
    The People of the State of New York, Plaintiff, v. James McErlean, Gerhard M. Callahan, Jr., and Salvatore Collucci, Defendants.
    Criminal Court of the City of New York, Queens County,
    October 31, 1962.
    
      
      Frank D. O’Connor, District Attorney (Vincent Faro of counsel), for plaintiff. Robert Sparroiv for James McErlean, defendant. Martin L. Baron for Gerhard M. Callahan, Jr., defendant. J ohm J. Murray for Salvatore Collucci, defendant.
   James B. Creel, P. J.

Informations charging James McErlean and Gerhard M. Callahan, Jr., with violations of the Narcotics Law (Public Health Law, § 3305; Penal Law, §§ 1751-a, 1747-d) and Gerhard M. Callahan, Jr., and Salvatore Collucci with unlawful entry of a building (Penal Law, § 405), were by stipulation tried together. Also by stipulation, and to expedite the trial of these long-pending informations, it was agreed that during the trial, the court would hear defendants’ motions to suppress evidence allegedly obtained by an illegal search and seizure. At the conclusion of the trial decisions were reserved on motions to suppress and to dismiss, and briefs were requested.

The arguments of defense counsel in support of these motions bring into sharp question the propriety of certain patrol and prearrest crime prevention practices of the New York City Police Department, it being strongly urged that such practices herein violated basic constitutionally protected civil rights of these defendants. (U. S. Const., 4th Amdt.; Mapp v. Ohio, 367 U. S. 643.) It is the contention of the defense that the Fourth Amendment is such an absolute protection of defendant’s rights as to render “ poison ” and inadmissible all evidence secured by police officers herein, during their performance of patrol and crime prevention duties.

The following facts were developed upon the hearing and the trial: On the evening of March 7,1962, acting upon a report, relayed to the police officers on radio patrol, that a burglary might be in progress at a pet supply shop at 43-01 Queens Boulevard, uniformed patrolman Crist and Youth Squad plainclothesman Barry immediately proceeded to these premises. They observed that the lights were turned on in the back of pet supply store, where the patrolman knew lights were not usually kept burning at night. They looked through the window but clear view of the rear of this store was obstructed by a partition of shelves. The door was locked and they knocked upon the door, having first stationed other police officers at the rear doors and windows. They observed from behind the partition of the rear of the store, the head of the defendant Callahan, a young man of 20 years of age, protruded from behind the partition, looking in their direction, and then withdrawn. They continued knocking and the defendant Callahan and another young man O’Donnell, whose case has been disposed of heretofore, came to the door and opened it. The patrolman entered and proceeded to the rear of the store, during which time they observed the defendant McErlean climb up the shelved partition and place something on the top thereof. At the back of the store, behind the partition, they found four more youths, including the defendants McErlean and Collucci. In response to the question as to what the said youths were doing in the pet shop at this hour of the night, the defendants each stated that they were playing a game of cards. No card tables or chairs were present. The physical condition of O’Donnell attracted the particular attention of the patrolmen and caused them to question him as to his recent use of narcotics. O’Donnell’s arm was examined and a blood spot and other physical observation gave indication of a very recent hypodermic injection of heroin. The shelves which defendant McErlean had been observed to climb were examined and on the top thereof were found a hypodermic needle, eyedropper syringe, a spoon and a bottle-cap equipment, that which is referred to by users as a “ set of works ”. The arms of each of the defendants were then examined and those of the defendants McErlean and Callahan gave indication of very recent hypodermic injections, but the arms of the defendant Collucci were unmarked. The immediate area was searched and behind a box where each of these defendants had been standing, they found a number of glassine envelopes, some containing a powder now known to be heroin, and some empty envelopes. Each of the defendants, when first observed, was standing within a distance of seven feet from the places when the “works” and the glassine envelopes were found. The defendants McErlean and Callahan were arrested for narcotic charges, and the defendant Collucci was arrested for unlawful entry. Later that night in the station house, admissions were made by the defendants McErlean and Callahan as to the purchase of the glassine bags of heroin and as to their use of hypodermic shots administered in the pet supply store immediately prior to the arrival of the patrolmen. The defendant Collucci made no admissions but the uncontroverted testimony established that this defendant had entered and been present upon the premises for a period of approximately 15 minutes while shots of narcotics were taken by others.

