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Consequently, the court decided to settle the motion.


A man is charged with three counts of forgery in the second degree, criminal buying and receiving stolen property, criminal concealing and withholding stolen and wrongfully acquired property, possessing a pistol loaded with ammunition as a felony, and possession of a pistol, a bludgeon and a set of metal knuckles as a misdemeanor. The matter of the forgery counts and the buying, receiving, concealing and withholding counts are a quantity of airline tickets.

The man then moved for an order suppressing the use of any and all evidence seized in violation of his constitutional rights and for other and further relief as justice may demand a hearing was ordered.

The evidence discloses that the police obtained a search warrant from a judge of the criminal court, based upon the information allegedly furnished by a reliable informant that the man was in possession of jewelry which was proceeds of a crime, also a loaded gun and possible other contraband.

After the issuance of the search warrant, the man was taken into custody in the garage of the hotel, where he was frisked but nothing was found on his person. But, the man was carrying a briefcase.

The briefcase was not then examined by the police but they informed the man that they had obtained a warrant to search his person and residence with night time endorsement that they were going to proceed to his residence with or without him, after which they, the police and the man, proceeded with the police taking possession of the briefcase.

Upon arriving, the police for the first time opened the briefcase and in it found one loaded gun and a large quantity of airline tickets.

In the house they found another loaded gun, pair of brass knuckles and a blackjack.

At trial, the man not only attacked the sufficiency of the evidence to warrant the search and seizure, but sought to fortify his attack by a contention that the warrant giving the basic right to search and seize was in itself void.

Sources revealed that the affidavit used to obtain the search warrant states that the man has concealed on his person and in his residence giving the address, a revolver for which the man has no firearm permit and a quantity of jewelry and other property which are the proceeds of larcenies and burglaries in the area.

Therefore, the warrant specified the contraband to be seized as being possessed by the man without detailing of what that contraband consists. The supporting affidavit, however, makes it clear that the contraband involved is a revolver for which the man has no permit.

Subsequently, no case has been found which permits a search warrant to be supplemented by reading into it averments in the supporting affidavit but interpreting the requirement of warrant specification for what it is intended to be a notice to the man of what the police have a right to search for and seize. Further, the court is holding that where the search warrant specifies contraband, though only through the medium of a penal law section, and the supporting affidavit describes what that contraband is, the two of them may be read together to determine what is, in fact, covered by the search warrant and what may be searched for and seized.

Sources revealed that a holding, though not literally within the language of the wording of the constitutions, gives a man all the protection which he was intended to have and yet permits justice to be done to the people at large.

The court stated that common sense should not be sacrificed to a wooden interpretation of words when the true meaning of what the constitution intended to achieve can be accomplished without trespassing upon individual rights. Sinister coloration should not be recognized to a procedure which is basically reasonable and which does not treat the search warrant as existing in a vacuum but recognizes it as part and parcel of the affidavit upon which it rests.

In the case, the court hold that the weapon found in the man’s home may not be suppressed since by combining the allegation in the search warrant with the averment in the affidavit that the man has concealed on his person and in his residence, a revolver for which he has no permit, there was sufficient authority for the search of the man’s home and the seizure of the revolver found therein.

The question next arises whether the bludgeon and a set of metal knuckles which were found during the same search must be suppressed because they were not described either in the search warrant or in the supporting affidavit.

The court stated that the police in the case were not required to close their eyes to the existence of the blackjack and brass knuckles but, on the contrary, since they could not be legally possessed, the police were under a duty to seize them as contraband even though they were nowhere mentioned in the search warrant or supporting affidavit.

Consequently, the motion, insofar as it seeks suppression of the bludgeon and metal knuckles which form part of the material of the seventh count of the indictment, is therefore denied.

The court also stated that the quantity of airline tickets found in the briefcase and which is the subject matter of the forgery counts and the criminal buying, receiving, concealing and withholding counts must be suppressed for they are nowhere mentioned within the four corners of the search warrant or the supporting affidavit and clearly they do not come within the definition of contraband.

Subsequently, it is unnecessary to pass upon whether the revolver found in the briefcase should be suppressed for it is not the subject matter of any count of the indictment and a motion to suppress lies only when the property sought to be suppressed is the subject matter of a criminal proceeding.

Based on records, the county would have no jurisdiction to prosecute the man for its possession because its presence in the county was brought about by its transportation by the police and not by the man.

The fact that the court found it necessary to suppress the allegedly stolen airline tickets, and is compelled to sustain the seizure of the revolver, the blackjack and the brass knuckles, points up what occurs when the search warrants and affidavits are drawn by persons not having the benefit of legal training. Moreover, the suppression, unfortunately, obtains in cases of narcotics, the possession of dangerous weapons and other instrumentalities of crime by reason of deficiencies in either the search warrant or the supporting affidavit. It is high time that the police authorities adopt a policy for the drawing of such warrants and their supporting affidavits, or at least for the review thereof, by persons having some expertise in the field of legal documents. Too often such warrants for search and seizure do not receive the careful judicial scrutiny to which they are put when they are directly attacked, with the result that many a good criminal case turns unpleasant for the prosecution while helpful to the criminal involved, barely aids in the promotion of true justice. Consequently, the court decided to settle the motion.

Because of the scarcity and money related problems, some people tend to engage in illegal activities for financial gain. Whenever you get involved in a crime and got arrested, you can seek legal help from the Queens County Criminal Lawyer or Queens County Arrest Attorney. You can also ask further assistance from Stephen Bilkis and Associates office.

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