People v. DoerbeckerPeople v. Doerbecker
We hold that a warrantless search and seizure on private property was not, in the attendant circumstances, violative of constitutional prоtection against unreasonable search and seizure.
Defendant appeals from an order of the Appellate Division which affirmed a judgmеnt of conviction, entered on a plea of guilty, of possession of a weapon as a misdemeanor. The weapon in question, a blaсkjack, was found in defendant’s possession at the time of his arrest for the prior possession of three handguns. Before the entry of his guilty plea defendаnt sought, unsuccessfully, to challenge the search and seizure which had produced the handguns, because the legality of his arrest, to which discovery of the blackjack was incident, depended on the lawfulness of the earlier search and seizure. That challenge is repeated in this court and our disposition of it will determine the appeal from the affirmance of the judgment of conviction.
On March 8, 1971 the Nassau County Police received a Nаtion-wide teletype that two motorcycle gangs—Hells Angels and Breed—were having a feud, that both gangs were armed and were headed for Nassau Cоunty. Four days later another teletype was received from the Suffolk County Police Department stating that the gangs were definitely going to have a feud, were armed, had bombs and had dynamite.
About 12:30 a.m. on the following April 10 a sergeant of the Nassau County Police Department and a member of the deрartment’s Crime Prevention Unit stopped an automobile with a New Jersey license plate occupied by four members of the Breed gang who statеd they were en route to the clubhouse of the Nassau County chapter of the gang located at 18 Gilbert Avenue, Roosevelt. The car was found tо contain three sticks of dynamite with a five-foot fuse and two fully loaded sawed-off shotguns. News of the apprehension of these individuals was transmitted to рolice in the Roosevelt area and officers were promptly dispatched to stake out the Breed clubhouse. One officer in particular was commissioned to learn the nature of the activities at that location—whether there
It was about an hour and a half later when the sergeant and the police officer were arresting defendant at his residence for possession of the guns in the plastic package that the weapon involved in the crime to which defendant here pleaded guilty wаs found in plain view.
On this record we have no difficulty in concluding—as did both courts below—that the search for and the seizure of the weapons behind the garage, though made without a warrant, were both lawful.
In arriving at this conclusion our inquiry is whether the search and seizure were reasonable, for "[i]t must always be remеmbered that what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures” (Elkins v United States,
In that setting the officer, charged with responsibility for prоtecting the public safety which might well be threatened by the activities of which he had been informed and which he had observed, was justified—indeed obliged—to mоve rapidly and decisively to ward off foreseeable imminent violence with attendant risk of a serious breach of the peace and pоssible injury to innocent members of the public. He acted responsibly in the seizure of the secreted package which he reasonably could have concluded contained weapons or explosives. He was not required, in view of the possible danger to the residents and the police officers in the surrounding neighborhood if such explosive contraband were to be put to its intended use, to expose those in the area to the risk which would be borne of the delay necessary to obtain a warrant.
In deciding as we do, we do not adopt the view taken at the Appellate Division that the area behind the garage was outside the protection of the Fourth Amendment. The premises were private property owned by the Breed organization of which defendant was president. By his conduct in covering the package with leaves defendant demonstrated an expectation of privacy—albeit of undeterminable extent. That expectation, however, was only one of the elements to be considered in determining the reasonablenss of the search. Also relevant was the relatively limited extent of the intrusion on the privacy when measured against the justification which existed for it (People v Perel, supra, pp 465-466). Here, the intrusion was lesser rather than greater, not extending into the primary building of the landowner or indeed into any building at all (cf. People v Gleeson,
We see no occasion to disturb this judgment of conviction.
Chief Judge Breitel and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Cooke concur.
Order affirmed.