
    The People of the State of New York, Respondent, v. Vino Green, True Name Henry Dunn, Appellant.
    Submitted February 15, 1974;
    decided March 29, 1974.
    
      
      Lawrence K.. Feitell and Milton M. Rosenberg for appellant.
    I. Defendant was unlawfully searched át a place far distant from the situs authorized by. the warrant. . The search warrant, based on the Cruz affidavit, could not lawfully authorize a search of defendant anywhere in the universe. (Keiningham v. United States, 287 F. 2d 126; People v. Brown, 40 Misc 2d 35; People v. Coletti, 39 Misc 2d 580.) II. Under recent authorities the failure to file any inventory or to make any return should vitiate defendant’s search. (People v. Fusaro, 53 Misc 2d 510; People v. Ricken, 49 Misc 2d 677, 29 A D 2d 192, 27 N Y 2d 923; People v. Di Polito, 61 Misc 2d 65.)
    
      Frank S. Kogan, District Attorney (Arthur Weinstein and Michael R. Juviler of counsel), for respondent.
    I. The heroin was lawfully seized under the authority of two search warrants and as incident to a lawful arrest. (Aguilar v. Texas, 378 U. S. 108; Spinelli v. United States, 393 U. S. 410; People v. Kendricks, 25 N Y 2d 129; People v. Munger, 24 N Y 2d 445; People v. Rogers, 15 N Y 2d 422; People v. Marshall, 13 N Y 2d 28; People v. Cerrato, 24 N Y 2d 1, 397 U. S. 940; People v. Montague, 19 N Y 2d 121, 389 U. S. 862; Brinegar v. United States, 338 U. S. 160; People v. Rubicco, 30 N Y 2d 897.) II. The search was not vitiated by irregularities in the return. (People v. Rufino, 62 Misc 2d 653; People v. Di Polito, 61 Misc 2d 65; People v. Montanaro, 34 Misc 2d 624; United States v. Baldwin, 46 F. R. D. 63; United States v. Moore, 452 F. 2d 569, 407 U. S. 910; United States v. Wilson, 451 F. 2d 209, cert. den. sub nom. Fraiman v. United States, 405 U. S. 1032; Rose v. United States, 257 U. S. 655; People v. Ricken, 27 N Y 2d 923; Berger v. New York, 388 U. S. 41.)
    
      
      . A search of the Lucas apartment followed and an undesignated “ quantity of narcotic drugs and cutting paraphernalia ” was recovered. Searches of the other apartments, including the defendants’, were fruitless.
    
   Wachtler, J.

On May 5, 1971, New York City detectives

assigned to the Special Investigating Unit of the Narcotics División obtained search warrants for four apartments in Manhattan. Each of the warrant applications was based on observations at the premises and information supplied by an undisclosed informant who had previously furnished information leading to three narcotics convictions. During the surveillances, made on two specific dates in late April or early May, drug sellers ” were seen entering and leaving the apartments. The informant, the affidavits state, “ was in the aforementioned apartment with [the named occjupant] présent and did see a quantity of narcotic drugs therein ” on a certain date. One of the warrants, obtained by Detective Cruz, relates to the defendant’s apartment and directs an immediate search of ground floor left front apartment in premises 72-74 East 119th Street * * * New York County, occupied by1 Vino ’ *, * * and of the person of ‘ Vino ’ * * * and any other person who may be found therein another, issued to Detective Boche, authorizes a search of apartment 24 * * * in premises 36 West 138th Street * * * New York County, occupied by Betty Lucas * * * and of the person of Betty Lucas * * * and of any other person who may be found therein

Two days after obtaining the warrants Detectives Boche and Cruz, accompanied by Patrolman Sheehan, entered the apartment house building located at 36 West 138th Street to execute the Lucas warrant. As they proceeded along the third floor hallway they noticed the defendant leaving the Lucas apartment. Sheehan approached the defendant, advised him that he had a search warrant and proceeded to search him. A single package of white powder was recovered which later proved to be heroin. Based on the results of this search the. defendant was arrested and charged with criminal possession of a dangerous drug in the third degree.

A motion to suppress the evidence seized from the defendant outside the Lucas apartment was denied and the defendant pleaded guilty to the crime charged.

On this appeal we are asked to consider whether the search was authorized by either the Vino ” or the Lucas warrant, or, if found to be beyond the scope of these warrants, it may be sustained as an incident to a lawful arrest.

The prosecutor’s first argument is that the ‘ Vino ’ ’ warrant authorizing, inter alla, a search of the person of ‘ Vino ’ ”, was a personal warrant that could be executed anywhere. The simple answer is that, by its very terms, it was not. If this is not evident from the face of the warrant — and we think it is — the application underlying and supporting the issuance of the warrant makes it unmistakably clear.

Reading the two together it is apparent that the search authority requested and granted was limited to the premises where the contraband was believed to be (cf. United States v. Baca, 480 F. 2d 199), and extended only to those individuals, including the occupant, who being found therein, might reasonably be expected to conceal the contraband on their persons (cf. People v. Smith, 21 N Y 2d 698). This authority to search the occupant under these circumstances is not a general warrant to search his person wherever he may be found. It follows that the search of the defendant made outside the Lucas apartment — over 19 blocks away — was not within the scope of this warrant.

The Lucas warrant which, as noted, contained nearly identical language was similarly directed to a designated place and only incidentally authorized the search of any person “ found therein ”. It is conceded that the officers did not encounter or search the defendant upon these premises. It could not be seriously argued that having observed the defendant leave the apartment a subsequent search at some remote place to which he might be followed would be authorized under this warrant. There is no reason to apply a different rule to a search conducted just beyond the threshold. One of the most fundamental and salutary characteristics of a search warrant is that “ The authority to search is limited to the place described in the warrant and does not include additional or different places ” (Keiningham v. United States, 287 F. 2d 126, 129). To put it another way “ therein ” means therein and the authority to search stops at the threshold.