The defendant Collucci and all the other youths had been admitted to the pet shop by 0 ’Donnell, an employee of the shop, who had been in possession with a key thereto, but who had exceeded his authority and acted contrary to instructions in unlocking the door and in permitting it to be used by the defendants. These latter facts, as well as that no permission for the entry or use of these premises had been given to anyone were established by the uncontroverted testimony of the proprietor-owner of the pet supply shop.

It may properly be judicially noted by this Bench, which is close to the problems of the people, that the facts of this case took place in a county of the City of New York, which until recent years had been almost entirely free of narcotic traffic, and in which there is presently being waged a particularly intense battle of wits between the so-called pushers and the police relating to the efforts of the former to introduce narcotic addiction among the youth of Queens County.

At the very outset, attention must be given to the contention of defense counsel herein that the Fourth Amendment to the Federal Constitution was enacted to curb the crime prevention and investigation practices of police departments. This is a contention which is ever-increasingly being urged by the criminal Bar generally. Historically, this contention is untrue and entirely incorrect. The Fourth Amendment was enacted in 1791; police departments, as we know them, did not come into existence until a much later date. New York City’s police were first established in 1844; San Francisco’s in 1850; Chicago’s in 1851; Boston’s and Philadelphia’s in 1854. The first police department was that of London, England, created in 1828 (Fosdick, American Police Systems, 1920, Century Company, N.Y.).

Police departments were created and have developed in metropolitan areas to meet a need of the citizenry for protection of not only life and property, but of the peace of the community and the social order. Police practices, procedures and systems have evolved over the years to more adequately meet the needs of the communities they serve.

Among these are the crime prevention activities of the police. The citizenry of such areas relies upon this police activity and regards it as a right of citizenship in such areas. There is as much need for crime preventive police activity in metropolitan areas as there is for fire prevention activity of fire departments, or for preventive medicine by health departments and the medical profession.

These crime preventive activities of metropolitan police have become formulated and established in the Rules and Regulations of Police Departments. For example, the Rules and Procedures of the Police Department of the City of New York, in the chapter on patrol, required the police officers in this case, Crist and Barry, ‘ to note where lights are ordinarily left burning at night and where not ” (rule 46.0h) “at night frequently examine all doors on Ms post ” (rule 46.0 j) “investigate all suspicions circumstances, persons loitering about or acting suspiciously ” (rule 46.0k) “when circumstances warrant, a member of the force on patrol may stop any person for the purpose of identification and to satisfy himself that such person is on legitimate business ” (rule 47.0).

These are but characteristic of the prearrest crime prevention practices of the metropolitan police. And it is such prearrest crime prevention practices by police, which defense counsel herein insist are arbitrary infringements of absolute and constitutionally protected rights of the Fourth Amendment.

This contention that the Fourth Amendment is an absolute curb upon evidence obtained by police patrol and crime prevention activity is ever-increasingly heard from the criminal Bar, and even from the defense attorneys of the public-spirited Legal Aid Society and from some of my brethren upon this Bench.

Should the Fourth Amendment be interpreted and applied in such absolute and all-exclusory manner!

That which the Fourth Amendment condemns are the “unreasonable searches and seizures”. Are all police crime prevention activities and practices constitutionally unreasonable as defense contends because they subject a prospective defendant to prearrest police inquiries as to identity and reasons for unusual presence at certain places at certain times! The defense counsel contend that the police activities of Patrolmen Crist and Barry in this case are not only constitutionally unreasonable, but that they are so “ poisoned ” as to render all evidence obtained thereby constitutionally “ poison ” and inadmissible. The District Attorney contends that the actions of Patrolmen Crist and Barry, in investigating, entering, questioning and searching were not only proper but necessary patrol crime preventive police activity; that though they may have briefly preceded the arrest, that they were nontheless a proper and reasonable accompanying incident of that arrest; that the absence of warrants of arrest or search is legally excused by the necessity for almost instantaneous police action and that there was reasonable cause and necessity for prompt investigation, entry, interrogation and inquiry; and that both the searches and the arrests are in the light of all the circumstances, reasonable — constitutionally reasonable.

