
    The People of the State of New York, Respondent, v Theodore Payton, Appellant.
    Argued September 8, 1980;
    decided October 14, 1980
    
      POINTS OF COUNSEL
    
      William E. Hellerstein for appellant.
    I. It would be inconsistent with the mandate of the court below for this court to now determine that exigent circumstances excused the failure of the police to obtain an arrest warrant prior to the entry of Payton’s apartment. (People v Fitzpatrick, 32 NY2d 499.) II. No exigent circumstances existed to excuse the failure of the police to obtain a warrant prior to their breaking down the door of Payton’s apartment. (McDonald v United States, 335 US 451; Johnson v United States, 333 US 10; Schmerber v California, 384 US 757; Chimel v California, 395 US 752; Warden v Hayden, 387 US 294; United States v Santana, 427 US 38; Mincey v Arizona, 437 US 385; Dorman v United States, 435 F2d 385.) III. The People are not entitled to a remand on the issue of exigent circumstances when they, themselves, were responsible for whatever deficiencies may exist in the record. (McDonald v United States, 335 US 451; Matter of Kwok T., 43 NY2d 213; People v Malinsky, 15 NY2d 86; People v Havelka, 45 NY2d 636; People v Bryant, 37 NY2d 208; People v Hendricks, 25 NY2d 129; Whiteley v Warden, 401 US 560.) IV. The District Attorney’s argument that Pay-ton is not entitled to suppression of the shell casing seized unlawfully from his apartment is frivolous. (United States v Peltier, 422 US 531; Stovall v Denno, 388 US 293; Bowen v United States, 422 US 916; Almeida-Sanchez v United States, 413 US 266; Linkletter v Walker, 381 US 618; Mapp v Ohio, 367 US 643; Coolidge v New Hampshire, 403 US 443.)
    
      Robert M. Morgenthau, District Attorney (Peter L. Zimroth, Brian Rosner and Vivian Berger of counsel), for respondent.
    I. Payton’s arrest without a warrant was proper because it was the result of a continuous, intensive and uninterrupted pursuit of an armed killer. (Dorman v United States, 435 F2d 385; Vance v State of North Carolina, 432 F2d 984; United States v Kulcsar, 586 F2d 1283; United States v Reed, 572 F2d 412; United States v Shye, 492 F2d 886; United States v Campbell, 581 F2d 22; United States v Brown, 540 F2d 1048; United States v Watson, 423 US 411; United States v Brown, 467 F2d 419.) II. This court should in no event summarily reject the People’s argument advanced in point I. At the very least, if the court is dissatisfied with the state of the record before it on this issue, it should order a remand for fuller development of the relevant facts. (People v Fitzpatrick, 32 NY2d 499; People v Malinsky, 15 NY2d 86; People v Havelka, 45 NY2d 636.) III. Payton is not entitled to the benefit of the exclusionary rule because, when the police entered his apartment in January 1970, they did so under the express authority of a State statute, at a time when neither they nor any other law enforcement official could have had any serious doubts about the legality of following the statute. (Bivens v Six Unknown Fed. Narcotics Agents, 403 US 388; United States v Ceccolini, 435 US 268; United States v Calandra, 414 US 338; People v McGrath, 46 NY2d 12; Alderman v United States, 394 US 165; United States v Janis, 428 US 433; United States v Peltier, 422 US 531; Michigan v Tucker, 417 US 433; Elkins v United States, 364 US 206; Olmstead v United States, 277 US 438.)
   OPINION OF THE COURT

Wachtler, J.

The defendant has been convicted of murder at a trial in which the prosecutor introduced a shell casing found in the defendant’s apartment, when the police forcibly entered to arrest him without a warrant. On appeal the United States Supreme Court held that the police may not enter private premises without a warrant unless there are exigent circumstances and found unconstitutional certain New York statutes insofar as they would permit "routine” warrantless entry by arresting officers. On remand the defendant urges that the shell casing be suppressed, his conviction reversed and a new trial ordered. However the prosecutor, who successfully relied on the arrest statutes at the pretrial suppression hearing, now argues that there were exigent circumstances and urges that we either so find on the record as it stands, reopen the hearing for additional evidence on this issue, or hold the exclusionary rule inapplicable when police conduct was authorized by statute.

On January 12, 1970 a man armed with a rifle and wearing a ski mask robbed a Manhattan gas station. During the robbery the gas station manager was shot and killed. On January 15 the police went to the defendant’s apartment. It is conceded that at this point, as a result of their investigation, the police had probable cause to believe the defendant was the man who had robbed and killed at the gas station three days earlier. They had not, however, obtained a warrant for his arrest. At the apartment the police could hear a radio playing behind the door and saw light beneath it. But when they knocked they were not admitted. They then called for technical assistance and when it arrived, one half hour later, they forceably entered the apartment. The police were unable to find the defendant in the apartment but they saw and seized a shell casing which had been lying in plain view on a stereo set. The following day the defendant surrendered to the police. He was indicted for felony murder and intentional murder.

