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SUPREME COURT OF NEW YORK, TRIAL TERM, BRONX COUNTY 1969.NY.42951 <>; 304 N.Y.S.2d 310; 60 Misc. 2d 860 September 30, 1969 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.VITO DE SALVO, DEFENDANT Russo, Stein, Caiola & Victor for defendant. Burton B. Roberts, District Attorney (Seymour Rotker of counsel), for plaintiff. Arnold G. Fraiman, J. Author: Fraiman

Arnold G. Fraiman, J.

Author: Fraiman

 The defendant was indicted on 21 counts of contempt for refusing to answer questions put to him by a Grand Jury, after having been granted immunity from prosecution. He now moves to have the indictment dismissed and for other sundry relief on the ground that the actions of the police which resulted in his appearance before the Grand Jury violated his constitutional rights. The facts are not in dispute: As a result of an unlawful search by the police of the defendant's automobile and person, certain documents and items belonging to the defendant were unlawfully seized.*fn1 The defendant was thereafter subpoenaed to appear as a witness before the November, 1968, "B" Term Grand Jury in Bronx County which was investigating whether the State penal laws pertaining to illegal gambling activity and usury had been violated by persons affiliated with elements of organized criminal activity. It is conceded by the District Attorney that the defendant would not have been summoned before the Grand Jury but for the documents and items which had been unconstitutionally seized.

The defendant duly appeared, and at the outset of the proceedings the Grand Jury, pursuant to section 619-c of the Code of Criminal Procedure, granted him immunity from prosecution with respect to any incriminating testimony he might give. Nevertheless, with respect to the 21 different questions set forth in the indictment, the defendant deliberately and repeatedly refused to answer, asserting in each instance that he did so "on the grounds that [the answer] may tend to incriminate me."

The defendant now moves to quash the indictment on the ground that he cannot be prosecuted for contempt for refusing to answer the questions posed by the Grand Jury because his very appearance before the Grand Jury resulted from, and would not have occurred but for, the unlawful search of his person and car. The People, on the other hand, contend that the so-called "poisoned fruits" doctrine is inapplicable, because the defendant was granted full and complete immunity from prosecution by the Grand Jury before he testified, and accordingly, his refusal to answer the posed questions was contemptuous.

In the absence of any clear-cut authority on this difficult and important constitutional issue, a brief review of the landmark cases relating to the use of illegally obtained evidence might be in order.

In 1914, in Weeks v. United States (232 U.S. 383) the defendant had been convicted in a Federal District Court of using the mails in violation of Federal law. During the trial, evidence obtained by a Federal Marshal as a result of an illegal search of the defendant's home was introduced and used against the defendant. The Supreme Court, in unanimously reversing the conviction, stated that the practice by prosecutors of obtaining convictions by means of unlawful seizures and enforced confessions "should find no sanction in the judgment of the courts" (p. 392), and held that the use of evidence obtained as a result of an illegal search and seizure in any Federal prosecution was precluded by the Fourth Amendment.

In Wolf v. Colorado (338 U.S. 25 [1949]), decided 35 years later, the court, while holding that the constitutional rights guaranteed by the Fourth Amendment were enforceable against the States through the Fourteenth Amendment, expressly declined to make applicable to the States the "exclusionary rule" established by the Weeks case. In this connection, the court said: "Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a State's reliance upon other methods which, if consistently enforced, would be equally effective" (p. 31).

Twelve years later, in Mapp v. Ohio (367 U.S. 643 [1961]), the court re-examined Wolf and flatly held that "all evidence obtained by searches and seizures in violation of the Constitution is * * * inadmissible in a state court" (p. 655). The court stated (p. 656): "In short, the admission of the new constitutional right by Wolf could not consistently tolerate denial of its most important constitutional privilege, namely, the exclusion of the evidence which an accused has been forced to give by reason of the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment. Only last year the Court itself recognized that the purpose of the exclusionary rule 'is to deter -- to compel respect for the constitutional guaranty in the only effectively available way -- by removing the incentive to disregard it.' (Elkins v. United States, [364 U.S. 206], at 217.)"

