
    The People of the State of New York, Respondent, v. Jesse Gallmon, Appellant.
    Argued January 18, 1967;
    decided April 18, 1967.
    
      
      Malvine Nathans on and Anthony F. Marra for appellant.
    The motion to suppress should have been granted since the evidence was seized in violation of section 178 of the Code of Criminal Procedure. (Miller v. United States, 357 U. S. 301; People v. Griffin, 22 A D 2d 957; People v. Goldfarb, 34 Misc 2d 866; People v. Loria, 10 N Y 2d 368; Marron v. United States, 275 U. S. 192; Ker v. California, 374 U. S. 23; People v. Maddox, 46 Cal. 2d 301, 352 U. S. 858; United States v. Rabinowitz, 339 U. S. 56; People v. De Lago, 16 N Y 2d 289.)
    
      Frank S. Hogan, District Attorney (Malvina H. Guggenheim and H. Bichard Uviller of counsel), for respondent.
    The motion to suppress was properly denied. (People v. Chesnick, 302 N. Y. 58; Brinegar v. United States 338 U. S. 160; People v. White, 16 N Y 2d 270; Munoz v. United States, 325 F. 2d 23; United States v. Hassell, 336 F. 2d 684, 380 U. S. 965; Keiningham v. United States, 287 F. 2d 126; United States v. Silverman, 166 F. Supp. 838, 275 F. 2d 173, 365 U. S. 505; Ker v. California, 374 U. S. 23; Miller v. United States, 357 U. S. 301.)
   Breitel, J.

The issue is whether the arrest of the defendant was unlawful because in violation of section 178 of the Code of Criminal Procedure, requiring a police officer to announce his office and purpose before effecting an entrance into private premises in order to make an arrest. If so, the conviction must be set aside, the evidence of the crime having been obtained only as a result of the entrance made without announcement.

Defendant had been convicted in the Criminal Court of the City of New York of possession of narcotics instruments in violation of section 1747-e of the Penal Law, a misdemeanor. Upon his plea of guilty he was sentenced to six months’ imprisonment, which sentence has been fully served.

The Appellate Term unanimously affirmed the conviction without opinion, and a Judge of this court granted leave for a further appeal. The order and judgment should be affirmed.

The statute in question (Code Grim. Pro., § 178) provides: ‘ ‘ To make an arrest, as provided in the last section, the officer may break open an outer or inner door or window of a building, if, after notice of his office and purpose, he be refused admittance. ’ ’

The undisputed evidence establishes that the police officer on radio patrol duty received a “radio run ” to the effect that there was a “ disorderly man at 404 West 115th Street ”. He proceeded to a rooming (converted apartment) house at this address where he was met by the night manager. The officer heard “shouting, screaming, clapping of hands” and the manager stated “that that had been going on for several evenings ’ ’.

The manager then directed the police officer and a fellow officer to a fifth floor “ apartment ”, evidently a division of the converted apartment house. The noise was coming from this apartment. As the officer knocked on the door, the shouting stopped, and a male voice inside said three times: “Wait a minute. Wait a minute, I’m not dressed. ” After a minute’s wait, the officer directed the manager to open the door with his passkey. Upon opening the door they saw defendant standing in the middle of the room, stripped to the waist, and wet with perspiration. He was holding ‘ ‘ a syringe, an eye dropper, with a needle on the end of it, in his right hand”. When defendant saw the three men, he threw the contraband under a bed and the officer placed him under arrest.

Prior to his plea of guilty defendant moved to suppress the evidence obtained against him and, after a hearing, the motion was denied. The hearing court held with respect to the entry into defendant’s premises that “under the circumstances * * * the officer * * * might well have been derelict in his duties if some serious matter were happening in the room there, and he delayed to carry out all of the full and complete requirements of announcing his purpose and authority, et cetera and so forth. I think if he were acting completely on itself [sic] and not acting as a result of a complaint in which the manager of this rooming house joined, it might be a different situation. ”

Defendant contends that there was no probable cause to make an arrest and that the evidence was seized as a result of an entrance in violation of the quoted statute and, therefore, should have been suppressed.

