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December 18, 1969


Appeal from a judgment of the Supreme Court (Arthur Markewich, J.), rendered June 10, 1968 in New York County convicting defendant of the crime of possession of a weapon as a felony.

McGivern, J. Steuer and Bastow, JJ., concur with McGivern, J.; Capozzoli, J. P., dissents in opinion.

Author: Mcgivern

 This is an appeal from a judgment entered June 10, 1968, County of New York, convicting the defendant, after trial before a court and jury, of the crime of possession of a weapon as a felony (Penal Law, ยง 265.05).

The appeal is singular in that the District Attorney in his brief on this appeal, agreeing with the defendant, states "that under the circumstances of this case, the search of the automobile was improper and, accordingly, concede that the judgment be reversed." We however, do not agree. Nor need we accept his suggestion. "Confessions of error are, of course, entitled to and given great weight, but they do not 'relieve this Court of the performance of the judicial function.' Young v. United States, 315 U. S. 257, 258 (1942)."


Judgment affirmed.

Capozzoli, J. P. (dissenting).

While it is true that the Supreme Court has indicated that it is only unreasonable searches that are prohibited by the Fourth Amendment, it has nevertheless emphasized that there are few exceptions to the requirement of a warrant. (Amador-Gonzalez v. United States, 391 F. 2d 308.)

There is a well-recognized exception that, as an incident to arrest, the arresting officers may search the person arrested and his immediate surroundings, without a search warrant. In this connection the language used in Amador-Gonzalez v. United States (supra, p. 314) of the opinion is particularly helpful. "A search incident to an arrest must have as one or more of its purposes the discovery of (1) the fruits of the crime; (2) instrumentalities used to commit the crime; (3) weapons or like material which put the arresting officer in danger or might facilitate escape; (4) contraband, the possession of which is a crime [citing cases] and * * * (5) material which constitutes evidence of the crime or evidence that the person arrested has committed it [citing cases]".

Again (p. 316) the court said: "An 'incidental' search is the exception to the command of the Constitution that all searches be with search warrants. The incidental search must be truly incidental to a primary purpose to arrest. * * *".

In view of the fact that the arrest was made on the basis of an old warrant, it cannot be said that the purpose of the search was to discover any of the articles mentioned in (1), (2), (4) or (5), supra. It is conceded that the officers had no search warrant and that the gun was concealed under the seat and not exposed to view. Therefore, if the search can be supported on any ground, it must be as an incident to a lawful arrest, for the purpose of protecting the officer, under (3), supra.

In the case of Preston v. United States (376 U. S. 364) three men in a parked car were arrested for vagrancy, searched for weapons and then taken to police headquarters. The car, which had not been searched when the arrest was made, was driven by an officer to a police station, from which it was towed to a garage. Soon after the men had been booked, the police officers went to the garage, searched the car and found two loaded revolvers in the glove compartment. They were unable to open the trunk and returned to the station. One of the officers went back to try to open the trunk. He did so and found caps, women's stockings (one with mouth and eye-holes), ropes, pillow slips, an illegally manufactured license plate, equipped to be snapped over another plate and other items. Thereupon one of the three men confessed that he and two others had intended to rob a federally insured bank 51 miles away from where the arrest was made. In considering the question of whether the search of the car was a reasonable one, within the exception of the constitutional amendment, the court (pp. 366-367) said the following:

"Common sense dictates, of course, that questions involving searches of motor cars or other things readily moved cannot be treated as identical to questions arising out of searches of fixed structures like houses. For this reason, what may be an unreasonable search of a house may be reasonable in the case of a motor car. * * * But even in the case of motor cars, the test still is, was the search unreasonable. Therefore, we must inquire whether the facts of this case are such as to fall within any of the exceptions to the constitutional rule that a search warrant must be had before a search may be made.

"It is argued that the search and seizure was justified as incidental to a lawful arrest. Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. * * * The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime -- things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest. Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest." (Emphasis supplied.)

Turning to the facts in the case at bar, it is clearly established that there was no search of the defendant or of the automobile when the officer directed the defendant to go with him into the station house and up to the second floor. Nor was there any search made while the officer was attempting to ascertain whether the old warrant was still outstanding. The minutes of the hearing, held in connection with the motion of the defendant to suppress, disclose the following testimony by the police officer:

"Q. When you found out that the defendant had a warrant in force you then proceeded to place him under arrest formally; is that correct? A. That's correct, yes.

"Q. Where did this take place? A. In the 30th Precinct Squad room.

"Q. Where is the Squad room located in the 30th Precinct? A. On the second floor.

"Q. And then you went down and searched the car is that correct? A. Not immediately. After he was advised of his rights then we went down with the sergeant.

"The Court: How much time elapsed between - - -

"The Witness: Approximately ten minutes, your Honor.

"Q. Now, of course the car wasn't on the second florr, was it?

"A. No, sir, the car was parked in front of the station house."

In view of the fact that the arrest was made upstairs in the police station and the search of the automobile was made in the street some time later, the search was improper. The defendant was under arrest and in actual custody and there was no more legal reason to search the car, without a search warrant, than there would have been to go to the defendant's residence and search that place. There simply is no rational connection between the arrest under the old warrant and the subsequent search of the car.

As late as June 23, 1969, in the case of Chimel v. California (395 U. S. 752, 762-763) the United States Supreme Court said:

"When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control' -- construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

"There is no comparable justification, however, for routinely searching rooms other than that in which an arrest occurs -- or, for that matter, for searching through all the desk drawers or other clothes or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The 'adherence to judicial processes' mandated by the Fourth Amendment requires no less.

"This is the principle that underlay our decision in Preston v. United States, 376 U. S. 364."

The majority places great reliance on People ex rel. Muhammad v. Mancusi (301 F. Supp. 1100). In that case the relator contended that 44 Travelers Express Company money orders, found in his brief case at the time of his questioning at FBI headquarters, should not have been used as evidence against him at his trial in the State court because the search of the brief case was unconstitutional. The relator had been arrested at a bank, where he had attempted to cash one of the money orders. He was arrested at the bank by an FBI agent and his person searched. The agent took the brief case from the relator and brought him to headquarters. At headquarters the brief case was searched and the money orders found. The court upheld the search and distinguished the case from Preston v. United States (376 U. S. 364, supra). There is no disagreement with the ruling of the court because, under the facts of the case, the brief case could have been searched at the bank when the arrest was made. The case at bar is quite different. When the arresting officer directed the defendant to go to the station house there was no arrest at that time and a search of the automobile would clearly have been illegal. The arrest was not made until sometime later, in the police station, after the officer verified the existence of the unexecuted warrant, and, therefore, the reasoning of the Muhammad case does not apply.

Frankly, I must confess that a reading of the trial minutes in the case at bar discloses ample factual evidence to justify the verdict of guilty against the defendant. One cannot help but experience a feeling of frustration to see good police work come to naught. However, the case presents a constitutional question affecting the rights of the defendant and it can only be decided by applying the fundamental law of the land as settled by higher authority. Therefore, sympathetic as I may be to the view expressed in the majority opinion, under the authorities, I have no choice but to agree with the candid position taken by the District Attorney in his brief submitted to this court, at page 14 thereof, to wit: "In sum, under the particular circumstances of this case, there being no rational connection between the arrest under an old warrant and the search of the car, and absent any effective control over the car by the defendant to justify a search for weapons, it was unreasonable for the police officer to search the vehicle and consequently, the gun should have been suppressed."

For the reasons above given, I dissent and vote to reverse the judgment of conviction.


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