# Appendix — Graham v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2398%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 - **Citation:** 458 U.S. 1101 ## Text Supreme Court—Apprllate Diaision ‘ 27 Third Judicial Department July 31, 1980. 32356 Tiz PEOPLE OF Tux STATE OF NEW YORK, Respondent, Vv. RICHARD B. GRAHAM, Appellant. Judgment modified, on the law and the facts, by reversing the conviction of kidnapping in the first degree and robbery in the first degree and dismissing the counts of the indictment therefor, and, as so modified, affirmed. Opinion per MAHOILY, P. J. SWEEWEY, KAiE, STALEY, JR., and HERLIWY, JJ., concur. APPENDIX A #32356 STATE OB NEW YORK SUPREME COURT APPELLATE DIVISIOi! THIRD DEPARTINT THE PEOPLE OF THE STATE OF WEW YORK, Respondent, - against - RICHARD B. GRAHAII, eed ee et ee ee et Appellant. Argued, June 19, 1980. Before, HOW. A. FRANKLIN MANCNEY, Presiding Justice, HOI]. MICHAEL E. SWEENEY, HOW. T. PAUL KATE, HOW. ELLIS J. STALEY, JR., HOM, J. CLARENCE HERLIIY, Associate Jusilces. APPEAL from a judgment of the County Court of Sullivan County (Louis B. Scheinman, J.), rendered November 3, 1977, upon a verdict convicting defendant of murder in the second degree (two counts), kidnapping in the first degree and robbery in the first degree. STEPHEN L. OPPLIGMEIMN, for appellant, 253 Broadway, lionticello, Hew York 12701. . JOSEPI JAFFE, District Attorney (Stephen Lungen of counsel), for respondent, 6 North Main Street, Liberty, New York 12754. OPINIOMW FOR MODIFICATION 28 -2- #32356 MAHONEY, P. J. When this matter wes before this court originally (69 A D 2d 544), we modified the judgment by reversing the conviction of kidncpping in the first degree and robbery in the first degree and dismissing the counts of the indictment therefor, and, as modified, affirmed, holding that there was no erroy in the warrantless arrest since there was probable cause. Thereafter, leave to the Court of Appeals was denied (48 UY 2d 980) as was a motion to reconsider that determination (49 21 Y 2d 804). On May 12, 1980, the United Srates Supreme Court, pursuant to defendant's application, entered the following order: The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is re- manded to the Appellate Division, Supreme Court of iNew York, Third Judicial Departwent, for further consideration in light of Payton v. New York, 445 U. S. _. (1980). In Payton v. New York (4465 U.S. ___, 100 S. Cr. 1371, supra), the Supreme Court concluded that absent exigent circumstances, the Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect's 1 A complete recitation of the facts can be found in the reported decisions (People v. Graham, 90 Ifisc 2d 1019; 69 A D 2d 544). EE _ -- 30 -3- £32356 home in order to make a routine felony arrest.2 It follows, therefore, since Payton was decided after defendant was convicted, that the new rule of criminal procedure propounded therein is applicable to Graham's murder convictions only if such rule is applied retroactively. We conclude that it should net be given such retroacti, application, We recently noted in People v. Albro (73 A D 2d 73, 75) that "[t)he easy to apply common-law rule that cases on direct appeal received the benefit or detriment of changes in decisional law and that final judgments were not affected by subsequent changes is no longer valid", it being our view that the instruction of Johnson v. New Jersey (384 U.S. 719, 728) to the effect that each constitutional rule of procedure must be individually analyzed to determine if it will be given retroactive application must be followed. In furtherance of such analysis, certain guidelines, adopted by the Court of ‘Appeals (People v. Morales, 37 i! ¥ 2d 262, 269) have been established to determine if a rule of constitutional dimension should be retroactively applied. They are (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old stendards, and (c) the effect on the administration of justice of a retroactive application of the new standards (Desist v. United States, 394 U.S. 244, 249, See also People v. Albro, 73 A D 2d 73, supra). Agein, as we stated in Albro, the most important of these factors is the purpose to be served by the new constitutional rule (supra, p. 75), and that purpose can only be discerned by a close examination of the rule to determine if the application of the same goes to the "very integrity of the fact-finding process" (People v. Buia, 34 ii Y 2d 529, 530; accord Stovall v. Denno, 3838 U.S. 293, 298). Thus, the Court of Appeals has concluded that there is no sufficiently compelling reason for New York State to establish a time of application for newly promulgated constitutional rules different from that recognized by the Supreme Court (see People v. Buia, supra, in which retroactivity of the rule of Chinel v. Celiforniz, 395 U.S. 752 [narrowing the permissible scope of searches incident to arrest] was denied on the authority of Williams v. United States, 401 U.S. 646). We turn now to a determination of whether the newly promulgated constitutional rule affects the "very integrity of the fact-finding process." In view of how that guideline was applied by our nation's 2 We determined that "[a) motel room is entitled to the same protec- tion under the Fourth Amendment as the home" (69 A D 2d 544, 547, cit- ing People v. Wood, 31 N Y 2d 975). te ome me wee oe 31 -4- $32356 highest court in Linkletter v. Walker (331 U.S. 618) wherein the exclusionary rule of liapp v. Ohio (367 U.S. 643) was denied retroactive effect, as well as in Williams v. United States (supra) and in Hill v. California (401 U.S. 797) where the rule of Chinel v. California (supra) was held not to be retroactive, we are cotpelled to conclude that the subject rule, i.e., that, absent exigent circumstances, a warrantless entry for the purpose of a routine felony arrest is unconstitutional, is not so essential to the “very integrity of the fact-finding process" that all past reliances upon existing statutory law should be negated so as to rehabilitate with innocence those who by their intentional acts seriously offended our penal statutes. Accordingly, we decline to apply Payton retroactively and adhere to our original decision. The judgment should be modified, on the law and the facts, by reversing the conviction of kidnapping in the first degree and robbery in the first degree and dismissing the counts of the in- dictment therefor, and, as so modified, affirmed. 