Prior to trial the defendant moved to suppress the shell casing. At a hearing on the motion the defendant brought out the fact that the police had not obtained a warrant to enter the premises. He also sought to show that the police had sufficient time to obtain a warrant and no excuse for having not done so. However, the District Attorney objected to this line of questioning noting that under the statutes then in effect (Code Crim Pro, §§ 177, 178) the police were authorized to enter a person’s home to arrest him without a warrant and that the statutes did not limit this authority to cases where there were exigent circumstances. The court agreed with the prosecutor and sustained his objections on this and later occasions when the defendant sought to introduce proof on this point. At the conclusion of the hearing the court refused to suppress the shell casing, holding that it had been observed in plain view while the police were lawfully on the premises pursuant to the statutes. The court also found the statutes constitutional.

The People introduced the shell casing at trial and produced expert testimony that the shell had come from the murder weapon. The jury found the defendant guilty of murder.

The conviction was affirmed by the Appellate Division (55 AD2d 859) and this court (45 NY2d 300). However, as noted, on appeal to the United States Supreme Court it was held that the Fourth Amendment "prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest” (Payton v New York, 445 US 573, 576). With respect to exigent circumstances, it was noted that the Trial Judge “had no occasion *** to decide whether” the circumstances preceding the entry of the defendant’s apartment “would have justified the failure to obtain a warrant, because he concluded that the warrantless entry was adequately supported by the statute without regard to the circumstances” (ibid., at pp 577-578). And, although the Supreme Court later indicated that “it is arguable that the warrantless entry to effect Payton’s arrest might have been justified by exigent circumstances” it nevertheless declined to pass on the issue since “none of the New York courts relied on any such justification” (ibid., at p 583). In sum, the Supreme Court rejected the theory the People had relied upon at the pretrial suppression hearing; found the New York statutes unconstitutional to the extent they would permit the police to forceably enter private premises without a warrant to make routine felony arrests and, accordingly, reversed and remanded to this court “for further proceedings not inconsistent with this opinion” (ibid., at p 603).

The defendant urges that the only appropriate action at this stage is to suppress the shell casing, reverse the Appellate Division order affirming the conviction and remit the case for a new trial. In the companion case of People v Riddick (51 NY2d 764) we have summarily suppressed the evidence. In the case now before us, however, the District Attorney has not conceded, as the prosecutor did in Riddick, that there are no exigent circumstances. In addition, and more fundamentally, the District Attorney urges that in the instant case the exclusionary rule cannot be applied.

With respect to this latter point, it is the prosecutor’s position that the exclusionary rule, which was designed to compel the police to follow lawful procedures, should not be applied when the police conduct was expressly authorized by statute. He urges that this is especially true when, as here, the statutes the police relied upon have been in existence for nearly a century, codified a widespread practice and were only found to be unconstitutional long after the police had acted.

In a narrow sense, it is true that the exclusionary rule was originally created to deter police unlawfulness by removing the incentive (United States v Calandra, 414 US 338, 347-348). In a broader sense, however, the exclusionary rule serves to insure that the State itself, and not just its police officers, respect the constitutional rights of the accused. Thus, for instance, evidence will be suppressed if it was seized by the police pursuant to a court order or warrant subsequently found to be defective (see, e.g., Whiteley v Warden, 401 US 560; Spinelli v United States, 393 US 410) or pursuant to an order expressly authorized by a statute later determined to be unconstitutional (see, e.g., Berger v New York, 388 US 41). In those cases, of course, the police simply carried out a court order, as they were bound to do, and the fault lay with other branches of the government. Nevertheless, the exclusionary rule was held applicable to deny the State the benefits of its violation of the defendant’s constitutional rights.

Moreover, if as the prosecutor urges, police activities indorsed by statute or widespread practice are immune from the exclusionary rule, the Supreme Court’s decision in this case, and other decisions in like cases, could not affect Pay-ton’s conviction or the prosecution in which the statute or practice was first challenged. They would only provide guidance for future cases. In a system of government which requires the courts generally to decide only concrete cases and controversies, and to avoid advisory or purely prospective opinions (see, e.g., Stovall v Denno, 388 US 293, 301) this would mean that statutes and widespread practices broadly affecting the rights of accused persons would, ironically, be beyond judicial review for all practical purposes. Thus it is not so much the nature of the exclusionary rule but rather the nature of judicial process and the need to actually resolve a live controversy which requires that the exclusionary sanction be applied in cases which change the law or hold invalid practices which had previously been widely believed to be constitutionally acceptable.

