
    The People of the State of New York, Respondent, v. Oscar Lee Chennault, Appellant.
    Argued September 28, 1967;
    decided November 2, 1967.
    
      
      Paul J. Luckern and Anthony F. Marra for appellant.
    I. Appellant Chennault was prejudiced by the refusal of the trial court to exclude as a matter of law appellant’s confession to Detective Greene on the basis that it was the product of an illegal search and seizure. (Mapp v. Ohio, 367 U. S. 643; Silverthorne Lbr. Co. v. United States, 251 U. S. 385; People v. Rodrigues, 11 N Y 2d 279; Wong Sun v. United States, 371 U. S. 471; Nardone v. United States, 308 U. S. 338.) II. Appellant Chennault was prejudiced by the refusal of the Appellate Division to remand the case on the issue of the voluntariness of his confession according to the procedure set out in People v. Huntley (15 N Y 2d 72 [1965]), following the Supreme Court’s decision in Jackson v. Denno (378 U. S. 368 [1964]).
    
      Thomas J. Mackell, District Attorney (Sidney Baumgarten of counsel), for respondent.
    I. Since the check was not the subject of an illegal search and seizure, defendant’s statements upon confrontation with said check were not rendered inadmissible. The check was not the “ fruit of the poisoned tree.” (Nardone v. United States, 308 U. S. 338; Wong Sun v. United States, 371 U. S. 471.) II. There is no issue with respect to the voluntariness of the confessions. (People v. Huntley, 15 N Y 2d 72; People v. Castro, 19 N Y 2d 14; People v. French, 24 A D 2d 657; People v. McQueen, 24 A D 2d 499, 18 N Y 2d 337; People v. Love, 25 A D 2d 488; People v. Rogers, 25 A D 2d 794; People v. Rizzi, 47 Misc 2d 948, 25 A D 2d 640.)
   Van Voorhis, J.

The defendant was charged with stealing cash and checks of the value of $555.77 from the office of Montauk Freightways on September 20,1963. Police officers went to a hotel in response to a call from the clerk who reported an unrelated attempted robbery. One of the officers found a check on the window sill of a washroom. The check was identified as one stolen that day, along with cash, from Montauk Freightways. The defendant and another man were taken into custody. After defendant had been taken to the police station, his automobile was searched. The search produced a valise containing clerical garb and an identification card stating that the defendant was a member of the ministry. After a suppression hearing the objects found in defendant’s car were found to have been illegally seized and not admissible on the trial. The check found in the washroom was found not to be the subject of an illegal search and seizure and it was held that the statements or admissions made by the defendant relating to the check would be admissible on the trial. Detective Greene testified at the trial that the defendant informed him that he, dressed as a minister, was at the office of Montauk Freightways on the morning of September 20, 1963, that he solicited money and, when refused money, he took from the office a bag containing checks and cash.

The Appellate Division affirmed without opinion (25 A D 2d 718).

The defendant argues that he was prejudiced by the refusal of the trial court to exclude as a matter of law his entire confession to Detective Greene on the basis that it was all the product of an illegal search and seizure; that he was prejudiced by the refusal of the Appellate Division to remand the ease on the issue of voluntariness of his confession according to the procedure set out in People v. Huntley (15 N Y 2d 72).

The trial court was correct in ruling that The check that was found in the men’s room in the lobby of the hotel was not the subject of an illegal search and seizure. Therefore, the Court holds that any statements or admissions made by this defendant relating to the check will be admissible upon his trial. ’ ’

It was this check which triggered the admissions against interest which might' have been suppressed under People v. Rodrigues (11 N Y 2d 279), Wong Sun v. United States (371 U. S. 471, 485) and similar cases if the check had been unlawfully seized. Since the check was lawfully obtained by the police these admissions were not subject to the fruit .of the poisonous tree doctrine. ...

The dissenting opinion appears to imply" that wherever an inculpatory statement has been made by an accused after being confronted Avith illegally seized evidence, a mantle of protection is thrown around every admission Avhich he may afteiuvard make to a law-enforcement officer Avhether or not it was prompted by his being confronted Avith the illegally seized article. In the present instance,.the officer testified at the suppression hearing that he found, the check lying on the ledge between the windoAv and screen in the Avashroom of the hotel, Avhcre someone had apparently thrown it in order to get rid of it. The officer testified:

‘ ‘ Q. Did you have a check made out to Cash and drawn upon the account of Montauk Freightways? A. Yes, sir.
Q. Did you show that to the defendant as you interrogated him in the 114th? A. Yes, sir.
“ Q. Did the defendant say anything to you about that? A. Yes, sir. He told me that he kept — I asked him why he kept this check and had thrown aAvay the other checks. He told me he had kept this check because it was made out to Cash.”

The fruit of the poisonous tree rule was designed to discipline law-enforcement officers rather than because of any bearing which it has on the guilt or innocence of a defendant. It seems to us that it would strain this rule to the breaking point to hold that it applies to this conduct of this police officer. He had not previously identified this check as having been taken by him from the office of Montauk FrcigktAvays, and effective laAV enforcement demanded that the officer ask him about the check. He should not be held to have violated his official duty for the irrelevant reason that defendant had previously stated that he had taken a bag containing cash and some checks from the office of Montauk Freightways Avhen he Avas confronted Avith the clerical garb that he was wearing at the time. That did not signify that he could not be asked any more specific questions the ansAvers to which might bear upon Avhether he was guilty. Neither law nor justice has any interest in preventing prosecution for crime to that extent. It is not disputed that this check had been legally seized, and he could be confronted Avith it.