The statute is not applicable. The officer did not come to the premises or to the apartment to make an arrest. He had responded to a call from the manager of a rooming house to investigate an unusual, noisy disturbance. What was the cause of the disturbance and what action would be required upon ascertaining the cause was not determinable in advance by the police or the manager The inquiry might result in no action, in succor for a person or persons in distress with or without criminal causation, in a direction to quiet down, or in a criminal arrest (2 Alexander, Law of Arrest, § 637). The presence of the police and the entrance into the apartment was investigatory and not for the purpose of making an arrest to which the application of section 178 is limited. Apart from the statute, a peace officer was under no duty, by statute or under the common law, to give notice of his office or purpose prior to making an entry into private premises unless the purpose was to make an arrest or to execute other process (Miller v. United States, 357 U. S. 301, 305-310).

Of course, no person may forcibly enter private premises without a privilege to do so. And it is reasonable that the privilege requires a stronger basis where the purpose of the entry is not to make an arrest or execute process. This is the difficult part of the case, although the issue was tendered only on the theory that the entrance violated the arrest statute.

It is critically significant that a rooming house is involved rather than demised premises to which the tenant is entitled to exclusive and undisturbed possession. Rooming houses and inns are equivalent for purposes of determining the legality of entry by the landlord or his agents. In the leading case of de Wolf v. Ford (193 N. Y. 397) the general rule was expressed as follows: “ If the guest is assigned to a room upon the express or implied understanding that he is to be the sole occupant thereof during the time that it is set apart for his use, the innkeeper retains a right of access thereto only at such proper times and for such reasonable purposes as may be necessary in the general conduct of the inn or in attending to the needs of the particular guest. If, for instance, there should be an outbreak of fire, a leakage of water or gas, or any other emergency calling for immediate action in a room assigned to a guest, the innkeeper and his servants must necessarily have the right to enter without regard to the time of day or night and without consulting the wish or convenience of the guest.” (193 N. Y., p. 403.)

The rule is followed elsewhere (29 Am. Jur., Innkeepers, § 51; 43 C. J. S., Innkeepers, § 25). This license to the landlord, of course, does not afford the police an unqualified privilege to engage in otherwise unlawful practices merely on the consent of the hotel proprietor (Stoner v. California, 376 U. S. 483, 489). Here, however, the manager was not acting as the cat’s paw of the police; rather, he had made a call for assistance to which the officers had responded. As such, they were acting in aid of the manager in performance of his duty to the occupants of the building including defendant. There is no evidence that he or they knew what was occurring in the room. Indeed, the officers were called to find out.

Arrests have been upheld often following non-consensual investigatory entries by arresting officers (Ann.: Arrest-Misdemeanor-Entering House, 76 ALR 2d 1432, 1444 et seq.). True, the issues in such cases centered on whether the offense of disorderly conduct had been 11 committed in the presence ” of the officers when they entered dwellings to investigate disturbances they had heard while outside the premises. Nevertheless, the facts as recited in the eases indicate that the entry was made without announcement of identity and without statement of purpose, which certainly was not that of making an arrest because, before entrance, the officers did not have sufficient evidence to make a misdemeanor arrest.

Moreover, even a private individual might make such an entry if it reasonably appears that his intrusion and presence would avert injury to the occupant or his chattels (1 Restatement, Torts 2d, § 197, comment e, illus. 8). The point is that no one would have objected to the entry of the policemen in this case if the defendant had been ill or some other emergency had existed (People v. Roberts, 47 Cal. 2d 374). The fact that the defendant was committing a crime does not retroactively invalidate the entry for it is not defendant’s actions but the intent and purpose of the policeman prior to the entry that controls (see Commonwealth v. Tobin, 108 Mass. 426, 429; cf. McDonald v. United States, 335 U. S. 451, 454).

Ker v. California (374 U. S. 23), involving a forced entry without warrant and without prior announcement of office or purpose, neither detracts from nor supports the view taken here. In the Ker case the peace officers entered an apartment by means of a manager’s passkey for the purpose of making an arrest, a purpose not present in this case. To that extent the case is immaterial to the instant analysis and it is not necessary to apply the test used there which resulted in a finding that there was compliance with local requirements {id,, pp. 37-39). The Ker case is helpful in one aspect, however, since it held that once a lawful entry was effectuated the police were privileged to seize whatever evidence was exposed to their view even though its exposure or seizure preceded the actual arrest {id., pp. 41-43).

