In September, 1971, the F.B.I. in New York City received information about the hijacking of two trucks. According to this information specifically describing the color and markings of the two stolen vehicles, one of the vehicles had been leased by Hertz Corporation to P. B. Trucking Company and bore the marking “ Roxanne Swim Suits ”; the other was a Metropolis Trucking Company vehicle. On March 21, 1972 F.B.I. Agent Garber was advised by a confidential informant that both of these stolen vehicles were located in the rear of the premises of defendant’s business, the Al Spinelli Company. The next day, Garber went to the Rockland Lake Golf Course, a public course. There, he stood about a foot or two from a fence enclosing defendant’s property and separating the golf course from defendant’s property.
Garber notified the local Clarkstown police of his information and observations of the two trucks. On August 18, 1972 the Clarkstown police, acting on Garber’s information, went to the golf course, from which they observed the two vehicles on defendant’s premises. On the afternoon of August 21, 1972, Garber and the Clarkstown police who had observed the vehicles on August 18 accompanied a State Police Investigator Cunningham to defendant’s premises. There, outside of the front door of the building on defendant’s premises, Cunningham placed defendant under arrest pursuant to an arrest warrant for unlawful use of credit cards, a misdemeanor charge unrelated to the indictment in the present case. Cunningham had been notified a week or two earlier about the F.B.I. information as to the two stolen vehicles on defendant’s premises and Cunningham had, on receipt of this information, confirmed through police files that these vehicles were still listed as stolen.
After defendant’s arrest, without a search warrant, Cunningham, Garber, and the Clarkstown police “ went to the rear of the premises to check out the two vehicles in question.” There, they saw the two vehicles which had been observed throughout the prior five-month period and proceeded to open the hood of one of the trucks and inspect the vehicle identification number. Several hours later, the police seized the vehicles and removed them to the local police station. The next day, an arrest warrant charging defendant with unlawful possession of the two trucks was issued.
Defendant was indicted only for unlawful possession of one of the trucks — the P. B. Trucking Company vehicle bearing
It is well settled that a businessman’s private commercial property is entitled to Fourth Amendment protections (see See v. City of Seattle,
Respondent initially asserts that no warrant was needed because the truck was seen in plain view. A person who leaves an article in plain view has no legitimate expectation of privacy with respect to that item (see Ker v. California,
First, the court noted that plain view alone is never enough to justify a warrantless search and seizure (Coolidge, supra, p. 468). And it makes no difference if the article seized is 11 mere evidence ”, contraband or evidence of the crime or fruits of the crime. (Coolidge, p. 468; see, also, Warden v. Hayden,
The fact that defendant was not arrested for possessing the stolen truck until the next day is not a relevant factor since, as defendant concedes, the officers had probable cause to arrest him for that offense before the trucks were seized. But the arrest of defendant in front of the house did not justify a search behind the premises (see Chimel v. California,
The crux then is that there was ample time for the law enforcement officials to secure a warrant in order to make this significant intrusion onto defendant’s premises. One must be careful to distinguish between constraints on police conduct which limit effective police enforcement and those constraints which merely make effective police enforcement more burdensome. In the case at bar there was absolutely no justification — either
We do a great disservice to the highly professional and efficient law enforcement officials of this State to determine that they cannot perform their job effectively without impinging upon a vei;y important constitutional right. Duties of law enforcement officials are extremely demanding in a free society. But that is as it should be. A policeman’s job is easy only in a police state.
The record in this case indicates excellent police work. The failure to secure a warrant was by no means a sinister attempt on the part of the police officers to deprive an individual of his constitutional rights. But in an age of advancing technology the courts’ vigilance in protecting a citizen’s right to privacy becomes more necessary than ever before. The goal is not to protect criminals but to protect the standards of decency in our society. The privacy of an innocent citizen, of necessity, must be judged by the same standards as those applied to citizens who later are found to be guilty. As Justice Gtjlotta stated in his dissent:1 ‘ the validation of this search amounts to justifying a basically illegal procedure on the basis of the successful results in this particular case and thus encourages further incursions by the police on the rights of citizens in other cases where perhaps the results will not justify the means.”
The order of the Appellate Division should be reversed and the order of the County Court suppressing the evidence should be reinstated.
Chief Judge Bbbitel and Judges Jasen, Gabbielli, Jones and Babin concur; Judge Stevens taking no part.
Order reversed, etc.
Notes
It is significant that the trucks could be viewed with the naked eye, and, later, aided only by a pair of binoculars. We are aware that with the increasingly sophisticated modern equipment available to law enforcement agencies, it is becoming increasingly possible to view objects that would not be observed by a person not in possession of such sophisticated equipment. In this case we need not reach the question of when such a teenologieally aided viewing of an object in and of itself rises to the level of a constitutionally cognizable search.