The search then exceeded the clearly defined scope of both these warrants. It is true as the People urge that it may nevertheless be sustainable as an incident to a lawful arrest (see, e.g., People v. Malinsky, 15 N Y 2d 86) but this is a question which cannot be decided on the record now before us because the issue of probable cause independent of the warrants was not determined at the trial court hearing. Since there are unresolved questions as to the admissibility of the evidence the indictment should not be dismissed, nor should the judgment be disturbed until these issues are determined.

Accordingly, the order of the Appellate Division should be modified by remitting the case to Supreme Court, New York County, for determination of the issues as to probable cause for the arrest and incidental search of defendant, and, as so modified, affirmed.

Gabrielli, J.

(dissenting). I cannot agree with the result reached by the majority in this case. Each of the two warrants in question was indisputably supported by ample probable cause. The first warrant was addressed to defendant’s premises, to defendant personally, and to anyone else found therein. We agree that the wording of this warrant would support a search of his person only in connection with the named premises.

The second warrant was addressed to the apartment of Betty Lucas, to Betty Lucas personally, and to any other person found therein.

Both warrants, together with a third, were the result of an integrated narcotics investigation involving the same investigating unit and undercover agent, and all the warrants were based on the underlying affidavits of Officers Cruz and Roche. Roche had spotted defendant during the investigation as the result of the informer’s description and thus was familiar with his appearance.

Defendant was apprehended and searched, not in his own apartment, but just as he was leaving the Lucas apartment, as is evidenced by the testimony of Officer Roche who observed this, along with other officers, and who stated that this occurred “ [w]hen the door opened and Mr. Green came out of the apartment ’ ’, he having been, previously identified as having entered the building. As defendant was apprehended he was apprised of both warrants. His only argument with which we are concerned, finding no substance to the others, is that neither warrant authorized a search of his person outside either his apartment or the Lucas apartment. As already indicated, no general warrant for a search of his person can be made out of the warrant addressed to his premises. We do not agree, however, that he was not covered under the “ any other person ” provision in the warrant directed to the Lucas premises. He was indeed.

First, where the underlying investigation shows, as this one did, that certain premises are frequented by known criminals and that criminal activities are conducted in or upon these premises, a warrant authorizing the search of persons found therein or thereat, even though unnamed, is proper (People v. Rubicco, 30 N Y 2d 897). Defendant does not attempt to controvert, as indeed he cannot, this precise point.

Second, the fact the Lucas warrant refers to any other person found therein does not obviate this search which took place just outside the Lucas door, defendant having been observed exiting therefrom. CPL 690.15 (subd. 2) states: “ A search warrant which directs a search of a designated or described place, premises or vehicle, may also direct a search of any person present thereat or therein. ” It is not explained by the majority how this situation would have been dealt with had the warrant stated “ thereat ” as it could have under the provisions of that statute. Defendant’s argument, adopted by the majority, is based on an unrealistic literal approach which is overcome by all the other circumstances in this case. Thus, not only does the law allow personal searches thereat ”, but the officers who made the search knew who defendant was, knew that a warrant was out for him at his premises, knew the evidence underlying the warrants, and knew most of this from their own personal activities and investigation. To make these observations is not to hold that defendant could have been arrested and searched in this situation without a warrant. We need not reach that question. These observations are made merely to illustrate the fact there was ample reason for the police to consider defendant a person covered under the Lucas warrant, who was also at the Lucas apartment at the time the search was made, and, in fact, who was observed therein as he came out of the door. Defendant’s overly literal interpretation of the warrant is simply not justified when all the circumstances are considered. To exalt a claim of form over substance in these brazen circumstances is, in my judgment, unwarranted. (See People v. Marshall, 13 N Y 2d 28, 32, 33, where it was held that a warrant directed specifically to the rear room of a certain address, was broad enough to cover the basement since the word “ premises ” was also used.)

Finally, even defendant’s contention that he was not provided with an opportunity to contest the Lucas warrant is groundless and without support in the record. Not only was defendant apprised of both warrants at the time of the arrest, but he and his counsel were made aware of the prosecutor’s reliance on the Lucas warrant during the suppression hearing and a three-week adjournment was granted. On the adjourned date, and after the officers had testified to the Lucas search, defense counsel never made this argument now made by the majority as to the wording of the warrant, but had the defendant enter a guilty plea.

The conviction should be affirmed.

Chief Judge Bbeitel and Judges Jones and Babin concur with Judge Wachtleb; Judge Gabbielli dissents and votes to affirm in a separate opinion in which Judges Jasen and Stevens concur.

Order modified and the case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein, and, as so modified, affirmed. 
      
      . A different problem would be presented had the defendant been within the apartment and fled when the officers arrived and announced their purpose. We simply hold that the mere existence of a warrant does not justify the search of any person seen casually leaving the premises prior to the execution of the warrant (see, also, People v. Smith, 21 N Y 2d 698).
     
      
      . The finding of probable cause justifying the issuance of the “ Vino ” warrant is not dispositive of this issue for, as we noted in People v. Malinsky (15 N Y 2d 86, 91, n. 2) the People bear the initial burden of “ going forward in the first instance with evidence to show that probable cause existed both in obtaining a search warrant and in sustaining the legality of a search made, without a warrant, as incident to an arrest.” (Emphasis added.)
     