Thus, issue is squarely joined as to the propriety of patrol prearrest crime prevention police activity of Policemen Crist and Barry, and as to the constitutional reasonableness of prearrest police patrol crime prevention activity generally. None of the cases cited seem to have resolved this issue here presented.

The Federal cases cited hy defense counsel are of but limited value in determining the propriety of the police activity in this case, or of crime prevention activity generally by police departments. They deal, not with law-enforcement agencies charged with the general duty of maintaining the peace or the law and order of the community by the means of patrols, but with those Federal enforcement agencies, which, whether Secret Service, Narcotics Agents, Postal Inspectors, Federal Bureau of Investigation Agents, Special Agents of the Treasury, etc., etc., have been assigned but a limited statutory mission of enforcing only certain assigned Federal criminal statutes, and none of whom are charged with the performance of any patrol duty to preserve the peace and order in the community. Hence, there probably has been no occasion for those courts to consider the problem of the constitutional reasonableness of patrol and crime prevention activity of police officers who are charged with the duty of patrolling and maintaining the peace and order of the community generally. Nor has the Mapp decision, without any guideposts, other than the application of the Fourth Amendment and the Federal case law of search and seizure, been of any great help in resolving the question here presented as to the constitutional reasonableness or unreasonableness of the patrol and crime prevention activities of police officers Crist and Barry in this case, or in resolving the perplexing problem as to the proper balance between liberty, with law and order, herein presented.

The application of the Fourth Amendment by the Mapp case to such prearrest police activity will serve a most useful purpose in curbing unreasonable abuse of police authority, but should courts apply that intended safeguard of rights of the citizenry, the community and the individual, so as to emansculate the effectiveness of all prearrest crime prevention activity of police departments, which also has as its purpose the protection of the citizenry collectively and the individual ?

There is no irreconcilable conflict between the Fourth Amendment’s prohibition upon unreasonable searches and seizures by all Government agencies, on the one hand, and on the other, the crime prevention prearrest practices of police forces charged with the duty of patrolling the community, preserving the peace and the maintenance of law and order therein; so long as such practices are confined to the reasonable bounds of requests for identification in suspicious circumstances, and inquiries as to what a person is doing in suspicious areas at suspicious times or places. If the rule of reasonableness is applied, as is indicated by the very language of the Fourth Amendment, there need be no conflict between the guarantee of liberty by the former and the effort to maintain order and the peace by the latter. Does it serve any useful purpose to characterize as poison ” the crime prevention activities of Patrolmen Crist and Barry, as defense counsel has done herein? Those prearrest crime prevention activities; just as the Fourth Amendment, seek to promote the protection of the citizen and the citizenry; each is needed to attain the better society we seek; and whenever there are needs of the citizenry and those needs may appear to conflict, is it not the duty of the judiciary to seek reconciliation? And is not the maintenance of the delicate balance between liberty and lawful order a problem worthy of our highest judiciary?

If the principle of ‘ ‘ incident to an arrest ’ ’, which was first laid down in Federal District and Circuit Courts, and finally accepted by the United States Supreme Court in Agnello v. United States (269 U. S. 20 [1927]), permits searches and seizures after an arrest, why may not that principle be extended to hold legal such prearrest inquiries, searches and seizures as may be reasonable under the circumstances of the particular case ? The word ‘ ‘ incident ’ ’ has always included not only that which follows, but that which usually, in the normal course of events, accompanies or immediately precedes the main event.

To those who contend that the Fourth Amendment is a guarantee to the individual of absolute freedom and absolute liberty from any and all prearrest police supervision, both reasonable as well as unreasonable, it is suggested the granting of absolute rights to the individual untouched by any rules for the common good, tends toward the negation of government and the establishment of anarchy.