Perhaps it is of the greatest significance to this case that the police officer’s entry was pursuant to his general obligation to assist people in distress — a purpose often independent of considerations affecting the criminal law. Police are expected and often required to investigate the unquelled crying of babies, sounds and blows in what turn out to be matrimonial disputes, to assist in child deliveries, and to resolve the causes of unusual sounds suggesting harm to persons, animals and property. Their functions are just not confined to criminal law enforcement, a matter frequently of great concern to those seeking to make limited police resources more effective. In this context it has been suggested that an officer’s entry is based neither on consent nor license and that even the refusal of consent may be of no avail (cf. Meiers v. Koch Brewery, 229 N. Y. 10,12,15; Beedenbender v. Midtown Props., 4 AD 2d 276, 281; 2 Alexander, Law of Arrest, § 634).

It may be feared that the rule is susceptible of abuse and may be used to validate an otherwise unlawful arrest or seizure. This, indeed, is a danger. Policemen may improperly claim to make “ investigatory entries ” rather than entries for the purpose of effecting arrests. Nonetheless, the fact still remains that in a proper case the statute is inapplicable because it requires that a peace officer identify himself and declare his purpose only when the purpose is to make an arrest. Nor should the police be hampered in the performance of their salutary duty of aiding persons in distress. The trial courts are familiar with police practices and should be able to determine when an entry is in truth only for investigative purposes based on privileged grounds without any intention to make an arrest. In making that determination the courts must be cognizant that there is a strong factual inference that an entry which results in an arrest or seizure of evidence was for the purpose of effecting an arrest or seizure. That inference should prevail unless the police establish a different purpose justified by objective evidence of a privileged basis for making the entry. In this case the evidence undisputedly established a different purpose and a privileged basis for the entry. Salient facts are the call for the police to come to the premises, the manager’s purpose, and the nature of the sounds emanating from defendant’s quarters.

Accordingly, the judgment of the Appellate Term should be affirmed.

Chief Judge Fuld

(dissenting). The People have consistently sought to justify the entry of the police into the defendant’s room and their seizure of contraband on the ground—to cull from the district attorney’s brief — that “ the officer had reasonable grounds to believe that the defendant was guilty of disorderly conduct ”. This may well be so but, in that event, the police were required by section 178 of the Code of Criminal Procedure to give “notice of [their] office and purpose” before entering the room. (See, also, Code Grim. Pro., § 799.) No such announcement was made. It follows that the arrest was unlawful and that the evidence seized should have been suppressed. (See Miller v. United States, 357 U. S. 301, 314; People v. Arellano, 239 Cal. App. 2d 389; Benefield v. State, 160 So. 2d 706 [Fla.]; State v. Vuin, 89 Ohio L. Abs. 193; see, also, Blakey, The Buie of Announcement and Unlawful Entry, 112 U. of Pa. L. Bev. 499, 557-558.

Indeed, the court recognizes that section 178, if applicable, would have required the police to announce their authority and purpose and that their failure to do so would have rendered the- arrest and the seizure illegal. But the majority is of the opinion that the .statute has nothing to do with the case because, it is asserted, the police entered the room not to effect an arrest but for some “investigatory” purpose. If this were so, then, the question would be not whether the police were required to give notice of their office and purpose but, instead, whether they were authorized to enter the premises at all. It is my opinion that, if the officers did not have probable cause to make an arrest and they did not enter the room to do so, there was a flagrant violation of the Fourth Amendment of the Federal Constitution.

In the words of that amendment, all persons have a right to “ be secure in their * * * houses ” (see, also, N. Y. Const., art. I, § 12), and that has been interpreted to mean that law enforcement officers may not enter a person’s home and secure evidence for a criminal prosecution unless authorized to do so “ pursuant to a legal search warrant, by consent, or incident to a lawful arrest.” (People v. Loria, 10 N Y 2d 368, 373; see People v. Stokes, 15 N Y 2d 534; People v. Yarmosh, 11 N Y 2d 397; People v. O’Neill, 11 N Y 2d 148.) In the present case, there was no search warrant, nor, according to the majority, were the police seeking to arrest the defendant upon “ probable cause ” for believing that he had committed a crime. Therefore, if the entry were authorized, it must have been done by consent, either express or implied.

