Appendix — Payton v. New York

Supreme Court brief1980

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APPENDIX Be ti atk

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-5420

THEODORE PAYTON

Appellant,

—v3.—

NEW YORK

Appellee.

No. 78-5421

OBIE RIDDICK

Appellant,

—v3.—

NEW YORK

Appellee.

APPEALS FROM THE NEW YORK COURT OF APPEALS

NO. 78-5420 FILED SEPTEMBER 19, 1978

NO. 78-5421 FILED SEPTEMBER 19, 1978

PROBABLE JURISDICTION NOTED DECEMBER 11, 1978

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-5420

THEODORE PAYTON

Appellant,

—vs.—

NEW YORK

Appellee.

No. 78-5421

OBIE RIDDICK

Appellant,

—vs.—

NEW YORK

Appellee.

APPEALS FROM THE NEW YORK COURT OF APPEALS

INDEX

Page

Payton v. New York (No. 78-5420):

Chronological list of important dates: .......000..0.......0.00.0.... 1

New York County Indictment No. 1694/70 ...........

Excerpts From Suppression Hearing Transcript ............. 3

Decision of Supreme Court, New York County on Motion

A I oN ee lh pa alcadeed anchaass 38

Order of Affirmance of the Anpellate Division, First De-

DI eee ee ae 8 ne ais giiaiandaicaeceticvcaae 42

a a

ii INDEX

Riddick v. New York (78-5421):

Chronological List of Important Dates .................-.....-.-.

Queens County Indictment No. 8072/74 ...........c.-cc0esese0-e--

Suppresgion Hearing Transcript ....................-....1eseeees

Decision of Supreme Court, Queens County on Motion to

NR os. .ss.crsscrerrpeasginrtanintptegeeneaaaaanae

Decision of the Appellate Division, Second Department..

Opinion of the New York Court of Appeals ................00..00......

* Remittitur (|) MERRERRAEEH MNES sin stdheensapbicinied pmcnnseintaeiiadain aim

ae CT csi ntelncisipsssisscgenaitenibcctmtcigeeaheaanalneiaiaiaactias

Order of the Supreme Court of the United States Granting

Motions for Leave to Proceed In Forma Pauperis...............

Order of the Supreme Court of the United States Noting

Wettneiialin \ Dem in ca dececsscscnoscnsiocechontoubcbiedumsebelons ates

Chronological List of Important Dates

Payton v. New York (No. 78-5420)

March 30, 1970: Indictment filed.

April 5, 1970: Appellant arraigned in Supreme Court, New

York County—enters plea of not guilty.

April 14, 1970: Appellant committed for mental examina-

tion pursuant to §§ 658, 870 of New York Code of Crimi-

nal Procedure.

June 9, 1970: Appellant committed to custody of Commis-

sioner of Mental Hygiene by order of court.

April 5, 1972: Appellant re-arraigned on indictment and

enters plea of not guilty.

May 16, 1974: Hearing on motion to suppress physical evi-

dence.

June 4, 1974: Motion to suppress .30 caliber shell casing

denied.

June 21, 1974: Appellant convicted after jury trial of mur-

der (count one of indictment).

October 15, 1974: Hearing held on appellant’s motion to set

aside verdict.

October 29, 1974: Motion to set aside verdict denied; ap-

pellant sentenced to 15 years to life imprisonment.

December 16, 1976: Judgment of conviction unanimously

affirmed without opinion by Appellate Division, First

Department.

July 11, 1978: Conviction affirmed by New York Court of

Appeals by vote of 4-3.

September 12, 1978: Notice of Appeal to U.S. Supreme

Court filed.

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

[Filed March 30, 1970]

THE PEOPLE OF THE STATE OF NEW YORK,

—against—

THEODORE PAYTON, DEFENDANT

THE GRAND JURY OF THE COUNTY OF NEW

YORK, by this indictment, accuse the defendant of the

crime of MURDER, committed as follows:

The defendant, in the County of New York, on or

about January 12, 1970, while engaged in the commissidén

of the crime of Robbery and in the course of such crime,

and in the furtherance thereof, and in immediate flight

therefrom, caused the death of Roberto Carasas not a

participant in the crime, by shooting him with a rifle.

SECOND COUNT:

AND THE GRAND JURY AFORESAID, by this in-

dictment, further accuse said defendant of the crime of

MURDER, committed as follows:

The defendant, in the County of New York, on or

about January 12, 1970, with intent to cause the death

of Roberto Carasas caused the death of Roberto Carasas

by shooting him with a rifle.

FRANK 8S. HOGAN

District Attorney

SUPREME COURT, NEW YORK COUNTY

EXCERPTS FROM SUPPRESSION

HEARING TRANSCRIPT

[107] Colloquy

THE COURT: Mr. Payton, we’re going to complete

this hearing today on the illegal search and seizure; I’ll

come down on your application for bail before twenty-

four hours have elapsed. I want to read the other

reports.

Is counsel here in the other case?

(Discussion off the record. )

THE COURT: We’re going to take testimony on

the suppression of tangible evidence, aren’t we?

MR. JACOBS: Judge, as I have already submitted

in my affidavit, I’ve stipulated to the fact that the search

of the defendant’s apartment was [108] illegal.

(Discussion off the record, at the bench, between the

Court and attorneys in another matter.)

THE COURT: I have just inquired, while Mr. Pay-

ton was here and the reporter was here, on the motion

to suppress tangible evidence I understood we were wait-

ing for Detective Malfer to appear, but—

MR. JACOBS: He has not returned yet, Judge. But

to expedite matters, I submitted a memorandum of law

to the Court, and I gave a copy to Mr. Katz earlier, and

the People are perfectly willing to concede that the

search of the defendant’s apartment on January 15th,

1970, 7:30 in the morning, was illegal.

The only piece of evidence that the People believe

should not be suppressed in this case, as I put in the

memorandum of law, is the Winchester shell which was

found in plain view.

I’ve stated to the Court, I have already told—

THE COURT: Is it illegal because no warrant was

obtained?

MR. JACOBS: That is correct, Judge.

[109] The People contend that the entry into the apart-

4 xX

ment was legal, and I have already cited the appropriate

authorities in my memorandum of law.

THE COURT: Wait a minute now.

The entry was legal.

MR. JACOBS: That’s correct.

THE COURT: But the search was illegal.

MR. JACOBS: That is correct.

THE COURT: And the entry you maintain was legal

because of provisions of C.P.L. 140.15.

MR. JACOBS: That is correct. And the appropriate

cases under it, and the other cases that I have cited.

THE COURT: What cases are appropriate under

it?

MR. JACOBS: Harris vs. United States.

THE COURT: Hold it just a minute.

The C.P.L. to which you make reference didn’t come

into effect until 1971.

MR. JACOBS: I put that in my memorandum, Judge.

I’m aware of that.

THE COURT: Yes.

MR. JACOBS: And all I think that the C.P.L. [110]

did in 1971 was codify the prior case law which I cite,

and I believe that the Code of Criminal Procedure had

appropriate sections similar to Section 140.15.

THE COURT: All right.

MR. JACOBS: I think I’ve stated that in my memo-

randum of law as well.

THE COURT: Okay.

MR. JACOBS: There’s no question that the evidence

that was found in bureau drawers and in the closet was

illegally obtained. I’m perfectly willing to concede that,

and I do so in my memorandum of law. There’s no ques-

tion about that.

THE COURT: Well, then on your concession you

would— ;

MR. JACOBS: Items A and B.

THE COURT: —you would say that the Winchester

—the motion then to suppress the Winchester shotgun

and the fourteen shells found in the closet should be

granted.

MR. JACOBS: That’s correct.

THE COURT: All right.

That’s by concession.

[111] MR.JACOBS: That’s correct.

THE COURT: All right.

And you also concede that the three photos of the

defendant in a ski mask and a bill of sale for the shot-

gun which was found in the drawer should also be

suppressed.

MR. JACOBS: That is correct.

THE COURT: That takes care of two items.

Now, there’s a third item, a .30 caliber Winchester

casing which was found on top of the stereo in the living

room in plain view, and you argue that that item should

not be suppressed.

MR. JACOBS: That is correct.

THE COURT: All right, I’ll hear you on it.

MR. JACOBS: Your Honor, I think we’re dealing

here with a very, very particular point of law, and I

think it is a matter of law for the Court to determine.

It’s the People’s position that a police officer has a

legal right to break into someone’s apartment to look

for that person if that person has committed a felony.

I think the cases and section that I pointed out so hold.

[112] However, in breaking into that apartment with-

out a search warrant, the police are limited to what

they can do, what they cannot do.

THE COURT: You mean they can just pick up the

suspect and nothing more?

MR. JACOBS: That is correct, with one exception.

There’s no question without a search warrant they

cannot search the apartment. People are conceding that

here.

However, if items of evidence are found in plain view

the police officers cannot close their eyes to that, and

I think have a perfectly legal right at that point to

seize those items in plain view.

THE COURT: Now, what authorities do you have

to support that position?

MR. JACOBS: I cited four cases in my memorandum

of law, your Honor.

THE COURT: Haris vs. The United States, People

vs. Gallmon,—

MR. JACOBS: No, those cases were of the entry,

your Honor.

THE COURT: I beg your pardon.

[113] People vs. Ball, People vs. Boone, each reported

in 41 App. Div. 2d; and People vs. Neulist, 72 Misc. 2d;

and People vs. Avasino, 71 Misc. 2d.

Do defense counsel have a copy of this?

MR. KATZ: Yes, we were handed it this morning.

THE COURT: Okay.

MR. JACOBS: What the People are arguing, your

Honor, is that there is an exception to the rule that

when an entry is made for the purpose of finding a

suspected felon, that they cannot search a premises;

however, if contraband or evidence is in plain view the

police officers have a right to seize that property.

And I think that the rationale of the cases that I’ve

cited would be quite apparent to the Court.

In breaking into the apartment and the defendant

not being there, the police officers see a .30 caliber Win-

chester shell in their plain view. Now, at that particular

time the police officers knew on January i2th, 1970, that

a .380 caliber Winchester rifle was the weapon used in

the murder. [114] Now for the police officers to turn

around and leave that apartment and not take the shell

certainly I don’t feel would be proper. There would be

no point in obtaining a search warrant at that point;

they are already there on the premises and the evidence

is right before them.

THE COURT: I suppose one of the issues that I

would have to decide is wnether or not the assertion that

the shell was where the police officers said it was was

credible.

MR. JACOBS: Well, Judge, I think the People have

been more than candid this morning.

THE COURT: No, no. Excuse me.

MR. JACOBS: I’m aware of that.

THE COURT: I’m not being critical, but—

MR. JACOBS: If Mr. Katz and Mr. Burns want

Detective Malfer to get on the stand—lI think I’ve gone

more so than most prosecutors would do in conceding

this illegal search in certain items; I’m certain most

prosecutors wouldn’t do that. I felt that it would be

fruitless to stand up here and try to argue the point. I

had a particular point of law—

THE COURT: Mr. Jacobs, I’ve always found [115]

you to be highly professional in everything you did when

you appeared before me.

MR. JACOBS: Thank you.

THE COURT: Even in cases where I ruled against

you.

MR. JACOBS: And there have been many.

If Mr. Katz and Mr. Burns would want Detective

Malfer to get on the stand and say that the Winchester

was found—that the Winchester casing was in plain

view on the TV set, well, he should be back shortly and

we can have him do that. I thought we can move this

thing along.

THE COURT: I thought it could be decided merely

as an issue of law upon the stipulated facts.

MR. JACOBS: That’s correct, your Honor. I think

it is a fairly technical point, and I’m willing to stipulate

to it. If defense counsel want Detective Malfer to say

that on the stand—

THE COURT: What is your wish in the matter,

Mr. Katz, do you want to take testimony here?

MR. KATZ: Well, your Honor, it goes beyond the

question of whether the item C set forth in the District

Attorney’s memorandum, namely, the [116] .30 caliber

Winchester casing, should be suppressed. As the Court

is aware, our motion goes beyond the mere suppression

of physical evidence. It goes to the question of whether

the statements, whether inculpatory or exculpatory, al-

legedly made by defendant, should be suppressed because

of taint.

THE COURT: Well, assuming that the search was

illegal.

MR. KATZ: Yes.

THE COURT: Which is the concession of the district

attorney with respect to items A and B.

MR. KATZ: Yes.

THE COURT: Couldn’t you argue—wouldn’t you then

be able to argue from that concession, that the police

would not be able to question Mr. Payton but for that

illegal search?

MR. KATZ: Yes.

THE COURT: What?

MR. KATZ: Yes.

THE COURT: Well, then—

MR. KATZ: No, I’m talking about whether we need

Malfer back.

THE COURT: Well, do you? That’s my question

[117] to you.

MR. KATZ: Well, I think we do, your Honor.

THE COURT: Very well.

MR. KATZ: Because I think we have to get into

the lead aspect of it, was it untainted and was it tainted.

I disagree most strenuously with the legal proposition

cited with respect to the narrow issue, but in terms of

physical suppression—

THE COURT: Okay.

MR. KATZ: —this Winchester casing I think should

come in.

THE COURT: As soon as Mr. Malfer comes in we'll

put him on the stand and continue with the hearing.

MR. KATZ: All right.

I don’t agree that under the law as it existed then

or as it exists now that the plain view aspect or the

plain view sanitizes the unlawful entry.

Clearly they had sufficient time to get a warrant.

Detective Malfer told us that—and indeed the district

attorney told us—that this defendant was a suspect a

day before.

[118] THE COURT: Are you familiar with the sec-

tion upon which the district attorney relies, 140.15?

MR. KATZ: Yes; we have it in front of us, your

Honor.

THE COURT: Okay. Because I’m going to take

argument on that section as well.

So supposing we suspend urtil Mr. Malfer comes in.

MR. KATZ: All right.

MR. K JACOBS: Let me see if he has arrived, Judge.

I have been calling.

THE COURT: Would you let me know? Because

I have three lawyers waiting.

MR. JACOBS: I understand that.

(Whereupon Mr. Jacobs left the courtroom and re-

turned shortly after.)

MR. JACOBS: Judge, he’s not back. I'll go down-

stairs and see if—

THE COURT: Mr. Katz and Mr. Payton, I’m going

to call Mr. Payton out again as soon as Mr. Malfer

arrives. Would you stand by?

(Whereupon the hearing continued shortly there-

after, as follows:)

THE COURT: Are we ready on the hearing?

[119] MR.JACOBS: Yes.

THE COURT: Thank you very much, Mr. Malfer,

for coming back. I know it was short notice.

THE CLERK: Indictment 1649 of 1970, People of the

State of New York against Theodore Payton, charged

with murder.

The defendant present with counsel. Mr. Burns, Mr.

Katz and assistant district attorney Jacobs present.

THE COURT: You know, I have expanded the na-

ture of the hearing before me to incorporate your ap-

plication, counsel, to suppress tangible evidence allegedly

recovered in the apartment of Mr. Payton.

There has been a concession by the district attorney

with respect to ietems A and B set forth in his arswer-

ing motion papers.

And so I think it might be necessary, Mr. Galloway,

to swear the witness again.

THE CLERK: Yes, your Honor.

MAL MALFER, a former Detective of the Bond and

Forgery Squad, New York City Police Department, now

on terminal leave, called as a witness on behalf of the

People, having been first duly [120] sworn by the Clerk

of the Court, testified as follows:

THE COURT: As I say, thank you very much for

coming back.

Mr. Jacobs.

MR. JACOBS: Thank you, Judge.

DIRECT EXAMINATION

BY MR. JACOBS:

Q. Detective Malfer, this is a continued hearing where

your previous testimony left off.

MR. JACOBS: But we can incorporate the other

testimony, your Henor.

Q. Detective Malfer, am I correct that you were the

detective assigned to the investigation of the shooting of

Roberto Carassas on January 12th, 1970?

THE COURT: Could you just give me the spelling

of that last name? I had some trouble with it.

MR. JACOBS: Certainly, Judge. Let me get it.

C-a-r-a-8-S-a-s.

THE COURT: Thank you. All right.

Were you the detective assigned to investigate the

shooting of Robert Carassas?

[121] THE WITNESS: Yes.

THE COURT: And on what day was the shooting,

if you know?

THE WITNESS: January the 12th.

THE COURT: Was this a homicide?

MR. JACOBS: Yes.

BY MR. JACOBS:

Q. Well, Mr. Malfer, was that a homicide?

A. Yes, sir.

THE COURT: January 12th, 1970?

THE WITNESS: Yes, sir.

Q. And that was at a gas station; am I correct?

A. Yes.

Q. Located at 1995 First Avenue here in the City and

County of New York?

A. Yes, sir.

Q. And you responded to the scene, Detective Malfer,

sometime in the early morning; is that correct?

A. Yes.

. And from that time up until the morning of

January 15th, some three days later, did you investigate

this homicide?

A. I did.

[122] Q. Did you speak to various witnesses at the

scene?

A. Yes, sir.

Q. Did you speak to witnesses who were not at the

scene?

A. Yes, sir.

Q. And did there come a time on January 14th, 1970,

that you learned the name of the alleged perpetrator

of this murder?

A. Yes, sir, I did.

MR. BURNS: Can I caution Mr. Jacobs perhaps

with respect to leading? Because we’re—

THE COURT: Well, we are not at the apartment

yet, and we want to get there, and I suppose leading

is harmless at this point.

