Opinion
December, 1922.
John E. Ruston, district attorney ( Marshall Snyder, assistant), for People.
James H. McCabe, for defendant.
There is no dispute as to the facts. The defendant, Arthur Ball, resides at No. 12 Luqueer street, in the borough of Brooklyn, in a six-family apartment house on the top floor, left, in said building, together with his wife and two children. The premises are occupied as a dwelling and for no other purpose. On or about the 7th day of September, 1922, about ten o'clock in the night thereof, four men appeared at the door of the defendant's dwelling and knocked thereon; the defendant, in response to the knock, partly opened the door and thereupon the four men pushed open the door, passed by the defendant and seized the following property: copper boiler and copper tube wrapped in burlap bags; a small keg of whisky, containing about five gallons; two quarts and eight half pints of whisky in bottles; fifteen gallons of rye mash; one small bottle of gin; seven gallons of cherry wine.
When these men forced their way into the premises, as above stated, one of them proceeded through to the front room of the house. The defendant followed him and asked him: "Are you a burglar or what are you, as you have showed me no credentials for coming into my house." This man thereupon put his hand into his trouser pocket and removed therefrom a shield and displayed it to this deponent, saying at this time: "Here are my credentials; I am a police officer."
Two of these men, whom the defendant subsequently learned were police officers, searched the entire premises and took away the above-named articles from defendant's home and placed him under arrest.
The police officers took the defendant to the Hamilton avenue station house where he was admitted to bail to appear the following morning at the Ninth District Magistrates' Court at Fifth avenue, Brooklyn, N.Y.
On the 8th day of September, 1922, this defendant appeared before a city magistrate at the said Ninth District Magistrates' Court, waived examination therein, and was held for action of the grand jury, being duly admitted to bail by said magistrate. He was subsequently indicted and pleaded "not guilty."
Prior to the trial of the action an order was issued out of this court restraining the district attorney, the police commissioner of the city of New York and the property clerk of the police department of said city from proceeding further herein until a determination of the motion made for an order directing the return of the said articles and property to the defendant.
Search for seizure and forfeiture of intoxicating liquor kept for unlawful traffic is had under section 802-b of the Code of Criminal Procedure. Paragraph 6 thereof provides:
"6. Whenever a peace officer shall find any person * * * in the unlawful possession thereof [of intoxicating liquor] outside of his private dwelling he may, without a warrant, seize any and all such intoxicating liquor and the vessels containing the same and any property designed for the manufacture of such liquor."
The search and seizure here was of and in a private dwelling and would have been justified only under a warrant of search and seizure based upon a proper complaint duly verified all in accordance with paragraph 2 of the said section.
The dwellings and premises of citizens are under the highest protection against search, and may not be invaded with impunity save on full compliance with all constitutional and statutory requirements. Johnson v. Comstock, 14 Hun, 238; People v. De Vasto, 198 id. 620.
The procedure in proceedings of this character is entirely statutory. The procedure here was in plain violation of the terms of the statute. This motion made before trial is timely and is granted, and an order will be made herein directing the property clerk of the police department of the city of New York to immediately restore to the defendant, Arthur Ball, the said property and enjoining the district attorney of the county of Kings and the police department from using said property or any information derived from said search and seizure against the defendant.
Ordered accordingly.