and its agencies and not to individuals" ...


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