Did you learn the name of the alleged perpetrator?

THE WITNESS: Yes.

BY MR. JACOBS:

And what date was that?

On January the 14th.

And what name did you learn?

We learned the name Teddy Payton.

. And was that from conversation with wit- [123]

nesses?

A. Yes, sir.

Q. Did you also learn the address?

A. Yes, sir.

Q. What address?

A. 682 East 141st Street, Apartment 5-C.

THE COURT: East 14l1st Street, apartment 5-C?

THE WITNESS: Yes, sir.

PO PO

Q. Did there come a time, Detective Malfer, that you

responded to that location?

A. Yes, sir.

Q. Would you tell us the date and the time that you

responded, please?

THE COURT: When you say “responded,” you mean

went to that location?

MR. JACOBS: Went to that location.

THE WITNESS: May I go to my notes on this?

THE COURT: Yes.

Don’t lead from this point on.

A. On January the 15th, 1970, approximately 7:30

A.M., I was assigned in company with Sergeant Hoarty.

Q. Sergeant who?

A. Hoarty, H-o-a-r-t-y. Detective Brady, Detective

[124] Seffers, -S-e-f-f-e-r-s, and Detective McPartland,

M-C P-a-r-t-l-a-n-d. Responded to 682 East 141st Street,

Apartment 5-C.

Q. What happened when you got there?

A. A light could be seen from the bottom of the door,

and I heard a ,radio—

MR. KATZ: Excuse me, Mr. Malfer.

I don’t believe this witness should be reading from

his notes. He may refresh his recollection if he has to,

but I don’t believe it’s proper for him to be reading.

THE COURT: Well, if you recall tell us what you

remember; if you are unable to recall you may look at

your notes to refresh your recollection.

THE WITNESS: All right, Judge.

This is four and a half years ago, and I feel that I

should go to my notes.

THE COURT: If you—

MR. BURNS: Well, that is what I wanted the record

to reflect, your Honor, that if he cannot recall from his

independent recollection let him state it for the record

if he has to refresh his recollection by looking at his

notes.

[125] THE WITNESS: I am able to recall without

checking my notes that this situation existed. There

were lights from underneath the door and there was a

radio playing.

BY MR. JACOBS:

Q. What happened?

THE COURT: And the record will reflect that he

testified to those facts without looking at his notes.

Q. What happened, Detective Malfer?

A. We then asked for assistance.

MR. BURNS: My problem with this, your Honor—

I hate to be interrupting—I notice that Detective—for-

mer Detective Malfer, his eyes keep dropping down to

his notes.

THE COURT: All right.

MR. BURNS: I would like the record to reflect each

time that he has to refresh his recollection by looking

at the notes, that the record should so reflect, that’s all.

THE COURT: Okay.

What they’re saying, Detective Malfer—

THE WITNESS: Yes.

THE COURT: — is that first listen to the [126]

question.

THE WITNESS: Right.

THE COURT: To see if you can respond to the

question without looking at your notes. If you are un-

able to do that then ask me for permission to look at

your notes.

THE WITNESS: All right.

THE COURT: And then after looking at your notes,

then you may testify from your recollection if your recol-

lection has been refreshed.

THE WITNESS: All right.

THE COURT: If you can’t do that we'll meet the

problem some other way.

BY MR. JACOBS:

Q. Detective Malfer, did you or any of the other of-

ficers knock on the door?

A. Yes, we did.

Q. Do you recall who knocked on the door?

A. To my best recollection I couldn’t say. Perhaps

I did and others with me did.

Q. But you recall that someone knocked on the door?

A. Yes, sir.

Q. Was there a response?

[127] A. No.

Q. What happened then?

A. At that point we called on the Emergency—

THE COURT: Don’t look at your notes now.

A. (Continuing) At that point we called on the

Emergency Service to give us a hand with getting through

the door.

Q. And did Emergency Service respond?

A. Yes, they did.

Q. And was the door subsequently broken into?

A. Yes, it was.

Q. And did you and the other officers enter the apart-

ment?

A. We did.

Q. And was anyone in the apartment?

A. No, sir.

Q. What happened inside the apartment?

THE COURT: Don’t look at your notes, please.

THE WITNESS: No, sir.

Q. What happened inside the apartment?

MR. BURNS: Perhaps he can close that book or

whatever it is that he’s reading frorn.

THE COURT: Well, let’s try and do it my way.

MR. BURNS: All right, your Honor.

[128] BY MR. JACOBS:

Q. What happened inside the apartment?

A. We conducted a search of the apartment for the

person whom we were seeking.

Q. That was Theodore Payton?

A. Yes, sir.

Q. And was he in the apartment at that time?

A. No, sir.

. Am I correct you had no search warrant at that

time?

A. No, sir.

You were responding to the apartment based upon

information that you had from witnesses that you had

spoken to?

MR. BURNS: I object to the leading.

THE COURT: Sustained.

MR. JACOBS: I'll withdraw the question.

[129] BY MR. JACOBS:

Q. Did you find certain property in the apartment

that you took into your possession?

A. Yes, sir.

Q. Would you tell us what property you found, where

the property was, please, Detective Malfer?

A. To the best of my recollection, as far as where

the property was now, I recovered a shotgun which could

have been in a closet. Whether it was a linen closet or

clothes closet, at this point I cannot recall.

Also found a bandolier containing fourteen buckshots

that go with the shotgun.

Also a thirty caliber shell casing.

Q. Where was that found?

A. That was on top of a bureau.

. Was it on top of a bureau or on top of a stereo?

MR. BURNS: I object to that.

THE COURT: Sustained.

THE WITNESS: At this point, I can honestly say—

THE COURT: The question has been objected to.

[130] BY MR. JACOBS:

Q. Yes, Detective Malfer?

A. I cannot honestly state whether it was on top of

a stereo—

MR. BURNS: Objection. I don’t understand—

THE COURT: I sustained the objection to the ques-

tion and so the witness is—should not answer it.

You may put another question to him.

BY MR. JACOBS:

Q. Detective Malfer, referring to your notes that are

already introduced into evidence or deemed marked into

evidence—

THE COURT: Are these the same notes that were

deemed marked at the other hearing?

MR. JACOBS: That’s correct, sir.

THE COURT: They were marked, Mr.—We’ll mark

them again at this hearing.

MR. JACOBS: I should note, your Honor, when I

say “marked”, I’m referring to the specific page that he

is making reference to, not necessarily the whole note-

book which contains some fifty odd pages.

I have intentions, your Honor, as soon as Detective

Malfer completes his direct testimony, [131] to turn a

copy of that page over to defense counsel.

I have made a xerox—

THE COURT: Is this a page different from the one

we had last time?

MR. JACOBS: Yes, sir.

THE COURT: This will be deemed. This will be

deemed People’s—The book was marked earlier in the

hearing. It was a memo book which was marked 2 and

the two page statement which contained the alleged—

the two pages, rather, which contain the alleged state-

ment of the defendant, was marked 3. So I suppose now

we’re talking about a different page?

MR. JACOBS: Correct, sir.

THE COURT: This could be deemed 4 at this point.

What is the number on your pages? Do you have a

number?

THE WITNESS: It’s not numbered.

THE COURT: All right, but the page which has to

do with the search of the apartment is a page which

is different than the other page which was introduced last

time?

THE WITNESS: Yes.

[132] THE COURT: This will be deemed marked 4.

(Page of memo book deemed marked People’s Ex-

hibit 4 for identification. )

MR. BURNS: Before he testifies to it, may we know

if it’s going into evidence.

THE COURT: It hasn’t been offered in evidence.

MR. BURNS: I thought he was going to offer it in

evidence.

THE COURT: Marked 4 for identification.

Of course, you’re going to have an opportunity to

see it. I’ll do it at the conclusion of the examination.

MR. BURNS: I just want to glance at it before he

testifies from it.

I understood from—lI’m sorry, I understood from his

last question that he was referring to something which

he stated that he thought had already been deemed, but

it wasn’t deemed and now we’re talking about something

different.

THE COURT: Just in order to satisfy your curiosity

you can look at it now.

MR. JACOBS: Judge, it’s not in evidence and it’s

his memo book and I object to it.

[133] There are other references which are there. Now

we’re getting to the point where we’re just turning over

things. I prepared a copy of this on Rosario, too.

THE COURT: Then your curiosity will be satisfied

at a later time. It will be—

MR. BURNS: Just as long as when it goes into

evidence—

THE COURT: You’ll be able to look at it and make

any appropriate objection.

I always like to do things in the fraternal way, if I

can; if I can’t, then I’ll adhere to the rules.

MR. JACOBS: Thank you, Judge.

THE COURT: You bet.

BY MR. JACOBS:

Q. Detective Malfer, pertaining to your note book,

will you tell us if it refreshes your recollection, using

your notebook, where this thirty caliber Winchester cas-

ing was found?

A. May I use the—

THE COURT: Yes, indeed.

THE WITNESS: My note states—

THE COURT: Never mind what your note states.

[134] BY MR. JACOBS:

Q. Look at your notes and see if it refreshes your

recollection, Detective Malfer?

A. Yes.

THE COURT: Having looked at it, what is your

best recollection as to where the shell casing is?

THE WITNESS: On top of the stereo in the living

room.

THE COURT: Okay. Now we’re gotten over that.

BY MR. JACOBS:

Q. Was that in plain view, that casing?

A. Yes, sir.

MR. BURNS: I object to that.

THE COURT: Overruled.

BY MR. JACOBS:

Q. Wasitin plain view, detective?

A. Yes, sir.

Q. Do you recall what, if any, other property was

found, please?

A. Yes.

Q. Besides the property you have already described?

A. I’ve described a shotgun and the shells that went

with this.

[135] Also found was a sales receipt.

Q. For what type of gun?

A. For a thirty caliber Winchester and other items

on such sales receipt.

Q. Was that sales receipt for the shotgun—for a shot-

gun or for a Winchester, Detective Malfer?

A. For a Winchester.

Q. Is that your best recollection of it?

A. Yes, sir.

Q. And was any other property found?

A. Several photographs.

Q. Where were they found, if you recall?

A. Again, to the best of my recollection, possibly in

one of the drawers or on top of a bureau.

I cannot say for sure at this point.

MR. JACOBS: Your Honor—

THE COURT: Did you take this thirty caliber casing

with you?

THE WITNESS: Yes, sir.

THE COURT: And did you take with you the other

items that—to which you have just testified, the thirty

caliber Winchester rifle and several photos?

THE WITNESS: Yes.

THE COURT: Was it a rifle or a shotgun?

[136] THE WITNESS: It was a shot gun.

THE COURT: Shotgun and several photos?

THE WITNESS: Yes.

THE COURT: Okay.

Is there something else?

MR. JACOBS: No, sir, Judge.

I prepared a xeroxed copy of Detective Malfer’s memo

book with respect to the entry into the defendant’s

apartment.

Perhaps we should have the memo book brought over

so that Mr. Katz and Mr. Burns can compare the xerox

na I have made at their convenience with the memo

THE COURT: Okay, do that. Give it to Mr. Jacobs

so he can handle it the way he wants to.

(Handing to Mr. Katz and Mr. Burns.)

MR. JACOBS: Return the detective’s memo book.

(Handing to the witness. )

MR. JACOBS: The record should indicate Mr. Katz

and Mr. Burns had an opportunity to compare the memo

book with the xeroxed copy that I gave them.

THE COURT: Okay.

[137] At the last hearing I noticed that two-page

statement, Exhibit 3, which reflected the defendant’s

——- made to Mr. Malfer, was not offered in evi-

ence.

MR. JACOBS: No, sir.

I would only be able to offer it into evidence—The

People would be, as a past recollection recorded, which

was not done either with that exhibit or with this

exhibit.

I think the purpose of marking them and everything

was more for Rosario material having been turned over

to defense than actually as an exhibit into evidence.

MR. KATZ: Your Honor, I think we can safely have

them marked in evidence for the purpose of this hearing.

MR. JACOBS: Yes, I have no objection to that.

THE COURT: Then why don’t we consider those

items heretofore marked for identification as being in

evidence, but only for the purpose of this hearing.

MR. KATZ: Okay.

THE COURT: And this ruling incorporates all past

exhibits on April 26th marked for identification [138]

as well as any exhibits marked for identification today.

The offer into evidence, or the receipt into evidence,

is solely for the purpose of this hearing.

THE CLERK: That would be People’s 1, 2, 3 and

4, your Honor.

THE COURT: Right.

MR. JACOBS: Judge, I hate to be picayune, the

whole book should not be in evidence.

THE COURT: No, just the particular pages involved.

MR. BURNS: I'm sorry, is—2 is really only for iden-

tification.

THE COURT: 1,3 and 4; okay.

MR. JACOBS: Thank you, Mr. Burns.

THE COURT: 1, 3 and 4 then; that’s quite correct.

All right, the book itself has been marked for iden-

tification except for those pages received in evidence.

(People’s Exhibits 1, 3 and 4 for identification now

received in evidence. )

THE COURT: Are you ready to examine Mr. Mal-

fer? Let’s go, gentlemen.

[139] MR. JACOBS: I followed your Honor’s sug-

gestion and xeroxed up several copies of the memo book.

THE COURT: It’s always helpful.

Can we move ahead, please?

MR. KATZ: Yes, one moment, your Honor.

THE COURT: Can we go ahead now, please?

MR. KATZ: Yes, your Honor.

CROSS EXAMINATION

BY MR. KATZ:

Q. Mr. Malfer, vou told us on direct examination that

you had learned the name of the alleged perpetrator on

January 14, 1970; is that correct?

A. Yes. |

Q. And that his name was told to you by witnesses

that his name was Teddy Payton?

A. Yes.

Q. And you also were told where Teddy Payton

lived; is that correct?

A. Right.

Q. And all of this on January 14, 1970; is that

correct?

A. Correct.

Q. Now, when you learned that, sir, did you do [140]

anything—make any efforts whatsoever to obtain a search

warrant for Mr. Payton’s apartment?

A. To the best of my recollection, no.

Q. Was there an arrest warrant issued for Mr. Pay-

ton on January 14, 1970?

A. No.

Q. January 15, 1970?

A. No.

Q. Now, you went to Mr. Payton’s apartment at 682

East 141st Street, in the Bronx, on the—about seven-

thirty on the 15th of January, 1970; is that correct?

A. Yes, sir.

Q. And you went there with several other detectives

whose names you gave us; is that correct?

A. Yes, sir.

Q. Did anyone have an arrest warrant for Mr. Pay-

ton, to your knowledge?

A. No, sir.

Q. There was no arrest warrant?

A. No, sir.

. And it was after, was it not, Detective Payton—

Detective Malfer, it was after you went to the defend-

aT Po

ant’s apartment that an alarm went out for his arrest;

isn’t [141] that correct?

A. May I recollect with these notes on that?

THE COURT: Yes, you may, surely.

THE WITNESS: Right.

Yes, that is correct.

BY MR. KATZ:

Q. Indeed, I believe you told us at the hearing a

few weeks ago that the alarm went out at 11:15 a.m.

on January 15, 1970; is that correct?

A. That is correct.

Q. What time did you leave the defendant’s apart-

ment on that date? Do you recall?

A. Ido not recall that.

Q. It was prior to 11:15 a.m.; was it not?

A. I jwould safely say so.

Q. And it was after you left the apartment that you

or someone in your company caused the alarm to be

issued ; isn’t that correct?

A. Correct.

Q. And would it be fair to say, sir, that that alarm

went out based on what you found at that apartment?

MR. JACOBS: Objection to the question.

THE COURT: Sustained.

BY MR. KATZ:

[142] Q. Can you tell us, sir, why an alarm had not

gone out prior to 11:15 a.m. on January 15, 1970?

MR. JACOBS: Objection.

THE COURT: Sustained.

BY MR. KATZ:

Q. All right. In any event, you had neither an ar-

rest warrant or search warrant, is that correct, when

you went to the premises on January 15, 19707

A. That’s correct.

Q. Now, there was yourself, a Sergeant Hoarty, De-

tective Brady, Detective Seffers and Detective McPart-

land; is that correct?

A. Correct.

Q. You all went there in one car?

A. I can’t recall if it was one or two cars.

Q. And you went to the apartment; is that correct?

A. Correct.

Q. Was anyone on the roof? Did any one of you go to

the roof?

A. At this point I couldn’t be quite sure. But this

is possible.

Q. Was there a stakeout of any sort at that time?

A. At the apartment?

Q. Yes, sir.

[143] A. No, sir.

. All of you went to the door?

I can’t say if all of us went to the door, no.

What unit was Sergeant Hoarty attached to?

He was my sergeant; the 23rd Squad.

From the 23rd Squad?

Right.

And Detective Brady?

From the 23rd Squad.

Detective Seffers?

Manhattan North Homicide Squad.

. And Detective McPartland who was from Man-

hattan North Homicide as well; is that correct?

A. Correct.

Q. Now, you went to the door; is that correct?

A. Correct.

Q. All five of you, as you recall?

A. As I said before, I cannot recall if it was all five

or whether we did disburse some of the men elsewhere.

Sir, you were at the door?

Oh, yes.

Did yov have your gun drawn?

I can’* recall that.

Do you recall whether any of the other officers

[144] had their guns drawn?

