People v. Berrios 28 N.Y.2d 361

Scileppi, J.

In each of these five appeals, the defendants have been charged with possession of heroin and arresting officers have testified that glassine envelopes containing narcotics were dropped on the ground as the defendants were approached by the police. We have been called upon to decide whether, in these “ dropsy ” cases, or for that matter whenever a warrantless search is presented, it is the People who must bear the burden of proving the legality of the search and seizure. Before reaching the question presented, it is at this juncture appropriate to refer to the particular facts of each case.

In People v. Berrios, an undercover police officer, seated in an unmarked automobile, observed the defendant and another individual walking past the vehicle. As the officer was leaving his car, the defendant dropped a glassine envelope to the street. He was arrested and, following an unsuccessful motion to suppress, tried in Criminal Court, Bronx County. At the trial the defendant and another man testified that the officer had searched them. This testimony was rejected and defendant was found guilty. He appeals to this court from an affirmance of his conviction by the Appellate Term.

In People v. Brown, a plain-clothes patrolman testified at a hearing held on defendant’s motion to suppress that he had observed the defendant and several others talking near a park . fence. He left his police car and, as he approached the defendant, noticed him open his hand and drop two glassine envelopes. The officer was the only witness and the Criminal Court suppressed the envelopes. Defendant appeals to our court from a reversal of that decision by the Appellate Term.

In People v. Bryant, two undercover policemen were watching the defendant from a parked automobile. They left their vehicle, *366and as they approached the defendant, 20 glassine envelopes were dropped to the ground. Unlike the other appeals considered herein, neither motion to suppress nor objection to the admissibility of the envelopes appears in the record; defendant appeals from an affirmance of his judgment of conviction.

In People v. Ortiz, two policemen in a radio car had been conducting surveillance of a Brooklyn “narcotics location” and observed a group of men, including the defendant, leave the building and walk down the street. The group was instructed to stop and nine glassine envelopes were dropped by the defendant. Defendant’s motion to suppress was granted by the Criminal Court which rejected the arresting officer’s testimony and defendant appeals the reversal of that determination by the Appellate Term.

In People v. Tate, two uniformed officers approached the defendant on a Manhattan street where he had been conversing with a friend. Defendant walked up the steps of a building and dropped packages containing 25 glassine envelopes. The packages were seized and a subsequent search of the defendant, after his arrest in the building, revealed a hypodermic instrument. Defendant was charged with possession of heroin and the instrument and successfully moved to suppress in the Criminal Court. On appeal by the People, the Appellate Term reversed and defendant appeals that determination to this court.

All five defendants have challenged, in this court, the admissibility of the glassine envelopes containing heroin. Simply stated, they have contended that the police testimony in these cases is inherently untrustworthy and the product of fabrication; hence, the argument is advanced that we should require that the People bear the burden of proving admissibility and depart from our present rule which places the burden of showing inadmissibility on the defendant. No argument is proffered that this departure is required by either the State or Federal Constitutions; rather, it is asserted that the change in burden of proof is necessary to alleviate the possibility of perjured police testimony. It is noted by this court that the District Attorney of New York County has joined defense counsel in the Tate case in suggesting the change in burden of proof. This concession does not, however, relieve us from the performance of our judicial function and does not require us to adopt the proposal *367urged upon us (see People v. Lewis, 26 N Y 2d 547, 550; Sibron v. New York, 392 U. S. 40, 58).

Initially, it is our view that the argument that a change in burden of proof is necessary is not properly in the Bryant case. There, no motion to suppress was made prior to trial and defendant never objected during the trial to the admissibility of the evidence seized. Since this issue has not been preserved for our review (People v. Gates, 24 N Y 2d 666; People v. Friola, 11 N Y 2d 157; cf. Lawn v. United States, 355 17. S. 339, 353-354) and inasmuch as no showing of reversible error has been made, we conclude that the judgment of conviction should be affirmed.

Turning to the four other appeals, we are not persuaded that a change in burden of proof is indicated.

Thus far, we have made it clear that where a defendant challenges the admissibility of physical evidence or makes a motion to suppress, he bears the ultimate burden of proving that the evidence should not be used against him (see, e.g., People v. Baldwin, 25 N Y 2d 66, 70; People v. Whitehurst, 25 N Y 2d 389, 391; People v. Malinsky, 15 N Y 2d 86; see, also, Nardone v. United States, 308 U. S. 338, 341-342). Indeed, the very words employed by the Legislature in fashioning the motion to suppress suggest no other rational conclusion.

