
    Abraham M. Sackler, Respondent, v. Gloria Sackler, Appellant.
    Argued October 6, 1964;
    decided December 3, 1964.
    
      
      Morris H. Halpern and Abraham J. Heller for appellant.
    I. The evidence of the alleged adultery was gained by an illegal “ raid ”, illegal search, illegal seizure and trespass upon defendant wife’s separately maintained home during the course of which a physical assault took place. Therefore, such illegally obtained evidence should have been suppressed and not admitted at the trial. (Mapp v. Ohio, 367 U. S. 643; People v. Loria, 10 N Y 2d 368; People v. Defore, 242 N. Y. 13, 270 U. S. 657; Matter of Ehrich v. Root, 134 App. Div. 432; Irvine v. California, 347 U. S. 128; People v. Cahan, 44 Cal. 2d 434; Sanford v. Richardson, 176 App. Div. 199; Lebel v. Swinicki, 354 Mich. 427; Silverthorne Lbr. Co. v. United States, 251 U. S. 385; Rogers v. United States, 97 F. 2d 691; Tovar v. Jarecki, 83 F. Supp. 47; Schenck v. Ward, 24 F. Supp. 776.) II. The doctrine of “clean hands ” should bar plaintiff in this action from succeeding on the basis of a trespass which was a wrong to “ the equitable relations subsisting between the two parties ”. (West v. Washburn, 153 App. Div. 460; Junkersfeld v. Bank of Manhattan Co., 250 App. Div. 646; Weiss v. Mayflower Doughnut Corp., 1 N Y 2d 310; Olmstead v. United States, 277 U. S. 438.) III. Failure of the courts, in reality an arm of this State, to restrain the use of illegally obtained evidence, would, in effect, constitute a “ state act ” in violation of the due process clause of the Fourteenth Amendment. (Shelley v. Kraemer, 334 U. S. 1; Twining v. New Jersey, 211 U. S. 78; Virginia v. Rives, 100 U. S. 313; Dorsey v. Stuyvesant Town Corp., 299 N. Y. 512; Moch Co. v. Rensselaer Water Co., 247 N. Y. 160.) IV. The repeated references made to the jury by the husband’s attorney of five baselessly alleged separate acts of adultery on the part of the wife with two male persons, in the light of his subsequent withdrawal of all but one from the jury’s consideration, were clearly prejudicial, requiring, in any event, a new trial. (Weil v. Weil, 283 App. Div. 33; Cattano v. Metropolitan St. Ry. Co., 173 N. Y. 565.)
    
      Charles Rothenberg and Sidney Rothenberg for respondent.
    I. It is the public policy of this State that, in the absence of a statute to the contrary, evidence unlawfully obtained by a private person is admissible in a civil suit. Neither Mapp v. Ohio (367 U. S. 643) nor section 8 of the Civil Rights Law holds otherwise. (People v. Defore, 242 N. Y. 13, 270 U. S. 657; People v. Variano, 5 N Y 2d 391; People v. Dinan, 11 N Y 2d 350, 371 U. S. 877; Bloodgood v. Lynch, 293 N. Y. 308; Burdeau v. McDowell, 256 U. S. 465; United States v. Goldberg, 206 F. Supp. 394; Commonwealth v. Tanchyn, 200 Pa. Super. Ct. 148.) II, There is no basis in fact for the assertion repeated in one form or another at several places in- defendant’s brief that the evidence was obtained by a physical assault upon her or the corespondent. (Figurka v. Figurka, 16 A D 2d 938.) III. The fact that plaintiff withdrew four of the five charges of adultery is no more prejudicial to defendant than if plaintiff had presented them to the jury but failed to prove them.
   Chief Judge Desmond.

Plaintiff husband was given a divorce judgment against his wife on a jury’s verdict of adultery, and the Appellate Division agreed. The question of law on this appeal: should the proof as to the wife’s guilt have been excluded from evidence because it was gotten by means of an illegal forcible entry into the wife’s home by the husband and several private investigators employed by him? Agreeing with the Trial Justice and the Appellate Division, we hold that the evidence was admissible.

Nowhere, as all admit, is there any constitutional, statutory or decisional authority for rejecting otherwise valid evidence on such a ground. Our State’s prohibitions against unreasonable search and seizures (N. Y. Const., art. I, § 12; Civil Rights Law, § 8) do not have that purpose or effect (People v. Defore, 242 N. Y. 13, 23 [1926]; People v. Richter’s Jewelers, 291 N. Y. 161, 168 [1943]). The rule was and is that Evidence is not excluded because the private litigant who offers it has gathered it by lawless force ” (People v. Defore, supra, p. 22). It was remarked in 1943 in People v. Richter’s Jewelers (supra, pp. 168, 169) and it is still the fact that successive Legislatures and constitutional revisers since Defore’s ease have always refused to act favorably on proposals to bar from evidence proofs so obtained. The Supreme Court’s decision of 1961 in Mapp v. Ohio (367 U. S. 643) applying the Fourth Amendment is of course not controlling here or even applicable since its impact is on governmental seizures only and not on evidence illegally gathered by private persons. However, the argument is presented that the Mapp holding makes it logical and just that our court should announce a similar exclusionary rule as to evidence illegally gathered by private persons. The theory seems to run like this: before Mapp, the law of evidence in this State was the same as to all illegal searches whether governmental or not, that is, all evidence so produced was receivable. Now we are told that since evidence which is the fruit of illegal governmental incursions is banned, so, for uniformity’s sake, should proof of similar character be refused acceptance when procured by illegal searches and under nongovernmental auspices. The argument goes too far and proves too much. Even evidence captured by the police contrary to laws other than the Fourth Amendment may be accepted by the State courts (Schwartz v. Texas, 344 U. S. 199 [1952]; People v. Dinan, 11 N Y 2d 350 [1962], cert. den. 371 U. S. 877).