A. Not at the moment, no.

Q. Now, prior to arriving at the apartment, had you

made any attempt to ascertain whether the defendant

was there?

A. That 1 can’t recall.

OPOPOPOPOPO

OPOrPO

Q. Now, you looked through the keyhole, did you,

Mr. Malfer?

A. I don’t recall that either.

Q. Did you look under the door?

A. There was light shining from underneath the door.

Q. There was a light shining?

THE COURT: “From underneath the door.”

BY MR. KATZ:

This is seven something in the morning?

Seven-fifteen in the morning.

And the door was locked, was it not?

Yes, it was locked.

And you hears some music coming through?

Yes, sir.

Was it loud?

Loud enough for us to hear.

. Did you secure the apartment, in any event?

MR. JACOBS: I object.

[145] THE COURT: Did you what?

MR. KATZ: Secure the apartment.

THE COURT: What do you mean by that?

MR. KATZ: Well, place a guard there.

THE WITNESS: After we entered the apartment?

MR. KATZ: Yes.

THE WITNESS: To the best of my knowledge, I be-

lieve we did.

BY MR. KATZ:

Q. All right, let’s get you in the apartment first.

You knocked on the door and there was no resnonse;

is that correct?

A. Right.

Q. And then what happened?

A. Well, after making—Well, after trying to gain

entry by calling to the attention if someone would an-

swer the door, we then called for Emergency Service.

MR. BURNS: I’m sorry, I didn’t hear him.

THE COURT: “After trying to get entry, we called

for the Emergency Service.”

OPOPO PO PO

BY MR. KATZ:

Q. Well, didn’t you try to force entry yourself?

A. No, sir.

Q. Weren’t you concerned that the person you were

[146] coming to visit might get out the fire escape while

you were calling Emergency Service?

A. Well, there, again, I repeat, we’re going back a

long time.

I assume if we worked the way we normally worked,

that we had that situation covered.

Q. Well, did anyone go up to the roof?

A. I cannot recall who went to the roof.

Q. Someone went and made a telephone call or radio

call to Emergency Service? Is that correct?

A. That’s correct.

Q. And no one in your party attempted to get through

the door; is that correct?

A. No, sir.

Q. And no one attempted to get in through a fire

escapt, if there was one?

A. No, sir, not at that time.

Q. How long did you wait at the door before Emer-

gency Service came?

MR. JACOBS: Judge, I’m going to object.

I don’t see the relevancy of this line of questioning.

THE COURT: I suppose it has to do with whether

or not the officer wanted to utilize, as the statute [147]

seemingly permits him to, utilize entry.

I suppose the point of Mr. Katz is, if they really

wanted to get the defendant, they wouldn’t have called

Emergency Service.

BY MR. KATZ:

Q. How long were you waiting there?

THE COURT: It bears on the factual issue here.

THE WITNESS: How long were we waiting for

Emergency Service?

BY MR. KATZ:

Q. Yes.

A. Ican’t recall.

Was it more than five minutes?

I don’t recall.

More than a half-hour?

A. Ican’t recall.

THE COURT: Do you recall the nature of the door,

was it of wood or anything else?

THE WITNESS: The door, to the best of my recol-

lection, was of metal.

And the reason why we would have to call Emergency

Service was because the door was such a problem to us,

we couldn’t handle it alone. This is [148] why we were

called in.

[149] BY MR. KATZ:

Q. What attempts did you make to get into the door?

A. There again I can recall trying to force the door

ourselves, but we were not equipped with the proper tools.

Q. Did you have a gun?

A. Did I have a gun?

Q. Yes.

A. Yes, I had a gun.

Q. To your knowledge, did the other officers with

you have guns?

A. Every officer is armed.

Q. There came a period of time that Emergency

Service responded; is that correct?

Correct.

And how was entry through the door obtained?

They forced the door open.

With a jimmy of some sort, axe?

Whatever tools they have.

They smashed the door down?

They opened the door, yes.

How? What did they do?

They forced the door open.

With what?

Whatever tools they had at their disposal.

Q. Do you remember?

I don’t remember.

Were you there?

Yes,

OPO

POP>U>OPOPOPODOD

—

Q. When you say they forced the door, did they break

into the apartment?

THE COURT: Well, that’s a conclusion that one

could draw.

Q. Did they huse a hammer or axe—

THE COURT: Please. That’s a conclusion that one

can draw from having a door forced open.

Q. Do you have any recollection at all, Mr. Malfer?

A. Ican recall crowbars.

Q. You can recall crowbars?

A. Yes.

Q. Do you recall crowbars being used?

A. Yes.

Q. And you you recall the door collapsing after the

crowbars were used?

A. I recall the door being opened.

Q. Then you walked in; is that right?

A. Correct.

. Where was the light?

THE COURT: Do you recall where the lights were

[151] at that time?

THE WITNESS: To the best of my recollection, I

believe the entry was a slight hallway prior to entering

a room. As to where the light was shining from at this

point I can’t say. It could very well have been from the

ceiling or from a lamp. I cannot recall at this point.

BY MR. KATZ:

Q. You have no present recollection?

A. No, sir.

Q. You got into the apartment. How many rooms?

Do you recall how many rooms there were in that apart-

ment?

A. Not at the moment, no, sir.

Q. And there were how many? There was you. There

were five of you, is that correct, five detectives?

A. Plus the Emergency Service.

Q. How many Emergency Service men were there,

do you recall?

A. I believe there were two.

Q. Where did you go upon gaining entrance to the

apartment?

A. Seached the apartment, checked the rooms.

Q. Well, how many rooms were there? I beg your

pardon?

[152] Q. How many rooms?

A. I repeat, I do not recall.

Q. Was it a large apartment?

A. No.

Q. Small?

A. To the best of my recollection.

Q. How long did it take you. to search the apart-

ment?

A. That I can’t recall.

Q. What were you searching for?

A. At that moment, we were searching for Mr. Theo-

dore Payton.

Q. All eight of you, approximately; is that correct?

A. Whatever number was there.

Q. Well, there were five detectives and two or three

Emergency Services people?

A. Yes.

Q. That makes about eight, doesn’t it?

MR. JACOBS: Seven.

Q. Seven or eight. Divided up, go into different

rooms?

A. I assume they did, yes.

Q. Not assume. What did you do?

A. I would take it for granted.

Q. Don’t take anything for granted. What did you

do?

[153] THE COURT: Excuse me.

If you can’t remember, say you don’t remember, and

we'll go on from there.

A. I don’t remember.

Q. Do you remember how long you were in the

apartment that morning?

A. I don’t remember.

Q. What was the first thin

in the apartment?

A. Started a search of the apartment.

g you did when you got

a cE UN CR

Q. Where did you search?

A. I don’t recall.

Q. Did you search — the bed?

; searched every place.

° Dia you search in a drawer for Mr. Payton?

A. No, we didn’t search in a drawer for Mr. Payton.

Q. You did open drawers, did you not?

A. Yes.

Q. You opened closets?

. Yon took out the contents of drawers, did you

not? "

Q Did you have envelopes with you, Property [154]

lopes?

ie Pid we have Property? No, we did not.

Q. You searched cupboards?

S Whe lse did search?

se did you }

4 pened say ba searched the whole apartment.

Q. Was there a mattress?

A. Yes.

Q. Did you tear the mattress apart?

A. Didn’t tear it apart, to my recollection. But we

i it.

“a eae ‘oa, would it be fair to say, Detective,

that you ransacked that apartment?

MR. JACOBS: en

OURT: Sustained.

@. You weren’t looking for Mr. Payton in the cup-

board, were you? ‘He

MR. JACOBS: ts

RT: Sustained. ;

ta py expect to find Mr. Payton in a bureau

drawer? beet

MR. JACOBS: Sa

URT: Sustained.

ya were searching the apartment, were you not?

[155] A. Yes. ‘

. For property, were you not?

MR. JACOBS: Objection.

THE COURT: Sustained.

Q. Were you searching for items of evidence?

MR. JACOBS: Objection.

THE COURT: Sustained.

Q. What were you searching for?

A. Mr. Payton.

Q. Ina dresser?

MR. JACOBS: Objection.

THE COURT: Sustained.

Q. You did open dressers, did you not?

A. Yes.

THE COURT: He already testified he opened drawers,

he opened cupboards, he opened closets, and that he went

in there looking for Mr. Payton. What conclusion should

be drawn, the Court can draw.

Q. Now, you told us that you found, is that correct,

did you find a shotgun in a closet?

THE COURT: Was it you who found the shotgun?

THE WITNESS: I did, yes, sir.

Q. Did you take any other items from that closet?

[156] A. I believe the bandoleer with the shotgun

shells was also there.

Where in the closet was the bandoleer, Mr. Malfer?

I can’t recall that.

Where in the closet was the shotgun?

Also, I can’t recall that.

In what room was the closet located?

. Can’t remember.

THE COURT: Is it necessary to go into, in your

examination, so much detail in view of the concession of

the district attorney that these items were seized il-

legally?

Q. To your knowledge, Mr. Malfer, were you the only

one who in that party removed any items from that

apartment that morning?

A. To the best of my recollection, I was the one who

found the items mentioned.

Q. And to the best of your recollection, no one else

removed anything from that apartment; is that correct?

A. To the best of my recollection, yes, sir.

POPOPO

Q. Now, did you find the shotgun first or did you

find the photos first?

A. Would you repeat that?

[157] Q. Did you find the shotgun first or did you

find the photos of the defendant?

THE COURT: Is that really relevant here, in view

of the concession?

What we’re really concerned with on this yearing you

know, is the issue pertaining to the alleged seizure of the

.30 calibre casing.

MR. JACOBS: Correct, sir.

THE COURT: The officer has been in the apartment.

It’s conceded there was no warrant either for the arrest

or for the search.

MR. KATZ: Your Honor, I think it really bears on

his credibility.

THE COURT: Many things go to credibility, but if

we’re not to draw the line, then you can go down to

infinite detail, which I don’t think is warranted.

MR. KATZ: May I have just that one question?

If he found the Winchester rifle first, of the various

items you say you found that morning?

MR. JACOBS: Objection. He didn’t find a Win-

chester rifle. He found a Winchester shotgun.

THE COURT: Is that the item you found first?

THE WITNESS: That I can’t recall.

THE COURT: Okay. Next question.

[158] BY MR. KATZ:

Q. Where was the living room located with respect

to the doorway?

A. I repeat, this I can’t place in my mind.

Q. Was there a light on in the living room when you

entered?

A. There was a light. As to where the light was

coming from, I cannot remember.

Q. And did you find this .30 calibre Winchester cas-

ing, you personally?

A. Yes, sir.

. You personally?

A. Tothe best of my recollection, it was I, yes.

Q. And when did you find it in point of time after

entering the apartment?

THE COURT: You mean how long after he entered

the apartment?

Q. Yes.

A. Ican’t recall how long, no, sir.

Q. Was it sort of standing up like a trophy on top

of a stereo set?

MR. JACOBS: Objection.

THE COURT: Sustained.

. Where was it located?

[159] A. On top of the stereo in the living room.

Q. Standing up?

A. This I can’t recall.

Q. Did you come upon it as soon as you entered the

apartment?

A. No, I don’t believe I came upon it as soon as I

entered the apartment. I can’t recall exactly when I

spotted it. But I can’t say it was as soon as I entered

the apartment.

Q. Were the other officers searching the apartment

while you were searching?

A. Yes, sir.

Q. And they were searching the living room as well?

A. The whole apartment.

Q. There were only three rooms there, weren’t there,

Detective?

A. I don’t recall how many rooms there were.

Q. But you distinctly remember seeing that casing;

is that correct?

A. Yes, sir.

Q. When you found that casing, Detective, were there

other officers in that living room?

A. I can’t recall that.

Q. What did you do with it when you found it?

[160] <A. I brought it back with me.

Q. Where did you put it?

A. I brought it to the 23rd Precinct.

Q. Was this a rifle casing?

A. Yes, sir

BR iin A fl > pA hae

Q. Now, were there any other items in plain view in

the living room?

MR. JACOBS: Objection.

THE COURT: Sustained.

Q. Can you describe for us what was contained in

the living room, furniture?

A. Furniture?

Q. Yes, whatever. Tell us what was there?

A. No, I cannot recall that, no.

Q. Do you recall a stereo set?

A. No.

Q. You don’t recall a stereo set?

A. No.

Q. Do you recall a casing sitting on top of a what?

A. Of a stereo set.

Q. I thought you just told us you don’t recall the

stereo set?

A. I assumed you were asking a description of the

stereo set.

[161] Q. No, no. Is that the only item of furniture

or any other furnishing that you recall in that apart-

ment, is a stereo set?

A. I made a notation that this was found on top of

a stereo set.

Q. But do you have any independent recollection as

you sit there now about any other item of furniture

or furnishing that was in that apartment?

MR. JACOBS: Objection.

THE COURT: Overruled.

A. Not at this moment.

Q. At any moment. Did you have any a year ago?

MR. JACOBS: Objection.

THE COURT: Sustained. Anything else?

MR. KATZ: Yes, your Honor.

Q. Do you recall, Mr. Malfer, when on January 14,

1970 you first learned of where Mr. Payton lived?

MR. JACOBS: Objection, Judge.

THE COURT: Sustained.

Q. Did you go to that apartment building on January

14, 1970 looking for the defendant?

A. At this moment I can’t recall whether we did or

not.

Q. Well, looking at Exhibit 2, your book, see if that

refreshes your recollection.

[162] THE COURT: Would you do that, please.

THE WITNESS: Surely.

A. Ihave a notation here.

THE COURT: Just bear with me a moment.

A. Ihave a notation—

THE WITNESS: Can I use my notes?

THE COURT: Yes.

A. That on January the 14th, 1970, the house where

Teddy lived—

. Mr. Payton?

A. 682 East 141st Street, top floor was pointed out

to me.

[163] BY MR. KATZ:

Q. Was it pointed out to you?

A. Yes.

. While you were in that—you were right there in

the building, is that right?

A. Yes.

Q. Did you do anything to effect arrest on that date

of Mr. Payton?

A. I beg your pardon?

THE COURT: Did you do anything on January

14th—

Q. Toeffect the arrest of Mr. Payton.

A. No, sir, I did not.

Q. You did not?’

A. No.

Q. And you had all the information then, you tell

us, that is, on January 14th, 1970, that you had the

following day; is that correct? There was nothing added

to your knowledge to effect the arrest on the 15th, isn’t

that true?

MR. JACOBS: Objection, Judge.

THE COURT: Sustained.

Q. Did you make any effort to obtain an arrest war-

rant on January 14th, 1970?

[164] MR.JACOBS: Objection, Judge.

THE COURT: Is it conceded, Mr. Jacobs, that at

no time up until the time of entry in the apartment no

effort was made to either—to obtain either a search war-

rant or an arrest warrant?

MR. JACOBS: That is correct, sir.

THE COURT: So why do we have to go into it?

BY MR. KATZ:

Q. All right. Now, were you told, Mr. Malfer, by

- . these witnesses when Mr. Payton would be at

ome

MR. JACOBS: Objection.

THE COURT: Sustained.

MR. KATZ: All right.

Q. Now, on January 16, 1970, you questioned Mr.

Payton at the 23rd Squad; is that right?

THE COURT: I think there was testimony he came

in on that day.

MR. JACOBS: Yes.

(Witness peruses notes.)

A. Yes.

Q. All right.

Now, prior to your interrogating Mr. Payton on the

16th of January, 1970, you had been to his apartment

[165] and had taken out these various items that we’ve

discussed here today ; is that correct?

A. Yes.

Q. All right. Specifically you had taken out a .30

caliber Winchester rifle casing; is that right?

A. Yes, sir.

Q. Now, on the 16th of January, 1970, you questioned

ao: Payton about a .30 caliber Winchester rifle, did you

A. Yes, sir.

Q. Where was that casing located when you physically

located it when you questioned Mr. Payton?

MR. JACOBS: Objection.

THE COURT: Sustained.

. Now, when you took that .30 caliber casing you

had knowledge, had you not, that the decedent was killed

with a .30 caliber Winchester; is that correct?

A. That’s correct.

Q. You learned that on the 12th I assume; is that

right?

A. It’s possible, yes.

Q. Well—

THE COURT: You learned it sometime after you

[166] were assigned to investigat the case?

THE WITNESS: Yes.

BY MR. KATZ:

Q. Certainly before the 15th of January you knew

that; is that correct?

A. Yes.

Q. All right.

And when you questioned Mr. Payton did you show

him the casing?

MR. JACOBS: Objection.

I think we’ve had this testimony, what was said and

what was not said.

THE COURT: Yes. Do you want to go into the hear-

ing again?

MR. KATZ: Well, I thought—

THE COURT: Because we covered it rather com-

prehensively last time, and in evidence are the two

pages, People’s 3, and that reflects what was done at

the time.

Now, you were rather comprehensive in your cross-

examination, Mr. Katz, I can assure you from my own

notes.

MR. KATZ: May we have three minutes or so?

[167] THE COURT: Three minutes for a recess?

MR. KATZ: Yes, please.

THE COURT: Sure thing.

(Whereupon, a short recess was declared by the

Court.)

AFTER RECESS

HEARING CONTINUED

(Mr. Jacobs, Mr. Katz, Mr. Burns and the de-

fendant are present.)

DET. MAL MALFER, having been previously duly

— resumed the stand and testified further, as fol-

ows:

THE COURT: All right; did that do it, Mr. Katz?

