
    The People of the State of New York, Respondent, v Steven C. Hansen, Appellant.
    Argued September 4, 1975;
    decided October 30, 1975
    
      
      Lawrence H. Ecker and Joseph Abraham, Jr., for appellant.
    I. There was no probable cause to search Larry Speake or the Dodge van. (People v Corrado, 22 NY2d 308; People v Brown, 24 NY2d 421; People v Dumper, 28 NY2d 296; People v Hendricks, 25 NY2d 129; People v Dantzig, 40 AD2d 576.) II. There was no probable cause to search defendant-appellant Henry Erwin or the residence in issue. (People v Beshany, 43 Misc 2d 521; Sgro v United States, 287 US 206; People v 
      
      Kissinger, 40 Misc 2d 273, 43 Misc 2d 820; People v Hendricks, 25 NY2d 129.) III. The search warrant is not severable and is therefore void, as determined by the lower court. (United States v DiRe, 332 US 581; People v Rainey, 14 NY2d 35; People v Lawrence, 31 AD2d 712; People v Feliciano, 23 AD2d 806; United States v Hinton, 219 F2d 324.) IV. The exclusionary rule was properly applied by the lower court. (Mapp v Ohio, 367 US 643; Wolf v Colorado, 338 US 25; Barker v Wingo, 407 US 514; Lego v Twomey, 404 US 477.)
    
      Carl A. Vergari, District Attorney (James M. Rose and B. Anthony Morosco of counsel), for respondent.
    I. There was probable cause to search the premises in question, Steven Hansen and the Dodge van. (Smith v United States, 358 F2d 833; Brinegar v United States, 338 US 160; Spinelli v United States, 393 US 410; People v Powell, 36 AD2d 177; People v Meyers, 38 AD2d 484.) II. The application for the search warrant was not based upon stale information. (People v Glen, 30 NY2d 252; Sgro v United States, 287 US 206; United States v Harris, 403 US 573; People v Meyers, 38 AD2d 484; People v Brosnan, 32 NY2d 254.) III. Because probable cause existed to search the residence and person of appellant, he has no standing to assert the illegal search of another. (Brown v United States, 411 US 223; Combs v United States, 408 US 224; Jones v United States, 362 US 257; People v Estrada, 28 AD2d 681; People v Lee, 27 NY2d 705; Alderman v United States, 394 US 165; United States v Calandra, 414 US 338.) IV. A conclusion that search warrants are not severable is unsound. (People v Lawrence, 31 AD2d 712; United States v Hinton, 219 F2d 324; People v Rainey, 14 NY2d 35; People v Mangialino, 75 Misc 2d 698; People v Horman, 22 NY2d 378.) V. New York has never adopted a State exclusionary evidence rule and has not imposed higher standards for searches than those the Supreme Court has required of it. (People v Adams, 176 NY 351, 192 US 585; People v Defore, 242 NY 13, 270 US 657; Mapp v Ohio, 367 US 643; People v Loria, 10 NY2d 368; Sackler v Sackler, 15 NY2d 40; People v Marshall, 13 NY2d 28.) VI. The exclusionary rule is not efficacious. (United States v Calandra, 414 US 338; Zicarelli v New Jersey State Investigation Comm., 406 US 472; New York Trust Co. v Eisner, 256 US 345; People v Sutton, 38 AD2d 567, 32 NY2d 923, 34 NY2d 916; Coolidge v New Hampshire, 403 US 443.) VII Mapp v Ohio dictates suppression of evidence only when the constable is culpable. (Elkins v United States, 364 US 206; United States 
      
      v Calandra, 414 US 338.) VIII. A search pursuant to a jurisdictionally valid search warrant based upon a truthful affidavit should not come within the ambit of Mapp v Ohio. (Aguilar v Texas, 378 US 108; United States v Ventresca, 380 US 102; McDonald v United States, 335 US 451.) IX. The application of the exclusionary rule to this case is irrational. (Jones v United States, 362 US 257; Aguilar v Texas, 378 US 108; Go-Bart Co. v United States, 282 US 344; Ker v California, 374 US 23; Snyder v Massachusetts, 291 US 97.)
   Jones, J.

We conclude that there was probable cause to sustain this warrant in part but not in toto, and hold that property seized under the separable, invalid portion must be suppressed.

The affidavit on which- the warrant was issued contained sufficient competent allegations to support the findings below that there was probable cause to search the Hansen residence at the intersection of Routes 116 and 121 in the Town of North Salem. Police officers properly in the premises investigating a reported burglary saw a large brass smoking pipe of the type commonly used for narcotics, a large scale, and material identified as marijuana. We conclude that in view of the continual surveillance of the premises maintained by the police between their observations on March 30 and the application for the warrant on April 17, in the circumstances of this case, such observations were not so remote in time as to require that they be disregarded as stale.