Accordingly, it is held, in hope of enlightenment from higher courts, that the prearrest patrol activities of Patrolmen Crist and Barry are reasonable and accompanying incidents of the arrests which they preceded; that such activities, the searches, the seizures, the arrests were constitutionally reasonable; that in the circumstances here presented such police activities were not in contravention of any constitutionally protected rights of any of these defendants; and the defendants’ motions to suppress are denied.

Upon the credible evidence thus received there can be no reasonable doubt of the guilt of the defendants McErlean and Callahan upon each of the narcotic charges of these informations. As to those charges against the defendants Callahan and Collucci for unlawful entry, the admissions of the former and the uncontroverted evidence as to the latter establish they both entered the building with the intent of committing a crime. Accordingly each of the defendants is found guilty of the charges in these informations.

Investigations in aid of sentence are ordered for each of the defendants and the date for sentence is set forth for December 13,1962. Bail for each of the defendants is continued until that date.

Michael Potter, J.

(dissenting). Two of the defendants, McErlean and Callahan, were charged with misdemeanors under section 3305 of the Public Health Law and sections 1747-d and 1751-a of the Penal Law, namely, with the unlawful possession of heroin and various implements used in the subcutaneous injection thereof. The scene of the alleged crimes was a shop where one O’Donnell, an acquaintence of theirs, was employed. O’Donnell as an employee had a key to the premises. However in the instance in question, he gained entrance to the shop after business hours, in the owner’s absence, and without his permission. He admitted the defendants to the premises.

The contraband, namely, the implements mentioned and certain glassine envelopes either containing heroin or showing traces of it, were discovered on shelving and behind a box or case. The defendants were standing about seven feet distant from the prohibited items. Neither heroin nor implements were found on their person.

It is true that there was some cause for suspicion. The arms of the defendants revealed marks that might be ascribed to hypodermic injections. This the police elicited during their search conducted at the premises. This search preceded the arrest. Moreover, the police observed McErlean climb up a shelved partition and place something on the top of it.

Upon trial, the prosecution primarily relied upon purported admissions made by the defendants after arrest, to the effect that they had bought narcotics before going to the premises investigated, with the intention of using the drugs there. But these admissions by themselves are worthless, unless the prearrest search and seizure were reasonable, thereby opening the way for acceptance of the evidence so procured.

The majority of the court finds that the search and seizure at issue were reasonable and proper as incident to the subsequent arrest in furtherance of necessary crime prevention, and that the fruits or yield of the search may, therefore, be received in evidence without violating the injunctions against unreasonable searches and seizures implicit in the Fourth Amendment to the Federal Constitution, made applicable to the States through the Fourteenth Amendment. I cannot endorse this view. So to stretch the meaning of incident” is to disregard its normal, legal usage and significance when applied to a misdemeanor case. A search and seizure incident to an arrest for a misdemeanor denotes a search and seizure after the arrest and not before it. (People v. O’Connor, 257 N. Y. 473; People v. Yarmosh, 11 N Y 2d 397, 400; People v. Moore, 11 N Y 2d 271; People v. Loria, 10 N Y 2d 368; United States v. Di Re, 332 U. S. 581; Agnello v. United States, 269 U. S. 20; Lee v. United States, 232 F. 2d 354, 355-356.)

Though the police were admitted to the premises without having to break in, yet the case is devoid of proof that any consent was given for the search that ensued. Hence, there was no waiver of the rights secured by the Fourth Amendment (People v. Loria, supra, p. 373; United States v. Shules, 65 F. 2d 780, 781; United States v. MacLeod, 207 F. 2d 853, 855; United States v. Dornblut, 261 F. 2d 949, 951, cert, denied 360 U. S. 912; United States v. Sclafani, 265 F. 2d 408 414 — 415, cert. denied 360 U. S. 918; United States v. Burgos, 269 F. 2d 763, cert, denied 362 U. S. 942; United States v. Martin, 176 F. Supp. 262, 266).

Plainly, the arrest of McErlean and Callahan awaited a chance discovery; and so it was, for what was found was the product of the general search made without benefit of warrant (People v. Moore, supra, p. 273).

