Opinion
June 19, 1967
Appeal by the People, as limited by their brief, from so much of an order of the Supreme Court, Kings County, dated June 3, 1965, as, upon reargument, adhered to the original decision, rendered after a hearing, granting defendant's motion to suppress evidence. Order reversed insofar as appealed from, on the law and the facts, and motion to suppress evidence denied. The motion to suppress was granted by the learned Justice at Criminal Term on the ground that section 178 of the Code of Criminal Procedure had not been complied with and that there was no showing of exigent circumstances which might excuse the noncompliance. We agree that the statute had not been complied with, but we disagree with the conclusion that there was no showing of exigent circumstances justifying the noncompliance. Section 178 provides that "To make an arrest * * * the officer may break open [a] * * * door * * * if, after notice of his office and purpose, he be refused admittance" [italics supplied]. In the case at bar, it is clear that the officer had probable cause to arrest defendant, without a warrant, for selling narcotics and to search her apartment, wherein the arrest was made, as an incident to that arrest if it was lawfully executed. Defendant, however, says the arrest was not lawfully executed because the officer broke into her apartment without giving "notice of his office and purpose", as required by section 178. The People concede such noncompliance with the statute but urge that the arrest (and, consequently, the attendant search) was nevertheless valid because exigent circumstances justified the noncompliance. We agree with the People. The arresting officer testified that he knocked on defendant's apartment door; that he heard a "rustling about" or a "moving about" within the apartment and then heard a toilet flush; that he then opened the door and saw defendant coming from a "little foyer into the kitchen, where the bathroom is"; and that he immediately arrested her for selling narcotics, searched the apartment and found heroin and paraphernalia used to cut or dilute narcotics into small quantities for sale to users. In our opinion, this testimony clearly requires a finding that vital evidence was about to be destroyed and that the arrest would thus be frustrated. Those factors, found herein, establish exigent circumstances excusing the noncompliance with the statute (see Ker v. California, 374 U.S. 23; People v. Maddox, 46 Cal.2d 301, cert. den. 352 U.S. 858; People v. Montanaro, 34 Misc.2d 624; People v. Cocchiara, 31 Misc.2d 495; cf. People v. Gallmon, 19 N.Y.2d 389, n. 1. to dissent by Fuld Ch. J.; Code Crim. Pro., § 799; People v. De Lago, 16 N.Y.2d 289). In Gallmon ( supra), the court sustained a seizure of narcotics implements after an entry into Gallmon's apartment without notice of "office and purpose". The facts in Gallmon make it inapplicable at bar. But relevant at bar is footnote 1 to Chief Judge Fuld's dissent (p. 395), in which he conceded that there may be, at times, "`exigent circumstances' requiring unannounced entry by law enforcement officials — e.g., to prevent destruction of evidence," citing section 799 of the Code of Criminal Procedure, People v. De Lago ( supra) and Ker v. California ( supra, pp. 39-40) as authority. Section 799, as amended in 1964 (L. 1964, ch. 85), authorizes a Judge to include in a search warrant a direction that the executing officer may break in without notice of office and purpose if the property sought may be easily and quickly destroyed or if the officer may be endangered by the giving of notice. People v. De Lago ( supra) held this statute constitutional. Section 799 codifies the common law on this point and apparently expresses New York legislative policy as being the same as that stated in the above-cited California decisions ( Ker v. California, supra; People v. Maddox, supra). This statute, together with footnote to Chief Judge Fuld's dissent in Gallmon ( supra), with its citation of Ker, clearly indicates that the doctrine of "exigent circumstances" applies in New York as well as in California. In sum, we here hold that the record establishes exigent circumstances justifying the arresting officer's noncompliance with section 178 of the Code of Criminal Procedure, that the arrest of defendant was lawful despite noncompliance with that statute, that the search of defendant's apartment was a lawful incident to the lawful arrest and that the motion to suppress the seized evidence should have been denied. Beldock, P.J., Christ, Brennan, Hopkins and Benjamin, JJ., concur.