That consideration, of course, is not present when the court is asked to decide whether a new rule of law announced in an earlier case should be applied to cases or incidents concluded before the law changed. It appears that when retroactivity is at issue, concerns similar to those expressed by the prosecutor may be considered important, or in some cases, controlling factors (United States v Peltier, 422 US 531). But they cannot affect the outcome of the "first case” to decide the substantive point (Stovall v Denno, 388 US 293, supra).

We also note that the prosecutor apparently argued the inapplicability of the exclusionary rule when this case was before the Supreme Court. Although this point was not discussed in the Supreme Court’s opinion, we view its reversal as an implicit rejection of the argument that the exclusionary rule can have no application in this case.

The prosecutor’s second, and principal, contention is that there were exigent circumstances which relieved the police of the obligation to obtain a warrant before entering the defendant’s apartment. He argues that the existing record supports this contention. Alternatively he requests that the suppression hearing be reopened so that the People may submit additional evidence on this point. The defendant urges that the record as it stands does not show exigent circumstances and that the People should not be given a second chance to submit proof on this issue because "they, themselves were responsible for whatever deficiency may exist in the record”. The defendant also argues that for the courts of this State to now determine whether there were exigent circumstances would be "inconsistent with the mandate of the Supreme Court”.

The court has concluded that the exigency question cannot be resolved on the existing record in view of the District Attorney’s objections, sustained by the hearing court, to the defendant’s efforts to fully develop the circumstances preceding the entry of his apartment. However, the District Attorney should not be penalized for his initial success at the hearing to the extent of being precluded from introducing proof of exigency at a new hearing. The Supreme Court’s determination did not expressly or by implication foreclose inquiry on this point. On the contrary, the Supreme Court’s determination prohibiting the People from relying on statutes authorizing police entry of private premises for routine arrests has now, and for the first time, made proof of exigency relevant and necessary to the People’s case. Nor does the law of this State prohibit the People from submitting proof to support this alternative theory at a new hearing.

The People, of course, are not entitled to a new hearing every time they lose a suppression issue on appeal. All that fairness requires is that they be given "one full opportunity” to prove the admissibility of the evidence sought to be suppressed (People v Havelka, 45 NY2d 636). In Havelka we noted (at p 643) that the People have not been given such an opportunity, and thus should be granted a new hearing if "an error of law is committed by the hearing court which directly causes the People to fail to offer potentially critical evidence”. For instance if the People fail to call an informant based on a hearing court’s determination that such testimony is unnecessary, the People will be entitled to a new hearing in the event the hearing court’s ruling is found to be erroneous on appeal (People v Malinsky, 15 NY2d 86). Similarly if the People successfully rely on a warrant to justify a search they will not be precluded from submitting proof on another theory, at a new hearing, if it is found that the hearing court erred in holding that the warrant authorized the search (People v Green, 33 NY2d 496; see, also, People v Whitehurst, 25 NY2d 389).

On the other hand, if the People had a full opportunity to present their case at the original hearing, and failed through their own neglect, they are not entitled to try again when the defect is discovered on appeal. Thus if the prosecutor claims that evidence is admissible on a particular theory and yet, through no fault of the court, fails to submit sufficient proof to support that theory, we will not order a new hearing (People v Havelka, 45 NY2d 636, supra).

In Payton’s case the hearing court held that if the police had probable cause to arrest the defendant they had authority to enter his premises without a warrant regardless of the circumstances. Obviously that holding made it unnecessary for the People to attempt to prove that there were exigent circumstances. Now that the ruling has been held to be erroneous there is no reason why the People should be denied an opportunity to submit proof of exigent circumstances when this alternative theory has become critical to their case.

The fact that the court’s erroneous ruling, precluding proof of these circumstances, was prompted by the District Attor-' ney’s objections is not controlling (see, e.g., People v Malinsky, supra, at p 90). At the hearing, the People had a right to rely on the statutes — which had been routinely employed by law enforcement officers for nearly a century — and to object to evidence which was irrelevant under the theory relied upon. To hold that the People who had succeeded on one theory must nevertheless develop or defend alternative grounds on the merits whenever their primary point has been attacked would prolong pretrial suppression hearings beyond necessity in most cases, and in some no doubt, to the limits of ingenuity. Time-consuming pretrial practices which will accomplish nothing in most cases are a " 'procedural luxury’ ” which the courts cannot afford to adopt or encourage (see, e.g., People v Gruden, 42 NY2d 214, 217).