Clearly, the principal issue in the Mapp case, as in the Wolf and Weeks cases before it, was the use of illegally obtained evidence in the prosecution of the person from whom the evidence was taken. Each case was a criminal case and in none did the court address itself to the question whether such evidence could be used in a civil proceeding or whether, as in the instant case, the evidence could be used in a criminal proceeding where the victim of the search had been granted immunity from prosecution. However, in One 1958 Plymouth Sedan v. Pennsylvania (380 U.S. 693 [1965]) the Supreme Court at least partially answered the former question. There the court considered whether the exclusionary rule set forth in the Mapp case applied to a forfeiture proceeding, which was at least nominally "civil" in nature, in a State court. The court concluded that it did.

In that case, an automobile owned and operated by one McGonigle was observed by law enforcement officers of the Pennsylvania Liquor Control Board as being "low in the rear, quite low". The officers stopped the car and proceeded to search it. They found 31 cases of untaxed liquor which they promptly seized, together with the car. McGonigle was arrested and charged with a violation of Pennsylvania law. In addition, the Commonwealth filed a petition for forfeiture of the car. McGonigle sought dismissal of the petition on the ground that forfeiture of the automobile depended upon the admission of evidence unlawfully obtained. The trial court agreed and dismissed the petition. On appeal, the Supreme Court of Pennsylvania affirmed an intermediate appellate court's reversal of the dismissal on the sole ground that the Weeks-Mapp exclusionary rule only applied to criminal prosecutions and not to forfeiture proceedings, which the court deemed civil in nature. However, the United States Supreme Court reversed the determination of Pennsylvania's appellate courts and held that the exclusionary rule also applied to such proceedings. In so holding, the court relied heavily on Boyd v. United States (116 U.S. 616 [1886]) which also involved a forfeiture proceeding. It quoted from Boyd in part as follows: "'We are also clearly of the opinion that proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offences committed by him, though they may be civil in form, are in their nature criminal * * * If the government prosecutor elects to waive an indictment, and to file a civil information against the claimants -- that is, civil in form -- can he by this device take from the proceeding its criminal aspect and deprive the claimants of their immunities as citizens, and extort from them a production of their private papers, or, as an alternative, a confession of guilt? This cannot be * * * As, therefore, suits for penalties and forfeitures incurred by the commission of offences against the law, are of this quasi-criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the Fourth Amendment of the Constitution. * * *'" (Plymouth, pp. 697-698, quoting from Boyd, pp. 633-634.)

The court concluded that "the nature of a forfeiture proceeding * * * and the reasons which led the Court to hold that the exclusionary rule * * * is obligatory upon the States under the Fourteenth Amendment * * * support the conclusion that the exclusionary rule is applicable to forfeiture proceedings such as the one involved here." (380 U.S. 702. See, also, Matter of Finn's Liq. Shop v. State Liq. Auth., 24 N.Y.2d 647 [1969].)

In 1962, the Supreme Court had before it the identical constitutional question presented in the instant case. (Lanza v. New York, 370 U.S. 139 [1962].) However, the court decided the case on other grounds, and did not squarely come to grips with the issue. Nevertheless, the court's opinion did give some indication, in dicta, of how it would have decided the question at that time, had it been necessary to do so. There, the defendant had been convicted in a State court of criminal contempt for refusing to answer a number of questions posed by a Joint Legislative Committee on Government Operations, after he had been granted immunity from prosecution. The subject of the Committee's investigation was possible corruption in the State parole system. Some time prior to the defendant's appearance before the Committee, officials of the Westchester County Jail had monitored and recorded a conversation between the defendant and his brother, Joseph "Socks" Lanza, who was then an inmate in that institution. The conversation, which was audited without the knowledge or consent of either party, took place in the visitors room of the jail. Six days later, Lanza was paroled by order of a Commissioner of the State Division of Parole. The circumstances surrounding his release prompted the legislative investigation.

On his appeal to the United States Supreme Court, the defendant argued that the monitoring of the conversation in the jail constituted an unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments; that he would not have been called before the Committee but for the overheard conversation; and that the exclusionary rule rendered it impermissible for the Committee to use the unlawfully obtained transcript of his conversation in interrogating him.*fn2

The court, with seven Justices participating in the decision, unanimously affirmed the conviction, on the ground that at least two of the questions which the defendant refused to answer were in no way related to the intercepted conversation, and on the further ground that it was probable that the defendant would have been called by the Committee even if the transcripts of his conversation with his brother had not existed. The court thus did not pass upon the constitutional issue raised by the defendant, but it did discuss it in its opinion, which was delivered by Mr. Justice Stewart for four of the Justices, the remaining three Justices concurring separately. After noting that it was "at best a novel argument" to say that a ...

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