People v. Evans , 52 A.D.2d 32 ( 1976 )

Dillon, J.

Defendant appeals from a judgment convicting him of criminal sale of a dangerous drug in the third degree. He contends that testimony of his possession of three $10 bills was improperly received against him and should have been excluded as being the product of an unconstitutional search. The issue is whether a police officer, in the circumstances here, may testify concerning observations made by him during a warrantless search of the defendant’s person made at a time when he had probable cause to seize and search the defendant but where a formal arrest was not made until one month later.

At trial Deputy Sheriff Scirri testified that on October 4, 1974, while he was working as an undercover officer, he had a conversation with defendant about the purchase of heroin. When he asked defendant how much heroin he had, defendant replied "I have as many as you want”. The defendant took from his pocket a tinfoil containing bags of heroin, removed two and sold them to Scirri, who paid defendant three $10 bills. The defendant told Scirri that if he wanted more he should return. Scirri forthwith delivered the two bags to his superior, Sergeant Guadagno, who field-tested the bags’ content and verified that it was heroin. Scirri gave Guadagno a full description of the defendant and advised him of the details of the purchase. Guadagno immediately went to the vicinity of the alleged sale and confronted the defendant. He frisked the exterior of defendant’s clothing and then ordered defendant to empty his pockets on the hood of the police car. Guadagno testified that among the items defendant removed from his pockets were three $10 bills which he did not seize and which had not previously been marked or made identifiable. After a further street detention while Guadagno determined whether there was any outstanding warrant, the defendant was released and was not formally arrested until his indictment one month later. The time lapse between Scirri’s purchase and Guadagno’s search was approximately 45 minutes.

It is Guadagno’s testimony at trial that the defendant had three $10 bills on his person shortly after the sale to Scirri that is the subject of this appeal. The defendant urges that since the search was not made incidental to and contemporaneous with a lawful arrest, the testimony should have been excluded.

We cannot agree that the circumstances here warrant the application of the exclusionary rule. The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The constitutional protection afforded the citizenry does not forbid all searches and seizures but only those which are unreasonable (Terry v Ohio, 392 US 1; Elkins v United States, 364 US 206). The question presented here, then, is whether in all the circumstances the defendant’s "right to personal security was violated by an unreasonable search and seizure” (Terry v Ohio, supra, p 9).

The test is one of reasonableness. The exclusionary rule represents a judicial response to unlawful, overbearing and unreasonable police conduct. When the police are found to have engaged in constitutionally proscribed conduct, the court is obligated to withhold judicial approval of that conduct by application of the exclusionary rule. The rule, however, "cannot properly be invoked to exclude the products of legitimate police investigative techniques” (Terry v Ohio, supra, p 13).

It cannot be doubted that while Guadagno did not formally arrest the defendant, he restrained his freedom of movement and thus did "seize” him within the meaning of the Fourth Amendment (Terry v Ohio, supra; Sibron v New York, 392 US 40; People v Cantor, 36 NY2d 106; People v Earl, 50 AD2d 289). It is unquestioned that he had probable cause to seize and search the defendant for the possession of narcotics. Had he found narcotics on the defendant’s person and formally arrested the defendant for that crime, his conduct would receive judicial approval as reasonable and proper.

In determining the reasonableness of a search or seizure we must weigh "the government’s interest in the detection and apprehension of criminals against the encroachment involved with respect to an individual’s right to privacy and personal security * * * In conducting this inquiry we must consider whether or not the action of the police was justified at its inception and whether or not it was reasonably related in scope to the circumstances which rendered its initiation permissible” (People v Cantor, supra, p 111, citing Terry v Ohio, supra, p 19; Cupp v Murphy, 412 US 291; People v Kuhn, 33 NY2d 203).

The government has a deep and abiding interest in the flow of illicit narcotics in this State and nation. There is no greater scourge upon the public, particularly the young, than the insidious cultivation of new disciples to heroin euphoria and the corruption and human misery that are its inevitable result. The use of undercover police, disguised as addicts, has long been recognized as a reasonable, though perilous, method of ferreting out those who sell and distribute this venomous commodity.

The postponement of arrests of sellers of narcotics in order that an undercover policeman may pursue his work to its maximum potential before the revelation of his true identity is an established and legitimate police practice, provided the delay thereby occasioned does not prejudice other constitutional guarantees of the defendant.

Guadagno had a legitimate reason for seizing and searching the defendant, but on failing to find narcotics in his possession he did not formalize an arrest. To have done so would have required him to charge the defendant with the sale of narcotics to his fellow deputy, an act which would have revealed the identity of that deputy as an undercover policeman.

The defendant contends that since the search here cannot be justified as incident to a lawful arrest, testimony as to its fruits must be excluded. We note, however, that the rationale upon which detention searches may constitutionally be permissible recently has been refined (People v Perel, 34 NY2d 462) and the rule of reasonableness reaffirmed (cf. People v Fustanio, 35 NY2d 196).