MR. KATZ: Yes, your Honor, I believe so.

aay sata All right.

. OBS: I just have maybe one question.

THE COURT: One question? r tanstl

MR. JACOBS: One brief question.

REDIRECT EXAMINATION

BY MR. JACOBS:

Q Detective Malfer, you said you spoke to several

witnesses before you went to Mr. Payton’s [168] apart-

ment; is that correct?

A. Yes, sir.

. Was one of those witnesses at th -

uary 12th, 1970? cee ee ee

MR. BURNS: I object.

THE COURT: Sustained.

= eae = ghana the question.

: ere were two questions,

are withdrawing each of them? = re

MR. JACOBS: Yes.

THE ih gps Okay.

Does that complete the hearing? Both sides rest?

~ ag — Yes, your ag se}

e would request some time to submit .

THE COURT: All right. re

MR. KATZ: Memorandum of law.

THE COURT: Very well.

MR. KATZ: With respect to th

third item, item C. (hie suse Bec

THE COURT: How much time do you want? It’s

an interesting question. A week?

MR. KATZ: One week I guess.

SUPREME COURT

TRIAL TERM

NEW YORK COUNTY

June 4, 1974

THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF

THEODORE PAYTON, DEFENDANT

DECISION OF SUPREME COURT,

NEW YORK COUNTY

ON MOTION TO SUPPRESS

HAROLD BIRNS, J. The defendant moves for an order

suppressing certain items taken by the People from his

apartment.

At a hearing on this motion the sole witness was De-

tective Malfer. He testified that on January 12, 1970 at

8:40 A.M. a robbery occurred at a gas station at 1895

First Avenue and the manager was shot and killed.

Detective Malfer was assigned to this case on that day.

On January 14, 1970, as a result of information obtained

from eyewitnesses at the scene of the crime and other

information presented to him, he learned the name of the

defendant as the person who allegedly committed the

crime. He also learned of defendant’s address.

On January 15, 1970, at approximately 7:30 in the

morning, Detective Malfer and five other police officers

and detectives went to the defendant’s apartment. De-

tective Malfer knocked on the door but there was no

answer. However, the detective noticed a light coming

from under the door and heard the radio playing. The

detective attempted to open the door, which was con-

structed of metal, without success. The Police Emergency

Services Division was summoned to open the door by

force, which was accomplished. Upon entering the apart-

ment, the police officers did not find the defendant. How-

ever, in their search of the apartment the police con-

fiseated a Winchester shotgun with 14 shells, found in a

closet. Also seized were three photos of defendant in a

ski mask and a bill of sale for the shotgun, found in a

drawer. Detective Malfer also seized a .30 calibre Win-

chester casing, which lay on top of the stereo in the

living room in “plain view.’

The police had neither an arrest nor search warrant

at the time they entered the apartment. The District

Attorney, however, asserts the presence of the police in

the apartment was legal. Accordingly, the District At-

torney maintains that the .30 calibre Winchester casing

allegedly seen on the top of the stereo was in “plain

view” and should not be suppressed. He concedes, how-

ever, that the items found in the closet and drawer should

be suppressed.

At the time in question, January 15, 1970, the law

applicable to the police conduct related above was gov-

erned by the Code of Criminal Procedure. Section 177

of the Code of Criminal Procedure as applicable to this

case recited: “A peace officer may, without a warrant,

arrest a person * * * 3. When a felony has in fact been

committed, and he has reasonable cause for believing the

person to be arrested to have committed it.” Section

178 of the Code of Criminal Procedure provided: “To

make an arrest, as provided in the last section [177],

the officer may break open an outer or inner door or

window of a building, if, after notice of his office and

purpose, he be refused amittance.”

It is abundantly clear from Detective Malfer’s testi-

mony that a homicide had been committed, and the police

had reasonable cause to believe that the defendant had

committed the felony.

Although Detective Malfer knocked on the defendant's

door, it is not established that at this time he announced

that his purpose was to arrest the defendant. Such a

declaration of purpose is unnecessary when exigent cir-

cumstances are present (People v. Wojciechowski, 31

AD2d 658; People v. McIlwain, 28 AD2d 711).

“Case law has made exceptions from the statute or

common-law rules for exigent circumstances which may

allow dispensation with the notice * * * It has also been

held or suggested that notice is not required if there is

reason to believe that it will allow an escape or increase

unreasonably the physical risk to the police or to in-

nocent persons”. (People v. Floyd, 26 NY2d 558, 562.)

The facts of this matter indicate that a grave offense

had been committed; that the suspect was reasonably

believed to be armed and could be a danger to the

community; that a clear showing of probable cause ex-

isted and that there ong reason to believe that

the suspect was in th ises being entered and that

he would escape if not swiftly apprehended. From this

fact the court finds that exigent circumstances existed to

justify noncompliance with section 178. The court holds,

therefore, that the entry into defendant’s apartment was

valid.

There is also no lack of cases to substantiate the

People’s argument that any evidence in plain view might

properly be seized (Ker v. California, 374 US 23;

Coolidge v. New Hampshire, 403 US. 443; People v.

Ball, 41 AD2d 689). The observation of the shell casing,

under the circumstances, was inadvertent.

The court rules that the Winchester shotgun, serial

number 085194, and a bandolier with 14 shells found

in a closet, and the three photos of the defendant in a

ski mask, and a bill of sale for the shotgun found in

a drawer are suppressed. The court finds, however, that

the .30 calibre Winchester casing found in plain view

should not be suppressed.

ORDER OF AFFIRMANCE OF THE

APPELLATE DIVISION, FIRST DEPARTMENT

At a term of the Appellate Division of the

Supreme Court held in and for the First

Judicial Department in the County of

New York, on December 16, 1976.

Present—Hon. Theodore R. Kupferman,

Justice Presiding,

Vincent A. Lupiano

Louis J. Capozzoli

Myles J. Lane, Justices.

3741

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT

—against—

THEODORE PAYTON, DEFENDANT-APPELLANT

ORDER OF AFFIRMANCE ON APPEAL

FROM JUDGMENT

An appeal having been taken to this Court by the

defendant-appellant from the judgment of the Supreme

Court. New York County (McQuillan, J.) rendered on

October 29, 1974, convicting him of the crime of felony

murder, and said appeal having been argued by Mr.

Elliott Schnapp of counsel for the appellant, and by Mr.

Henry J. Steinglass of counsel for the respondent; and

due deliberation having been had thereon,

EPO OY 01) > *

It is unanimously ordered and adjudged that the judg-

ment so appealed from be and the same is hereby, in all

things, affirmed.

ENTER:

Clerk

Counsel for appellant is referred to § 606.5, Rules of

the Appellate Division, First Department.

Chronological List of Important Dates

Riddick v. New York (No. 78-5421)

April 16, 1974: Indictment filed.

April 25, 1974: Appellant arraigned in Supreme Court,

Queens County—enters plea of not guilty.

May 3, 1974: Appellant moves to suppress physical evidence.

June 18, 1974: Hearing on motion to suppress physical evi-

dence.

July 15, 1974: Motion to suppress evidence denied.

August 19, 1974: Appellant withdraws plea of not guilty

and enters plea of guilty to criminal possession of a

controlled substance in the sixth degree.

September 24, 1974: Appellant sentenced to 214 to 5 years

imprisonment.

March 28, 1977: Judgment of conviction affirmed without

opinion by the Appellate Division, Second Department,

one Justice dissenting.

July 11, 1978: Conviction affirmed by New York Court of

Appeals by vote of 4-3.

September 14, 1978: Notice of appeal to United States Su-

preme Court filed.

aouEEEne wa aeemee

re —

OR OOS TE et eee e rete +

20 Ee oer .

Indictment For

Crim. Poss. of Cont. Sub. 5th Deg.

Crim. Poss. Hypo. Inst.

SUPREME COURT

CRIMINAL TERM

QUEENS COUNTY

No. 8072-74

[Filed April 16, 1974]

THE PEOPLE OF THE STATE OF NEW YORK

against

OBIE RIDDICK, DEFENDANT

FIRST COUNT

THE GRAND JURY OF THE COUNTY OF QUEENS,

by this indictment, accuse the defendant of the crime of

CRIMINAL POSSESSION OF A CONTROLLED SUB-

rin ay IN THE FIFTH DEGREE committed as

ollows:

The defendant, above named on or about March 14,

1974 in the County of Queens, State of New York, know-

ingly and unlawfully possessed and had under his control

a quantity of a dangerous drug, to wit, a quantity of

heroin of an aggregate weighc of more than one eighth

of an ounce.

SECOND COUNT

THE GRAND JURY OF THE COUNTY OF QUEENS,

by this indictment, accuse the defendant of the crime of

CRIMINALLY POSSESSING A HYPODERMIC IN-

STRUMENT, committed as follows:

The defendant, aforenamed on or about March 14,

1974 in the County of Queens, State of New York, know-

ingly and unlawfully posssesed a hypodermic syringe or

hypodermic needle.

/s/ ({Ilegible]

District Attorney

~~ “2 eee oe

SUPREME COURT, QUEENS COUNTY

[3]

SUPPRESSION HEARING TRANSCRIPT

* * * *

(At this point Assistant District Attorney Donald

Feldman appears with Assistant District Attorney

Richard Wagner on behalf of the People.)

COURT CLERK MANCHER: Page 3, number 3; in-

dictment 8072.

THE COURT: Hearing to suppress physical evidence.

Obie Riddick.

[4] Mr. Nathaniel Welkes of the Legal Aid Society

is present, and for the defendant Obie Riddick, and Mr.

Richard Wagner for the People.

COURT CLERK MANCHER: Obie Riddick. Are

you Obie Riddick?

THE DEFENDANT: Yes.

COURT CLERK MANCHER: Is Nathaniel Welkes,

present, your attorney?

THE DEFENDANT: Yes.

THE COURT: Call your first witness.

MR. FELDMAN: People call Detective Bisogno.

(The first witness takes the stand and is duly sworn

before the Court.)

COURT OFFICER: People call Detective Fred Bis-

ogno, shield number 2732; assignment 112 P.I.U.

FRED BISOGNO, a detective, having been called as

a witness on behalf of the People, having first been duly

sworn, testified as follows:

DIRECT EXAMINATION

BY MR. FELDMAN:

. Detective Bisogno, how long have you been a

member of the New York City Police Department?

A. Ten and a half years. |

. And how long have you been a detective?

[5] <A. Five years.

Q. And to which unit are you assigned now? _

A. Presently I am assigned to the 112 Precinct In-

vestigating Unit.

Were you assigned to another unit previous to

that?

s. Tee.

Q. Which?

A. 17th District Robbery Squad.

Q. Up until what time were you working with the

Robbery Squad?

A. Until October of ’73.

. Now, I call your attention to the date of March

14th, 1974, at about 12:00 noon, at 127-08 165th Street,

in the County of Queens.

Did you have occasion to arrest the defendant, Obie

Riddick?

A. Yes, sir, I did.

Q. And why die you arrest him?

A. I had gone there to arrest him for a robbery

charge.

Q. Can you tell us briefly if you had any informa-

tion connected with the defendant whereby he committed

these robberies?

[6] MR. WELKES: I will object to that.

THE COURT: Sustained.

MR. FELDMAN: Your Honor, I think the C.P.L.

would allow hearsay to establish a material fact.

THE COURT: You went there to arrest him, is that

it?

THE WITNESS: Yes.

THE COURT: This is a motion to suppress the evi-

dence. He went there to arrest him on another charge.

BY MR. FELDMAN:

Q. Who were you with on this occasion?

A. Detective Ferrick (Phonetic spelling), Detective

Burnside, and Parole Officer Tinner (Phonetic spelling).

THE COURT: A parole officer?

THE WITNESS: Yes, sir.

THE COURT: Was the defendant on parole at the

time?

ee -

THE WITNESS: I believe he was. I don’t know.

THE COURT: What was the parole officer doing

there if he was not on parole?

THE WITNESS: He came to assist us.

[7] THE COURT: I sure don’t understand that.

BY MR. FELDMAN:

Q. When you arrived at this address—by the way,

what sort of building is this address?

A. It’s a two-family wood frame house.

Q. Tell us briefiy what happened when you arrived

at that address?

A. I knocked at the defendant’s door, which was then

opened by, I believe, the defendant’s son; a three-year

old male Negro opened the door.

Upon the door being opened, I was able to look into

a bedroom where I saw the defendant seated in bed with

the sheet waist high.

I then walked in, announced my authority, asked him

if he was Obie Riddick. He said yes. And I told him

he was under arrest, and I then informed him of his

rights.

THE COURT: You actually arrested him on these

other charges?

THE WITNESS: Yes.

Q. Had you informed him he was under—when you

informed him he was under arrest, where was he?

A. He was lying in bed in a sitting up position.

Q. How much of his body was visible to you at [8]

the time?

A. Half his body.

Q. Were his hands visible to you at that time?

A. No, they were not.

Q. Why not?

A. They were under the sheet.

Q. And after you informed him he was under arrest,

what happened then?

A. I asked him to get out of bed, take his hands out

from under the sheet and get out of the bed, at which

time he did.

He was standing before me clad in Jockey shorts, only.

I searched the bed area, mattress, under the pillow,

and I also searched a chest of drawers approximately

two feet from the bed, at which time this contraband

was discovered.

. Where was the contraband discovered?

A. It was discovered in the drawer in this chest of

drawers I had searched.

Q. How many drawers were in this chest?

A. I don’t recall. Approximately four or five.

Q. Which drawer was this?

A. Top drawer.

[9] @Q. And could you describe for us in a little more

detail where the dresser stood with relation to the bed?

A. In width, the dresser was approximately two feet

from the bed; say about the center of the bed.

Q. And on which side was it?

A. Facing the bed, or facing toward the headboard,

it would be on the right side.

Q. What did you find in the drawer?

A. I found a quantity of narcotics, narcotic instru-

ments, syringes «. that type, spoons.

Q. What did you do with those items?

A. They were vouchered at the 112 Precinct.

Q. And did there come a time in the regular course

of business when you received laboratory reports on

these items?

A. Yee, I did, sir.

Q. Can I see them? Do you have another copy of the

lab report with you?

MR. FELDMAN: At this time I offer as People’s

Exhibit 1 the lab reports.

THE COURT: Mark it People’s 1.

Do you have the parole officer here?

MR. FELDMAN: Not yet.

[10] MR. WELKES: No objection for the purpose of

the hearing, as to either the evidence or the lab reports.

THE COURT: Was the parole officer present?

THE WITNESS: I believe he was in an adjoining

room.

COURT OFFICER: People’s Exhibit 1 received and

marked in evidence.

THE COURT: Did he meet you at the station house?

THE WITNESS: I had discussed the identification

of Mr. Riddick with him. His appearance had changed

some from a photo which was shown to—

MR. WELKES: Objection.

THE COURT: Overruled. I will take it.

Why did you discuss it with him?

THE WITNESS: We tried to ascertain the where-

abouts of the defendant.

THE COURT: Why did you discuss it with his pa-

role officer?

THE WITNESS: We felt he may know the where-

abouts of the defendant.

THE COURT: Was he on parole? That you [11]

don’t know?

THE WITNESS: At the time I spoke to him, I be-

lieve either he had just come off parole or he still had

time on parole.

THE COURT: It’s very important.

All right. Continue. Excuse me. I didn’t mean to

raise my voice.

THE WITNESS: I understand.

THE COURT: It’s very important that we know

whether he was on parole at the time or off parole.

BY MR. FELDMAN:

. Detective, would you read to us the pertinent in-

formation that is on here? Starting from the top?

A. Laboratory classification. Narcotics. The date is

4-4-74. And it was received from myself, Detective Fred

Bisogno, shield 2732, 112th Precinct Investigating Unit,

on 3-15-74. The following listed below—Laboratory num-

ber is 04047.

THE COURT: It speaks for itself in evidence. Why

are we reading it into evidence?

MR. FELDMAN: Okay.

aon On 1. oo pe de introduction of —

: No on for the purpose

the hearing he said. ; . sal ist

MR. WELKES: Yes.

I want to voir dire the officer somewhat on this.

THE COURT: What’s that?

MR. WELKES: I want to voir dire the officer some-

what on this.

THE COURT: Go ahead.

VOIR DIRE EXAMINATION

BY MR. WELKES:

Q. Officer, I ask you to look at this plastic envelope

in which is enclosed a manila envelope, and would you

tell me what this on the plastic envelope under the name,

fficer’s signature, refers to?

, A. This is the officer’s signature. This would be the

lab technician’s signature.

MR. WELKES: I see. Okay.

THE COURT: All right.

MR. WELKES: - No objection. ,

THE COURT: Continue, Mr. District Attorney.

MR. FELDMAN: I offer this in evidence now as

People’s Exhibit 2.

THE COURT: People’s 2.

MR. WELKES: No objection for the purpose of [13]

the hearing. ,

THE COURT: Deemed marked. rae

MR. FELDMAN: No further questions of this wit-

ness.

THE COURT: Any cross?

MR. WELKES: Yes.

CROSS-EXAMINATION

BY MR. WELKES:

. Detective Bisogno, when did you first discover

that the defendant was charged with a robbery or the

subject for investigation purpose of a robbery?