Nor can the general search here be justified by what was found (People v. O’Neill, 11 N Y 2d 148, 153; People v. Loria, supra, p. 373; United States v. Di Re, supra, p. 595; Byars v. United States, 273 U. S. 28, 29; Johnson v. United States, 333 U. S. 10; McDonald v. United States, 335 U. S. 451; Henry v. United States, 361 U. S. 98; United States v. Walker, 246 F. 2d 519, 525; Leo v. United States, supra, p. 355).

, Nor may the police have testified as to what they observed during the general search (People v. O’Neill, supra, pp. 153, 154; Williams v. United States, 263 F. 2d 487, 488, 489; McGinnis v. United States, 227 F. 2d 598, 603).

Nor may the police have shown that some of the objects found during such search came to their attention as the result of the defendant McErlean’s attempt to secrete or dispose of them (People v. Loria, supra, p. 372; Hobson v. United States, 226 F. 2d 890; Work v. United States, 243 F. 2d 660).

There are necessitous or extraordinary circumstances when a search warrant may be dispensed with and the search may precede the arrest (Brinegar v. United States, 338 U. S. 160; Johnson v. United States, supra, pp. 14-15; McDonald v. United States, supra, pp. 454-455; Husty v. United States, 282 U. S. 694; Accarino v. United States, 179 F. 2d 456, 458).

It is also to be noted that there is some decisional law holding or implying’ that an exceptional set of circumstances.indicating probable cause may validate a prearrest search and seizure lest form usurp substance (People v. Jones, 232 N. Y. S. 2d 18; People v. Simon, 45 Cal. 2d 645). Jones follows the principles set forth in Simon, a California case which reflects the established law of that State, namely, that a legal search may occur prior to a technical arrest if there is reasonable cause to arrest the individual whose person or premises are searched. (See, also, Willson v. Superior Court, 46 Cal. 2d 291, 294 [1956].) However, as a general rule, the Federal decisions apparently demand that a technical arrest, without a warrant, should come before the search (Johnson v. United States, supra, pp. 15-17; United States v. Rabinowitz, 339 U. S. 56, 60. See Colling, “ Toward Workable Rules of Search and Seizure — An Amicus Curiae Brief ”, 50 Cal. L. Rev. 441 [1960]).

In attempting to reconcile search and seizure cases, there is the ever-pressing fear that the exception instead of proving the general rule, may well obliterate it. In my opinion, it would be hazardous to apply any of the exceptions to the case under consideration. We are dealing with misdemeanors. Here the grounds for arrest, without a warrant, are statutory. Crimes of this grade must be perpetrated in the officer’s presence before he may make such an arrest (Code Crim. Pro., § 177; People v. Moore, 11 N Y 2d 271, 273; People v. Yarmosh, 11 N Y 2d 397, 400; Johnson v. United States, supra, p. 15; Carroll v. United States, 267 U. S. 132, 156-157; Kurtz v. Moffitt, 115 U. S. 487; Elk v. United States, 177 U. S. 529). To conclude otherwise would make the arrest incident to the search rather than the search incident to the arrest (Agnello v. United States, supra; United States v. Di Re, supra; Lee v. United States, supra). To couch the matter in another form, the People cannot at the same time justify the arrest by the search and justify the search by the arrest (Johnson v. United States, supra, pp. 16-17). If the foregoing be valid, it might cogently be asked: Upon eliminating the fruits of the prearrest search in the instant case, what grounds remain to support the arrest?

Before Mapp v. Ohio (367 U. S. 643), where the police erred in their quest for evidence, their search, though unreasonable, might still be condoned and the evidence so educed, if pertinent, received on the ground that its source was not the court’s concern (People v. Defore, 242 N. Y. 13, cert, denied 270 U. S. 657; People v. Adams, 176 N. Y. 351, affd. 192 U. S. 585); but since Mapp, an unreasonable search completely corrupts the fruits thereof, putting them beyond all use (People v. Moore, supra; People v. O’Neill, supra; People v. Loria, supra; cf. People v. Dinan, 11 N Y 2d 350); for a search unreasonable at the beginning remains unreasonable to the end (United States v. Di Re, supra, p. 595; Byars v. United States, supra, p. 29).