Even though there was no evidence that these statements to the police Avere coerced, it is the rule established in People v. Huntley (15 N Y 2d 72, supra) that there shall be a Huntley hearing even though a confession or admission against interest is admitted without any objection or assertion by him or his witnesses as to voluntariness if the trial court has charged the jury on that subject. This court requires a hearing if the trial court has charged the jury on voluntariness which, in this case, occurred.

The judgment appealed from should be modified so as to direct a hearing upon the voluntariness of these statements by the defendant to the police pursuant to People v. Huntley (15 N Y 2d 72) and, as so modified, affirmed.

Chief Judge Fuld

(dissenting). The defendant’s conviction should be reversed since it was based upon inculpatory statements stemming from evidence concededly illegally obtained.

On September 20, 1963, two policemen went to a hotel in response to a telephone call from a cleric that she had just seen a man who had previously attempted to rob her. The defendant was in the lobby of the hotel and, although the clerk at first indicated that it was he who had attempted to hold her up, she later acknowledged that she was not sure. The matter was not pursued further and nothing came of the charge. In the course of their investigation, however, the police officers discovered an unidentified man in the hotel washroom and found a check made out to the order of cash on the window sill of the washroom. This check, it developed, was one of a number which earlier in the day had been stolen, along with cash, from the office of Montaulc Freightways by a man dressed in clerical garb. Both the defendant and the unidentified man (not connected with the defendant in any way) were taken by the police to the station house for further investigation.

Upon arrival at the station house, the police searched the defendant and found a set of keys for an automobile. They located the defendant’s car which had been parked near the hotel and opened the trunk and examined its contents. This search, effected without a warrant and concededly unlawful, yielded a valise containing clerical garb and a card identifying the defendant as a member of the ministry. Armed with such illegally seized articles, the police proceeded to confront the defendant with them and succeeded in procuring from him inculpatory statements, culminating in an admission that he had stolen the check (found in the washroom) from Montauk Freightways.

It is true, as noted in the court’s opinion, that the check was not itself illegally obtained but the fact is that the defendant was connected with, and implicated in, the theft solely by his confession which was procured from him through use of the illegally seized items. This appears, indisputably, from the minutes of the hearing on the motion to suppress the evidence. Thus, the policeman who had questioned the defendant, testified that he questioned him about the minister’s collar which had been illegally removed from the auto; this is the testimony:

Q. Did you discuss with him the minister’s collar that was in the valise ?

A. Yes, sir.
“ Q. At that time !
A. Yes, sir.
“ Q. What did you say to him about that!
“ A. I asked him if he had worn that collar that day.
He told me he did. I asked him if he had been to the Montauk Freightways to solicit money. He stated he was there. I asked him if he had taken a bag containing money from a cabinet or a chest in the office. He told me he did. ’ ’

Then, in answer to the questions — quoted in the court’s opinion (p. 521) —whether he had the “ washroom ” check and whether he had shown it to the defendant “ as [he] interrogated him ” in the station house, the officer stated that he had and that the defendant admitted that he had stolen the check from Freightways.

Upon the trial, the officer testified, over objection, to the statements made by the defendant concerning both the check and the items unlawfully obtained. This was egregious error. If anything is settled, it is that the exclusionary rule announced by the Supreme Court in Mapp v. Ohio (367 U. S. 643) proscribes the use not only of items illegally seized but also of evidence which stems from their use. (See, e.g., People v. Rodriguez, 11 N Y 2d 279, 286; Silverthorne Lbr. Co. v. United States, 251 U. S. 385, 392; Wong Sun v. United States, 371 U. S. 471, 485.) Our holding in the Rodriguez case is particularly pertinent (11 N Y 2d, at p. 286):

“ [T]he rule announced in Mapp v. Ohio (367 U. S. 643) renders inadmissible not only the items [illegally]/ obtained, but any evidence which stems from, their use. As the Supreme Court put it, The essence .of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not.be used at all. * * * If knowledge of [facts] is gained from an independent source they may be. proved like any others, but the knowledge gained by the Goverment’s. own wrong cannot be used by it in the way proposed. ’ • (Silverthorne Lbr. Co. v. United States, 251. U. S. 385, 392; [other cases cited].) In short,- the exclusionary rule covers not only the evidence illegally obtained, but the product of the unlawful search as well. ' The underlying rationale is that government may not violate the constitutional guarantee (U. S. Const., 4th-Arndt.) and ‘ use the fruits of such unlawful conduct to secure a conviction. ’ (Walder v. United States, 347 U. S. 62, 64-65, supra.) And, obviously, it matters -not that these ‘ fruits ’ happen to be confessions' rather than some other type of evidence. (Cf. Costello v. United States, 365 U. S. 265, 278-280, supra.)

In the case before us, the defendant’s incriminating statements stemmed directly from the use of the •' illegally seized articles, and, accordingly, his admission should not have been received and used as evidence against him.

The judgment of conviction should be reversed and. a new trial ordered.

Judges Burke, Scileppi, Bergan and Keating concur with Judge Van Voorhis; Chief Judge Fuld dissents and votes to reverse and order a new trial in an opinion in which Judge Breitel concurs.

Judgment modified in accordance with the opinion herein and, as so modified, affirmed, and matter remitted to the Supreme Court, Queens County, for further proceedings in accordance with the opinion herein. 
      
      .1 note that the court, following a motion to suppress the use of these items as evidence (Code Crim. Pro., § 813-e), held that the property had been illegally seized.
     