224 F. Supp. 142 | S.D.N.Y. | 1963
The petitioner was convicted after a trial in the New York City Magistrates’ Court of possession of policy slips and possession of book-making or pool-selling records, misdemeanors under N. Y. Penal Code, §§ 975 and 986-b respectively, McKinney’s Consol. Laws, c. 40. He was sentenced to concurrent jail terms and fines. The judgments of conviction were affirmed unanimously, without opinion, by the New York Supreme Court Appellate Term, First Department
He does not challenge the validity of his arrest. His contentions at the trial, on appeal and here are, first, that certain evidence seized at the time of his arrest should have been excluded under the rule of Mapp v. Ohio;
There is no dispute as to the facts. They were thoroughly developed at the trial, the unchallenged record of which was offered in support of the petition and reviewed by this court. Neither the petitioner nor New York offered or sought to offer additional evidence on any of
The petitioner was arrested and the evidence seized in the apartment of the petitioner’s codefendant, Margaret Drakeford, to whom he had paid $5 for use of the apartment.
When the officers came to the apartment which was in the basement of the building, they found the door leading from the public hallway into the living room open and no one was in the living room. They indeed made no announcement before entering but as soon as they were in the living room they called out and announced that they were police officers. Then, hearing some “commotion” in the adjoining bedroom, they went in there and found the petitioner seated at a table on which lay the seized evidence. The petitioner was using a telephone. The officers again identified themselves and, having produced the search warrant, seized the papers on the table.
Petitioner urges that the officers’ entry under the foregoing circumstances must be held unconstitutional under the rule of Miller v. United States,’
The criterion in the instant case must be that of reasonableness, which is “in the first instance a substantive determination to be made by the trial court from the facts and circumstances of the case and in the light of the ‘fundamental criteria’ laid down by the Fourth Amendment and in the opinions of this Court applying that Amendment.”
Viewed in the light of these historic principles, the actions of the officers in this case were not unreasonable. Upon their approach to the open apartment door, the premises appeared to be- unoccupied. It was not required that' the officers remain physically outside the threshhold, the interior laying in open view, while no one in charge of the premises appeared to be within hearing distance.
Assuming that the petitioner’s claimed right under the Sixth Amendment “to be informed of the nature and cause of the accusation” is one which is “fundamental and essential to a fair trial” and made obligatory upon the States by the Fourteenth Amendment,
He was tried upon two informations sworn to before a magistrate.
The petition is in all respects denied.
So ordered.
. N.Y.Law Journal, March 22, 1963, p. 14, col. 2.
. 28 U.S.C. § 2254; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837.
. 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
. Townsend v. Sain, 372 U.S. 293, 322, 83 S.Ct. 745, 9 L.Ed.2d 770.
. Both defendants were charged and tried jointly. Both were represented by the attorney who appears for the petitioner here. Neither of them testified at their trial.
. 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332.
. 109 U.S.App.D.C. 272, 287 F.2d 126.
. 110 U.S.App.D.C. 153, 289 F.2d 894.
. See United States v. Garnes, 2 Cir., 258 F.2d 530, 533, cert. denied 359 U.S. 937, 79 S.Ct. 651, 3 L.Ed.2d 637.
. 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.
. Id. at p. 39 of 374 U.S., at p. 1633 of 83 S.Ct., 10 L.Ed.2d 726.
. Id. at p. 33 of 374 U. S., at p. 1630 of 83 S.Ct., 10 L.Ed.2d 726.
. N.Y.Code Crim.Proc. § 799.
. See People v. Rodriguez, 38 Misc.2d 949, 237 N.Y.S.2d 924.
. See People v. Johnson, Gen.Sess., 231 N.Y.S.2d 689; People v. Montanaro, 34 Misc.2d 624, 229 N.Y.S.2d 677, 684.
. Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669.
. Miller v. United States, supra, at 313, of 357 U.S., at 1198 of 78 S.Ct., 2 L.Ed.2d 1332; see Accarino v. United States, 85 U.S.App.D.C. 394, 179 F.2d 456.
. 5 Co.Rep. 91a, 92a, 77 Eng.Rep. 194, 197 (1603).
. See Miller v. United States, supra, at 308 of 357 U.S., at 1198 of 78 S.Ct., 2 L.Ed.2d 1332; Ker v. California, supra, at 46 of 374 U.S., at 1635 of 83 S.Ct., 10 L.Ed.2d 726 (dissenting opinion).
. See also Hodges v. Marks, Cro.Jac. 485, 79 Eng.Rep. 414 (1615); Lee v. Gansel, 1 Cowp. 1, 5, 98 Eng.Rep. 935, 937 (1774); Lloyd v. Sandilands, 8 Taunt. 250, 252, 129 Eng.Rep. 379, 380 (1818).
. Compare People v. Johnson, supra.
. “The principle, that every man’s house is his castle depends on this, that if the outer door be broken, it lays the house open to the invasion of all sorts of persons * * Lloyd v. Sandilands, 8 Taunt. 250, 252, 129 Eng.Rep. 379, 380 (1818).
. Cf. Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799. See People ex rel. Sandman v. Tuthill, 79 App.Div. 24, 79 N.Y.S. 905.
. N.Y.Code Crim.Proc. § 145.
. United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588.
. Hallman v. United States, 93 U.S.App. 39, 208 F.2d 825.