Nor can we excuse the police action in the case before us by terming it crime prevention (United States v. Di Re, supra, p. 595), since the instant acts went beyond a limited, prearrest inquiry to ascertain the identity of those suspected and to receive their explanation for their presence at the premises in question (People v. Cassone, 35 Misc 2d 699). A temperate inquiry would not have invaded their constitutional rights (see People v. Bell, 306 N. Y. 110, construing Penal Law, § 1990-a, subd. 2). However, the inquiry passed into an unbridled and exploratory prearrest search, the product of which led to the arrest. Hence, to hold the search good is to pardon the evils springing out of a general prearrest drive for evidence and thereby to debase the Fourth Amendment which condemns any form of unreasonable inquisition whether it be directed towards a misdemeanor involving a minor crime or towards conduct most flagitious.

Particularly apposite is the following excerpt from Mr. Justice Frankfurter’s dissent in United States v. Rabinowitz (339 U. S. 56, 82): “ By the Bill of Rights the founders of this country subordinated police action to legal restraints, not in order to convenience the guilty but to protect the innocent. Nor did they provide that only the innocent may appeal to these safeguards.” (See, also, McDonald v. United States, 335 U. S. 451, 453; Henry v. United States, 361 U. S. 98, 104.)

In view of the foregoing, the respective motions of the defendants McErlean and Callahan to suppress the evidence seized as well as for their acquittal should be granted.

The additional cases before us respectively charge the defendants McErlean, Callahan and Colucci with the misdemeanor of unlawful entry into the premises mentioned with the intent to commit a crime, under section 405 of the Penal Law.

Considering the conclusion reached by me in the foregoing-case against McErlean and Callahan relating to possession of the contraband seized, it appears to me that the proof against them and Colucci on the present charge of unlawful entry is decidedly weak. As already observed, they were admitted to the premises by O ’Donnell, who was then employed at that place by the owner of the business conducted there. O’Donnell possessed some vestige of right to enter the premises, for his employer had given him a key for that purpose. Whatever strength may be found in the instant cases is drawn solely from the circumstance that O’Donnell exceeded his authority by entering the premises after business hours, in his employer’s absence and without the latter’s permission. This he evidently had no right to do; but in any event, the proof is lacking that the defendants entered the shop with the avowed purpose of committing a crime against O’Donnell’s employer. Nor has any other criminal intent been proven, if ive exclude the contraband illegally found and seized as evidence. In the absence of the essential mens rea, the cases against McErlean, Callahan and Colucci must fall (People v. Calloway, 297 N. Y. 931; People v. Orr, 270 N. Y. 193; People v. Cooperman, 279 N. Y. 599; People v. Mantin, 184 App. Div. 767; People v. Schaffel, 286 App. Div. 1034, affd. 1 N Y 2d 716; People v. Harris, 285 App. Div. 813; People v. Di Vito 276 App. Div. 781; People v. Derby, 275 App. Div. 655).

It might be added that though the defendants were O’Donnell’s invitees, yet it appears that they might have been held for unlawful intrusion on real property (Penal Law, § 2036; Adams v. Schwartz, 137 App. Div. 230, 234; 3 Burdick, Law of Crime, § 720, p. 72). However, here too, a criminal mind and purpose must accompany the act (People v. Stevens, 109 N. Y. 159; Johnson v. May, 189 App. Div. 196, 200-202; People v. Winig, 7 Misc 2d 803, 804; People v. Leiby, 184 Misc. 21). At any rate, the People chose to try them solely for the crime of unlawful entry.

Undoubtedly, all of the defendants committed a tort, namely, a trespass; but that is a civil matter.

In this state of the record, I am constrained to vote for the acquittal of the defendants. Accordingly, the respective motions of the defendants McErlean, Callahan and Colucci for acquittal should be granted.

Gray, J., concurs with Creel, P. J.; Potter, J., dissents in opinion.  