A. Approximately June of 1973.

Now, in June of 1973, when you discovered this

information, did you seek out and get an arrest warrant

for the defendant?

A. No, sir, I did not.

Q. At any time between June of ’73 and March

14th of 1974, did you get an arrest warrant for the

defendant?

A. No, sir. I attempted to get a grand jury warrant.

Q. Did you get a grand jury warrant?

A. No, I did not.

THE CUURT: In other words, it had not been pre-

sented?

(14) THE WITNESS: It had not been presented.

Q. And when for the first time did you learn the

whereabouts of the defendant?

A. I believe January of ’74.

Q. In January of ’74, when you first learned the

whereabouts of the defendant, did you attempt to get a

warrant at that time?

A. No, sir, I did not.

Q. In other words, when you went to this house, you

did not have an arrest warrant?

A, I did not.

Q. Now, did anybody, prior to your entering the

house, did anybody else enter the house?

A. Yes, sir.

Q. Who was that?

A. The parole officer.

Q. To the best of your knowledge, did he search the

apartment at all?

. Tothe best of my knowledge, no, he did not.

Q. And he had entered the apartment?

A. Yes, he did.

Q. And he had a conversation, correct?

No, sir, he did not have a conversation.

And did you enter the apartment with your [15]

brother officers?

A. I did, too.

Q. At that time did you have your weapons drawn?

. A. I did not.

Q. To the best of your knowledge, did any of your

brother officers have their weapons?

A. To the best of my knowledge, no, sir.

eer

Q. And how many officers entered the apartment

with you?

A. One other.

Q. Which officer was that?

A. Detective Ferrick (Phonetic spelling).

. And when you entered the door of the apartment,

where did Detective Ferrick go? To the best of your

knowledge?

A. To the best of my knowledge, he would have been

standing to the left of me, or behind me, when we en-

tered the door.

Q. You are inside the apartment. What, if anything,

did you say to the defendant when you first saw him?

A. I announced my authority as a police officer. I

then asked the defendant his name and identity, and he

told me who he was. And then I placed him under

arrest.

[16] Q. How did you place him under arrest? Did

you stand by—

A. I told him—I announced my authority after find-

ing his identification, asking him who he was. I an-

nounced to him that he was under arrest for robbery.

Q. Where were you when you announced to him that

he was under arrest?

A. Standing over the bed.

THE COURT: You advided him of his rights at that

time?

THE WITNESS: Yes.

Q. You say you were standing over the bed, correct?

A. Yes.

Q. And where was Detective Ferrick (Phonetic

spelling) ?

A. I don’t recall at that time. His exact location,

I don’t remember.

. Was he on the other side of the bed?

A. Idon’t recall. -

THE COURT: He doesn’t recall.

Q. Did you have your weapon drawn at that time?

- A. No.

Q. Did you take out any handcuffs?

[17] A. At that point, no, sir.

ge eee omens

Q. When you—you told us the defendant was seated

in bed?

A. He was seated up.

Q. Did you ask the defendant to get out of bed?

A. Yes.

Q. After the defendant got out of bed, did you place

any cuffs on him?

A. No. No, sir.

Q. Did either of your brother officers place any cuffs

on him, to the best of your knowledge?

A. To the best of my knowle“ze, no, sir.

Q. And you then commenced the search of the apart-

ment?

A. I did.

Q. Was the defendant handcuffed at the time you

commenced the search of the apartment?

A. I don’t believe so.

Q. Was the door left open at the time you commenced

to search the apartment?

A. Which door, sir.

Q. The front door?

A. I don’t recall.

Q. Who was watching the defendant at the time

[18] you searched the apartment?

A. My partner.

Q. Did he have his gun drawn?

A. No.

Q. Did he have the defendant in custody?

A. By custody, what do you mean?

2. ag he holding him? Was he touching him?

. No.

Q. Where was the defendant?

THE COURT: (Interjecting) He was not free to

leave, was he?

' THE WITNESS: No.

THE COURT: He was under arrest, was he?

THE WITNESS: Yes, sir.

BY MR. WELKES:

Q. What would have happened if he had tried to walk

out the door?

A. He would have been detained.

Q. Where was he standing with your brother officer

at the time you conducted the search of the room?

A. He would have been to my left, approximately

three feet from me, my brother officer facing him.

Q. Was your brother officer between you and [19]

him?

A. To the best of my knowledge, he was.

Q. Was your brother officer between him and that

dresser?

A. I don’t recall.

THE COURT: What does that have to do with it?

A. (Continuing) I don’t recall. He moved around.

I know that. |

Q. And you then searched the bed, am I correct?

A. That’s correct.

THE COURT: You searched the drawer, too.

We were all over that.

Q. And you stated you found these items in the

top drawer of the dresser?

THE COURT: That’s true, counselor.

You have a good memory.

MR. WELKES: No further questions.

THE COURT: Step down.

MR. FELDMAN: Just one more question.

REDIRECT EXAMINATION

BY MR. FELDMAN:

Q. Detective, other than this top drawer of the

dresser, what, if any other objects, did you search in this

room?

[20] A. The mattress, under the mattress, under the

pillowcase, and the defendant.

THE COURT: You are looking for weapons, weren’t

you?

THE WITNESS: Yes, sir. And the defendant’s

clothes as he got dressed.

THE COURT: No further questions.

MR. FELDMAN: At this time we’d ask for a brief

continuance to get another witness.

THE COURT: Where is the other witness?

MR. FELDMAN: I am going to try to ascertain that.

THE COURT: It was marked ready. How long is it

going to take you to find out.

M. FELDMAN: I will let the Court know as soon

as pcosible, within the next few minutes.

THE COURT: We’ll take a short recess. You don’t

have a second witness available?

MR. FELDMAN: No, we don’t.

COURT CLERK MANCHER: 8072 of ’74. Jail case,

Obie Riddick. This is People’s witness, Detective Fred

Bisogno, who was previously sworn. Sit down.

[21] THE COURT: Mr. Welkes, I believe you want to

make an application to recall the police officer?

MR. WELKES: Yes.

THE COURT: The police officer is recalled.

He is reminded he is still under oath.

COURT OFFICER MANCHER: The defendant is

present.

RECROSS-EXAMINATION

BY MR. WELKES:

Q. Now, Detective, you remember testifying earlier

that you came to this house with Mr. Tinner. Was that

the parole officer?

A. That’s correct.

Q. And did you discuss with him at any prior time

about going into this apartment?

A. Yes, I did.

. Was he, in effect, your agent when you entered

that apartment?

MR. FELDMAN: Objection.

THE COURT: Sustained.

Q. Did he go into that apartment under your au-

thority?

MR. FELDMAN: Objection.

THE COURT: Sustained.

[22] Q. Did you ask him to go into the apartment

first?

A. Yes, I did.

THE COURT: He went into the apartment?

THE WITNESS: Yes, he did.

THE COURT: Then he came out of the apartment?

THE WITNESS: Yes.

THE COURT: Did you have a conversation or did

he give you a signal?

THE WITNESS: He gave us a signal.

THE COURT: Then you went into the apartment

with your fellow officer?

THE WITNESS: That’s correct.

BY MR. WELKES:

Q. You testified that after you saw him in the bed

you announced your presence and you told him he was

under arrest?

A. That’s correct.

Q. And did you search the bed for weapons?

A. Yes, I &d.

Q. Did you have any apprehension that this man

would be armed?

Yes, I did.

And you did not place any handcuffs on him?

A. No,I did not.

And you did not have your weapon drawn?

My weapon was concealed in my pocket.

Was your hand on your weapon?

A. Yes, it was.

THE COURT: I am more interested in how you got

there, Officer. Did you have any information regarding

this defendant before you went to that apartment?

THE WITNESS: Yes, I did.

THE COURT: Do you have any complainants on

these robberies?

THE WITNESS: Yes.

OPOoOLOyP

Q. How did you happen to go to his apartment as

a result of these robberies?

THE WITNESS: The defendant had been in the

hospital, Harlem Hospital, under an assumed name, and

we had lost all contacts with him.

THE COURT: Why were you looking for him in

the first place?

THE WITNESS: For robberies.

THE COURT: Who identified him?

THE WITNESS: I have two complainants on my own

cases, separate incidents, and there was a [24] case De-

tective Hoffen of the 107th.

THE COURT: These two cases, how did they iden-

tify him?

THE WITNESS: By photos.

THE COURT: You showed them photos of this man

and—

THE WITNESS: We showed them groups of photos.

THE COURT: That was the reason you were going

over to identify him for robbery?

THE WITNESS: Yes.

THE COURT: Now I understand what happened.

BY MR. WELKES:

Q. And you had these identifications made some time

before you actually went to the apartment?

A. That’s correct.

Q. And again, for the record, you did not have an

arrest warrant?

A. I did not.

Q. Had you presented the case to the grand jury

prior to the date of the arrest?

A. No, sir.

THE COURT: No.

Q. But you knew who the defendant was at that

time? Prior to going to that apartment, you knew [25]

who the defendant was who you were looking for?

A. Yes, I did.

Q. Now, did you find any weapons—

A. No, I did not.

Q. (Continuing) —when you entered, when you

searched the apartment?

A. No, I did not.

Q. Do you know, to the best of your knowledge,

whether your brother officer had his weapon in any way

pointed towards the defendant?

A. No, I do not.

MR. WELKES: Ihave no further questions.

THE COURT: Do. you want to step up, Mr. Dis-

trict Attorney.

(At this point, Mr. Wagner and Mr. Henderson and

Mr. Welkes approached the bench to confer with

the Court.)

THE COURT: Any further questions, Mr. District

Attorney?

MR. WELKES: No further questions.

REDIRECT EXAMINATION

BY MR. FELDMAN: (Continuing)

Q. Was a weapon used in any of these robberies

for which this defendant was wanted?

[26] A. Yes, sir.

MR. WELKES: I would ask that be stricken.

THE COURT: I will take it.

MR. FELDMAN: No further questions.

THE COURT: Step down.

Do you rest again, Mr. District Attorney?

MR. FELDMAN: Yes.

THE COURT: There will be no further witnesses

called?

MR. FELDMAN: No, Your Honor.

THE COURT: Do you have any witnesses you wish

to call?

MR. WELKES: No, Judge.

THE COURT: Decision is reserved.

I want the minutes, Mr. Stenographer.

MR. WELKES: I'd like to make a motion to sup-

press the evidence at this time. Your Honor, mention

has come up of a parole officer who was present at the

time and who, in fact, entered the apartment first at the

direction of the police officer. To all intents and purposes,

this parole officer was an agent, and I believe that there

has been no establishment whether or not the defendant

was, in fact, on parole at the time, and I believe, if a

parole officer who is—only (27] if the parole officer is

presently the parole officer of the defendant, the de-

fendant is on parole, the parole officer has the right to

enter the apartment.

I believe here, in effect, the police were using a parole

officer to gain entrance to an apartment. Your Honor

mentioned probable cause here. I believe they knew about

this defendant for a long time prior to finally entering

his apartment. They had his identity. They had ample

opportunity to get an arrest warrant; and not only

that, they had ample opportunity to get a search war-

rant. They failed to get both of these things, and many

months transpired.

THE COURT: You may be right, but I think the

only thing to determine here is whether or not the officer

had reasonable grounds to believe a felony had been

committed and reasonable grounds to believe the defend-

ant had committed this felony.

And further, after making the arrest, if that’s es-

tablished, whether or not he had a right to search the

immediate area of the defendant in a search for weapons.

I think these are the two things that have to be decided.

[28] MR. WELKES: As to the immediate area, the

defendant was quite obviously in custody by the time the

search was tnade.

THE COURT: If you want to supply me a memo-

randum—

MR. WELKES: I would ask for a couple of weeks.

THE COURT: You can start off with People versus

Finn (Phonetic spelling), 73 Mise., which is a fairly

recent case, N.Y. sub 2d, 266. I am sorry. 73 Misc.,

266. In that case they cite the most of the other cases

that are relevant, and if you want to give me a memo-

randum, I’d appreciate that.

How much time do you want? .

MR. WELKES: Id like two weeks.

THE COU: July 15th, in Part 21, where I will

be sitting. Thu. is Kew Gardens.

Same bail conditions.

COURT CLERK MANCHER: Same bail conditions.

Remand the defendant.

Decision reserved on the motion.

THE COURT: People versus Finn, 73 Misc., 2d, 266.

[Certificate of Official Court Reporter Omitted]

MEMORANDUM

SUPREME COURT, QUEENS COUNTY

HF/rb CRIMINAL TERM, PART XXI

THE PEOPLE OF THE STATE OF NEW YORK

—againsi—

OBIE RIDDICK, DEFENDANT

BY WILLIAM C. BRENNAN, J.

DATED July 15, 1974

Ind. No. 8072/74

DECISION OF THE SUPREME COURT,

QUEENS COUNTY,

ON MOTION TO SUPPRESS

The defendant moves for an order suppressing heroin

and a hypodermic instrument seized in his apartment

in a search made after an arrest on another charge.

On June 13, 1974, a hearing was held to determine

if such evidence should be suppressed.

Based on the credible evidence adduced at that hear-

ing, the Court makes the following findings of fact and

conclusions of law:

During the course of an investigation into two armed

robberies by Detective Fred Bisogno, the defendant was.

identified by the complainants as the perpetrator. On

March 14, 1974, at about 12:00 noon, Bisogno accom-

panied by Detective Ferrick, Burnside and Parole Officer

Tinner, went to the defendant’s residence at 127-08 165th

Street, County of Queens. Parole Officer Tinner entered

the apartment and later emerged, signalling the detec-

tive that the defendant was inside. It is unclear from

the evidence whether Riddick was on probation at this

time. Upon receiving the signal, Detective Bisogno

knocked on the apartment door which was opened by

the defendant’s three year old son. Through the open

door, the officer observed the defendant in his bedroom

sitting in bed covered to the waist by a sheet. Entering

the apartment with Detective Ferrick, Bisogno announced

his authority and asked the defendant if he was Obie

Riddick. When the defendant answered “yes”, the officer

told him he was under arrest and informed him of his

rights. Riddick was then told to get out of the bed. When

the defendant complied with the request, the detective

noted that he was unclothed except for a pair of jockey

shorts. After Obie Riddick exited from the bed, Bisogno

searched the bed and a chest of drawers two feet from

the bed and the defendant’s clothing while Riddick

dressed. In the top drawer of the chest the officer found

the physical evidence which the defendant seeks to have

suppressed. In response to defendant’s counsel’s question

“did you have any apprehension that this defendant would

be armed”, the officer replied “yes”’.

Based on the credible facts adduced at the hearing,

the Court reaches the following conclusions of law:

For this search and seizure to be reasonable within

the meaning of the Fourth Amendment, two tests must

be met. First: is the arrest here a lawful one? Second:

if the arrest was lawful, did the search and subsequent

seizure exceed the bounds set forth in Chimel v. Cali-

fornia (395 U.S. 766)?

Under section 140.10(1)(b) of the Criminal Proce-

dure Law, a police officer may make a warrantless ar-

rest where that officer has reasonable cause to believe

that the person he is arresting committed the crime

for which he is being arrested whether or not such

crime was committed in that officer’s presence. It is

clear from the facts of this case that in the course of

Detective Bisogno’s investigation of two robbery com-

plaints, the defendant Obie Riddick was identified by the

victims as the perpetrator. It follows then that the

officer had reasonable cause to believe that Obie Riddick

had committed the crime for which he was arrested.

(People v. Feldt, 26 A D 2d 743, affd. 22 N Y 2d 839).

A search may be unlawful even though made incidental

to a valid arrest. (Chimel v. California, supra). In

Chimel the United States Supreme Court said:

“When an arrest is made, it is reasonable for the

arresting officer to search the person arrested in

order to remove any weapons that the latter might

seek to use in order to resist arrest or effect his

escape. Otherwise, the officer’s safety might well

be endangered, and the arrest itself frustrated. In

addition, it is entirely reasonable for the arresting

officer to search for and seize any evidence on the

arrestee’s person in order to prevent its conceal-

ment or destruction. And the area into which an

arrestee might reach in order to grab a weapon or

evidentiary items must, of course, be governed by a

like rule. A gun on a table or in a drawer in front

of one who is arrested can be as dangerous to the

arresting officer as one concealed in the clothing of

the person arrested. There is ample justification,

therefore, for a search of the arrestee’s person and

the area ‘within his immediate control’—construing

that phrase to mean the area from within which he

might gain possession of a weapon or destructible

evidence.”

In the case at bar, the officers arrested a suspect who

had been accused of the commission of several armed

robberies. They found the defendant in a state of

undress. It was reasonable to anticipate that in order

to clothe himself that the defendant would have to go

into the chest of drawers. It was not unreasonable for

them to anticipate that a person they reasonably believed

to be an armed robber might have a weapon concealed

in that chest of drawers. Additionally, the chest was

only two feet from the bed and well within the area

from which the defendant might gain possession of a

weapon. The detective also testified that he searched

the bed in which he found the defendant and Riddick’s

clothing while the defendant dressed. The search had as

its objective the recovery of any weapon the defendant

might have used to effect an escape and took place with-

in an area from which the defendant might recover a

weapon. The search and seizure here were reasonable

within the meaning of the Fourth Amendment.

In the course of the hearing the defendant’s counsel

raised the point of the presence of Parole Officer Tinner.