Fourth Amendment protections of privacy against unlawful searches and seizures have their origins in English law of the 17th Century and earlier (Lasson, History and Development of the Fourth Amendment [Johns Hopkins Press, 1937], passim; and see historical material in Boyd v. United States, 116 U. S. 616, 624-630 [1886]). Never were those protections applicable to searches and seizures by any persons other than government officers and agents. Searches by “ the government ” only are covered, that is, ‘ ‘ official acts and proceedings ’ ’ and “ invasions on the part of the government and its employees of the sanctity of a man’s home and the privacy of life ” (Boyd opinion, supra, pp. 623, 624, 630). The reasons for this limitation are not only historical but found in our Constitution itself and the Supreme Court has in several opinions mentioned the “ intimate relation ” between the Fourth and Fifth Amendments (Boyd opinion, supra, p. 633; Adams v. New York, 192 U. S. 585; Hale v. Henkel, 201 U. S. 43, 70 et seq.).

The definitive holding that the Fourth Amendment has nothing to do with nongovernmental intrusions is' in Burdeau v. McDowell (256 U. S. 465 [1921]) which has never been overruled in this respect. In Burdeati the court (p. 475) said flatly and finally that the Fourth Amendment’s “ origin and history clearly show that it was intended to be a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies ” (see, also, Gambino v. United States, 275 U. S. 310, 316 et seq. [1927], and Silverman v. United States, 365 U. S. 505). Neither history, logic nor law gives any support for the idea that uniform treatment should be given to governmental and private searches, and to the evidence disclosed by such searches.

With the supposed analogy to Mapp (supra) eliminated, no reason remains for holding inadmissible the evidence here presented. The basic rule is that all competent, substantial, credible and relevant evidence is to be available to the courts. The interests of justice will not be promoted by the announcement by the courts of new exclusions, since the process of investigating the truth in courts of justice is an indispensable function of society and since “ judicial rules of evidence were never meant to be used as an indirect method of punishment ” of trespassers and other lawless intruders (8 Wigmore, Evidence [McNaughton rev.], § 2183; Commonwealth v. Dona, 2 Met. [43 Mass.] 329 [1841]). Any court is taking extreme measures when it refuses convincing evidence because of the way it was procured. Proof of guilt collected in raids by private detectives has been, pursuant to rules not heretofore questioned, the basis for thousands of divorce decrees in our State. And the New York Legislature, when it has found necessity for outlawing evidence because it was secured by particular unlawful means, has provided specific statutory prohibitions such as those against the use of proof gotten by illegal eavesdropping (CPLR 4506; Penal Law, § 738). Further dealings with the problem (absent controls imposed by the Federal or State Constitutions or supervening United States Supreme Court decisions) should be by the Legislature. The present state of the law is clear and plain. “We must hold it to be the law until those organs of government by which a change of public policy is normally effected, shall give notice to the courts that the change has come to pass ” (People v. Defore, 242 N. Y. 13, 25, supra).

For further clarity, it should be noted that the question we are discussing is not as to whether evidence invalidly gotten by governmental people may be used in a civil litigation (see Bloodgood v. Lynch, 293 N. Y. 308; Cleary v. Bolger, 371 U. S. 392) or whether evidence wrongfully obtained by private individuals may be used by the State in a criminal prosecution. The only question here is whether evidence gotten by persons not in government service may be rejected in a civil litigation, in the absence of constitutional or statutory compulsion for such rejection.

The judgment should be affirmed, without costs.

Van Voorhis, J. (dissenting).