5 a i rhe, laa at” ‘ ee = , mone aan / , ; ‘ ' , #32356 neem ’ $7 » OF ULW YORK heh [Ee COURT i ; APPELLATE DIVISION THIKD DOPARTHENT os oe | TRE PEOPLE OF THE STATE OF WEW YORK, ) ‘ } Respondent, ) } - against - ) | } RICHARD &. GRARAM, } ) Appellant } Argued, June 4, 1979. before: HON. A. FRAWKLIN “ANONEY, Presiding Justice, HO. MICHAEL E. SWEENEY, nOW. T. PAUL KANE, HON. J. CLARENCE HERLINY, Asseciate Justices. APPEAL from a judgment of the Councy Court of Sullivan County (.ovuis B. Scheinman, J.), rendered November 3, 1977, upon a verdict convicting defendant of two counts of murder in the second cegree, one intentional and the other felony murder, kidnapping in the first cegree, and robb: | in the first degree. r STEPHEN L. OPPENHEI!, for eppellant, 253 broadwey, Monticello, Sew York 12701. SIEPREM LUSGEN, as Special Prosccuior, 6 BR. Main Sircet, wiberty, New York 12754. OFINION FOR MODIFICATION A « c APPENDIX RB 33 ate 32356 MAHONEY, P.J. A complete recitation of the facts can be found in the reported cecision on the defendant's pre-trial suppression cotion (People v, Grehem, 90 Misc 2d 1019). Briefly, Craig R. Mitton, who collected ceily revenues from service stations for his employer, Mid-Valley Petroleum Corporation of Newburgh, New York, diseppeared after leaving company offices late in the afternoon of October 13, 1975 to sske a deposit, His vody, bearing three bullet wounds and marks of a blow to the head, was éiscovered in Sullivan County two days later, Over $25,000 in collections were missing. By the evening of October 18, the police had learned that the defendant, Lucas and two wosen were registered in rooms 307 and 208 of the Airport Travel Motor Lodge in Dania, Florida, The rooms were enpty when the police érrived and surveillence was continued throughout that night. At epproximately 6:00 A.M, the next morning, the defendeat end his party returned to their rooms, Due to a misunderstanding in comau- nicetions with State Police headquarters in Middletown, New York, the State Police officers assisting the Broward County Sheriff's office in the investigation and arrest believed that a warrant had been issued for defendant's arrest at 7:00 P.M., October 18, in New York. Therefore, at 8:00 A.M., on October 19, the police entered the motel rooms and arrested the defendant, Cnly leter did the police learn that the warrant had in fact not yet been ‘ssued,. After his arrest, defendant geve a full confession to the police, This confession wes so detniled end consistent with the fects which the polfce had independently uncovered as to constitute oveiwheletng proof of guilt. The defencent's briefs, if a pro- cuction which nusbered over 300 peges can still be called brief (see Sleter v. Gallmsn, 38 N.Y 24 1, 5), when reduced to their signi- ficent arguuentr, essentially challenge the admissibility of the confession in light of an allegedly defective arrest procedure under 34 o Je $32356 the Federal Constitution and Florida lew. Of course, if the arrest was gefective the subsequent confess{on could not be acmitted tecsuse the connection between the arrest and the inculpsatory state- “ent had not yet becone so attenuated as to dissipate the taint (S:sea v. Illinois, 422 U.S. 590; People v. Stewart, 41 NY 2d 65). Sut we find no error in the arrest procedure, A werrentless arrest ts authorized under New York law (CPL 140.05, 140.10) and Florida law (Fle. Stat., § 902.15). Such an érrest say be wade where the arresting officer has probable cause to belicve that the person to be arrested has comnitted a felony, AS yet, the United States Supreme Court has not prohibited warrant- Jess arrests following entry into a suspect's home even in the fesence of exigent circumstances (United States v. Watson, 423 U.S. 411, 418, n. 6). Therefore, the legelity of the arrest in this cese turns on state law, Tr 4 A motel room is cntitled to the sane protection under the Fourth Ancndaeat as the hone (People v. Wood, 31 N Y 2d 978). Nonetheless, in New York a warrantless entry to make a felony arrest, if besed upon prebable cause, {is pernissible (People v. Payton, 45 NY zd 300, oral arg. before U.S, Sup. Ct, March 26, 1979 [47 U.S. Lew Wk. 3651)). The same result obtains under Florf{da law (State v. reréz, 277 So 2d 778 [Fla.J, cert, den, 414 U.S. 1664; ieet v. State, 355 So 2d 489 [Fla, App.}). Thus, despite defendent's contention otherwise, this case presents no choice of law issue. Once probable ceuse is established, the arrest procedure employed against defendant is valid, Ca the facts before us, we find sufficient probable cause to justify the arrest. Before they arrested the defendant, the police pi ficers knew: thet Mitton had been the victim of a robbery and tcer; that Luces and another person had beea scen near the bank *s:€ to the time Mitton was to arrive; that the cefendant had wcently been fired from the same job Mitton had; that Lucas end the Cerencent had made plens to leave the area; that although neither fices nor the defendent was registered xt the Dowatowner Motel, Lucas left his car there, rather than at the airport; that the cercadent and Lucas were registered in the Florida motel under false ececesses; end thet Lucas had told a person in the Waldea, New Yort: éerce not to disclose theiz whereabouts. Thus, the pclice had done rore than serely place Lucas nesr the bank at about the time of the vollery. Indeed, the police had rezson to concluce that Luces and ~an em ae i“ 35 -4- £32350 the defencent head fled the area. Flight is an Iinportant element in establishing probable cause (sce Peters v. New York, 392 U.S. 40, 66$ People v. Kreichzon, 37 N ¥ 2d 693, 699). Defendant also challenges the arrest because the police did not gtve notice of their authority prior to entry, Hoth New York and | Florida, however, permit noticeless entry for the purpose of making | en arrest when the safety of the arresting officers might otherwise 2 endangered (see CPL 120.80, subd. 4; 140.15, subd. 4; Fla. Stat., £§ 901.17, 991.19, subdd. [1]), See alsoB nfieldv. State, 150 So. 2d 636 {-le. App.)). At the tine of the arreet, the police knew that the cefendéant aad his conpanions hed teken a Doberman Pinscher with thea to Florida. In