In sum the People should be given an opportunity to submit proof of exigent circumstances, if any, at a new hearing. They should not be precluded from submitting evidence on a critical point when it becomes necessary, simply because they failed to do so at a time when the court had erroneously held the evidence was not necessary and indeed irrelevant to their case.

Accordingly, the order of the Appellate Division should be modified and the matter remitted to Supreme Court, New York County, for a hearing in accordance with this opinion and for the entry of either an order granting defendant’s motion to suppress and ordering a new trial or an amended judgment reflecting the disposition made at the hearing.

Chief Judge Cooke

(dissenting). The prosecution in a criminal case deserves a full chance to develop at a suppression hearing an admissible base for its evidence. Normally, it does not deserve a second chance, and particularly so where its own actions at the first hearing created the lack of that base. By remitting this case for. a new suppression hearing, the majority today gives the prosecution just such an unwarranted second chance.

The evidence in question was discovered by police after they broke into defendant’s unoccupied apartment to make a warrantless arrest. At the pretrial suppression hearing, the prosecution relied on a State statute permitting warrantless arrests of persons in their residences. The United States Supreme Court has since held that statute to be unconstitutional, ruling that a warrantless arrest in a private residence, was unconstitutional absent exigent circumstances (Payton v New York, 445 US 573). On remand to this court, the issue is thus whether a new suppression hearing should be held to determine if exigent circumstances excusing the absence of a warrant existed or whether the evidence must be suppressed and a new trial granted.

As this court stated in People v Havelka (45 NY2d 636, 643), the prosecution should have "one full opportunity” to establish the admissibility of its evidence. In this case the prosecution had such an opportunity and not only failed to use it fully, but actively thwarted attempts by defense counsel to explore the very issue of exigent circumstances.

Havelka held that a rehearing was appropriate where "an error of law is committed by the hearing court which directly causes the People to fail to offer potentially critical evidence” (45 NY2d 636, 643). In Havelka, the prosecution’s failure to establish the admissibility of its evidence was caused by its reliance on a line of cases that was subsequently overruled. This court refused to allow the prosecution an opportunity to meet the new standard.

This case makes an even stronger argument against a rehearing. It was this very case, not an unrelated intervening case, that ultimately overturned the statute on which the prosecution relied. With the validity of the statute thus directly involved, the prosecution made a tactical decision to rely solely on the statute and did not attempt to show exigent circumstances as a precaution against the statute being struck down. Taking such a precaution would hardly have been an unreasonable step for the prosecution to have taken. As the Supreme Court noted in Payton, there had been a "significant decline during the last decade in the number of States permitting warrantless entries for arrest” in residences, dicta in prior Supreme Court decisions "raising questions about the practice” (445 US 573, 599), and holdings by five Federal courts of appeal that the practice was unconstitutional (id., at p 575). The issue of exigent circumstances was thus hardly irrelevant. And, contrary to the majority’s assertion, exploration of that issue would not have consumed an inordinate amount of time. The most relevant witness was on the stand and testified at length about other matters. The few moments that he would have taken in responding to defense counsel’s inquiries pale in comparison to the resources and time that will be consumed by remanding the matter for a new hearing at this point.

More important, when the defense counsel attempted to cross-examine the police officer supervising the investigation, the prosecution successfully blocked, through objections, any attempt to explore the presence or absence of exigent circumstances. As this court noted in People v Wise (46 NY2d 321, 329), "where the defendant is denied an opportunity at the suppression hearing to delve into the circumstances attendant upon his arrest or detention, his motion to suppress would be favorably entertained on appeal”. Since the prosecution was thus directly responsible for the inadequacy of the record, it would be unfair to the defendant, and unwarranted under this court’s rulings, to grant a new suppression hearing. The order of the Appellate Division should be reversed, the motion to suppress granted and a new trial ordered.

Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer concur with Judge Wachtler; Chief Judge Cooke dissents in part and votes to reverse, grant defendant’s motion to suppress and order a new trial in a separate opinion.

Upon reargument, following remand by the Supreme Court of the United States, order modified and case remitted to the Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed. 
      
      . The police also found other items during a thorough search of the defendant’s apartment but the prosecutor conceded that they had been illegally seized and would not be introduced at trial. In addition one of those items, a receipt for a rifle, led to the man who had sold the defendant the gun used in the robbery. On the prior appeal his evidence was found to be admissible on the inevitable discovery theory (45 NY2d 300). The Supreme Court refused to consider the validity of that holding (see 439 US 1044). Its inquiry was limited solely to the seizure of the shell casing. Thus, on remand, we too are only concerned with the admissibility of the shell casing.
     
      
      . We. of course, are not required to decide retroactivity in this case and express no view as to whether the decision in Payton v New York (445 US 573 ) should be given retroactive effect.
     