In Mapp v. Ohio (367 U. S. 643, 655) the Supreme Court of the United States said: “We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.” In that broad pronouncement, no distinction is made between the admissibility of such evidence in civil and criminal cases, nor between whether the illegal search and seizure has been made by a public officeholder. In fact, there is no such thing as an illegal search and seizure by a public officer as such, inasmuch as our fundamental law regards him under such circumstances as having stepped out of his role as a public official and become a trespasser. “ If he exceeds the power conferred on him by law, he cannot shelter himself by the plea that he is a public agent acting under color of his office, or that the damage was caused by an act done or committed under color of office, and not personally. In the eye of the law, his acts then are wholly without authority ” (43 Am. Jur., Public Officers, § 277, pp. 89-90, and eases cited; Tracy v. Swartwout, 10 Pet. [35 U. S.] 80). In Tracy v. Swartwout, the Supreme Court held that such an act by a public official partakes of the character of a private transaction. It is true that section 12 of article I of the New York State Constitution was held in People v. Appelbaum (277 App. Div. 43, 45, affd. without opn. 301 N. Y. 738) to relate exclusively to unreasonable searches and seizures by those holding public office. But the opinion of the Appellate Division shows that this holding was based on Burdeau v. McDowell (256 U. S. 465, 475) which was, in effect, overruled by Elkins v. United States (364 U. S. 206) as so construed in Williams v. United States (282 F. 2d 940, 941). The State officials who made the illegal search and seizures in Elkins exercised no Federal authority and were no more than private individuals insofar as the prosecution of Elkins was concerned. Therefore, the support given by Burdeau to our decision in Appelbaum has been withdrawn and it is reasonable to assume that, if Elkins had been decided before Appelbaum, the latter would have resulted the other way. However that may be, we are bound to enforce the Fourth Amendment to the Constitution of the United States in the manner in which it is construed by the United States Supreme Court, which it is believed no longer distinguishes between unreasonable searches and seizures by private persons or by public officers. When evidence illegally obtained is offered in evidence in court, that is done for the purpose of inducing official action by the courts, which appears to be contrary to the purpose served by the adjudication in Mapp v. Ohio. In either instance the product of the search cannot legally be utilized by the courts as an official branch of the State. Section 8 of the Civil Rights Law is in the same language as the Fourth Amendment to the United States Constitution, and section 12 of article I of the New York State Constitution. This court recognized in People v. Defore (242 N. Y. 13, 21) that this language, at least as used in section 8 of our Civil Rights Law, applies to trespasses of this kind by private individuals as well as by public officers. It would unduly mar the symmetry of the law, as Judge Bergart suggests, if the identical language of these enactments were to be construed differently. It is true that the exclusionary rule has been held to be in force only as a sanction to the constitutional protection against unreasonable searches and seizures afforded by the Fourth Amendment to the United States Constitution and not to be required in case of a mere statutory violation (People v. Dinan, 11 N Y 2d 350, cert. den. 371 U. S. 877). But here, as it seems to me, this evidence was obtained in violation of the Fourth Amendment. For this reason I vote to reverse the judgment appealed from and to grant a new trial.

Bergan, J. (dissenting).

Had the police intruded into the defendant’s home in the same manner employed by plaintiff and his detectives, and found evidence of murder, the court would have suppressed the evidence on constitutional grounds. It is not possible to draw a fully logical difference on the question of admissibility between evidence wrongfully obtained by a private citizen and evidence wrongfully obtained by public authority. Indeed, since the motivation of public authority is the common good of the community and the motivation of the private citizen the advantage of his lawsuit, it might be supposed we would more readily suppress wrongfully taken evidence in the private suit than in the criminal action.

As People v. Defore (242 N. Y. 13 [1926]) makes quite clear there is no distinction under the New York Civil Rights Law, now a part of the Constitution (N. Y. Const., art. I, § 12), between a private and a public invasion of privacy. Both are prohibited alike. In the noted opinion in that case Judge Cardozo wrote that evidence wrongfully taken by public authority would be received in New York in spite of the trend of Supreme Court cases the other way, in large part because similar evidence would be received when wrongfully taken by private persons. But thé main underpinning of that rule has now been swept away by Mapp v. Ohio (367 U. S. 643), which prohibits the receipt of evidence wrongfully taken by public authority. The converse of the logic of Defore is thus uncovered. If in Defore the rule in criminal cases was left unchanged to be consistent with the rule in civil cases, it is reasonable to expect that the rule in civil cases should be made consistent with the new rule in criminal cases. It is no answer to this to say we had to make the change in criminal cases under compulsion of Mapp. The fact is we have made the change and in making it developed a patent inconsistency in our rules of evidence.

If, instead of wrongfully entering her home, the plaintiff had obtained the evidence for his divorce suit by listening in on defendant’s telephone line in violation of the eavesdropping statute (Penal Law, § 738), the court would exclude the evidence (CPLR 4506). It is true enough that the eavesdropping rule is of legislative origin, but the general rule of admissibility was fashioned judicially and the court has a responsibility to refashion it when it can be seen, as it now becomes obvious, that it is operating unfairly and out of balance.

We ought not hang on tenaciously to the remnant of an old rule out of sentiment or by reason of inertia. If we continue to sanction a duality of this kind in the practice it will develop into an ultimate procedural incongruity which in the end will have to be adjusted. We ought to deal with it now by making the change in the direction of consistency while the criminal practice is adapting itself to Mapp. The change in fundamental viewpoint and the approach to wrongfully obtained evidence have made our rule of admissibility in private cases inconsistent and discriminatory.

The judgment should be reversed.

Judges Dye, Fold, Burke and Scileppi concur with Chief Judge Desmond ; Judge Van Voorhis dissents in an opinion in which Judge Bergan concurs; Judge Bergan dissents in a separate opinion.

Judgment affirmed.  