While it is true that in a search by a parole officer, a

parolee is subject to a search that wouid be impermis-

sible in the ordinary situation (People v. Randazzo, 15

N Y 2d 526; People v. Thompson, N.Y.L.J. March 18,

1974, p. 15, col. 3), there is no evidence in this case to

show that Tinner made any search or that the police

attempted to use him as an agent to avoid the restric-

tions placed on them by the Fourth Amendment.

Order entered accordingly.

The clerk of the Court is directed to mail a copy of

the order and decision to the attorney for the defendant.

/s/ [Illegible)

J.8S. C.

DECISION OF THE APPELLATE DIVISION,

SECOND DEPARTMENT

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v. OBIE RippIcK, Appellant.—Appeal by defendant from

a judgment of the Supreme Court, Queens County, ren-

dered September 24, 1974, convicting him of criminal

possession of a controlled substance in the sixth degree,

upon his plea of guilty, and imposing sentence. The

appeal also brings up for review an order of the same

court, dated July 15, 1974, which denied defendant’s

motion to suppress physical evidence. Judgment and

order affirmed. No opinion Hopkins, Acting P.J.,

Damiani and Hawkins, JJ., concur; Cohalan, J., dis-

sents and votes to reverse the judgment and order, grant

the motion to suppress, and dismiss the indictment, with

the following memorandum: In June, 1978 the victims of

an armed robbery identified the defendant, through his

photograph, as the perpetrator. Riddick was already a

felon, having been convicted as one in 1970. There is

some doubt as to whether the police knew of his where-

abouts in June, 1973, but they admittedly knew his ad-

dress in January, 1974. The arrest, effected without a

warrant, was made on March 14, 1974. No attempt

was made during the nine-month interval to present the

case to a Grand Jury, or even to file an accusatory in-

strument. Nor was there any compelling reason to seek

him out on March 14, 1974 without having first obtained

an arrest warrant. In any event, the police officers veri-

fied the defendant’s presence in his home by first sending

in the defendant’s parole officer. (Incidentally, defend-

ant’s sentence for the 1970 felony expired on February

12, 1974.) They then knocked at defendant’s door. It

was opened by the defendant’s three-year-old child. There

is no evidence that the defendant gave consent to the

intrusion by the police (see People v. Whitehurst, 25

NY2d 389; Bumper v. North Carolina, 391 US 543);

it would be farcical to suggest that the child gave the

officers permission to enter the apartment (see People

v. Gonzalez, 39 NY2d 122). In Gonzalez a consent was

coerced from the defendants. Commenting on the fact

situation, Chief Judge Breitel wrote (p 129): “An-

other factor to be considered in determining the volun-

tariness of an apparent consent is the background of

the consenter [citations omitted]. A consent to search

by a case-hardened sophisticate in crime, calloused in

dealing with police, is more likely to be the product of

calculation than awe. Here, the Gonzalezes were both

under 20 years of age and were newlyweds of three

days. They had had very limited prior contact with the

police. Under these circumstances, the ineluctable in-

ference, except to the jaded, is that the consents could

not be, on any creditable view of the agents’ testimony,

the product of a free and unconstrained choice.” As

with the Gonzalezes, the three-year-old could scarcely

qualify as a sophisticate. When the door was opened one

of the police officers saw the defendant lying in his bed.

The officers entered the apartment, roused the defendant

and announced their authority and purpose. In a search

incident to the arrest, a controlled substance was found

and seized. CPL 120.80 (subd 4) mandates that, in

order to make an arrest, an officer can effect entry into

a suspect’s premises only after announcing his authority

and purpose. At bar the officers first entered—without

permission—and then announced their authority and pur-

pose. Their failure to observe the statutory provision

makes the arrest invalid (see People v. Frank, 35 NY2d

874, revg 43 AD2d 691 on the dissenting memorandum;

People v. Floyd, 26 NY2d 558). Since the arrest was

unlawful, any evidence seized during a search pursuant

thereto must be suppressed.

OPINION OF THE

NEW YORK COURT OF APPEALS

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT

Vv.

THEODORE PAYTON, APPELLANT

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT

Vv.

OBIE RIDDICK, APPELLANT

Argued April 28, 1978; decided July 11, 1978

JONES, J.

[1] We hold that an entry made for the purpose of

effecting a felony arrest within the home of the person

to be arrested by a police officer who has entered with-

out permission of the owner, if based on probable cause,

is not necessarily violative of the constitutional right to

be secure against unreasonable searches and seizures

even though the arresting officer has not obtained a

warrant and there are no exigent circumstances.

Defendant Theodore Payton has been convicted on a

jury’s verdict of the felony murder of a service station

manager in connection with an armed robbery committed

on the morning of January 12, 1970 by a man carrying

a rifle and wearing a ski mask, who fled the scene with

the weapon and cash following the homicide. Two days

later, on January 14, two eyewitnesses to the crime—

both of whom had known defendant—identified him to

the police as the killer. One of the witnesses also fur-

nished defendant’s address. On the morning of January

15 about 7:30 A.M., without having first secured a war-

rant, the detective in charge of the investigation went

with three other detectives and a police sergeant to de-

fendant’s apartment. Although they observed a light

shining beneath the door and heard a radio playing, there.

was no answer when they knocked. To open the locked

metal door they summoned officers from the Emergency

Service Department, who arrived about a half hour later

and with the aid of crowbars forced open the door. The

police entered the apartment, checked the rooms for

defendant who was not found, observed a .30 caliber shell

casing in plain view on top of a stereo set and then

conducted a full-scale search of the apartment, which

revealed a shotgun with ammunition in a closet and a

sales receipt for a Winchester rifle and photographs of

defendant with a ski mask in a dresser drawer. The

following day defendant surrendered himself to the police

and was subsequently indicted on charges arising out of

the service station homicide.

Following a pretrial suppression hearing, the court,

on concession by the District Attorney, suppressed all of

the items found in the apartment with the exception of

the shell casing. The suppression court held that the

casing had been inadvertently observed while the police

were lawfully in the premises to make a warrantless

arrest for a felony which they had reasonable grounds

to believe defendant had committed.*

1 Sections 177 and 178 of the Code of Criminal Procedure, in effect

at the time of this entery, provided:

“$177. In what cases allowed.

“A peace officer may, without a warrant, arrest a person.

“1. For an offense, committed or attempted in his presence, or

where a police officer as enumerated in section one hundred fifty-

four-a of the code of criminal procedure, has reasonable grounds

for believing that an offense is beng committed in his presence.

“2. When the person arrested has committed a felony, although

not in his presence;

“3. When a felony has in fact been committed, and he has rea-

sonable cause for believing the person to be arrested to have com-

mitted it;

“4. When he has reasonable cause for believing that a felony has

been committed, and that the person arrested has committed it,

though it should afterward appear that no felony has been com-

mitted, or, if committed, that the person arrested did not commit it;

“5. When he has reasonable cause for believing that a person

has been legally arrested by a citizen as provided in sections one

71 {

During the trial the People produced testimony that

two .30-30 Winchester discharged shell casings had been

found at the scene of the crime and that those shells

and the .30 caliber shell casing found in defendant’s

apartment had been fired from the same rifle. They

also called as a witness the owner of a sporting goods

store in Peekskill, New York, the store which had issued

the rifle sales receipt seized at the time of defendant’s

arrest but suppressed prior to trial. He testified that

on November 19, 1969 he had sold a .30-30 Winchester

rifle and shells to a man who identified himself as

Theodore Payton. There was also introduced in evidence

the Federally required Firearm Transaction Record re-

tained by the seller which bore defendant’s signature.

The defense objected to both the testimony and the ex-

hibit as inadmissible “tainted fruit” of the unlawful

seizure of the suppressed sales receipt. The objections

were overruled and, after a posttrial hearing on de-

fendant’s motion to set aside the verdict on the ground

that the evidence at trial was the product of material

which had been ordered suppressed, the motion was de-

nied. The Appellate Division affirmed defendant’s con-

viction of felony murder.

Defendant Obie Riddick has been convicted of crimi-

nal possession of a controlled substance in the sixth de-

gree on his plea of guilty following denial of his motion

to suppress a quantity of narcotics and a hypodermic

syringe taken from a dresser drawer in his home when

he was arrested there on March 14, 1974 for the com-

mission of two armed robberies which had occurred in

1971. In June, 1973 the victims had identified defend-

ant from a photograph as the perpetrator of the rob-

beries. Following that identification, the detective in-

vestigating the robberies contacted defendant’s parole

officer and in January, 1974 learned his address. With-

hundred eighty-five, one hundred eighty-six and one hundred eighty-

seven of this code.”

“$178. May break open a door or window, if admittance refused.

“To make an arrest, as provided in the last section, the officer may

break open an outer or inner door or window of a building, if, after

notice of his office and purpose, he be refused admittance.”

out having procured an arrest warrant, about noon on

March 14, 1974 the detective, two other detectives and

the parole officer went to the house where defendant

was living. After the parole officer had entered the

house, determined that defendant was present and so

signaled the waiting policemen, the detective investigat-

ing the robberies knocked on the door, which was opened

by defendant’s three-year-old son. Through the open

door the detective observed defendant in the bedroom

sitting in bed covered to the waist by a sheet. Entering

the apartment with one of the other officers, the de-

tective announced his authority and asked defendant if

he was Obie Riddick. Defendant acknowledged his iden-

tity and was told that he was under arrest, advised of

his rights and instructed to get out of bed. When it

then became apparent that defendant was dressed only

in his underwear and that he would have to dress, the

detective searched the bed, a chest of drawers two feet

from the bed and the defendant’s clothing. In doing so

he found a quantity of narcotics and a hypodermic syringe

in the top drawer of the chest. After indictment for the

crimes of criminal posssesion of a controlled substance

in the fifth degree and criminal possession of a hypo-

dermic instrument defendant moved to suppress the

drugs and syringe, contending that the arrest had been

unlawful because it had been made without a warrant

and without announcement by the police of their pur-

pose before entering defendant’s home.* The motion was

_—

2 CPL 140.15 provides with respect to arrest without a warrant:

“4. In order to effect such an arrest, a police officer may enter

premises in which he reasonably believes such person to be present,

under the same circumstances and in the same manner as would be

authorized, by the provisions of subdivisions four and five of section

120.80, if he were attempting to make such arrest pursuant to a

warrant of arrest.”

Subdivisions 4 and 5 of section 120.80 provide:

“4. In order to effect the arrest, the police officer may, under

circumstances and in a manner prescribed in this subdivision,

enter any premises in which he reasonably believes the defendant

to be present. Before such entry, he must give, or make reasonable

effort to give, notice of his authority and purpose to an occupant

denied after a hearing, the suppression court finding

that the arrest was lawful because it was based on

probable cause and that the search conducted incidental

to the arrest was reasonable and did not exceed the limits

set out in Chimel v. California (395 US 752). Defend-

ant’s contentions were not explicitly addressed. A plea

of guilty to a reduced charge in satisfaction of the in-

dictment followed the denial of suppression. The convic-

tion was affirmed at the Appellate Division.

In each of these cases we are confronted with the

claim that evidence, the introduction or availability of

which may be regarded as critical to defendants’ con-

victions, should have been suppressed because it had

been unlawfully procured, that is, seized after an entry

into defendant’s home to make an arrest without either

the authority of a previously issued warrant or the ex-

istence of exigent circumstances, in violation of constitu-

tional protections. In Payton the challenge is to the

.30 caliber shell casing found on defendant’s stereo set

which—matching those found at the service station—

may well have contributed to identify defendant as the

killer in the jury’s eyes; in Riddick it is to the narcotics

and hypodermic syringes, denial of suppression of which

prompted defendant’s plea of guilty. In Riddick reliance

is also placed on the absence of compliance with a statu-

tory requirement of prior announcement of the police

officers’ authority and purpose.

The parties to these appeals have extensively briefed

the question whether, without infringement of constitu-

tional rights, an arrest may be made within the resi-

dence of a defendant based on unquestionable probable

thereof, unless there is reasonable cause to believe that the giving

of such notice will:

“(a) Result in the defendant escaping or attempting to escape; or

“(b) Endanger the life or safety of the officer or another person;

““(e) Result in the destruction, damaging or secretion of material

evidence.

“5. If the officer is authorized to enter premises without giving

notice of his authority and purpose, or if after giving such notice

he is not admitted, he may enter such premises, and by a breaking

if necessary.”

CO RAD PRAM AA AOL A Cle

cause—as each of these arrests was—without a warrant

in the absence of exigent circumstances. Not insubstan-

tial arguments are mounted in support both of an af-

firmative and a negative response to the question, and

multiple supporting authorities are offered on each side.

It is contended by defendants that physical invasion of

the home is the “chief evil against which the wording of

the Fourth Amendment is directed” (United States v.

United States Dist. Ct., 407.US 297, 313); that it has

been conclusively determined that, absent exigent cir-

cumstances (of which there were none here), an other-

wise proper warrantless entry of the home to search for

property is impermissible (Coolidge v. New Hampshire,

403 US 443); that the sanctity of the home is equally

invaded when entry is made for the purpose of arrest;

that the more serious consequences of the latter class

of entry provide a more compelling reason to require the

authority of a warrant in such a situation (United

States v. Reed, 572 F2d 412; Accarino v. United States,

179 F2d 456)—in sum, that if a warrant or exigent cir-

‘umstances is required for a search and seizure, any

proper sense of constitutional symmetry would mandate

that the same predicate be required for an arrest.

The People, for their part, assert the existence of an

established difference between entry in a homie to effect

an arrest and on to search and seize property (as to

which they agree that a warrant is required in the ab-

sence of exigent circumstances), and urge that a proper

regard for public safety permits—even demands—recog-

nition of a right in a peace officer to enter a home for

the purpose of arresting one who the officer has reason-

able grounds to believe has committed a felony, without

the necessity for obtaining a warrant, even though there

be no exigent circumstances. They contend that the

right to make such an arrest, as an alternative to arrest

with a warrant, has been recognized both at common

law before the adoption of the constitutional provisions

and since their adoption, and that such procedure is

presently authorized by explicit legislation in at least 30

States, including New York, as well as by the Model

Code of Pre-Arraignment Procedure promulgated by the

American Law Institute (§ 120.6, subd [1]).

[2] The parties also draw the conflicting inferences

(which others have similarly drawn) from holdings and

writings of the Supreme Court of the United States and

its individual Justices. Defendants infer from United

States v. Watson (423 US 411) that an arrest follow-

ing a warrantless entry in the home is invalid; the

People conclude from Ker v. California (374 US 23)

that the contrary is the case. The fact is that the Su-

preme Court has not yet resolved the issue, as appears

from the explicit statement in the plurality opinion in

Watson that the question “‘whether and under what

circumstances an officer may enter a suspect’s home to

make a warrantless arrest’” is “still unsettled” (423

US, at p 418, n 6). Nor has the issue been resolved in

our court. In determining now that the warrantless

arrests effected in these cases did not violate defendants’

constitutional rights to be free from unreasonable

searches and seizures, we rely both on what we perceive

to be a substantial difference between the intrusion which

attends an entry for the purpose of searching the prem-

ises and that which results from an entry for the pur-

pose of making an arrest, and on the significant dif-

ference in the governmental interest in achieving the

objective of the intrusion in the two instances.

In the case of the search, unless appropriately limited

by the terms of a warrant, the incursion on the house-

holder’s domain will be both more extensive and more

intensive and the resulting invasion of his privacy of

greater magnitude than what might be expected to occur

on an entry made for the purpose of effecting his arrest.

A search by its nature contemplates a possibly thorough

rummaging through possessions, with concurrent up-

heaval of the owner’s chosen or random placement of

goods and articles and disclosure to the searchers of a

myriad of personal items and details which he would

expect to be free from scrutiny by uninvited eyes. The

householder by the entry and search of his residence is

stripped bare, in greater or lesser degree, of the privacy

which normally surrounds him in his daily living, and,

—- . av feel ee

if he should be absent, to an extent of which he will be

unaware.

Entry for the purpose of arrest may be expected to

be quite different. While the taking into custody of the

person of the householder is unquestionably of grave

import, there is no accompanying prying into the area

of expected privacy attending his possessions and affairs.

That personal seizure alone does not require a warrant

was established by United States v. Watson (423 US

411, supra), which upheld a warrantless arrest made

in a public place. In view of the minimal intrusion on

the elements of privacy of the home which results from

entry on the premises for making an arrest (as com-

pared with the gross intrusion which attends the arrest

itself), we perceive no sufficient reason for distinguish-

ing between an arrest in a public place and an arrest

in a residence. To the extent that an arrest will always

be distasteful or offensive, there is little reason to assume

that arrest within the home is any more so than arrest

in a public place; on the contrary, it may well be that

because of the added exposure the latter may be more

objectionable.

At least as important, and perhaps even more so, in

concluding that entries to make arrests are not “un-

reasonable’—the substantive test under the constitu-

tional proscriptions—is the objective for which they are

made, viz., the arrest of one reasonably believed to have

committed a felony, with resultant protection to the

community. The “reasonableness” of any governmental

intrusion is to be judged from two perspectives—that

of the defendant, considering the degree and scope of the

invasion of his person or property; that of the People,

weighing the objective and imperative of governmental

action. The community’s interest in the apprehension of

criminal suspects is of a higher order than is its concern

for the recovery of contraband or evidence; normally the

hazards created by the failure to apprehend far exceed

the risks which may follow nonrecovery.

