
    Supreme Court—Special Term—Queens County.
    June, 1905.
    JOHN PHELPS v. WILLIAM McADOO.
    
    (47 Misc. 524.)
    Police Officers—No Right to Enter by Force—Charter of Greater New York, Sec. 318.
    Police officers have no right to break into buildings without a warrant, and no warrant will justify acts of violence and wantonness— and section 318 of the Charter of Greater New York, which empowers the police of that city to enter any house if two householders report in writing to the police commissioner that there are good grounds for believing it to be' a common gambling house, is unconstitutional and void.
    Motion for an injunction to restrain the defendants from a continuous trespass.
    Emü E. Fuchs for plaintiff.
    Patrick E. Callahan for defendants.
    
      
       Note.—Upon the vexed question as to whether the police can be enjoined from interfering, see the recent cases of Delaney v. Flood, 183 N. Y. 323; Stevens v. McAdoo, 112 App. Div. 458; Burns v. McAdoo, 113 id. 165; Clary v. McAdoo, 113 id. 178; and McGorie v. McAdoo, 113 id., reversing 49 Misc. 601.
    
   Gaynor, J.:

A captain of police, with twenty-five policemen armed with axes, suddenly broke into the rooms of the West Side Club on the second story. They did not seek admission in an orderly way by the door, but ran up ladders and broke in the windows. They then broke and smashed, with axes and other weapons, doors, windows, ceilings, mantelpieces, water closet bowls and urinals, electric fans, pictures and other things. The photographs exhibited to the court show that they wrecked the place. They arrested three persons, hut Mr. Justice Blanchard, of the Supreme Court, discharged them on a writ of habeas corpus for total lack of evidence, and with the concurrence of the district attorney of New York county. The above act of mob violence was one of a series of trespasses by the police authorities upon the said premises.

They acted without a warrant. But it should be said in vindication of the law that no warrant would have justified such acts of violence and wantonness. The law doés not even permit a police officer to break into a place under a search warrant unless “after notice of his authority and purpose he be refused admittance” (Code of Criminal Procedure, sec.. 799), and it is made a criminal offense for him to do so (Penal Code, sec. 120).

It may be that the members of this club commit the crime of betting on horse races in the privacy of their rooms, as the police authorities claim, but there is no evidence of it. " No doubt there is much private betting and gaming in our clubs. It might be well if the police authorities should soon break into and smash the interior of one of our leading clubs with mob violence, for every one would then perceive the enormity of their offense, although it would be no greater than their lawless trespasses against the houses and persons of the weak and uninfluential. One reason given for the lawless violence on this place is that the building is “reported,” as an affidavit of a police captain says, “to be owned by one Theodore Allen.” I do not know who he is; but the law does not permit his building to be unlawfully broken into by the police any more than another man’s. The way the law directs the police to do is to get evidence through their secret service or otherwise against the club, a thing easy enough, if it be such a gross offender, and then get a warrant for the arrest of the guilty ones, and have them tried, and surely convicted and sent to prison. That is the way of the law, and it is the only efficient way.

The notion of any police official that he may go about smashing into houses and clubbing people without evidence or a warrant, simply because he, forsooth, “suspects” them, would have to be deemed insane in a free government, if it did not arise out of ignorance or a bad motive. And to make the police force do such lawless work is to degrade them. It is not to be wondered at if policemen who are thus taught lawlessness by their superiors occasionally do individual acts of lawlessness.

If it be asked, “What is to be done if no evidence can be obtained?” the answer of the law is plain and emphatic, “Do nothing.” Hot even a murderer can be arrested and imprisoned without evidence. Oannot the police officials understand that? And if any house or place he so decorous and orderly that no one can see anything wrong about it, and no evidence can be got against it, it must be left alone. That is the law of all free governments. In despotisms they sack houses and arrest people at will.

Do the police ever get any evidence against betting on horse races and cause a conviction ? Have they caused even one conviction ? The law does not sanction government by the axe and club. That is the way in Russia, to some extent, but not here in our free government. Ours is a government of laws and not of men. Russia is a government of men and not of laws. The highest official with ns has to keep within the laws prescribing bis duties and the limitations of bis powers.

The pernicious and destructive notion is abroad to some extent that “good” officials, that a “good” police commissioner and “good” police captains should be permitted to overstep the law. Cannot people who talk like this understand that the good official who oversteps the law is making a precedent for his had successor? As Rufus Choate said in warning to public officers in an argument before them:

“You are good men, and live in good times, but you set an example for bad men in bad times.”