In our view, however, there was not sufficient evidence to support a finding of probable cause justifying a search of the Speake Dodge van. The observations of the police were that this van had made "trips in and out carrying at least one other person in addition to the driver”, and that it was "the sole vehicle observed entering and leaving these premises on a regular basis”. The affidavit contained no indication as to dates, times, frequency or purpose and was open to the interpretation that other vehicles might have entered or left the premises on a nonregular basis. Additionally no observation was reported as to any movement of persons between the house and the van. The activity described in the affidavit, without more, was innocuous and as consistent with innocence as with criminal activity. (Cf. People v Oden, 36 NY2d 382, 385; People v Davis, 36 NY2d 280, 282; People v Brown, 32 NY2d 172, 174; and see People v Alaimo, 34 NY2d 187, 189.)

The conclusory statement that the applying officer had "reliable information that [defendant and his coresident] have returned from the western states with a large quantity of dangerous drugs” must be wholly disregarded since no supporting data were included as to the credibility of the source of such information or as to the reliability of the information itself. (People v Slaughter, 37 NY2d 596; People v Hendricks, 25 NY2d 129, 133.)

We turn then to the question whether the warrant in this case may be sustained in part if not in its entirety. We hold that where a search warrant authorizes searches of two separate target locations discretely described (here on the one hand a residence, immovable, and on the other an automotive van wherever located) authorization to search the one may be upheld if probable cause existed as to it even though it is determined that probable cause did not exist as to the other. If it is held that evidence recovered at the former location is admissible, while evidence found at the latter is inadmissible, the suppression ordered will be commensurate with the deficiency of probable cause. The policy behind the exclusionary rule is served but not exalted.

We do not say that invalid portions of a warrant may be treated as severable in all or even most circumstances. We distinguish, for instance, those cases in which, in consequence of overbreadth of a single described area of search, the warrant must be struck down (e.g., People v Rainey, 14 NY2d 35; cf. United States v Hinton, 219 F2d 324). In such cases the courts may not by retrospective surgery, dehors the language of the warrant, cut away the illegal portions of the area to be searched and by judicially revised description save evidence recovered from a more narrowly limited area. It would not affect the result that, had the reduced area alone been initially described, search of it would have been founded on probable cause. Similarly, selected portions of search warrants are not to be upheld in circumstances disclosing that the warrant as a whole was obtained on a pretext. Nor would acceptability as to a very minor aspect support the warrant even pro tanto if it were evident that such aspect was wholly incidental to an unjustified search. There will be other instances, too, in which as a matter of principle to sustain any portion of the warrant would, be fatally violative of the policy articulated in section 12 of article I of the New York State Constitution and the Fourth Amendment of the Federal Constitution. In the circumstances disclosed in this record, however, we invoke a doctrine of severability as to target areas to sustain the search of the Hansen residence.

But that is not the end of the matter. Once a portion of the warrant has been sustained under the doctrine of severability the defendant’s standing to challenge the invalid, severed portion must likewise be considered separately. There remains to be considered in this case, therefore, that portion of defendant’s motion which seeks suppression of the marijuana and the second scale seized from the Speake Dodge van.

The Supreme Court has repeatedly stressed "the general rule that Fourth Amendment rights are personal rights which * * * may not be vicariously asserted” (Alderman v United States, 394 US 165, 174; see, also, United States v Callandra, 414 US 338, 348; Brown v United States, 411 US 223, 227; Simmons v United States, 390 US 377, 389; Wong Sun v United States, 371 US 471, 492; Jones v United States, 362 US 257; cf. People v Estrada, 23 NY2d 719; People v Cefaro, 21 NY2d 252; see, generally, Trager and Lobenfeld, The Law of Standing Under the Fourth Amendment, 41 Brooklyn L Rev 421). Thus for a defendant to establish requisite standing to raise an objection he "must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else” (Jones v United States, supra, at p 261). In recognition of these principles, a defendant is considered to have standing when he is owner or possessor of the seized property, has a possessory interest in the searched premises or is legitimately on the premises when the search occurs. (Simmons v United States, supra, at pp 389-390.) The Supreme Court has further accorded what it has denominated "automatic standing” to a defendant where possession of the property seized at the time of the contested search and seizure is an essential element of the offense charged. (Jones v United States, supra.)

As noted in Judge Gabrielli’s dissent, the Supreme Court may be said to have indicated some receptivity, in the light of its later decision in Simmons v United States (supra) to reconsideration of its "automatic standing” decision in Jones (Brown v United States, supra, pp 227-228). The occasion for such reconsideration, if any, has not yet been presented to that court, however, and thus, its decision stands unaffected by subsequent judicial determination. We now decline the court’s invitation, if indeed it be that, in Brown, noting that the Code of Pre-Arraignment Procedure adopted by the American Law Institute (1975) (§ SS290.1, subd [5], par [f]) would also accord standing to appellant in the circumstances of this case.