The apparent historical acceptance in the English

common law of warrantless entries to make felony ar-

rests (2 Hale, Historia Placitorum Coronae, History of

Pleas of Crown [1st Amer ed, 1847], p 92; Chitty,

Criminal Law [3d Amer, from 2d London, ed. 1836]

22-23), and the existence of statutory authority for such

entries in this State since the enactment of the Code

of Criminal Procedure in 188f* argue against a hold-

ing of unconstitutionality and substantiate the reason-

ableness of such procedure. In People v. Samuel (29

NY2d 252, 264) we said: “While antiquity is not an

infallible criterion for determining the scope of constitu-

tional rights, traditional usage and understanding is help-

ful in defining the privilege against self incrimination.”

That rationale is even more persuasive when we are

determining “reasonableness”—a quality, not always con-

stant, which reflects and derives substance from the

standards and mores of the time and the society.

Nor do we ignore the fact that a number of jurisdic-

tions other than our own have also enacted statutes au-

thorizing warrantless entries of buildings (without ex-

ception for homes) for purposes of arrest.‘ The Ameri-

can Law Institute’s Model Code of Pre-Arraignment Pro-

3 Sections 177 and 178 of that statute provided as follows:

“. 71. °°?

“A peace officer may, without a warrant, arrest a person,

“1. For a crime, committed or attempted in his presence;

“2. When the person arrested has committed a felony, although

not in his presence;

“2 When a felony has in fact been committed, and he has rea-

sonable cause for believing the person to be arrested to have com-

mitted it’.

“ia. ° **

“To make an arrest, as provided in the last section, the officer may

break open an outer or inner door or window of a building, if, after

notice of his office and purpose, he be refused admittance.”

These sections remained unchanged, except for expansion of the

grounds for warrantless arrest provided in section 177 by amend-

ments in 1960, 1963 and 1967, until replaced by the Criminal Pro-

cedure Law on September 1, 1971. The substance of the provisions

was continued and expanded in sections 140.10, 140.15 (subd 4) and

140.25 (subds 1-3) of the present statute.

4 American Law Institute, Model Code of Pre-Arraignment Pro-

cedure (1975) Commentary, Appendix XI.

cedure makes similar provision in section 120.6, with

suggested special restrictions only as to nighttime entries.

The accompanying commentary states: “To go further

and require a warrant or a showing of necessity before _

police may make a felony arrest on private property

even in daytime seems unduly restrictive. Moreover,

apart from the specially alarming quality of nighttime

entries and apart from search considerations, it is far

from clear that an arrest in one’s home is so much

more threatening or humiliating than a street arrest

as to justify further restrictions on the police.” (Ameri-

can Law Institute, Model Code of Pre-Arraignment Pro-

cedure [1975], p 307).

[1] For these reasons and in the absence of an

explicit determination by the Supreme Court which would

permit us no alternative, we hold that the entries made

by the police in the cases before us did not violate de-

fendants’ constitutional protections against unreasonable

searches and seizures. In reaching this conclusion we

are not unmindful of considered decisions in the Federal

courts which have reached an opposite result (e.g., United

States v. Reed, 572 F2d 412, supra; United States v.

Killebrew, 560 F2d 729).

[3] We turn then to the other contentions made in

Payton. First, it is argued that the true purpose of the

police officers who entered defendant’s apartment was

not to make an arrest but rather to conduct a full-blo

search of the premises, in which event the plain view

doctrine would not be applicable and the shell casing too

should have been suppressed. The determination of the

officers’ purpose, however, turned on a question of fact,

the resolution of which was dependent on the credibility

ascribed by the hearing Judge to the testimony of the

entering officer. That factual issue, having been resolved

in favor of the People by the suppression court and af-

firmed at the Appellate Division, is now beyond review

by this court.

Next, Payton renews his challenge to the admissibility

of the testimony of the Peekskill sporting goods store

owner and of the latter’s gun sale record as tainted fruit

of the initial unlawful seizure of the gun sale receipt

which occurred when defendant’s apartment was illegally

searched. To refute defendant’s claim that, but for the

seizure of the sales receipt, the prosecution would not

have gained access to the testimony or the record, the

People assert (as the trial court found after the post-~

trial hearing) that the allegedly tainted evidence was

admissible under the so-called “inevitable discovery” doc-

trine (cf. People v. Fitzpatrick, 32 NY2d 499). Defend-

ant responds that the factual situation here was insuffi

cient to support the application of that doctrine. The

evidence, however, is to the contrary.

[4,5] In the first place the label “inevitable dis

covery” is inaccurate and therefore misleading. The

doctrine does not call for certitude as the literal meaning

of the adjective “inevitable” would suggest. What is re-

quired is that there be a very high degree of probability

that the evidence in question would have been obtained

independently of the tainted source. The proof in this

case meets that standard and supports the finding of

the Trial Judge at the posttrial hearing. Second, any

and every application of the doctrine of inevitable dis-

covery will inescapably be exposed to the observation

that the police did not in fact pursue the inevitable

course to discovery.

The investigating detective testified that, because the

murder weapon was never recovered, proof of defend-

ant’s ownership of a gun such as that used in the killing

was of critical importance. The detective knew that

the weapon used was a Winchester rifle. He also tes-

tified that he had learned from a friend and hunting

companion of defendant that the latter had purchased

such a gun in “upstate New York” in November, 1969.

He further stated without contradiction—and this was

critical in this instance—that it was “normal police

procedure” in investigations such as this to communicate

with the Tobacco, Alcohol and Firearms Unit of the

United States Treasury Department, which maintains

a list of all gun shops, and then to send out communica-

tions to and to make personal contacts with such shops

-_~

in an effort to locate the weapon sought.’ He stated

that in this instance he would have followed this pro-

cedure and would have inquired of gun stores, which

would have included the one in Peekskill. Inquiry at

the Peekskill store would have led directly to defendant

because of the records of all gun sales maintained under

Federal requirement. In corroboration the owner of the

Peekskill store testified that he maintained the required

records of gun sales and that he was accustomed to

checking his records when police inquiries were made.

The Trial Judge found that the People had established

“that normal police investigative techniques would have

uncovered the Peekskill gun dealer” and thus that “the

unlawful seizure of the bill of sale was not a sine qua

non of the discovery” of the seller. We agreed.’

[6] Finally, it is asserted that defendant was de-

prived of his constitutional right to represent himself

at his trial. The exercise of this right requires an un-

equivocal request to proceed pro se (People v. McIntyre,

36 NY2d 10, 17), which was lacking in this case. State-

ments made by defendant as to his being his own lawyer

were associated with references to discharging his as-

signed counsel and securing new representation and were

always overshadowed by applications for adjournments

and postponements for reasons which he declined to di-

vulge. At no time did he demonstrate an actual fixed

intention and desire to proceed without professional as-

sistance in his defense to the charges against him.

[7] It remains only briefly to address the other con-

tention advanced in Riddick—that the police entry was

statutorily invalid for the failure of the police officers

5’ When the cross-examiner resorted to the “rednctio ad absur-

dum”’, the officer readily admitted that he had never known any such

inquiry to include every gun shop in the State. There was, how-

ever, no contradiction of his testimony as to the normal police

procedure in making such investigations.

®* As to the possible alternative ground for reaching this conclu-

sion, namely, that the testimony of the keeper of the gun shop

was admissible under the attenuation rule with respect to the testi-

mony of live witnesses, see People v. Mendez (28 NY2d 94) (com-

pare, also, United States v. Ceccolini, US ——, 46 USLW

4229).

to give notice of their authority and purpose prior to

their entry to make the arrest. The requirement. that

such notice be given before breaking into a building to

obtain access to effect an arrest is of ancient vintage and

serves the purpose of providing the person within an

opportunity to respond to the demand for admittance,

thus obviating the need for forcible entry (Miller v.

United States, 357 US 301). The statement of the

purpose demonstrates the inapplicability here of the

statutory section in effect at the time in question which

codified the common-law requirement.’ In Riddick the

purpose of the notice requirement was accomplished when,

in response to the investigating officer’s knock, defend-

ant’s infant son opened the doar, and promptly on en-

tering the officers declared their authority and their

purpose to arrest defendant. What is determinative is

that the entry was peaceable. No forcible entry was

necessary or effected and no prejudice resulted from the

officers’ failure to give notice outside the open door.

Accordingly, for the reasons stated, the order of the

Appellate Division in each case should be affirmed.

WACHTLER, J. (dissenting). For the reasons stated

by Judge Cook~ in his dissenting opinion I too would

hold that the police need a warrant to enter a home in

order to arrest or seize a person, unless there are exigent

circumstances. Thus in the Riddick case where there

was no exigency I would reverse, suppress the evidence

and dismiss the indictment. In the Payton case I would

reach substantially the same result as Judge COOKE pro-

poses, but for somewhat different reasons.

Initially it seems to me that in the Payton-ease~the

circumstances were sufficiently compelling to permit the

police to enter the defendant’s apartment to arrest_hi

without a warrant. The record shows that from the

time of the murder the police had actively sought the

killer. As a result of their continuous~and intensive

investigation they soon identified the defendant, two days

after the crime, and early the following morning went

7 CPL 120.8 (subd 5) (supra, n. 2).

to his apartment. There they observed a light shining

beneath the door and heard a radio playing. Thus for

several days the police had been in continuous pursuit

of the killer when they arrived at the defendant’s apart-

ment, where they had reason to believe he might be

hiding, particularly in view of their observations at the

scene. Under these circumstances I believe it was rea-

sonable for the police to continue their pursuit into the

apartment in order to take a dangerous killer into cus-

tody (cf. People v. Fitzpatrick, 32 NY2d 499, 509).

But the right to enter for the limited purpose of ar-

resting the defendant did not justify a full-scale search

of the defendant’s apartment for evidence of the crime.

The People commendably admitted this at the hearing

and the court suppressed all of the evidence seized, except

for the shell casing which was found in plain view. I

agree with that determination. But I cannot agree with

the court’s further holding that certain fruits of the

illegal search—namely, the records of a Peekskill gun

dealer whose name appeared on a receipt seized during

the search—was properly admissible under the so-called

“inevitable discovery” doctrine, on the theory that the

police would have discovered this evidence in any event

through normal police procedures.

The inevitable discovery doctrine is unrealistic in the

purest sense. It permits the court to ignore what really

happened and to rely instead on hypothesis. In this case

for instance the police admitted that they did, indeed,

obtain the gun shop records as a direct result of the

illegal seizure of the gun receipt and that the evidence

was therefore a classic example of poisoned fruit. Never-

theless ignoring the reality of the direct connection the

court held that the evidence was not tainted because the

police would, or should, have obtained it in the normal

course of their investigation although they had made

no effort to do so.

Apart from being completely unrelated to what really

happened, this determination must, on the facts of this

case, rest on pure conjecture. Without the receipt the

only information the police had which could have led

them to the record of the gun sale was a statement from

MM NN

the defendant’s friend and hunting companion that the

defendant had purchased a weapon, similar to the one

sought, in “upstate New York” in November, 1969.

Furthermore, although it was noted that the Federal

Government requires gun dealers to make a record of

their sales; it was conceded that these records are not

sent to any central repository. Thus the police could

not obtain a record of the sale from the Federal Gov-

ernment. The Federal authorities could only furnish

a list of all registered gun dealers in the State. The

police would then have to contact every dealer indi-

vidually to see if a record had been made and was

still available.

At the hearing one of the officers testified tiat at the

time there were approximately 1,100 gun dealers regis-

tered in the State. The record does not indicate how

many of these dealers were located in the New York City

area, which presumably could have been eliminated from

the search. But even eliminating these dealers the task

of locating the record of the sale would have involved

a considerable effort. In fact it would have involved

such an effort that the police officers themselves ad-

mitted that they could not recall a single instance where

an investigation of this nature and magnitude had been

undertaken. Of course they had not actually employed

this approach in this case. Thus the determination that

the police would have discovered the sale record in the

normal course of their investigation, through communi-

cations with gun dealers, does not rest on experience,

nor does it even rest on proof of a normal police proce-

dure. As far as this record shows this type of investiga-

tion was neither tried nor proven and would have been

quite extraordinary.

This is not the type of inevitability which was con-

templated in Fitzpatrick (supra, at p 507) where the

court repeatedly noted that discovery of the evidence was

“certain” and the police had only to look in “the next —

most reasonable place”. Here then were literally hun-

dreds of reasonable places to look, most of which were

widely scattered throughout the State.

Apparently the majority recognizes the difficulty of

holding that the police would have inevitably prevailed

in the face of so many obstacles. Accordingly they have

redefined the inevitable discovery doctrine by holding

that it does not actually require “certitude” as the term

itself implies, and we held in Fitzpatrick. It simply re-

quires “a very high degree of probability that the evi-

dence in question would have been obtained independently

of the tainted source.” Now apparently the only thing

inevitable about the inevitable discovery doctrine is that

the police with the benefit of hindsight, will inevitably

be able to show that they could have obtained the evi-

dence lawfully by employing some other technique, no

matter how hypothetical and no matter how involved or

extraordinary resort to the procedure would have been.

This type of reasoning can only serve to erode the

exclusionary rule. In many, if not most cases, the police

will undoubtedly be able to point to some lead which if

pursued with fanatical devotion would have uitimately

led them to the evidence which was actually obtained

unlawfully. Unfortunately it is in cases where the evi-

dence could have been obtained through lawful, but

time-consuming methods that the exclusionary rule is

most needed to discourage the police from resorting to

the unconstitutional short cut (see Pitler, Fruit of the

Poisonous Tree, 56 Cal L Rev 579, 630).

The mischief caused by the “inevitable” or “very

highly probable” discovery doctrine is well illustrated

in the case now before us. Here the majority has held

that the police may enter a home without a warrant to

make an arrest although they concededly could not have

entered to make a search. The theory is that an entry

to arrest is less intrusive than a search because it does

not involve a wholesale rummaging through the indi-

vidual’s belongings. Yet, despite the fact that the police

did in fact completely rummage through the defend-

ant’s apartment and belongings after entering to make

the arrest, the majority holds that the police should not

be deprived of the illegal fruits because the evidence

would have been discovered in any event in the normal

course of the police investigation. This decision can

hardly be expected to discourage the police from com-

pletely searching the premises for evidence after enter-

ing for the “limited” purpose of making an arre ius

in this case the inevitable discovery doctrine hz ven

undermined the basic premise on which the majority

relies to support its conclusion that an entry to make

an arrest is significantly different from an entry to search

for evidence.

Accordingly, in the Payton case, I would reverse and

suppress all evidence of the purchase of the weapon.

FUCHSBERG, J. (dissenting). I too would reverse in

each of these cases.

My deepening concern over the proliferation of ra-

tionales which erode the protection the warrant require-

ment was intended to provide against illegal govern-

mental intrusions on the privacy of home and person

puts me at one with Judge COOKE in what he says so

well on that subject today. (See, also, Younger, Con-

stitutional Protection on Search and Seizure Dead? 3

Trial, Aug.-Sept., 1967, at p 41.)

But on the matter of “inevitable discovery” and the

role it plays in the Payton case in particular, while my

views are in harmony with the analysis on which Judge

WACHTLER would dispose of that issue here, I would add

some thoughts of my own.

Though hardly universally accepted (see Fitzpatrick

v. New York, 414 US 1050 [WuiTE#, J., dissenting from

denial of certiorari]), the “inevitable discovery” excep-

tion to the exclusionary rule commended itself to those

with whom it originally won favor largely because con-

ceptually it was to apply in factual contexts which, in

spirit, if not in dictionary definition, bespoke “inevit-

ability”. Thus, while I appreciate the majority’s re-

luctance to continue a commitment to a definition which

calls for the certitude, if not predestination, connoted

by a literal reading of the word “inevitable”, it seems to

me that the shift the majority today makes to one which

talks only in terms of a degree of “probability” under-

mines its validity.

No matter how sincerely employed, hindsight ration-

alization of a train of events that never actually took

place is bound to be weighted down with subjective fac-

tors difficult to appraise or disprove. Consequently, it

would almost always be possible to make a colorably

persuasive argument, that the illegally discovered evi-

dence would have been turned up in any event.

It follows that the sidestepping of constitutional safe-

guards will become all too easy—as is well illustrated

by Judge WACHTLER’S revealing recital of the Payton

facts—unless the People, when relying on “inevitable

discovery”, are made to meet that burden of proof which,

short of certainty, is most demanding and most com-

prehensible. Therefore, if, as a predicate for the in-

vocation of inevitable discovery, we are to move to an

avowed standard short of true “inevitability”, it should

be to one that asks no less than proof that lawful dis-

covery would have taken place beyond a reasonable

doubt.

The legal distinctions among our varied standards of

proof are too often honored in their semantics rather

than in their substance (see 9 Wigmore, Evidence [3d

ed], § 2497). No doubt this is because they are easier to

articulate than to apply. But, at least, the ingrained

familiarity which the concept of proof beyond a reason-

able doubt enjoys among the members of our society—

repeatedly intoned as it is in the determinations of guilt

or innocence under our system of criminal justice—

affords immeasurably more assurance of strict applica-

tion of its language than we can count on in the verbal-

istic shadowland where words and phrases such as “‘pre-

ponderance”, “satisfactory”, “clear and convincing”, “rea-

sonable certainty” and now “high degree of probability”

too often are forced to dwell.

