
    The People of the State of New York, Respondent, v William Abruzzi, Appellant.
    Second Department,
    June 21, 1976
    
      
      Martin, Obermaier & Morvillo (Robert G. Morvillo and Betty J. Santangelo of counsel), for appellant.
    
      John R. King, District Attorney (Jennifer L. VanTuyl of counsel), for respondent.
   Rabin, J.

This is an appeal from a judgment of the County Court of Dutchess County, rendered December 8, 1975, convicting the defendant, upon his plea of guilty, of the crime of sexual abuse in the first degree, in full satisfaction of an indictment which charged him with sodomy, rape and various degrees of sexual abuse. The appeal brings up for review, inter alia, the denial of the branch of defendant’s motion which sought to suppress, on the ground of an illegal search and seizure, "any and all testimony” flowing from the observations of a New York State Police Investigator, made while on the defendant’s property. For the reasons set forth below, we reverse the judgment, vacate the plea, grant the branch of the motion to suppress as above stated and remand the case to the County Court for further proceedings not inconsistent with the views expressed herein.

Over the course of a year and a half, several patients of the defendant, a doctor, made complaints to the District Attorney’s office alleging sexual misconduct on the defendant’s part during the course of regular gynecological examinations. Pursuant to these complaints an investigation was undertaken in which the defendant’s office was visited by an undercover policewoman posing as a patient. Her purpose was to survey the inner offices while a police investigator entered the rear yard of the defendant’s premises and stationed himself outside of the building in a position to view the policewoman as she entered one of the examination rooms. To obtain such a view the investigator was required to climb a seven-foot ladder and peer through the exposed portions of heavily curtained windows. The investigator stated in his affidavit that, while he was so positioned, he was able to observe the undercover policewoman, that he was able to observe another examining room in which a female was lying on an examination table and that he witnessed certain acts of sexual misconduct committed upon the female patient by the defendant. It is conceded that no search warrant was obtained by the police before undertaking the course of events described above.

After he was indicted, the defendant moved, inter alia, to suppress all evidence flowing from the police investigator’s observations on the ground that they constituted a warrant-less search by the police investigator, and were, therefore, unlawful. The County Court denied that branch of the motion, finding that the protection of the undercover policewoman from possible danger while inside the defendant’s office justified the presence of the police investigator and that, since his presence was thus justified, his observations of criminal conduct were admissible as having occurred within the officer’s plain view. We reject such a conclusion and hold that the search as conducted was unlawful and that the testimony directly flowing therefrom must be suppressed.

We first note that whether the police have conducted a search within the meaning of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the area is one in which there is a reasonable expectation of freedom from governmental intrusion (Katz v United States, 389 US 347, 352). Undoubtedly, a doctor’s office is such an area (Mancusi v De Forte, 392 US 364). Consequently, the failure by the police to obtain a search warrant before the police investigator’s trespass onto the defendant’s premises may not be lightly excused (see Coolidge v New Hampshire, 403 US 443, 454; Chimel v California, 395 US 752, 762). Thus, "the most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’ The exceptions are 'jealously and carefully drawn,’ and there must be 'a showing by those who seek exemption * * * that the exigencies of the situation made that course imperative.’ '[T]he burden is on those seeking the exemption to show the need for it’ ” (Coolidge v New Hampshire, supra, pp 454-455). Those exceptions generally stem from the exigencies of law enforcement or involve situations in which compliance with the rule would be "mere ritual” (Ker v California, 374 US 23, 38-41).

We find on this record no exigencies of law enforcement which would justify the police investigator’s initial entry without a warrant. Even assuming that the safety of the undercover policewoman required surveillance, the investigation which led to the police trespass was not sudden but stemmed from complaints as far back as a year and a half before the incident in question. The investigator’s entry onto the defendant’s premises was not incident to a lawful arrest (see Chimel v California, supra). The investigator was neither engaged in hot pursuit (see Warden v Hayden, 387 US 294) nor motivated by the need to prevent loss of evidence (see Schmerber v California, 384 US 757). Furthermore, to argue, as the People do, that the investigator’s observations come within the "plain view” doctrine is to ignore the underlying presumption that the viewing officer had a right to be in a position to have had that view (see Harris v United States, 390 US 234). But having failed to obtain a warrant where no exigent circumstances were present, the investigator’s position in the defendant’s backyard was unlawful, thereby rendering his "plain view” constitutionally infirm.