fact, one of the erresting officers had wrapped a towel around his arm prior to the entry for protection against the enticipsted attack by this antral, Furtherwore, {t was reesonable ‘or the police to believe that defendent, a fugitive fran a honicide in which the murder gun wes still mfssing, mipht be earned. There- fore, defendant's objection to the noticeless chtry is without merit, Assuning the warrantless search of defendant's cotel room conducted after nis arrest was fisproper (see Chirel v. California, 3£5 U.S. 752; People v. Evats, 43 8% ¥ 2d 160, 165), in ligne of the overvhelming case agsinst him ouce his confessten hed been ecoitted, and the feint prejudicial impact of the “ruits of the improper search, the error rust be considered tai -less. (see People v. Crirzins, 36 NY 2d 230, 240-241; cf. People v. Grent, 45 NY 2d 366, 378-379). Defendant elso caintains that ite-s seized from Luces' vehicle should have been Supprecsed because the warrént was ecofective, Even if celfendent had stending to cake such a challenge (see Ret-2s v. 1)1l{inofs, U.S. ____, 99 S. Ce. 421), the -evrent issued for the sesrch of Lucas’ Lincoln Continental in New “iTScy wes not fatally vegue. it cuthorized a scerch for “other ivadence of a honicide” and beceuse it so limited the scope of the sferch to one psrtfievlar crime 4t cannot be conet{ccred@ on unconsti- tutfonal general warrant (see Ancressen v, Marvilcnd, 427 U.S. 463, See elso Lo-Ji Sales, Inc, v, State of New York, iS. [June ll, 1979}). Therefore, this evideace wes properly aczitted, Defendant's remaining coupleints of illegal police ectivity are Pot persuasive, However, two issues affecting sentencing rensin, Livenvent asserts that since he ves coavicted of felony murder, the hicepping and robbery cherges should have been diatissed as lesser ‘nc tuced offences, Since partictpstion in one of the enuntreted r- Cccate felonies (sce Perel Lew, § 125,25, sudd, 3) isa regquisit: on tt - -5- 32356 of the crime of felony murder, if the defendant {s convicted of clony curcer, the predicate felony charge must be d’sintssed (People Vv. DeCsta, 64 A D 2d 929, lv.to épp. den. 45 N ¥ 2d 841; People v. £ . . _——— ——— aa 2 2énes, 60 A D 2d 654; cf. People v, Shuzen, 37 NY 2d 302, 305. Bet see People v, Nichols, 230 N. Y, 221, 225-226, cf. People v, Perez, 45.N ¥ 24 204), In addition, the kidnapping charge merged with the robbery since the abduction did not exceed 12 hours before the victim Mitton dled, end because {it was incidcatal to and inscpareble from the crime of robbery (see People v, Snith, 47 NY 2d 63; People v. Cassidy, 40 NY 2d 763). Mitton was only sbducted in order to get the money he was carrying, Therefore, since the nicnapping charge merged into robbery, only one prediccte felony svevived end it must be considered included in the feiony murder conviction, The judgments tmposed for conviction of kiccapping in the first degree end robbery in the first cegree must necessarily be véeceted, The judcyment should he modified, on the law and the facts, by reversing the convictions of kidnepping in the first degree and robbery in the first degree and Cismissing the counts of the indictaent therefor, and, as so mocitied, affirmed. ‘ : . ‘ : en ere Pe | Yo a ee 37 a HE PEOPLE OF THE STATE OF NEW YOKK -against- OPINION "RICHARD B, GRAHAM RICHARD P, LUCAS, ! | Defendants, a (sa penesecee« cancvewnsnes —,eaneaeg | are ES: L'MANUEL GYLLGAN, District Sttorncy of Sullivan County, Court Heuseienticello, New York 12701 ; By: SPRPHEN F, LUNCEN, Assistant | , Pistrict Attorney of Counsel STLYHEN L. OPPENHEIM, Esq. 253 Broadway, Monticello, New York 12701 Attorney for Defendant Richard B, Graham LEGAL AID SOCILTY OF SULLIVAN COUNTY 26 Lendfield Avenue;*tonticello, New York By: MICHALL ZAGER, Fsoq. of Counsel Atterncy for Defendsnt Michard P, Lucas 4 *sCciihda TAN, Je APPFNNIN C . 3 ag oe? . These are notions by defendants to surpress certain tangible evidence seized pursuant to search warrants and also a : ' earrantless arrest, and to suppress certain confessions or ig ‘ admissions. sil The indictment charges defendants with the crimes of; *ourder in the second degree, kidnapping and robbery,’ Although the cases have been severed for trial, these hearings were combined and held jointly, pursuant to stipulation, + ' This opinion will set forth the facts found by this Court in waking its determination (C.P.L. 710.60 subd, 4). Although different standards of proof are required on the several types of Suppression sought (Peo, ve. Pooliner, 32 N.Y. 2d 556, clear and convincing evidence test on notion to suppress evidence other than a confession, and Peo. v. !tuntley, 1S N.Y. 2d 72, beyond a roxsonadble coubt test es to voluntariness of a confession), this Covit has found all facts wentioned beyond a reasonable doubt, At about midnight of October 13, 1975, one Craig R. Mitton was reported nissing by his wife, It was learned by the New | ‘ York State Police that he hud been employed by the mid-Valley . Petroleum Corporation of Newburgh, New York, as a route sales supervisor, whose duties included collecting money from gas stations operated by his employer and d*positing same each afternoon at about 4:00 P.M. in a night depository at a certain local branch bank, The police learned froa company officials that on said date of October 33 he had made up the deposit, which included cash in four bays, and left for the nearby bank at a time which was between 4:00 o'clock, and 4:45 o'clock o3e P.M, on that date, He was not seen or heard from thereafter, and the said deposit in excess of $25,600 had not been sade, On October 15, 1975, his body was found in Sullivan Cgunty, with clear evidence that he had been the victiw of foul play, his body evidencing 3 bullet holes, 2 in the head and 1 in the back, and a blow to his head, ' The vehicle used by the deceased, which belonged to his exployer, wes found abandoned in enother location, with a chenge box, The police learned from one Gloria Baker, who ', personally knew defendent Luces, that ays Oi ock P.M, on October 13, sho had seen csfondent Luces sitting in a Lincoln autorobile : with another unidentified person at the branch bank where the deceased was to have cade the deposit, Gloria Saker also advised the police that defendent Lucas had cohabited for a tires with one Madeline