It was on the same occasion that he read that great article of the Massachusetts Bill of Rights promulgating government in the three departments, legislative, executive and judicial, to the end that it should be a government of laws and not- of men, declaring that he never read it “without a thrill of sublimity,” viz:

“In the government of this Commonwealth,' the Legislative departments shall never exercise the Executive and Judicial powers, or either of them: The Executive shall never exercise the Legislative and Judicial powers, or either of them: The Judicial shall never exercise the Legislative and Executive powers, or either of them: To the end that it may be a government of laws and not of men.”

It is criminal for officials to set at naught and trample upon foundation principles of free government like these. It is for the police authorities, who belong to the executive department, to get evidence of criminal offenses and present it to the judicial department, and not go about passing judgment themselves and doing unlawful violence.

The counsel for the plaintiff advances the extraordinary argument that the police should have entered the place in the way prescribed by section 318 of the city charter. It purports to empower the police to enter any house in the city of Hew York if two householders report in writing to the police commissioner or deputy commissioner that there are good grounds for believing that it is a common gambling house.

But this section of the charter is unconstitutional and void. Ro house can be forcibly entered and searched anywhere in this country, except under a warrant obtained from a magistrate on sufficient cause proved before him on oath. Our ancient Bill of Rights, which is deemed fundamental law, contains the following explicit provision, which is also in the Constitution of the United States, and in the constitutions or bills of rights of all of our States, viz:

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

We have far more to fear from the loss of this priceless inheritance of free government than from all kinds of betting and gaming; than from all the ordinary vices and crimes combined. Exercise of arbitrary power in a free government is the arch-vice; and it brings in its train a horde of vices, especially the despicable vices of official oppression, extortion and blackmail. If the police authorities are permitted to invade houses at will, they can by threats thereof levy extortion and blackmail without limit, as they long have done by that means in the city of Hew York.

The contention of the police officials is that they acted under section 315 of the city charter. It purports to- empower the police as follows:

To “carefully observe and inspect all places of public amusement, all places of business having excise or other licenses to carry on business; all houses of ill fame or prostitution; .

all lottery offices, policy shops, and places where lottery tickets or lottery policies are sold or offered for sale; all gambling houses, cockpits, ratpits and public common dance houses, and to repress and restrain all unlawful and disorderly conduct or practices therein.”

We have here lawful and unlawful businesses and places enumerated all in one class, with a provision that the police shall “carefully observe and inspect them,” and “repress and restrain all unlawful and disorderly conduct or practices therein.”

Of course the police may be detailed to and stationed in or at theatres and may be some other licensed places, to some extent, for the purposes mentioned. But to station them in gambling houses and the other "unlawful places to observe and inspect and keep order there would be to license such places, and this loose statute does not mean any such thing. By so interpreting it, however, police officials have in the past claimed and obtained entry into all such places, to observe and inspect them, and by that means levied weekly or monthly payments upon them, and in that way collected vast sums annually.

The recent committee of nine which investigated the abuses of those who rule the police in the city of blew York recommended to tire Legislature the repeal of the two charter provisions discussed above, for the reasons which I have here stated.

But there can no longer be any excuse for police officials claiming the right to forcibly enter into such places without a warrant, for the courts have decided that this section of the charter confers no such right (People v. Glennon, 37 Misc. 1; 16 N. Y. Crim. 297; 175 N. Y. 45.) Judge Oulleh writing the unanimous decision of the Court of Appeals, which affirms the lower court, points out that it confers no new powers of entry or of arrest; that it means that the police are to observe and inspect, etc., in the manner allowed by law throughout the State; that to say, as the trial judge did in effect in that case, that the police could “repress and restrain disorderly and unlawful conduct therein by forcibly entering the premises, etc., “was plain error,” and that the duty to enter has reference only to a peaceable and lawful entry, i. e., “it was his (the convicted policeman’s) duty, if he could obtain admission to the house peaceably and without violation of law, "to enter it and see what its nature and character was.” The same is decided in Hale v. Burns (44 Misc. Rep. 1; 101 App. Div. 101).

I strongly suspect that this club is used for book betting on horse races, and if the police will proceed according to law, and not by lawless spectacular raids without warrant, they can doubtless bring the guilty ones to justice.

Motion granted.

THE' PATRICK CASE.

Preliminary Note.

The order of the steps in this protracted case is briefly as follows: The indictment was filed April 25, 1901. The trial took place in the Court of General Sessions, New York county, before the Hon. John W. Goff, Recorder. It began January 20, 1902, and lasted about ten weeks. Defendant was convicted upon March 26, 1902. Judgment was rendered upon April 7, 1902, and the death sentence was originally set for the week commencing May 5, 1902. Notice of appeal was served upon April 7, 1902. The proposed case was served upon November 17, 1902. On the same day, November 17, 1902, an order to show cause was served why a new trial, upon newly-discovered evidence, should not be granted. After a protracted hearing the motion was denied upon March 2, 1903, and the order denying the motion was entered March 23, 1903.