The dissenters, however, are of the opinion that the observations of the police investigator of an independent crime, unrelated to his original purpose and not induced by his presence, are admissible. This raises the question "whether, granting the primary illegality, the evidence to which objection is made has been discovered by exploitation of that illegality or, instead by means sufficiently distinguishable to be free of the primary taint—whether the connection between the primary illegality and the evidence in question is so 'attenuated’ as to dissipate the taint” (see People v Mendez, 28 NY2d 94, 97). This question must be answered in the negative.

We must keep in mind the rationales which require application of the exclusionary rule in the first place, those of "deterrence” and "judicial integrity”. Certainly not all evidence is "fruit of the poisonous tree” and therefore necessarily inadmissible, simply because it would not have come to light but for the illegal actions of the police (Wong Sun v United States, 371 US 471, 487-488). The taint of initial illegality may be purged by an intervening independent act which breaks the causal chain linking the illegality and the evidence in such a way that the evidence is not in fact obtained by "exploitation of that illegality.” In applying these maxims to the appeal at bar, we hold that the independent act of the defendant in engaging in a course of criminal conduct not anticipated by the trespassing investigator, is outweighed by the severity of the constitutional violation inherent in the initial abuse of the defendant’s reasonble expectation of privacy (cf. Katz v United States, supra). This kind of search conducted by the police investigator without a warrant, must be declared to be invalid in all respects. To grant suppression of the fruits of the search as to matters sought, but admit fruits of the search as to matters not sought, would do irreparable damage to the constitutional protections afforded by the Fourth Amendment. The prosecutorial benefits of such a serious constitutional violation as presented herein must be denied, and the "’imperative of judicial integrity’” demands that this court not be made "party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions” (Terry v Ohio, 392 US 1, 12, 13).

It should be noted that our decision today has neither the intention nor the practical effect of insulating defendants from evidence of criminal activity directed toward a trespassing police officer. In all cases cited by the dissent in support of its independent crime theory, the independent crime was directed toward the police officer himself. As to those kinds of crimes, the testimony of the police officer is undoubtedly admissible, for the Fourth Amendment is not a vehicle for license to commit crimes against or through the police, regardless of where such crimes occur. Rather, the Fourth Amendment demands that the State shall not benefit by the use of evidence unlawfully obtained.

Hopkins, Acting P. J. (dissenting).

I dissent and vote to affirm. Even though the acts of the defendant were observed by the police investigator in the course of an illegal search, the acts constituted, in themselves, an independent crime concerning which the observations of the officer were legal evidence. The doctrine of the taint of the poisonous tree should not be extended to infect evidence of the personal observation by a police officer of a crime committed in his presence.

The analysis upon which I base this conclusion takes into account the following:

1. There was sufficient time for a search warrant to be obtained prior to the appointment of the policewoman with the defendant. I shall assume, also, that the evidence supporting the complaints of the two female patients was so tenuous that a search warrant could not have been legally issued.

2. The doctrine of the poisonous tree strikes down the evidence of observations made as the result of an illegal search, as well as tangible evidence seized as the result of an illegal search (cf. State of Texas v Gonzales, 388 F2d 145; Whitley v United States, 237 F2d 787; Brock v United States, 223 F2d 681; People v Terrell, 53 Misc 2d 32, affd 30 AD2d 644).

3. The record is insufficient to support a factual finding that the police investigator was engaged in the observation of the defendant’s medical office in order to protect the policewoman from any attack which the defendant might make upon her. Nor is the decisional law clear that an intrusion, otherwise unlawful, becomes insulated from invalidity when it occurs for the protection of another police officer, as argued by the prosecution (cf. Rodriquez v State, 189 So 2d 656 [Fla], cert den sub nom Suarez v Florida 389 US 848; State v Keefe, 13 Wash App 829).