Mead, euployed at the Middlehope Service Stetica, and ‘that defendant Graham had also Seen exzployed at sid service Station, The police also learned from a Julia Tibby, that her sister, Sherryl Kilb had gone on a sizrall vacation with defendant Luces, another girl, Birdie, and another fellow, "Richie", The police aiso learned frow coapany officials that defendant Graham had held the sens position with Mid-Valley Petroleum Corporation as the deceased, but had been fired about 2 weeks earlier for taking houe a deposit of approximately $30,090 without depositing same in the night depository at the sace bank branch, Julia Tibby had also told the police that Grahas possesseda iandgun, Further inquiry disclosed that he had no pirnit for sens, : The police were also advised that defendant Grahaa ; vere a gun holster on his person, The police also learned that the defendeats were fricads, snd that they aad the girls Sherry] Kilb and Roberta Grahaa had left the area in the evening or night of October 13, One Georgia Shorey had also advised the police that Lucas, Sherry] Kilb, Graham and one Roberta Holces were together in> the New York City area, and that Georgia Shorey had a soney-graa waiting for her at the Kewhburgh Western Union office, subsequently learnod to be in the sum of $100, from one of the defendants in Florida, Gloria tsker hed also advised the police that about a week earlier, Lucas had called her to obtain the heys to the safe at the Middichope Service Station, as he was in rood of woney and that no one would be hurt, She refused, and subsequently she received a telephone call from Luces telling her that if she told anyone of their conversation he would sheot her, On that sane ovening the said gas station wes burglariiod and woney and cigarettes stolen, Subsequently, ths police learned that Georgia Shorey received a telephone call from Lucas advising her not to reveal the whereabouts of the two dofendants and the girls to anyone, The police leunched a search for defencants and checked airports in the New York setropoliten area and located the 1S74 Lincoln at the Gateway Hotel in Newark, New Jerscy, near Newark Airport, during the early morning hours of October 17, i The Motor Vehicle 8Sureau confirsed that the car ‘ belonged to Lucas, A bartender st the motel identified e phot ograph. ‘of Luces, and advised the police that he had been tipped with a paper bag centsining shout $8.00 in change, there heving been change a missing from the change box found in the cospany car driven by the decessed victin, Py The police also leained that dsfendent Lucas had an ! j extensive arrest record with one or two convictions, The criess tontioned on his record included crices of Violence and the use _— em ee of firearns, A check #2¢9 with the Motor Vehicle Buresu revealed that the Lincoln autowobile owned by Lucns wes @ 1974 nodel, and ts license plates nusher, which matched the plates on the car, Follosing the location of the autc.obile, the sane »es placed under discreet surveillance by the New York State Police, | end that afternoon other New York officers arrived, Subsequently, at about ¢:00/08 the 17th, Investigators Chandler and Ovens, together with a necber of the local prosecutor's office, appeared before a Superior Court judge of the State of New Jersey and gave testinony under oath before said judge in their application for a Soarch warrant of the automobile, A transcript of said proceedings wes received in evicence, showing that thore was preliminarily a discussion with the Court, after which the Court placed the oral application on the record, the Court capsulizing or sunwarizing -U- the facts giving rise to probable cause on the record, An issue «as reised at the hearing as to whether the officers were sworn during the recorded phase of the record, which contains most of the facts abovementioned, or, as Investigator . ‘Chandler testified, when the initial discussion with the Court re comssnced off the record, Defense counsel were given the opportunity to confer with the New Jersey Court, and to call the judgs as a witness to controvert the testimony of Investigator Chandler, Aithough one of the defendant's attorneys conferred with said judge, Ne wes not called, This Court finds beyond a reasonable doubt that all of the foregeing facts were laid before the New Jersey Court, under osth, which, in the transcript in svideuce held "I am a. satisfied that there is prebable ceuse to believe that a criwve has been committed end that there is probable cause to believe that the autowobile sought to be searched and seized tes been sufficiently established as the connecting link between the covzission of the howicide and evidence of the crins," and signed the search warrant (People's Exhibit 24A, p.J1). A starch of the car wes then conducted by a New Jersey police officer with 2 New York State Police officers in attendance and assisting. It should be noted, parentheticzily, that the rerson the application for the search warrant was mwsce by sworn testimony rather than by affidavit is recited in the New Jersey treascript in evidence, i.e., that the application was made on a Friday, at about 4:00 o'clock P.M,, and that there was, therefore, insufficient | 43 tice to prepare papers for the Newark prosecutor's office and the probable unavailability of a judge on the weekend, The search of tie Lucas" vehicle yielded siscellaneous papers belonging to defendants Graham and Lucas and a Dobra khilb, a rope, a rifle, shotgun shells, a hair froa the trunk area, and other iters of proverty, ~ tee All iters of perscnal property found in the car, snd tha car itself, were inventoried and, with the approval of the New Jorscy Court, rewoved to New York State Police Seadquartors in hew York, A check with the airlines in Nesark rovealed that a "Nr, and Mrs, Richerd Luces” and a'itr, end Urs, Richard Grahaa” had ceparted ous G:05 P.M, flight from Newerk to Fort Levderdale, Flori on Octcber 14, The police also jiearned that defendants hed a Dobercan Pincor dog with thea, | 4 nusber of New York State Police officers flew to Fort Lauderdale on the night of October 17, The following dsy, Cctcher 18, the police leai:med from the Western Union office in Florica froa which money-grars had been sent to the Newburgh, NeoYo areca the address of a mute] in Dania, Florida, which