20 N.Y.2d 346 | NY | 1967
Lead Opinion
Defendants appeal from an order of the Appellate Division reinstating an indictment against them following that court’s reversal of an order granting their motions to suppress. The suppressed evidence consisted of recorded conversátions
Defendants had been indicted for conspiracy to commit murder and for possession of revolvers. Defendants’ conversations had been overheard and recorded by electronic devices. The conversations revealed a plot to murder witnesses against the defendants (who have been identified as associated with organized crime) in a larceny investigation including the obtaining of suitable weapons sufficient to “ blow big holes in stoolies ” with especially deadly “dum dum” bullets. The electronic devices had been installed as a part of the larceny investigation by the police after obtaining a éourt order under a statute of a kind that for many years had been sustained as valid in the State courts and had never been struck down by the Supreme Court. The police, therefore, were acting in good faith under a statute believed valid by many.
Of course, the statute now having been held invalid, as violative of the Fourth Amendment of the Federal Constitution, it is as if there had never been any valid authority for the police to act as they did. However, it is not the Fourth Amendment which excludes expressly evidence obtained illegally but decisional rules developed by the courts and applied to the States under the holding in Mapp v. Ohio (367 U. S. 643, 648, 650-653, 657-660, supra). These were adopted as a necessary corollary to deter police officials from deliberately violating constitutional rights in order to further their prosecutorial ends with practical impunity. With this policy of deterrence there may no longer
Accordingly, the order of the Appellate Division must be reversed, the motion to suppress granted, and the indictment dismissed.
Concurrence Opinion
(concurring). I concur in reversal under constraint of Berger v. New York (388 U. S. 41).
The Supreme Court in Berger noted the specific defects it found in the present New York statute. It appears that a procedure for the authorization of the use of electronic devices may be formulated, consonant with the provisions of the Fourth Amendment. It is hoped that the Legislature or perhaps the Constitutional Convention will give high priority to adoption of appropriate statutes or constitutional amendments to that effect. If there were any question that such authorization is necessary, it surely is dispelled by the very facts of this case, in which the lives of a number of individuals were apparently -saved as a result of what the police discovered during the court-authorized eavesdropping.
As one who has always been concerned with unreasonable and unwarranted intrusions into the privacy of the home (see, e.g., People v. Williams and Edwards, 20 N Y 2d 388 [decided herewith]; People v. Schnitzler, 18 N Y 2d 457, 461-464 [dissenting opn.], mot. for rearg. den. 19 N Y 2d 633), I am not unaware of the dangers that unrestricted and uncontrolled eavesdropping poses. Such eavesdropping was not authorized by the present statute and would not be authorized under a statute drafted in accordance with the standards enunciated in Berger.
In seeking to limit the extent of governmental intrusion on constitutionally protected rights, we must be aware of the
Concurrence Opinion
(concurring). Although I would, in any event, be for reversal (see People v. Berger, 18 N Y 2d 638, 640, dissenting opn.), I cannot join in the court’s opinion since I do not subscribe to certain observations contained in its last paragraph. In view of the Supreme Court’s recent decision holding section 813-a of the Code of Criminal Procedure unconstitiitional “ on its face” (Berger v. New York, 388 U. S. 41, 55, revg. 18 N Y 2d 638), it necessarily follows that evidence procured in this case by means of the electronic eavesdropping device, “authorized” by an order issued pursuant to that statute — as well as the “fruits ” of such evidence — -was illegally obtained and was properly suppressed by Supreme Court Justice Sobel. (See Mapp v. Ohio, 367 U. S. 643; Silverthorne Lbr. Co. v. Umted States, 251 U. S. 385; People v. Rodriguez, 11 N Y 2d 279, 286.) As the Supreme Court declared in the Berger case (388 U. S., at pp. 62-63), “we cannot forgive the requirements of the Fourth Amendment in the name of law enforcement, * * * it is not asking too much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of one’s home or office are invaded. Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices.”
Since there was no evidence incriminating the defendants other than that which was illegally procured, the court had no alternative but to dismiss the indictment against them.
Opinion by Judge Breitel in which Judges Van Voorhis, Burke and Scileppi concur, Judge Keating in a separate opinion in which Judges Van Voorhis, Burke and Scileppi also concur, and Chief Judge Fuld in a separate opinion concurring in result in which Judge Bergan concurs.
Order of Appellate Division reversed and that of the Supreme Court, Kings County, reinstated.