Opinion
June 5, 1967
Order of the Supreme Court, Kings County, dated November 19, 1964 and made after a hearing, granting defendant's motion to suppress evidence, reversed, on the law and the facts, and motion denied. The evidence at the hearing established that police officers, while in the process of surveillance of a garage pursuant to a search warrant subsequently found to have been improperly issued, observed one Puccio apparently buying a silver foil package from a putative seller in the garage. Defendant was observed as the person who had been sent by the seller to the rear of the garage to obtain the package. A police officer followed Puccio after he left the garage and arrested him. Upon Puccio's arrest, he was searched and the silver foil package was found in his right sock. Subsequent chemical analysis confirmed that the package contained narcotics. Puccio was charged by information in the Criminal Court of the City of New York with the misdemeanor of possession of narcotics (Penal Law, § 1751-a). At a hearing to controvert the search warrant, the search of Puccio was held to be illegal and the evidence was suppressed as to him. The defendant herein was not a defendant in the Criminal Court action against Puccio. Defendant was later arrested and was indicted, inter alia, for selling narcotics as a felony. He then made the motion under review, pursuant to section 813-c of the Code of Criminal Procedure, to suppress the narcotics seized from Puccio, contending that the seizure was in violation of the Fourth Amendment of the Constitution of the United States and, hence, the narcotics could not be used against him ( People v. Estrada, 44 Misc.2d 452). In our opinion, the learned court erred in granting defendant's motion. Under section 813-c of the Code of Criminal Procedure only a "person claiming to be aggrieved by an unlawful search and seizure" has standing to move to suppress. Under the Fourth Amendment, protection against an unreasonable search and seizure is essentially a personal constitutional right. Unless the movant under section 813-c can demonstrate a personal constitutional infringement, he cannot be heard to complain that a violation of another's constitutional protection has prejudiced him ( Hatch v. Reardon, 204 U.S. 152, 160; Jones v. United States, 362 U.S. 257, 261). In short, a "person claiming to be aggrieved" is one who has been a "victim" of the allegedly illegal search and seizure or "one against whom the search was directed" ( Jones v. United States, supra; People v. De Vivo, 23 A.D.2d 753). Whether the person claiming "standing" has been a "victim" of a constitutional infringement or one against whom an unconstitutional act was "directed" depends on the precise factual background of each search and seizure and the movant's relation to the object seized or premises searched. The facts at bar indicate that defendant was not the victim of the unreasonable search and, hence, had no standing to move to suppress. Beldock, P.J., Ughetta, Christ and Rabin, JJ., concur; Benjamin, J. concurs in result, with the following memorandum: On this record (which includes a brief conversation between Puccio and defendant which was overheard by the officer), it is my opinion that there was probable cause for the arrest of Puccio and the search of him consequently was valid. [ 44 Misc.2d 452.]