defendants Sad given to Western Union, It was further learned that Lucas and Graham had sent an additional money-graz each to the Newburgh, N.Y. sree, It was also leasined that defe:dants has registered at this motel under their own nares in 2 roors, but had given false sddresses, anc had also rented a car aad motorcycle, that they had a ee ee ss ree Sa large amount of money with them in travelers checks, On the 18th, the New York State Police officers met with officers of the Broward County Sheriff's departrcent and a Renbor of the Florida Division of Law Enforcerent, filled them in on all of the foregoing facts, including those earlier weckaiels herein in dealing with probable cause for the autezobile search warrant obterined in New Jersey, and a surveillance was taintained of the 2 sotel rooms occupied by defendants, The Florida police requested a teletype tessage from. New York, cescribing defendants as fugitives, The New York police ie such request by telcphone, a nd also for an sreest warrant to be obtsined in Wew York, The teletype cessape Cirecting the arrest was recoived in Florida before 8:00 P.M“, on the i8Sth, Hovever, it appears that although the officer in charge of the investigation in New York requested that an arrest warrant be obtained here, the San9 was not obtained until October 29, However, the officers Lelieved that the warrant had been obtained and wes in existence prior to the arrests, Defencants and the 2 woren with them retumed to the iotel reams st 6:00 A.M, on the 1Sth, Helleving them to be armed and with a vicious dog, the police waited until 8:90 A.M. wien without werning or notice, the police officers simulteneously, with the use of a passkey to one room, and through an unlocked door to an tejoining room, entered both rooms with drawn guns end one officer with a towel wrapped cround his erm as a precsution against the dog, ind arrested the defendants, who, together with the 2 woren, wore tsken to the Sheriff's Gepartrent in Fort Laudercale, where they ah ie 45 arrived at 9:00 A.M, There was no dog in the room, it having been. placed with a veterinarian a day or 2 earlier, nor any guns found, , Detendant Graham was Siven his full “Miranda” Warnings 4 tines, once in the sotel room, upon arrival at the = Sheriff's Department, before waking his confession, and at the be ginning of his confession, which was tape recorded, On 2 occasions, at 9:00 o'clock and 11:00 A.M., he signed written scinowledgaents of having received these warnings and, specifically waived counsel, xs he also did orally at the conuencerent of his tape recorded confession, A typewritten transcript of Grahan's confession was received in evidence at the hearing, (which Grahen subsequently : refused to sign) und this Court listened, in carsra, to the tape i recording of the confession (by stipulation), This Court is Satisfied beyond a reasonable doubt that Graham inowingly, intelligently and voluntarily waived his right to renain silent and ; to counsel, The confession, which took 45 rinutes to tape, was coapelted oraily st 11:45 (the sexe day as the arrest) and in brief substance sets forth the following: Luces, who wes his friend and drinking companion, tad faztliar with handling of the moneys at MideValley Petrolous, Suggested the roboery of Craig Mitton to Grehen who agreed to participate, On Uctober 13, they waited for the victim at the breach bank, held him up, Luces ordering Mitton into Lucas? car, Grahas following in Mittun's station wagon, They drove to a lovely country trea where they sbeudoned Mitton's Car, Ordering Mitton into the -10- 46 trunk of the Lincoln, Twey then drove to another isolated ares, Lucas and Grahan discussing the fact that Mitton knew Grahan as My co-euployees of Mid-Valley, Lucas insisting, therefore, that they had to “blow hia away", When the car “as stopped, Grahas opened 3 ¢the trunk, Mitton was ordered out, Graham hit him over the head knocking him down with a Club, and while Mitton was on the ground, : Lucas shot hia in the head and back area several tines until his ° fun jammed, and then left the body of the victia there, left the murder scene, picked up the 2 wonen, disposed of the handgun used in the Ailling im a stream in New Jersey, etc. its told of taking the money, about $26,000, including change from the change box, he | ' ad Lucas Placing vost of the money in safety Ceposit boxes in 2 banks in Newark, purchasing travelers Checks, and leaving for Florida, tie exonerated the 2 wonen frog any implication in or hnowledse of szid Crimes, Lucas refused to make any staterents to the police, On Oct, 21, both nen were taken before a Court in Florida, and waived extradition to New York, Lucas after conferring with counsel which he had requested, It should be “entioned here that Graham testified in his own behalf at the hearing, sad Claimed that he ‘ad been beatona a an officer Reidy of the New York State Police about 10:00 A.M, while in the Sheriff"s office in Florida and his confession thus coorced, This Court is convinced that said claim is a pure fabrication, as Investigator Reidy had little or no contsct with hie subsequent to the arrest and prior to the confession, Reidy having retained at the rote) after the arrests and removal of defendants - assisting Florida Police in inventorying the property found there, ~~ oem we . “ ' .* ~~ 02 6 text ry . “* .* 4 ‘ . 