Here defendant was charged with three counts of possession and one count of criminally using drug paraphernalia. On the record before us it appears that possession of the marijuana or the second scale at the time each was seized from the Speake van might be an essential element of one or more of the offenses charged in the indictment in this case. At least there is nothing to preclude that possibility. We conclude, therefore, that defendant comes within the sweep of the "automatic standing” doctrine. The property seized from the Speake van must therefore be suppressed on his motion.

Accordingly the order of the Appellate Division should be modified to direct such limited suppression and, as so modified, affirmed.

Chief Judge Breitel

(dissenting in part). I would affirm.

Of course, one must agree that the undefined rumor, without specific source or disclosed basis for the information supplied, may not be considered as the ground or part of the ground for the police belief in probable cause. At best, the "reliable information” was relevant only to explain why the police placed the suspect premises under continued surveillance and no more.

But the police had considerable observation of their own which justified an initial inference that the occupants of defendant’s house were more than mere consumers of narcotics. The dispersion of drug fragments in two closets in different rooms, and particularly the location of a large measuring scale were tell-tale of an illicit trafficking in drugs. The surveillance triggered by the evidence uncovered inadvertently in the earlier burglary investigation of the temporarily unoccupied residence in a rural area, coupled with the mere rumor of a drug shipment, justified if it did not require the ensuing police surveillance. That surveillance then yielded the regular appearance at the house of the automobile van occupied by persons who did not reside at the house, a regularity of "visit” and a type of vehicle which justified the inference of deliveries to or from the house. Notably, it was the only vehicle observed entering and leaving the premises on a regular basis. It would require a dull and unimaginative policeman not to conclude, and reasonably it is suggested, that the operation of an enterprise engaged in drug traffic was involved, embracing the van with the house together. In no other way, unless they did it themselves, could the inhabitants of the rural residence have been able to provide commercial distribution of the contraband in which the occupants were obviously engaged, if the earlier discovery of a scale and the dispersed fragments of drugs were to be credited.

On this view, it is not necessary to reach the troublesome issue of severability of the warrant.

Finally, it is important in reviewing police applications for search warrants that a liberal approach be taken. It has often been said that the courts should do so, if only to encourage the police to apply for search warrants whenever there is ample opportunity to do so (see, e.g., United States v Ventresca, 380 US 102, 106-108, where it was said [p 108]: "A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting”). That means that a search warrant application, most often drafted by nonlawyer policemen, should not be read like a year-book lawyer parsing a common-law declaration (see United States v Ventresca, supra, at p 108; People v Hanlon, 36 NY2d 549, 558-559; People v Nieves, 36 NY2d 396, 401). Otherwise, wherever possible the wise policeman would better rely on the several exceptions which allow warrantless search with probable cause where moving automobiles are involved, "exigency” that éasily destroyed or concealed contraband is involved, or the like.

Accordingly, I dissent in part and vote to affirm the order of the Appellate Division in its entirety.

Gabrielli, J.

(dissenting in part). I concur in the opinion of Chief Judge Breitel and, therefore, cast my vote for affirmance. Nevertheless, since the majority reach issues of importance concerning the severability of search warrants and standing to object to searches and seizures, I feel obliged to state my agreement with so much of the majority opinion as holds search warrants severable and to detail the grounds for my disagreement with its adoption of what should be considered as the now obsolete "automatic standing” rule.

The rule had its genesis in the case of Jones v United States (362 US 257). Jones was in the vacant apartment of a friend when Federal officers, armed with a search warrant, entered, found and seized narcotics and narcotics paraphernalia. He moved to suppress the evidence on the ground that the search was unlawful. The Government objected asserting, inter alia, that Jones lacked standing because he had no proprietary interest in the premises and, because he denied that the contraband belonged to him, he could have no interest therein to render him a victim of the seizure.

Speaking for a unanimous court, Mr. Justice Frankfurter explained that while it was entirely proper to require a defendant seeking to suppress relevant evidence to establish that he was a victim of an invasion of privacy, the prosecution therein created a "special problem”. First, to gain standing to object to the search, Jones was being coerced into self incrimination by having to claim to have owned the property seized or to have a substantial interest in the premises searched when, as the law then stood, such an admission could be used against him at trial. Second, the Government was indulging in "squarely contradictory assertions” by subjecting a "defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation” (pp 263-264). Finding the dilemma so posed (p 263) "not inescapable”, Justice Frankfurter held that anyone charged with a crime involving possession automatically had standing to challenge the legality of the search and seizure. As an alternative ground for decision, not here relevant, he held that Jones had standing because anyone legitimately on premises where a search occurs has a right of privacy which he would be able to vindicate (pp 265-267).