4. The concept of privacy is linked with the Fourth Amendment, though the latter affords broader safeguards in certain instances (Katz v United States, 389 US 347, 350; cf. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn L Rev 349). The ancient definition of "curtilage” should not be decisive in determining whether the Fourth Amendment has been violated. Similarly, whether the invasion took place within a commercial building or a home should not be the test. The teaching of Katz is that what is sought to be preserved "as private, even in an area accessible to the public, may be constitutionally protected” (Katz v United States, supra, pp 351-352).

5. Privacy undoubtedly attaches to a doctor’s office. Both doctor and patient expect their transactions to be private (see, e.g., CPLR 4504; but, see 8 Wigmore, Evidence [McNaughton rev], § 2380a, pp 829-832). Nevertheless, when the patient is the victim of a crime perpetrated by the doctor, the reason for the privacy is punctured and the shield of the privilege falls (8 Wigmore, Evidence [McNaughton rev], § 2385).

6. It must constantly be borne in mind that the Fourth Amendment speaks in terms of "unreasonable searches and seizures” (US Const, 4th Arndt; see United States v Minton, 488 F2d 37, cert den 416 US 936; Commonwealth v Hernley, 216 Pa Super Ct 177; Ann 48 ALR 3d 1178).

These considerations lead me to the conclusion that the police investigator unlawfully trespassed when he placed the ladder against the building and observed the defendant’s assaults on his patient. The illegal invasion thus formed an unreasonable search, barred by the Fourth Amendment. I find no escape from this conclusion through the exception of exigency, because no one could foretell that a crime was to be committed. It was, indeed, fortuitous that the investigator saw the incident which became the subject of the indictment. Nor am I able to excuse the illegality by the need to protect the policewoman. If this exception were uniformly adopted, the exception would engulf the Amendment.

Nonetheless, I would not hold that the exclusionary rule under the poisonous tree doctrine precludes the evidence of the investigator’s observations. Here, the search disclosed an independent crime—a crime committed in front of the investigator and having nothing at all to do with the circumstances which brought the investigator initially to the scene. The evidence, through the observation of an independent crime, has been determined not to be tainted by a prior illegal search (see People v Munger, 37 AD2d 950; Vinyard v United States, 335 F2d 176, cert den 379 US 930; United States v Troop, 235 F2d 123; State v Miller, 282 NC 633).

In Munger a concededly illegal entry by police officers preceded a bribery offer and it was said that the police action did not ban the prosecution for the later crime. In Miller the defendant shot and killed an officer in a police party making a raid into a home in which gamblers were suspected to be operating. The raiding party was armed with an invalid search warrant and the Supreme Court of North Carolina held the entry to be illegal, but that, nevertheless, the application of the exclusionary rule in such a case would, in effect, give victims of illegal searches a license to assault and kill police officers so engaged.

The rule of Munger and Miller has even greater efficacy in defendant’s case. In each of those cases, the illegal search was the incident out of which the subsequent crime (bribery, murder) was derived; not so here, because the crime observed was unconnected with the illegal search. The defendant, it is clear, was not aware that he was being observed, and the timing of his sexual assault happened merely to coincide with the duration of the investigator’s presence outside the window. Thus, both Munger and Miller present harder factual grounds for the application of the rule.

One more point I must discuss. It is surely anomalous that at the same time that the defendant raises the question of the suppression of evidence, the record also contains a full statement in specific detail by the defendant of his sexual conduct toward his patient taken as the necessary foundation for his plea of guilty to the crime of sexual abuse in the first degree. Thus, the claim takes on an unearthly aspect somewhat like the episode in the case referred to by Judge Frankel in his recent article (Frankel, The Adversary Judge, 54 Texas L Rev 465). In that case (United States v Capra, 372 F Supp 603, affd in part, revd in part 501 F2d 267, cert den 420 US 990), at the suppression hearing, three defendants charged with narcotics violations sought to bolster their standing to make the motion by testifying that they had packaged heroin and transported it into New York. After their motion had been denied, the defendants did not take the stand at the trial and their counsel defended them by attempting to show, through cross-examination of the prosecution’s witnesses, that the defendants had nothing to do with the heroin. Perhaps these contradictions are desirable in a society in which we rightly lay stress on the values shielded by the Fourth Amendment, but they present dilemmas not easily explicable to the public.