6 ‘ . ®s “ Also, Graham claimed marks on his torso from the slleged dSeating, having evidently forpotten/‘he testified that «hen processed at the i N.Y. State Police barrucks upon his retum he had been photographed, - front and rear, with absolutely no evidence of sans, nor had he camplained of eny mistreatrent to any other police officer nor to the Florida Court when he was brought before said court, “7 ¢ -_—— The hearings also covered an inculpatory statenent wade by Luces on the airplane trip back to New York, It is clear, t38 * even from the testimony of Lucas at the hearing, that he was not mistreated in any way, and that his remarks to the police officer seated next to hi« on the airplane were voluntary, unsolicited, and, after being warned before he spoke that his statensent could be used! “against him, Nor was such stetevent the result of any interrogation, Lucas werely cenied making the statenent, and whether he did or did: not would be for a trial jury to decide, ; f An issus developed regarding a coxboy type hat worn by Lucas, This hat had been returned to Luces in Florida, and he wore it on the trip back to New York, However, after processing at oe —~— ww, | - the state police barracks, he inadvertently left it there. The police, then realizing it had evidentiary value, kept it as evidence, - . te Lucas also seeks its suppression, Based upon the Graham confession and its meation of ‘f the hiding of the moncy proceeds in safety deposit boxes in Newark, “ cfart ad ten OP coprouch, aneteing the “siawi ficant reliatiorship*d vr “ceuter of gravity", cosflict of laws ruie. The vefendene in said case wes canvictod in lllinois of conspiracy to ohstruct i gustics by coacealing the hody of a surdered victiw on his fara in }- the State of Indians. The victia had been curdsred in Illinois, hor hedy tyeensported to and buried on the defendant's fara fa Cots Saee Ss w result of certein infornation cbtntned by the police es to where the bedy wes buviod in Indicaa, an T1lisols yollea officer obtained a search warrant from a jedgo in Indisena, senrehsé 3t the fara and recovered the body of the victia, The offices cit .pox which the search warrcnt was proedicstod was bated upon heavery Lafersaticn ind coneleetcas of the police officer, ctaarky anrvtfietent ender Indiasa law, although adsquete undor the las of tha Forum stata, [iiinots. the evicceuce wes satnitted at the Tllinofs irial, The Illinois Supsecs Court, citiar Sur Syd athor euthocitdies, cphold the conviction, The Court policted out that, trecittcnally, conflicting prtaciples proscribed that issuss of clearly procsdural tature sve governtd by the Truss of the forus, wherees substantive watters a.e controlled by the laws of the state whore tho trensaction occurred, Yot, with respect to conflicting stvts views concorniag Feweth Aovuecrvsat and otter rights, the Inw hes Seen chonsing and ta older rulas are being replisced by xore fiexible cules such es the wale “significsat reicticnship”™ with each of the sistes ia wvestica. The Court went on to suy thet if the prebien vreseated vas corsifeved Froe the prosedural-substance viewpoint, that the _——! trspact to its application to the facts tn that case, roferring also-4 suterobile accident case in which toth the sajority and cinority of. the court used the “interest enalysis” spproach, hut differed with | Y to ssue ¢«S “grouping of contact" or “center of gravity” (p.590) and: A “coatect theory of governusatal tatersest theory” (7.596). The = Cisseating jostices felt that the law of the place of the accident should govern the conduct and quelifiedly the status of person, residents and non-residents, within it, excent in the coxtraordinary. situation where the localization of persans end condvat is adventitious, Tisy felt that, under the particular facts of that sase the greater contact and stronper interests sere with the state in which the eccident had occurred, It fs interesting to note that “3 Pssociate Justice Jausen, concurring in the éissent, sa! authored the ‘ SLL LO A epinion for the eajority in Intercontinenta> Pieunios, Limited, supra, handed dawa two xeckhs carlier, co A third line of cases refer to the cetcrrent cffect on” police consuct tf an illegal search in a different jurisdiction were suppressed. Of course, we ald understand that searches, arrests and | * confessions sade in viulation of Fourth and Fifth (aad Fourteenth) Anondsent rights are to be suppressed wherever uade, However, a forum court can make its own deterzination of constitutionality, subject to cverriding federal cxse puidelines, “icra evidence is illegally obtained, in violation of local law, but sot rising to constitutional proporticns, the ferun court con teject the law to be applied, and consider, in atcition to the preceeding approaches of Burpe, supra, and Saiken, sujra, the ceterTrence spproach, In Pen le v, Oriosky, 40 Cal, Epp. 34 935, 135 Cal, Soptr, S28 (L974), Incisvna pollee received consent from defendsnt's wife to search the paritul residence in connection with a local Inciasa crise, Upon such search the police found evidence of a » California crine, and transnitted sacs to California authorities whe initiated a prosecution there, the court holding such evidence cnissable uncer Califovata law despito its illesgrlity onder Indiana law, The Court applied the “sovernanental intevest” approech, It also exovined the deterrent apnroach, the reeson for the exclusionary rule, snd found that police coraduct in Indiana «ss not "dirty business", and that the police conduct was preser under California lew. A Now York case dealing with a confession “ade in » SS AW, 24 969, Although the Califerata is Peon ls v. avis conflicts of lows qucstion was not discussed, the Second veparicent held, with citation of Teleral and severs) ‘iw York cases, that a confession ee ee en — — —— ne ee ee eee eee Ta: stay , 2 — OO eee -20- 56 outained fron defendant upon lis arrest in California violated his Sth auendnent right to counsel, end suppressed the sare, The cases © cited by the court, and relied upon by the court, did not involve” ie conflict of luvs questions, The Second Departeont evidently simply. ‘applied New York decisional law in deteraining wooether the 7 California confession shculd be suppressed, | Applying the ferecoing principles to the case at bar, it is apparent that the State of New York hes the greatest interest in this cese, including the New Jersey searches, the Florida arrest; . searches and confessions or swdeissions, The 2lleged rurcer, hidnapping and robhery occurred J; in Wew York State, of a New York State citizen, The defendants were at lerst residents, If not dosiciliary, of New York, Alwost all r witnesses in the Sew York prerecution are New Yor’ residents, This Court will not say that neither New Jersey nor Florida have any interests in this case, as undoubtedly those stetes do have an interest in police conduct taverds trensients or visitors within their esspective territories, Nut such Interests ere ainor when coupared to the overvhelning New York interests in prosecution of such heinous crires as here comtitted ancngst its own yesicents on its own soil, Indeed, the police activity in New me Jersey and Florida ess swainly conducted by New York State Police efficers with