Nine years later, the first half of the "special problem” was resolved in another manner. Concluding that it was intolerable that a defendant should have to surrender one constitutional right to assert another, it was held in Simmons v United States (390 US 377, 394) that whenever any "defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.”

The effect of Simmons upon the "automatic” standing rule was recently recognized by Chief Justice Burger in writing for an unanimous court in Brown v United States (411 US 223) that "[t]he self-incrimination dilemma, so central to the Jones decision, can no longer occur under the prevailing interpretation of the Constitution” (p 228). He recoiled from going further, however, and instead distinguished Jones on its facts. He reasoned that the essential ingredients in Jones were that Jones had possession, and was charged with having possession, of the seized evidence at the time of the contested search. In contrast, the Brown defendants had sold the property seized two months prior to the challenged search and, further, the "conspiracy and transportation 'alleged by the indictment were carefully limited to the period before the day of the search” (p 229). Thus, he concluded that since "[t]he vice of allowing the Government to allege possession as part of the crime charged, and yet deny that there was possession sufficient for standing purposes, is not present” (p 229), there was no reason to afford the defendants "automatic” standing.

Since the petitioners here are charged with contemporaneous possession of the fruits of the search and seizure they seek to challenge, we must decide the issue put off for another day in Brown. The issue, therefore, is whether every defendant charged with contemporaneous criminal possession of contraband, as the result of an allegedly improper search and seizure should automatically be entitled to standing simply because the prosecution may be taking an apparently contradictory position.

I, for one, would not adopt the blanket standing rule. The seemingly paradoxical, self-contradictory position of the prose1 cution is in fact explainable and entirely reasonable. As one article recently commented, "[b]y employing the term 'possession’ * * * to define both what the law bans as criminal and the scope of the fourth amendment’s protection [courts have fallen] prey to the 'tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them’.” (Citation omitted.) (Trager and Lobenfeld, The Law of Standing Under the Fourth Amendment, 41 Brooklyn L Rev 421, 437.) Or, put another way, the error results from describing the bounds of an individual’s constitutional rights by the nature of the offense with which he is charged.

Properly viewed, this concept of "possession” is defined in terms of expectation of privacy whereas the penal law concept of "possession” is defined in terms of actual or constructive control over goods or contraband. To be sure, standing in search and seizure cases "depends not upon a property right in the invaded place but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion” (Mancusi v De Forte, 392 US 364, 368 [where it was held that a union official had a reasonable expectation of privacy in his office and thus had standing to object to the seizure of records found there]; see, also, Katz v United States, 389 US 347; United States v White, 401 US 745; Alderman v United States, 394 US 165). Hence, "possession” in the constitutional sense is defined without regard to the lawful or lawless possession of the items sought to be suppressed (see Trager, op. cit, pp 436-437) but rather is defined by one’s "reasonable expectation of privacy”.

In contradistinction, penal statutes are not concerned with the physical location of seized contraband. Instead they concentrate upon the actor focusing special attention upon whether actual or constructive control was exercised by him over the goods sought to be suppressed. For example, a pusher who has stored his wares in a friend’s residence has no reasonable expectation of privacy when the police intrude upon his friend and seize the contraband. At the same time, however, the penal law interest in the pusher’s "possession” is plainly evident. Thus, it is not necessarily inconsistent for the government to assert on the one hand that a defendant is guilty of criminal possession and to claim on the other that he had insufficient possession to warrant granting him standing. Therefore, I would reject the "automatic” standing rule and adopt a case-by-case approach following the reasonable expectation of privacy guideline.

Applying that principle here, I would hold that Hansen lacks standing because he had no reasonable expectation of privacy in the search he seeks to challenge. He was neither in the van nor has he alleged that he had actual or constructive possession of it. Moreover, he did not assert a possessory interest in the contraband. Therefore, there would be no inconsistency in the State’s position.

It should be emphasized that defendant was not without recourse. He could have, under Simmons and without fear of self incrimination, asserted a possessory interest in the drugs at the suppression hearing and thus gained standing. This, obviously, he chose not to do. Therefore, I find defendant totally unaggrieved.

The order should be affirmed.

Judges Wachtler, Fuchsberg and Cooke concur with Judge Jones; Chief Judge Breitel dissents in part and votes to affirm in an opinion in which Judge Jasen concurs, and in which Judge Gabrielli concurs in a separate opinion.

Order modified in accordance with the opinion herein and, as so modified, affirmed. 
      
       Search warrants have been upheld in part under a concept of severability with respect to the articles to be seized (e.g., Aday v Superior Ct. of Alameda County, 55 Cal 2d 789; and see cases collected in People v Mangialino, 75 Misc 2d 698, 707-708).
     