The exclusionary rule plainly serves the purpose of deterring illegal police activity (Mapp v Ohio, 367 US 643, 646-650); that purpose is furthered by preventing the admission of evidence of past crimes. However, the objective of deterrence is not accomplished by closing the eyes and mouth of a police officer who sees a crime committed in his presence, even though he is there illegally. The Fourth Amendment is to be construed in tune with its announced commandment of reasonableness, and so it should be in this case (cf People v Mitchell, 39 NY2d 173).

Martuscello and Hargett, JJ., concur with Rabin, J.; Hopkins, Acting P. J., dissents and votes to affirm the orders insofar as reviewed and to affirm the judgment, in an opinion, in which Cohalan, J., concurs.

Order dated November 29, 1974 reversed insofar as reviewed, on the law, and the branch of defendant’s motion which sought to suppress the testimony of the police investigator as to his observations is granted.

Order dated February 28, 1975 affirmed.

Judgment reversed, on the law, the plea is vacated and the case is remanded to the County Court for further proceedings in accordance with the opinion of Rabin, J.

As to the facts, this court has assumed, for the purpose of this appeal, that Investigator Apolinario trespassed upon the defendant’s property for the purpose of protecting Officer Hopkins, but has not passed upon that fact. The findings of fact are otherwise affirmed. 
      
      . The County Court made its determination solely on papers. On appeal the defendant raises, as one of his arguments, the existence of gaps and inconsistencies in the record which would necessitate, if not a reversal of the conviction, at least a hearing on the suppression motion. In particular there is asserted a critical disparity in the time at which the investigator claimed he witnessed the undercover policewoman in the defendant’s office and the time at which the undercover policewoman was supposed to have left the premises according to the defendant’s office time records. However, because we find that the investigator’s observations were unlawful, even under cricumstances most favorable to the People, no hearing is necessary.
     
      
      . When called upon to evaluate the merits of an argument against suppression on the ground that deterrence of police conduct would not be achieved, Mr. Justice Stewart noted, in Harrison v United States (392 US 219, 224, n 10), that "no empirical evidence on the deterrence issue is available. And '[s]ince as a practical matter it is never easy to prove a negative, it is hardly likely that conclusive factual data could ever be assembled.’ Elkins v United States, 364 US 216, 218. But it is not deterrence alone that warrants the exclusion of evidence illegally obtained—it is 'the imperative of judicial integrity.’ Id., at 222.” The Justice went on to note that exclusion of the illegally obtained evidence and testimony flowing therefrom "deprives the Government of nothing to which it has any lawful claim and creates no impediment to legitimate methods of investigating and prosecuting crime. On the contrary, the exclusion of evidence causally linked to the Government’s illegal activity no more than restores the situation that would have prevailed if the Government had itself obeyed the law” (Harrison v United States, supra, p 224, n 10).
     
      
      . The "open fields” principle was first enunciated in Hester v United States (265 US 57), and illustrated in later cases (Giacona v United States, 257 F2d 450; United States v Sterling, 369 F2d 799; Foster v United States, 296 F2d 65). That principle does not appear viable after Katz v United States (supra).
      
     
      
      . Katz, decided in 1967, was subsequent to People v Sperber (40 Misc 2d 13, affd 15 NY2d 566) and People v Terrell (supra), involving factual patterns somewhat like the instant case, but coming to varying conclusions, based apparently upon whether a dwelling or a store was the place invaded. However, the affirmance of Terrell (without opinion) followed Katz.
      
     
      
      . Moreover, the illegal searches in both Munger and Miller were "but for” causes for the crimes committed in the context of proximate cause as a test for tortious conduct, so that those crimes could have been said to be inextricably tied to the invalid search.
     