59 A.D.2d 414 | N.Y. App. Div. | 1977
OPINION OF THE COURT
Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree.
He was charged in a four count indictment with criminal possession of a controlled substance in the third degree (possession of cocaine with intent to sell), criminal possession of a controlled substance in the fifth degree (one-eighth ounce and more of cocaine), criminal possession of a controlled substance in the fifth degree (one ounce and more of marijuana) and possession of gambling records in the first degree. On April 5, 1976, a combined hearing was held (Bell, J.) on defendant’s motion to suppress certain tangible property, to wit, two packets of cocaine, a quantity of marijuana, drug paraphernalia and gambling records, and to suppress statements made by defendant. Testimony at the hearing disclosed the following: On May 11, 1975, at about 10:30 p.m., Patrolman Ward and his partner, on patrol, received a radio communication of a "family fight” and responded to 990 Anderson Avenue in the Bronx. In front of the building the officers met a woman who identified herself as Thelma Kemp. She informed the police that she had had an argument with her husband and that she wished to remove a stereo and some other personal belongings from the apartment. After she produced a marriage license, the police accompanied her to apartment 2C. It was stipulated at the hearing that at this time Thelma Kemp was the lawful
At the precinct, defendant stated that both the cocaine and marijuana belonged to him and that he intended to resell the cocaine, but to retain the marijuana for his own use.
The court, relying on People v Scull (37 NY2d 833) suppressed the drug equipment and the marijuana, reasoning that the wife’s knowledge of them was based on confidential communication which is privileged under CPLR 4502 (subd [b]).
In light of defendant’s subsequent plea of guilty to the count of the indictment alleging criminal possession of a controlled substance in the fifth degree, which count related to the cocaine which was not suppressed, we are concerned with the propriety of the obtaining of the cocaine by the police. Defendant argues, inter alia, that the suppression of the drug equipment and marijuana removes the basis establishing probable cause for defendant’s arrest and thus renders the cocaine, subsequently relinquished by defendant, suppressible as the fruit of an illegal arrest.
At the outset we agree with the hearing court’s conclusion that the police legally entered the apartment. Mrs. Kemp’s possession of the key to the apartment, the lack of opposition to her entry, and her knowledge of the premises and the location of the contraband clearly evidence her residence in the apartment. Indeed, at the hearing it was not urged that she did not live with the defendant. Patently, she had the authority to consent to a warrantless search. As noted in United States v Matlock (415 US 164, 171): "when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.”
As noted above, suppression of the drug paraphernalia and marijuana was based on the hearing court’s application of People v Scull (supra). Analysis of that case discloses that its rationale did not warrant suppression under the circumstances herein. In People v Scull the defendant was convicted upon a verdict of criminal possession of a dangerous drug in the third degree, criminal possession of a dangerous drug in the sixth degree and possession of a weapon as a misdemeanor. At trial there was evidence that the defendant’s wife made a telephone call summoning the police to the apartment occupied by the defendant and his wife. She exhibited a container of marijuana and a sawed-off shotgun which she told police belonged to the defendant. The defendant returned while the police were present and was arrested. A search of the defendant’s person disclosed a vial containing LSD. The
This detailed analysis of People v Scull clarifies the nature of the error made by the hearing court in its application of the rationale of that case to the defendant’s motions for suppression. Beyond cavil, People v Scull on the circumstances presented by this record impels the conclusion that suppression should have been denied in toto. However, the hearing court removed the rationale of People v Scull from its appropriate context, that of a trial, and sought to apply it in an inappropriate context, that of a suppression hearing. Re-
The error committed by the hearing court in directing suppression of the drug equipment and marijuana was its failure to clearly perceive that the privilege is testimonial, obtaining full import at trial, not at a suppression hearing, and that by so ruling, the court deprived the People of the opportunity to demonstrate defendant’s ownership of the drug equipment and the marijuana by proof independent of testimony by the wife. In this connection we merely note that the unidentified female present in the bedroom conceivably constituted a potential source of such proof.
Of critical import is the fact that defendant’s wife, wholly on her own initiative, sought out the drug equipment and the marijuana and displayed them to the police. It was not incumbent under these circumstances on the police to stop her from taking such action. There was no showing that the officers coerced, dominated or in any manner directed Mrs.
The drug equipment and marijuana disclosed to the police by the wife did not constitute a confidential communication between the spouses, but was in the nature of real evidence. It clearly formed a basis for probable cause to arrest defendant as it was discovered in premises controlled by defendant and under circumstances leading the police to reasonably believe that defendant might be the owner of such contraband. Of course, where such contraband constituted the basis of a viable count in a criminal indictment against defendant, it was incumbent on the People to demonstrate at trial and beyond a reasonable doubt that defendant did in fact own such contraband. The necessity of such demonstration was obviated in this matter by the hearing court’s suppression of this contraband and defendant’s guilty plea respecting the contraband not suppressed.
In any event, the binding effect on this court of the suppression of the drug equipment and the marijuana does not inhibit us in perceiving the narrow ground, albeit erroneous, upon which the suppression was based, to wit, invocation of the testimonial privilege respecting confidential communication between spouses. Under these circumstances, the suppression of contraband constituting real evidence does not prevent the People from demonstrating or this court from adopting the fact that such contraband formed a basis for probable cause to arrest defendant.
To reiterate, as the drug equipment and marijuana were suppressed not on a ground set forth in CPL 710.20 but on the ground of testimonial privilege and it clearly appearing that the hearing court properly found that the arrest of defendant was legal in consequence of probable cause, no reason is shown to require suppression of the remaining evidence. We are not constrained by any principle of reason or common sense to expand upon the hearing court’s error.
Accordingly, the judgment of the Supreme Court, Bronx County (Lowe, J., at plea and sentence; Bell, J., at suppression hearing), rendered April 26, 1977, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree, should be affirmed.
Silverman and Lynch, JJ., concur; Kupferman, J. P., concurs in result.
Judgment, Supreme Court, Bronx County, rendered on April 26, 1977, unanimously affirmed. The case is remitted to the Supreme Court, Bronx County, for further proceedings pursuant to CPL 460.50 (subd 5).
. The United States Supreme Court further declared in United States v Matlock (supra, p 175): "There is, therefore, much to be said for the proposition that in proceedings where the judge himself is considering the admissibility of evidence, the exclusionary rules, aside from rules of privlege, should not be applicable; and the judge should receive the evidence and give it such weight as his judgment and experience counsel. However that may be, certainly there should be no automatic rule against the reception of hearsay evidence in such proceedings”.
. In United States v Ashby (245 F2d 684), real evidence in the form of defendant’s tax records indicating possible tax liability of the defendant husband which were voluntarily turned over by the wife was held not to be a communication between spouses so as to preclude their use in prosecution against the husband for failure to make income tax returns. Relevant to the instant appeal, the real evidence erroneously suppressed on the narrow ground of testimonial privilege was not deprived of all use. While the suppressed matter could not be submitted into evidence at trial and the counts in the indictment based thereon would fall, nevertheless the People could, through testimony of the arresting officers, demonstrate probable cause to arrest