"The right to search the person incident to arrest always has been recognized in this country and in England” (United States v Rabinowitz, 339 US 56, 60; see, also, Weeks v United States, 232 US 383, 392). "The rule allowing contemporaneous searches is justified, for example * * * by the need to prevent the destruction of evidence of the crime * * * which might easily happen where the * * * evidence is on the accused’s person” (Preston v United States, 376 US 364, 367).

The dissenting opinion relies upon the language of Justice Black in Preston (p 367) that the justification for a contemporaneous search is "absent where a search is remote in time or place from the arrest”. The circumstances of each case, however, determine the applicability of that language and it is sufficient to note that the facts in Preston differ greatly from those at bar. There the court was confronted with justifying a search of an automobile, not a person, several hours after the arrest of the defendants, who were in jailhouse custody.

The broad rules of Fourth Amendment constitutionality to be derived from Preston were set forth by Justice Black in his dissenting opinion in Vale v Louisiana (399 US 30, 36): "A warrant has never been thought to be an absolute requirement for a constitutionally proper search. Searches, whether with or without a warrant, are to be judged by whether they are reasonable, and, as I said, speaking for the Court in Preston v United States, 376 U.S. 364, 366-367 (1964), common sense dictates that reasonableness varies with the circumstances of the search.”

It is now well settled that a prearrest search of the person will be permitted where subsequent thereto the defendant is arrested, provided that at the time of the search there was probable cause to arrest (United States v Riggs, 474 F2d 699; United States v Skinner, 412 F2d 98, cert den 396 US 967; Henderson v United States, 405 F2d 874, cert den 395 US 906).

The postponement of the intrusion of formal arrest does not remove the justification for the search and "in no way prejudices the individual’s Fourth Amendment rights” (United States v Riggs, supra, p 704). As Mr. Justice Harlan wrote in his concurring opinion in Peters v New York (decided with Sibron v New York, 392 US 40, 77): "If the prosecution shows probable cause to arrest prior to a search of a man’s person, it has met its total burden. There is no case in which a defendant may validly say, 'Although the officer had a right to arrest me at the moment when he seized me and searched my person, the search is invalid because he did not in fact arrest me until afterwards.’ * * * [A]n officer who does have probable cause may of course seize and search immediately. Hence * * * the prosecution must be able to date the arrest as early as it chooses following the development of probable cause.” (Emphasis in original.)

The United States Supreme Court addressed itself to the specific issue of the postponement of formal arrest following a search upon probable cause in Cupp v Murphy (412 US 291). There the defendant’s wife was murdered by strangulation. The police, over the objection of the defendant but with reasonable cause, compelled him to submit to a taking of scrapings from his fingernails and thereafter released him. It developed that the fingernail scrapings contained traces of skin, blood cells and fabric from the victim’s nightgown. The defendant was not formally arrested until approximately one month later. The court found, firstly, that “[nevertheless, the detention of the respondent against his will constituted a seizure of his person, and the Fourth Amendment guarantee of freedom from 'unreasonable searches and seizures’ is clearly implicated” (Cupp v Murphy, supra, p 294). Citing Davis v Mississippi (394 US 721, 726, 727), the court noted "[n]othing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed 'arrest’ or 'investigatory detentions’ ”. The court pointedly stated, in distinguishing its holding from that in Davis, where the defendant was also detained in advance of the arrest, that the detention in Davis was without probable cause while the detention in Cupp was based upon probable cause. Though the court expressly did not hold that a full search of the defendant would be justified in the circumstances, it ruled that where no arrest is made but where probable cause for an arrest exists and where the police have reasonable cause to believe that highly destructible evidence is on the defendant’s person, then a limited search to preserve that evidence does not violate the Fourth and Fourteenth Amendments (see concurring opinion of Justice Blackmun, Cupp v Murphy, supra, p 300).

It follows, then, that the Deputy Sheriff, in this street encounter with the defendant, not only could have formally placed him under arrest but had the additional right, upon probable cause, to conduct a search for narcotics. Not having uncovered narcotics pursuant to his directive to the defendant to empty his pockets but having observed that the defendant had three $10 bills in his possession, he chose not to formally arrest the defendant at that time in keeping with the reasonable police practice in these circumstances of not revealing the identity of an undercover officer until achievement of his maximum potential usefulness. Having made the observation of those bills pursuant to a lawful search, however, the exclusionary rule should not be applied to his testimony in that regard.

This is not to say that the police repeatedly could intrude upon the privacy of the defendant’s person between the time of the alleged sale and the date of formal arrest. Such repeated intrusions, absent arrest, would lack essential antecedent probable cause and would be subject to the exclusionary rule as unreasonable.

We also note defendant’s other contention that it was error to admit the testimony of Scirri that defendant said at the time of the sale the he "couldn’t afford to get busted again because he had just gotten out of jail.” The statement was voluntarily made while the defendant was not in custody. It did not require a pretrial hearing as to its admissibility and was not subject to the exclusionary rule. Though there may be a question of its relevance, its admission was nonetheless harmless error (cf. People v Crimmins, 36 NY2d 230).

The judgment should be affirmed.