The Supreme Court has clearly indicated that such consent must be given by the “ occupant ” of the place to be searched. (Lewis v. United States, 385 U. S. 206, 211; see Stoner v. California, 376 U. S. 483, 489; Chapman v. United States, 365 U. S. 610, 617; Jones v. United States, 362 U. S. 257; McDonald v. United States, 335 U. S. 451; Johnson v. United States, 333 U. S. 10.) Most assuredly, the defendant did not invite the police to come into his room. Nor could the night manager of the rooming house, any more than the night clerk of a hotel, consent to entry and search of the defendant’s room. (See Stoner v. California, 376 U. S. 483, 489-490, supra.) Although the night manager may be empowered to enter a room should there be “ an outbreak of fire, a leakage of water or gas, or any other emergency * * * in [the] room” (de Wolf v. Ford, 193 N. Y. 397, 403), the record permits no inference here that the manager had that in mind when he allowed the police to enter the defendant’s room. The manager was concerned about “noise”, which, he told the police, “had been going on for several evenings ”, not fire, a utility break or some other emergency. Moreover, the manager did not unlock the door on his own authority but at the direction of the police. Finally, the People do not claim — and, indeed, they could not—that any reasonable basis existed for believing that such an emergency existed, particularly in view of the fact that the ‘ ‘ noise ” stopped after the knock on the defendant’s door and a voice answered, “ Wait a minute. I’m not dressed.” Absent a specific intent, based on some reasonable ground, to go into a room for the sole purpose of coping with a suspected emergency, the manager’s power to enter the premises for that limited purpose may not be used to validate this unauthorized entry into the defendant’s room. (See Stoner v. California, 376 U. S. 483, 489, supra; Chapman v. United States, 365 U. S. 610, supra; United States v. Jeffers, 342 U. S. 48; Lustig v. United States, 338 U. S. 74.)

It is true, as Judge Cakdozo said many years ago, that “ Danger invites rescue ”, that the “ cry of distress is the summons to relief ”. (Wagner v. International Ry. Co., 232 N. Y. 176, 180.) It is both realistic and proper to regard policemen, who are duty bound to respond to such a call, as having received the implied consent of the occupant to enter the premises in order to render aid. If, in the course of such humanitarian work, undertaken for good reason and in good faith, evidence of crime should be uncovered, it would undoubtedly be admissible in a subsequent prosecution. (See People v. Roberts, 47 Cal. 2d 374; Davis v. State, 236 Md. 389, cert. den. 380 U. S. 966; cf. People v. Capra, 17 N Y 2d 670.) However, in the case before us, the record does not disclose any basis for a claim—and the People have never made any such claim—that the police entered the defendant’s room in the belief that he was ill or otherwise in need of assistance. On the contrary, the fact that the defendant responded to the knock on the door with his “ Wait a minute. I’m not dressed ” thoroughly negates the idea that he was in distress.

I would sum up my views in this way. If the police had probable cause to arrest the defendant for disorderly conduct, their entry into the defendant’s room was illegal because it was not preceded by “notice of [their] office and purpose (Code Crim. Pro., § 178; see Miller v. United States, 357 U. S. 301, supra.) If, on the other hand, the police did not go into the defendant’s room for the purpose of arresting him, their entry was unauthorized and contravened the Fourth Amendment. (See Stoner v. California, 376 U. S. 483, supra.) In either ease, whether there was a violation of a statutory requirement or of a constitutional right, the evidence seized pursuant to such unlawful behavior should have been suppressed and the judgment of conviction reversed.

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

Judgment affirmed. 
      
      . Although there may, at times, be “ exigent circumstances ” requiring unannounced entry by law enforcement officials — e.g., to prevent destruction of evidence (see Code Crim. Pro., § 799; People v. DeLago, 16 N Y 2d 289; Ker v. California,, 374 U. S. 23, 39-40) —nothing of the sort was present in the ease before us. (See Wong Sun v. United States, 371 U. S. 471, 483, 484; Miller v. United, States, 357 U. S. 301, 309, supra.) If the police, prior to their entry, had any grounds at all for believing that a misdemeanor was being committed m their presence, thus authorizing them to arrest the offender without a warrant (Code Crim. Pro., § 177, subd. 1), it was for the crime of disorderly conduct.
     
      
      . This view is not only at odds with the record but is, as already noted, contrary to the position stoutly maintained by the People.
     
      
      . Whatever the statement by the judge at the suppression hearing—- quoted in the court’s opinion (p. 391) —may mean, it certainly may not be read as a finding that the police entered the defendant’s room for the purpose of aiding a person in distress.
     