The case and amendments were submitted for settlement on July 7, 1903. The case was ultimately settled upon May 11, 1904. The appeal book, which contained the proceedings on the trial and the proceedings upon the motion for the new trial and the voluminous exhibits, contains 4,125 pages.

The appeal was argued in the Court of Appeals upon March 14, 1905. The judgment was affirmed upon June 9, 1905. A motion for a reargument was submitted October 2, 1905, and denied October 27, 1905. A motion to amend the remittitur was argued Nov. 20, 1905, and denied November 28, 1905.

Subsequently and upon December 6, 1905, the defendant was re-sentenced at a Criminal Term of the Supreme Court, New York county, before Rogers, J., to be executed during the week commencing January 22, 1906.

Subsequently, and upon February 2, 1906, the defendant served a notice of a second motion for a new trial upon the ground of newly-discovered evidence. After protracted hearings, the motion was denied, a,nd the order signed and entered upon June 11, 1906.

Shortly thereafter, and on or about June 13, 1906, a writ of error was granted by the Hon. William E. Day, Associate Justice of the U. S. Supreme Court. This writ was withdrawn upon Dec. 13, 1906. Patrick’s sentence was commuted to life imprisonment upon Dec. 20, 1906.]

The various proceedings, in the order of their occurrence, and as far as they have been reported, are as follows:

I. Motion to Enlarge Time.

Court of Appeals, 172 M. Y. 599.

(Argued October 6, 1902; decided October 8, 1902.)

Motion, under the provision of section 536 of chapter 369 of the Laws of 1902, to extend time in which to move argument of appeal from judgment of death.

John C. Tomlinson and Edgar J. Kohler for motion.

Mo one opposed.

Motion denied on the ground that defendant has six months from September 1, 1902, the time the act took effect, in which to argue the appeal, which time the court deems amply sufficient.

Concur: Parker, Ch. J., O’Brien, Bartlett, Haight, Cullen and Werner, JJ. Dissenting: Vann, J.

II. First Motion por Mew Trial.

Court of General Sessions in the City and County of Mew York, March, 1903.

(Unreported.)

[Note.—This motion was made during the pendency of the main appeal from the judgment of conviction. The order denying the motion was embodied in the judgment roll and reviewed upon the appeal under the practice prescribed in People v. Priori, 163 N. Y. 99.]

This motion was made upon the ground of alleged newly-discovered evidence. The moving papers were served upon Nov. 17, 1902. The grounds of the motion are discussed in the main opinion which affirmed the judgment of conviction (vid. opinion of Gray, J., at p. 185 et seq). The decision denying the motion was handed down March 2, 1903, and the order was entered upon March 23, 1903.

John 0. Tomlinson and Edgar J. Kohler, for motion.

Francis P. Garvan, Assistant District Attorney, opposed.

Goer, R.:

While an appeal from the judgment to the Court of Appeals is pending, a motion for a new trial is made upon the ground of newly-discovered evidence. It is claimed that this evidence relates first, to the immunity promised and given to Jones, a witness for the People; secondly, to the autopsy performed by the physicians on the body of Rice; and, thirdly, to an alliance of interests between the civil litigation concerning the several wills of Rice and the prosecution of the criminal action.

In view of the fact that the case is now in the Court of Appeals and that in due time the material questions of law and fact involved will be examined, I believe that to write an opinion would not be consonant with judicial proprieties, nor is it required by the existing conditions. I will, therefore, briefly state my conclusions: That there is not legal proof that any evidence of a material character has been newly discovered since the trial; that substantially all of the matters and conditions now claimed to have been newly discovered were within the knowledge of one or all of the counsel who represented the defendant from the inception of the criminal charge until after judgment was pronounced; that the exhaustive cross-examination, of the witnesses for the People by the learned counsel for the defense clearly indicates a knowledge of, and familiarity with, such matters and conditions, and if such knowledge were not possessed in the minute detail set forth in the moving affidavits, it could have been acquired— if considered of sufficient importance by diligent use of the means and opportunities then available.

It is also urged that a new trial should he granted because the verdict was against the law and the evidence, and because of errors committed on the trial. For the reasons already stated, I do not consider it necessary or proper for me to express any opinion upon these points. Motion denied.

(For foregoing opinion see printed case on appeal at pages 3055-6.)

III. Main Appeal prom Judgment.  