43 A.D.2d 634 | N.Y. App. Div. | 1973
Lead Opinion
Appeal from a judgment of the Supreme Court, entered November 3, 1971 in Tompkins County, upon a verdict rendered at a Trial Term, in favor of defendant. This is a negligence action for personal injuries sustained by Kenneth Bay Herndon when he was shot on May 26, 1966 by Charles Dolloway, a police officer employed by respondent. On May 26, 1966, Officer Dolloway was on duty in the vicinity of West Seneca Street, Ithaca, New York, at approximately 1:00 a.m. Earlier that night Herndon, who was 18 years of age and at the time was absent without leave from the United States Navy, had attempted to visit his estranged wife at her apartment in Ithaca. After twice unsuccessfully attempting to gain admittance to Ms wife’s apartment, he walked to a laundromat known as “ Wash-N-Shop ” at 204 West Seneca Street which was open and empty except for a momentary visit of a young man who checked the dryers. Herndon entered the laundromat and purchased a coke from a machine and, while drinking the coke, leaned against a cigarette machine which was near the entrance. Dolloway testified that,, while in uniform and making his routine patrol, he observed Herndon in the laundromat from across the street; .that he observed Herndon pull open the front of the cigarette machine, insert his right hand into it at least twice, and return Ms hand to his trouser’s pocket; that he then entered the building through the east doors and approached Herndon. At tMs point, Dolloway asked Herndon what he was doing, and he responded that he had had an argument with his wife and was waiting for her to cool off. Dolloway ordered Mm to empty his pockets which he began to do, removing some coins from his pocket and placing them On a counter. Then, according to Dolloway, Herndon lunged at him, striking and causing him to fall backwards, ran through the east doors and turned left where Herndon was confronted with a six-foot high picket fence. Before Herndon reached the doors, the officer twice called out “Halt! You’re under arrest ” and fired a warning shot. He followed Herndon through the east doors and again, gun in hand, shouted “Halt! You’re under arrest.” Although Herndon had available another avenue of escape, he turned around and ran towards Dolloway throwing an object, later identified as a plastic gear shift knob, at him and striking him. He then grabbed the officer’s right arm and gun with both hands. While Dolloway was attempting to strike Mm on the side of the head with the weapon, it discharged into Herndon’s neck, injuring the spinal cord to the extent that he is a paraplegic permanently confined to a wheélehair. While Herndon was at the hospital following his £y, police searched his trousers and $4.75 in quarters and nickels were d therein. Later Herndon was ihdicted for felonies arising out of^thq;
Dissenting Opinion
(dissenting). While I agree with the court’s disposition of Herndon’s first three contentions, I cannot abide by its resolution of the final question, i.e., whether evidence that was ruled inadmissible in the criminal proceedings against plaintiff, due to illegal search and seizure, must also be excluded at the civil trial arising out of the same facts, particularly where plaintiff took the stand and denied having committed any crime. This is a question of first impression and its resolution turns on the evolving exclusionary doctrine of Mapp v. Ohio (367 U. S. 643). In that case, the United States Supreme Court ruled that evidence which was seized in violation of the Fourth Amendment by State officials was required to be excluded in a criminal trial in- State courts. In so ruling, the court (p. 656) cited Elkins v. United States (364 U. S. 206, 217) as recognizing “ that the purpose of the exclusionary rule ‘is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.’” The court further noted that the State, by admitting evidence unlawfully seized, serves to encourage disobedience to the Federal Constitution which it is bound to uphold. The Mapp decision has been extended to civil proceedings involving penalties or forfeitures, the rationale being that the deterrent effect of the exclusionary rule is just as essential to the integrity of the proceeding regardless of the label applied (Plymouth Sedan v. Pennsylvania, 380 U. S. 693; Matter of Finn’s Liq. Shop. v. State Liq. Auth., 24 N Y 2d 647, 653, cert. den. 396 U. S. 840; Incorporated Vil. of Laurel Hollow v. Laverne Originals, 17 N Y 2d 900; Matter of Genovese v. Hostetter, 33 A D 2d 531; Chmielewski v. Rosetti, 59 Misc 2d 335; Reyes v. Rosetti, 47 Misc 2d 517; see Anno, Admissibility, in a Civil Case, of Evidence Obtained by Unlawful Search and Seizure, 5 ALR 3d 670; see generally Comment, Fourth Amendment and Exclusionary Rule in Civil Cases, 43 Denver L. J. 511). In Matter of Finn’s Liq. Shop v. State Liq. Auth. (supra, p. 653), the Court of Appeals, in excluding evidence illegally seized by agents of the State Liquor Authority in an administrative proceeding, stated thatTo the extent that the State, or its agents, can bypass the deterrent effect of the exclusionary rule by using the fruits of an illegal search, in a ‘ civil’ or 1 administrative’ proceeding, the incentive for enforcement and investigative personnel to exceed constitutional limitations on their activity remains and the effectiveness of the rule as a deterrent is diminished.” This solicitousness for Fourth Amendment rights, which, unlike Fifth and Sixth Amendment rights, are not limited to criminal proceedings (Terpstra v. Niagara Fire Ins. Co., 26 N Y 2d 70), was recently reasserted by the Court of Appeals in Terpstra v. Niagara Fire Ins. Co. (supra, pp. 74-75) where the court said: “ [Fourth Amendment] Rights are breached at the time the Government wrongfully invades the citizen’s privacy * * *. The victim of such action has in no way voluntarily or freely made evidence available