the assistence of police cfficers in said states and the use of fncshities in suid states in aid of the New York State police officers, Further, the application of New York law in this instarvce suuld not oftend the comity of interest relstionshinp hetscen sew York and the orher states involved, o23- “57 7 Mer worndd the owlice conduct in ice Jersev or Florica, if illeral (which this Court does not find) require suppression as 4 wee “~. . a ceterreat, > | = Se ~ - Accordingly, this Court will apply New York lew with ¥ respect to the New jersey and Florida transactions, subject caly to: . ¥ overriding federal law dealing with safeguarding Fosrth end Fifth *. a. fecnetent rights of these defendants. The facts sade known to the New Jersey Court sere eone $0 under oath, Lven though the transcript of ssid epplication indicates the oath having been administered to Investisators handier and Ovens during the recorded and transcribed portion of the processing, Chendier’s testimony that said oath was actually talen by him prior to his unrecorded testinuny to s2id court is not. only uncontredicted, but cefendants were given the oprortunity to ferafy sous with the New Jersey Court and call the judse as a Witness, «hich this Court would atrainge, but, after discussion by counsel with said court, they did not call hiws, In detersiring whother or not there ws« rrobable ccuse for the issuance of a search warrant, the criticel fects and circusstances for the reviewing court are these which were rade hnown to the issuing magistrate at the tive he deternined the tt warrart application, (People v,. Nieves, 36 N.Y.2d 396, 402; People v. licndrichs, 25 N.Y. 2d 129, 138; Beanle v. FelLaco, 15 N.Y, 2d 229, 292, cert, den, 383 U.S. 963; People v. Meinev, 14 N.Y. 2d 35,38). See also People v. Brown, $0 N.Y. 2d 163, is which a search - aarreat &25 uphold even though an informant was interviceeed ly the issuing sagistrate without being under oath, and without his testimony being recorded, although the sence was referred to later by = the ccurt on the record, : ‘ . ' ! The Fourth cased sat to the U.S, Corstitution. and Article 1, Section 12 ef the New York Constitution rejulre that Py pte v7 m ~~ search warsvants be issced cely upon probshle cause supported by ‘cath or affirmation, A written application in efficavit fora is sa07 we ‘not ebsolutely required, An szexple in New York is the People vy,” ‘Brown case, supra, whete an oral application ender cath Sy the Be sewer fe Su Aen Pr ‘ hee police officer, and cn of f-tho-record ciscussion with the inforrant, vhese taforssifon was cssential for probable cause,»#s Seld to be +3 sufficient, asd ia substantial, if mot literal, ccapdiance with i C.P.L. 699.38 (21). a In the case at bar, there was clearly a sufficient 3 basis for the New Jorscy Court to find prebedle cause for the ia issusnce of ma varennt for the seerch of the Lincoln autoaobdile, {S fad the socuriag ef a varvent Sy the police will presuue their : “bens fides cud tho subseqeent search upheld in a covdifel or - “parginal cese (People v. Hinton, 36 N.Y, 2d 549, $563, zlthouzh } : ¢o net cunsiver the probable cause issue here to be foubt ful or ‘ xarginal, Sco alsoker v, California, 374 U.S. 253). 3 The automobile itself beccre evicence in this case, * particularly aftor the finding cf deceased's fingerprints is the : tronk interfor, and, with the authority of the New Jersey Court, "3 properly yewored to hew York. Nor docs the clain by defendants that the car ~o% sezrched on October 17, and agsia thereafter, aad ¢dested for fingezprints on the 29th indicate any inproper or uneuthorized couduct by the police, The car was constantly under surveillance by_ the police, urd after obtairing the starch warrant, cscy took ;oesecsion of the keys and ssintained constant contre] over the car: ce in cesiying oot the search and testing for fiugerpricts, which they . - . *. RT Me ————— —_— criwe or that the sirestee Coswitted sane), znd secondly, the need for the Florida police to iuventery, renove, and safesusrd the Contents, being unsure of the status Of the women at the tive of the crrests of the vefendines, The confession of Groham after extensive snd peneated "Siranda” warniags, covonced within 3 hours of tis arvest snd 2 jours after his ayrival at the Srowsrd County Sheriff's office, was weluntary end after intellisent and bnowing eaiver of his rights to ‘veatn silent and counsel, There is me credible evidence in this sccord of uny Oveisceaching by the pelice, histreatrent, sor any other police conduct to taint the Sias, This court Sas also had the : Senefit of listening to the tepe recording of sane, end agrees with the testineny of the police vificers that Graham Zesired to he “cooperative’, It should here be pointed out thar tf, azyguendo only, tiere were any infirmity in the arrest, that the confessien is 3 ’ : story wsdeisrabiec, In Foomle ve ‘fartiner, 37 N.Y. 2d 292, the court held that a cenfession rade aftcr an unlseful arrest and search was SG stivnusted frem the search es to perait use of sare, He However, in suppressing a confession nade izne diately ie sfter sa unlasful arrest, in Peorle v, Stewart,41 N.Y. 2d 65, 70, t!e Ceorrt shed vore light en when a confessicn is or 35 not to he considered so integrally related te the unlawful arrest as to require suopression, cr so attenuated as to persit the same in evidence. In Stewart, supra, the police officer stopjed Gefendaat on the sttee@ pursuant to a police radio call based upen an "noayuous tip to the effect that a person bearing Jsfendant’s frseriptiscn had a gun, fristed defendant unlewfully, searched and : selicd bublots and @ gon. Upon questioning at the strtion about ; s the gun seftsed, Stesart confessed to a robhery €urtag which he acquired the gun. he i.ens were suppressed, the Court saying: "In cuntrest to Martinez, the interrogation here «2s concucted by } ths saws officer within a linited tins fraze, and the Fruit of the ; or.eSt, the gun, wes sn inteyrxal part of the subsequent admission” (70). 7 In distinguishing Hurtiner, the Court said: "The » e .