CookE, J. (dissenting). Today, the majority of this

court holds that in the absence of exigent circumstances,

the police may enter the home of a suspect, whether by

force or simply without his consent, in order to effect

an arrest for a felony for which they have probable cause

but no warrant.

In so doing, the court leaves the law of this State in

an anomalous state of flux: the Fourth Amendment for-

bids police entry into a private home to search for and

seize an object without a warrant except in carefully

circumscribed instances (Katz v. United States, 389 US

347, 357) ; yet, in the case of an arrest of a person, where

the invasion of personal privacy interests is that much

greater, the protections afforded by the amendment may

be cast aside based solely upon the arresting officer’s

subjective notion of probable cause. Thus, while a citi-

zen’s guarantee to be free from unreasonable govern-

mental intrusion constitutes the heart of the Fourth

Amendment, the bifurcated standard between search and

arrest announced today accords an individual’s bare pos-

sessions a greater quantum of protection than his very

person, reviving the values of an era in which property

interests were exalted over personal liberties.

Surprisingly, the Supreme Court has yet to confront -

the question of whether the police may arrest a man in

his home—in the absence of exigent circumstances with-

out a warrant (see, e.g., United States v. Santana, 427

US 38: Jones v. United States, 357 US 498, 499-500),

but has, nevertheless afforded valuable insights as to its

proper resolution. Thus, in Coolidge v. New Hampshire

(403 US 443), Justice STEWART, writing for the ma-

jority and responding to Justice WHITE’s statement in

dissent, stated: “It is clear, then, that the notion that

the warrantless entry of a man’s house in order to

arrest him on probable cause is per se legitimate is in

fundamental conflict with the »asic principle of Fourth

Amendment law that searches and seizures inside a

man’s house without warrant are per se unreasonable in

the absence of some one of a number of well defined

‘exigent circumstances.’ * * * If we were to accept MR.

JUSTICE WHITE’S view that warrantless entry for

purposes of arrest * * * [is] per se reasonable, so long

as the police have probable cause, it would be difficult to

see the basis for distinguishing searches of houses and

seizures of effects. * * * If we were to agree with MR.

JUSTICE WHITE that the police may, whenever they

have probable cause, make a warrantless entry for the

purpose of making an arrest * * * then by the same logic

any search or seizure could be carried out without a

warrant, and we would simply have to read the Fourth

Amendment out of the Constitution” (id., at pp 477-480;

see, also, Warden V. Hayden, 387 US 294; Davis v. Mis-

sissippi, 394 US 721, 728; Wong Sun V. United States,

371 US 471, 480-481). Al

Although the point has not been squarely adjudicated

since Coolidge (see United States V. Watson, 423 US

411, 418, n 6), its proper resolution, it is submitted, is

manifest. At the core of the Fourth Amendment, whether

in the context of a search or an arrest, is the funda-

mental concept that any governmental intrusion into an

individual’s home or expectation of privacy must be

strictly circumscribed (see, ¢€.g., Boyd v. United States,

116 US 616, 630; Camara V. Municipal Ct., 387 US

523, 528). To achieve that end, the framers of the

amendment interposed the warrant requirement between

the public and the police, reflecting their conviction that

the decision to enter a dwelling should not rest with the

officer in the field, but rather with a detached and dis-

interested Magistrate (McDonald Vv. United States, 335

US 451, 455-456; Johnson V. United States, 333 US 10,

13-14). Inasmuch as the purpose of the Fourth Amend-

ment is to guard against arbitrary governmental in-

vasions of the home, the necessity of prior judicial ap-

proval should control any contemplated entry, regardless

of the purpose for which that entry is sought. By defini-

tion, arrest entries must be included within the scope

of the amendment, for while such entries are for persons,

not things, they are, nonetheless, violations of privacy,

the chief evil that the Fourth Amendment was designed

to deter (Silverman v. United States, 365 US 505, 511).

The court reaches its conclusion that a warrant is not

required for a police officer to enter a private home and

effect an arrest therein, so long as he has probable cause

to believe that a felony has been committed on a num-

ber of factors, none of which, it is submitted, supports

its holding. Reasoning that the intrusion which attends

entry into the home to effect a warrantless arrest is

somehow less egregious than entry to conduct a search,

the majority simply reads the warrant requirement out

of the Fourth Amendment. Even if one were to accept

the conclusion that incursion for the purpose of arrest

is less extensive than that for search (but see Foley V.

Connelie, US ' , 46 USLW 4237, 4239;

United States v. Watson, 423 US 411, 428 [POWELL,

J., concurring]; Chimel v. California, 395 US 752, 766

(WHITE, J., dissenting]), it is difficult to harmonize the

constitutional dictate that any governmental intrusion

into the sanctity of the home must be controlled by a

neutral Magistrate with whatever actions the police may

take after that intrusion is a fait accompli. Indeed, from

the standpoint of the citizen—to whom the language of

the Fourth Amendment is directed—it makes little dif-

ference whether the invasion of the privacy of his home

was made to effect a warrantless arrest or a warrantless

search (Lankford v. Gelston, 364 F2d 197, 205).

The police are constitutionally forbidden to enter and

search an individual’s home in the absence of exigent cir-

cumstances, even where there is no doubt that the object

of the search is within (Agnello v. United States, 269

US 20, 32). Nevertheless, solely because of the officer’s

perception of probable cause this same individual may

have his constitutional guarantee of privacy violated and

may be exposed to arrest while still in his dwelling. The

distinction is tenuous at best, for it may be said that

an entry to arrest is simply a search for a person rather

than a search for things (Dorman v. United States, 435

F2d 385, 390-391; Commonwealth V. Forde, 367 Mass.

798, 805) and that the arrest itself is “quintessentially

a seizure” (United States v. Watson, 423 US 411, 428

(PowELL, J., concurring]). In short, the constitutional

guarantee that assures citizens the privacy and security

of their homes unless determined otherwise by a judicial

officer, applies with equal force in the case of entry to

arrest a suspect as it does in the case of entry to search

for property (United States v. Reed, 527 F2d 412; United

States v. Killebrew, 560 F2d 729; United States v. Cal-

houn, 542 F2d 1094; United States v. Shye, 492 F2d 886;

Vance v. North Carolina, 482 F2d 984; State v. Cook,

115 Ariz. 188; People v. Ramey, 16 Cal. 3d 263, cert

den 429 US 929; People v. Wolgemuth, 43 Ill. App 3d

335).

As the majority notes, proper resolution of these cases

hinges on the balancing of two competing, but not neces-

sarily irreconcilable, concerns: ) the individual’s interest

in maximum security within his home, where he has a

greater quantum of protection than in public (see United

States v. Watson, supra; People Vv. De Bour, 40 NY2d

210), and the interest of the State in apprehending felons

and maintaining an orderly society. As noted, the

Fourth Amendment was drafted to secure the right of

privacy against any arbitrary governmental intrusion by

taking that decision away from the police and placing it

with a neutral Magistrate. But the protections afforded

by the amendment are not absolute; instead, they are

governed by a standard of general reasonableness (U nited

States v. Rabinowitz, 339 US 56, 70 [ FRANKFURTER, J.,

dissenting]). In some instances where the exigencies of

the moment will not tolerate the delay incident to ob-

taining a warrant, a warrantless entry and arrest will

satisfy this ultimate standard of reasonableness (see,

e.g., Warden V. Hayden, 387 US 294; Ker Vv. California,

874 US 23; People v. Hodge, 44 NY2d 553). In still

others, an individual may simply be located in an area

in which his reasonable expectations of privacy must be

subsumed by the demands of the public weal. Thus, where

an individual is exposed to public view, expectations of

privacy are substantially diminished and warrantless ar-

rests are reasonable (United States v. Watson, 423 US

411, supra; Santana v. United States, 427 US 38, supra).

But these are not cases where the exigencies of the

circumstances would not brook delay or where the arrests

were effected in a public place. When an individual is

safely ensconced within the confines of his home, special

considerations are brought to bear. It merits little repeti-

tion or citation of authority but to note that “physical

entry of the home is the chief evil against which the

wording of the Fourth Amendment is directed” (United

States v. United States Dist. Ct., 407 US 297, 313). The

sanctity of a private home is traditional to our Anglo-

Saxon heritage (Coke, Third Institutes, p 162), and

the Constitution itself points to the proper procedure to

be followed in intruding upor this precious sanctuary.

That basic principle—the constitutional guarantee that,

except in a few jealously guarded circumstances, assures

citizens of the privacy and security of their own homes

unless a judicial officer should determine otherwise—is

applicable not only in cases of entry to search for and

seize property, but in instances of entry to search for

and seize a person as well. Indeed, the Fourth Amend-

ment itself speaks of searches and seizures of both per-

sons and property in indistinguishable terms. It is il-

logical at this juncture for the court “to pay homage to

the considerable body of law that has developed to pro-

tect an individual’s belongings from unreasonable search

and seizure in his home, and at the same time assert

that identical considerations do not operate to safeguard

the individual himself in the same setting” (People Vv.

Ramey, 16 Cal. 3d 263, 275, supra).

Nor would an onerous burden be placed upon the police

by requiring them to obtain approval of a judicial officer

prior to their nonconsensual entry into a suspect’s home

in the absence of extraordinary circumstances. On the

contrary, what imposition of a warrant requirement

would accomplish would be the minimization of noncon-

sensual entry into the home by overzealous police officers

who may occasionally lose sight of the citizen’s expecta-

tion of privacy. Thus, the warrant requirement would

permit a neutral Magistrate to make the decision whether

to authorize arrest, just as he must do in the search

and seizure context, rather than leave this decision to the

oft-times colored determinations of the police. As Jus-

tice JACKSON has noted (Johnson v. United States, 333

US 10, 13-14): “The point of the Fourth Amendment,

which often is not grasped by zealous officers, is not that

it denies law enforcement the support of the usual in-

ferences which reasonable men draw from evidence. Its

protection consists in requiring that those inferences be

drawn by a neutral and detached magistrate instead of

being judged by the officer engaged in the often com-

petitive enterprise of ferreting out crime. Any assump-

tion that evidence sufficient to support a magistrate’s

disinterested determination to issue a search warrant

will justify the officers in making a search without a

warrant would reduce the Amendment to a nullity and

leave the people’s homes secure only in the discretion of

police officers. Crime, even in the privacy of one’s own

quarters, is, of course, of grave concern to society, and

the law allows such crime to be reached on proper show-

ing. The right of officers to thrust themselves into a

home is also a grave concern, not only to the individual

but to a society which chooses to dwell in reasonable

security and freedom from surveillance. When the right

of privacy must reasonably yield to the right of search

is, as a rule, to be decided by a judicial officer, not by

a policeman or government enforcement agent.”

Lastly, the court relies on the existence of statutes

and the American Law Institute imprimatur codifying

the common-law rule authorizing warrantless arrests in

private homes. To be sure, the statutory authority of a

police officer to make a warrantless arrest in this State

has been in effect for almost 100 years, but neither

antiquity nor legislative unanimity can be determinative

of the grave constitutional question presented here (see

Brown Vv. Board of Educ., 347 US 483, 490-495; Walz

vy. Tax Comm., 397 US 664, 678) and can never be a

substitute for reasoned analysis. :

Although I subscribe to the well-reasoned exegesis of

Judge WACHTLER concerning the majority’s misconcep-

tion of the inevitable discovery rule, I cannot agree that

the facts in the Payton case were so compelling as to

allow the police to dispense with a warrant prior to their

forcible entry into defendant’s apartment. The police

were well aware of defendant’s identity and place of

residence the day before their warrantless break in. In

the intervening period they had ample opportunity to

secure the approval of a detached judicial officer. More-

over, even on the day of the forcible entry, the police

were compelled to delay even further while waiting for

the arrival of officers from the Emergency Services De-

partment—during which ‘time they again could have

secured the necessary warrant. Even barring that course

of action, the police could simply have staked out the

apartment while waiting for a judicial officer to au-

thorize entry into the home. The difference between ac-

tion which would have been constitutionally proper and

that which was taken is not slight. Had the police in

fact obtained a warrant, limiting the scope of their

activities after entry, their patently illegal actions in

conducting a full-blown search of the premises might

have been avoided (cf. Mincey v. Arizona, —— US ——,

46 USLW 4737, 4739).

In sum, a serious incongruity between the Fourth

Amendment protections applicable to search and arrest

has now been created. If the guarantee afforded by the

Fourth Amendment is to remain viable, the police must

be required, in absence of exigency, to obtain a warrant

from a disinterested judicial officer before invading do-

mestic perimeters for whatever purpose. The abuses which

might result from the holding of the majority are legion.

Probable cause in the eyes of a police officer is a some-

what amorphous concept and the privacy of our citizenry

is far too cherished a right to be entrusted to his dis-

cretion. Where there is no warrant authorizing entry

into the home and no circumstances necessitating im-

mediate police action, it is constitutionally imperative

to preclude law enforcement officers from effecting a

forcible or nonconsensual entry into the home to make

a felony arrest.

Accordingly, I vote that the orders of the Appellate

Division should be reversed and, in each case, a new trial

granted.

Chief Judge BREITEL and Judges JASEN and GAB-

RIELLI concur with Judge JONES; Judges WACHTLER,

FUCHSBURG and COOKE dissent and vote to reverse and

order a new trial in separate dissenting opinions.

In People v. Payton: Order affirmed.

Chief Judge BREITEL and Judges JASEN and GAB-

RIELLI concur with Judge JoNES; Judges WACHTLER and

FUCHSBERG dissent and vote to reverse and dismiss the

indictment in separate dissenting opinions; Judge COOKE

dissents and votes to reverse and order a new trial in

another dissenting opinion.

In People v. Riddick: Order affirmed.

COURT OF APPEALS

STATE OF NEW YORK

No. 259

[Filed Jul. 19, 1978]

The Hon. Charles D. Breitel, Chief Judge, Presiding

THE PEOPLE &C., RESPONDENT

v8.

THEODORE PAYTON, APPELLANT

REMITTITUR (Payton)

The appellant in the above entitled appeal appeared by

William E. Hellerstein and William J. Gallagher, The

Legal Aid Society; the respondent appeared by Robert

M. Morgenthau, District Attorney of New York County.

The Court, after due deliberation, orders and adjudges

that the order is affirmed. Opinion by Jones, J. All con-

cur except Wachtler, Fuchsberg and Cooke, JJ., who dis-

sent and vote to reverse and order a new trial in separate

dissenting opinions.

The Court further orders that the papers required to

be filed and this record of the proceedings in this Court

be remitted to the Supreme Court, New York County,

there to be proceeded upon according to law.

I certify that the preceding contains a correct record

of the proceedings in this appeal in the Court of Appeals

and that the papers required to be filed are attached.

/s/ Joseph W. Bellacosa

JOSEPH W. BELLACOSA

Clerk of the Court

Court of Appeals, Clerk’s Office, Albany, July 11, 1978.

COURT OF APPEALS

STATE OF NEW YORK

The Hon. Charles D. Breitel, Chief Judge, Presiding

No. 258

THE PEOPLE &C., RESPONDENT

vs.

OBIE RIDDICK, APPELLANT

REMITTITUR (Riddick)

The appellant in the above entitled appeal appeared

by David A. Lewis and William E. Hellerstein, The Legal

Aid Society; the respondent appeared by J ohn J. San-

tucci, District Attorney, Queens County.

The Court, after due deliberation, orders and adjudges

that the order is affirmed. Opinion by Jones, J. All con-

cur except Wachtler and Fuchsberg, JJ., who dissent and

vote to reverse and dismiss the indictment in separate

dissenting opinions and Cooke, J., who dissents and votes

to reverse and order a new trial in a dissenting opinion.

The Court further orders that the papers required to

be filed and this record of the proceedings in this Court

be remitted to the Supreme Court, Queens County, there

to be proceeded upon according to law.

I certify that the preceding contains a correct record

of the proceedings in this appeal in the Court of Appeals

and that the papers required to be filed are attached.

/s/ Joseph W. Bellacosa

JOSEPH W. BELLACOSA

Clerk of the Court

Court of Appeals, Clerk’s Office, Albany, July 11, 1978.

Oe OS EE ED

SUPREME COURT OF THE UNITED STATES

Nos. 78-5420 and 78-5421

THEODORE PAYTON, APPELLANT

NEw YORK; and

OBIE RIDDICK, APPELLANT

NEW YORK

ON CONSIDERATION of the motions of the appel-

lants for leave to proceed herein in forma pauperis,

IT IS ORDERED by this Court that the said motions

be, and the same are hereby, granted.

December 11, 1978

SUPREME COURT OF THE UNITED STATES

Nos. 78-5420 and 78-5421

THEODORE PAYTON, APPELLANT

Vv.

NEW YORK; and

OBIE RIDDICK, APPELLANT

Vv.

NEw YORK

APPEALS from the Court of Appeals of the State of

New York.

The statements of jurisdiction in these cases having

been submiti2d and considered by the Court, probable

jurisdiction is noted limited to question 1 presented by

the jurisdictional statement in No. 78-5420. Probable

jurisdiction is noted in No. 78-5421. The cases are con-

solidated and a total of one hour is allotted for oral

argument.

December 11, 1978

SY ou. S. GOVERNMENT PRINTING OFFICE; 1978 283698 247

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.