¢ bey factors in Mertinut were the absence of a purpeseful exploitation — of the initial tllegsiity by the police, the lack of #2 casual link .otecen the challenged volice conduct vad the statererts sade end the existesce of a valid independent basis for the subsequent a] MTETTIOEAti on. This Court belfeves the Msrtiiez Sey factors to be - - preScut here, In srresting Lucas and Gratvar the solice acted in the -l)- P ‘ 63° ~¥ pood faith belief in probable cause, and their ovrnese was not intcrropation, but prosecution, There was no “purpese ful 2e3- 3° eaploitsation™ of the arrest, 2s a1) the probable cause factors, if. rot justifying an arrest, warranted interrosation of the defendants, at the very least, for which there was a hesis valid aad b Andspencent of the arrest. Fer the sans reasons, the arrest was not ihe cause for the interrogation, In Brown v. T)linois,422 U.S. 5995 6 ceaber eajority of th Court suppressed 2 confessions nade after an i}legal arrost | ond search, The sajyority pointed out that the exclusionary rule is ' Calcslated to deter the police fron encaging in violating constituticnal rights by sevoving the incentives to disregard thes (599,609) but cade clear that despite its broad deterrent purpose, the sule ‘as never beon interpreted to proscribe the use of : iliegally seized evidence in all proceedings or against all persons, | Citing cases (699). The majority then went on to hoid that the Michipan Court’s selience solely unon interventag “isante warnings, as a fifth Avendvent saleyuard, wes insufficient to cleanse the Fourth Acsndsent violation (to shich the purpose of Jeterrence also. attaches). The sajoriity then went on to point out the evil of unlas ful starches and seizures for the sole purposes cf investigation, Or Interrogation, The majority suppressed the confessicas because the search of defendant's spartrent and Sis arrest were Clearly without probavle cause, bLnown by the police officers to he uriewfal, “the flapgrancy of the official concuct", tits police acdaittiny in their testinony that the purpose of the ezrest was. (Lelleving en arrest warrant to de in existence), the serest heing “for investization” ot fer “yucsticning™ (604,605). The remaining 3 justices wrote 2 concurring opinions wiuerein Mr. Justice White concurred on the grounds that the police + “;new or should have known" that the arrest was absent probable cauge, while the resaining justices, concerned with the cost of poplying the eaclusionsry sule as a acterrent, would apply the sare to flagrunt official sisconduct, and «ould ellow the confessions : warnings : where "“effoctive” Mirenda;/ vere riven, and the ensuing ccofession vere vweluntary in the Fifth Amendsecnt sense (612). It can thus be seen that as recently as June 26,1975, : it was the feeling of all of the justices of the Supreve Court that 4 even though the search or arscst say be unlawful, if the polices ). neted ia poed frith, believing there to have been profhable cause dl for the purpose of prosecution snd not for the purpose of investigation or questioning, Saving an independent basis for juesticcing, and the intarvening effective Miranda waisings, that the confession should not bo suppressed, The foregoing discussion in this opinion which attcunmes, arguendo only, thet there was inadequcte probable cause for the arrest should not be interpreted to sean that this Court doubts os there was provable cause, but, instead as merely a recognition of * its Fallibility. $ The inculpatory statevent made Ly dccfendant Lucns cn the alrplene returning to New York was wade without there having heen any violation of his constitutional rights. After having been piven his Miranda warnings on several occasions in Florida, he = refused to talk to tle police officers, According to %1s own ~\ , eae /, | ‘ 4 65 oe testiwony he was well treated and not questioned furtter., On his appexrence before a Florida Court where he waived catradition, he requested,and was furnished, with counsel to whom he spcke, On the airplaac, cefendant initiated a conaversztion vith Investigator heidy, and wes again acvised that anything he said would be used acaieet hie, Despite this warming, and without any interrogation, he enquired sbout whether he covld deal with the District Attormey, that he way have been involved in the crive, but did not do it all hirself, or words to that effect, Tafencant, in his testircny verely denied heaving nade this statecent. This issus will be for atrial jury to deteraine, There is 10 requirenznt that the police stop a person from volunteering a confession or admission, nor are such vOlunteercd Stateionts Sarved by the Fifth Anondrent (lirenda v. Aricona, 364 U.S, 436, 478, Pcopie v, Gary,31 N.Y. rift ‘ Or ’ a t ‘ LY 4 ‘ ’ or ‘ thy ,¢ y } we ; * @eAY PP vy. oe. are ¢ ‘ f ear ney ‘ rive or nenae — Te ae = — 80-6297 RECEIVED MAR 1 9 19H) OFFICE OF THE Citmx SUPREME COURT, U.S. i ——_~ 21 ys ‘ —v . TY rT by RECEIVED nre ‘ er rf of ‘ ‘ ted State tahe sy , ) ) , SUPREME COURT, US ot ‘ ; ’ ‘ | $ , ira 4 > 7 ‘ ‘ rn, ‘ ‘ T i hy Me? *» ner t he » > 4 ‘ ‘ + ‘ 4 ‘ ‘ ao, + ’ ; a. oe i ¥ , » 7 > : hog ‘ r\Y na € er ; ‘ ‘ ¥ ' ‘ P ; thore® , ‘ ‘ ‘ ‘ ’ ° ‘ bus 1S¢ ‘ . tore T } P ‘ nav > ‘ ry eeding y e-. 7 4 P y ‘ +> roaé , + ‘ Yr > , ‘ 4 ? ‘ + ve iv ge forther ear that the re ’ P ' } ace + hy " ‘ ; ’ ind +, ‘ . hel ve ‘ mot + +r ‘ ¥ he ( et of rr ‘ i¢ nerf he WY + ure true ‘ve Are ‘Ou presently emp] ‘aA? 10, 1 wat ] «* ‘ ’ redin A mst, 197° sn the ar int of mer weace i? hat + eal wae nNeY ” nth. he Have vou received within the nast twelve mont} anv income from a hustness, nrofession or ther form of self-emnlovment, or 1n the form of rent navments, interest, dividents, or other sources? No. ° 3. Do vou own anv cash or checkina or savings account? 4. Do vou own anv real estate, stoc ,» honds notes, automobiles, or other valuable nronerty (excludina yrdinarv household furnishings and clo-hina)? . No. ° List the nersons who are lenendent ut Tv) 1 for sur rt and state vour relationshin t those nersons,. . ‘ re . l¢ ‘ ¢ mr eed a , r pnerson wa ranted ane nee) : ed tf 4 ¢ thy¢ +» ») rt, the 1? , ; rt, sriet 7 + he Annellate rt, the Nrire late ! € eh, reme -— € hs tate ‘ ws =! hird wu oF ‘ nt. * oy ‘ ’ +> i¢ ‘ P ‘ > % one ’ " JO? + iT ‘ ; ' , hy e¢ ’ + rect ‘ ; ’ ‘ ‘ f , worn + bef r<¢ ‘ hs « ! a ; ‘ s ,oun? j ‘ ia of March, 1981. ' ‘ a L ) j » : ‘ Notarv Publ Cr STI a4 AVTATS Pur 4 | t, ‘ QUAD IF 0 *S fa 84694512) f OW MISSION TEPLRES we 5 15 \ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2398%3A2. Public record. Not legal advice.