Section 813-c of the Code of Criminal Procedure provides that “ [a] person claiming to be aggrieved by an unlawful search and seizure and having reasonable grounds to believe that the property * * * claimed to have been unlawfully obtained may be used as evidence against him * * * may move for the return * * * or * * * suppression of its use as evidence.” (Emphasis supplied; see, also, CPL, §§ 710.40, 710.60, eff. Sept. 1, 1971.) Since such a person makes the claim because he contends that he is aggrieved and requests the court to give redress to an alleged wrong, it is most reasonable to require him to bear the burden of proof of that wrong. The People must, of course, always show that police conduct was reasonable. Thus, though a defendant who challenges the legality of a search and seizure has the burden of proving illegality, the People are nevertheless put to “ the burden of going forward to show the legality of the police conduct in the first instance (People v. Malinsky, 15 N Y 2d 86, 91, n. 2) ” (People v. Whitehurst, 25 N Y 2d 389, 391 [emphasis in origi*368nal]). These considerations require that the People show that the search was made pursuant to a valid warrant, consent, incident to a lawful arrest or, in cases such as those here, that no search at all occurred because the evidence was dropped by .the defendant in the presence of the police officer.

The several appellants herein and the New York County District Attorney seek a change in these rules of burden of proof. It is argued that the present rule is inadequate to cope with the problem of perjured testimony and recommended that the People should bear the burden of proof. We have been told that with the advent of Mapp v. Ohio (367 U. S. 643) there has been a great incidence of ‘ dropsy ’ ’ testimony by police officers. Hence, this court has been asked to infer that the police are systematically evading the mandate of Mapp by fabricating their testimony. We cannot embrace this post hoc ergo propter hoc reasoning for as the then Judge Warreu Burgee observed in Bush v. United States (375 P. 2d 602, 604), “ [i]t would be a dismal reflection on society to say that when the guardians of its security are called to testify in court under oath, their testimony must be viewed with suspicion.” Thus, we reject this frontal attack on the integrity of our entire law enforcement system. In so doing, we are not oblivious to the problem that there is always a possibility that a witness will perjure himself. Indeed, this is why credibility is usually a crucial issue whenever facts are in dispute and courts have traditionally addressed themselves to the resolution of this basic question as a part of the fact-finding process. Though it may be an affront to our sensibilities, unfortunately, there are some members of our society who do not take their oath as witnesses seriously and violate it. Some police officers, as well as some in other callings may be tempted to tamper with the truth. But there is no valid proof that all members of law enforcement agencies or that all other citizens who testify are perjurers. Therefore, all policemen should not be singled out as suspect as a matter of law.

The fact that some witnesses may lie does not require a change in the burden of proof for it is our view that the proposal made in this appeal is no more effective in preventing perjury than the present burden of proof. Under both the suggested change and the present system, the defendant must still refute the testimony of the police officer. Thus, even where the officer *369testifies that glassine envelopes were dropped by the defendant or to facts which would sustain a warrantless search, the court would still be faced with the same credibility question. Since a change in the burden of proof would be ineffective to combat the alleged evil about which the defendants herein complain, principles of stare decisis do not allow a departure from our present rule of burden of proof.

Moreover, it is our view that the present system, which gives the accused the protection of the Trial Judge and appellate courts on review, effectively and adequately addresses itself to the basic credibility problem which is always presented. Where the Judge at the suppression hearing determines that the testimony of the police officer is unworthy of belief, he should conclude that the People have not met their burden of coming forward with sufficient evidence and grant the motion to suppress. Similarly, appellate courts by a careful exercise of their jurisdiction, in reviewing the evidence, can effectively curtail the alleged abuses.

Additionally, there are more appropriate methods of dealing with the abuses about which the defendants complain. For example, as the District Attorney of Bronx County has suggested a possible solution to the problem of some police fabrication can be found within the several police departments of this State. They can effectively formulate internal procedures and policies within the department to eliminate any such abuses. This should at the very least take the form of training and official action to prevent fabrication. Lastly, the district attorneys of this State should evaluate the testimony of police officers, as they do the testimony of all witnesses, in determining what proof will be offered in the prosecution of a case.

Accordingly, in People v. Brown, People v. Ortiz and People v. Tate, the orders of the Appellate Term denying the motions to suppress should be affirmed, and in People v. Berrios and People v. Bryant, the judgments of conviction should be affirmed.

Chief Judge Fuld (dissenting).

I, of course, agree with the court that ‘1 there is no valid proof that all members of law enforcement agencies * * * who testify are perjurers ” and that ‘ ‘ all policemen should not be singled out as suspect as a matter of law ” (opn., p. 368), for it must be acknowledged that those possessed of drugs or gambling slips not infrequently seek *370to rid themselves of such incriminating items by attempting to drop them unnoticed when they see a police officer. However, the District Attorney of New York County informs us, in the brief submitted on these appeals, that ‘ ‘ For the last ten years participants in the system of justice — judges, prosecutors, defense attorneys and police officials—have privately and publicly expressed the belief that in some substantial b,ut indeterminable percentage of dropsy cases, the testimony [that a defendant dropped narcotics or gambling slips to the ground as a police officer approached him] is tailored to meet the requirements of search-and-seizure rulings ’’ and “it is very difficult in many [such] cases to distinguish between fact and fiction.”1

When so able and dedicated a prosecutor as District Attorney Frank Hogan believes that there is basis for questioning the truthfulness of the testimony in a “ substantial * * * percentage of dropsy cases,” the conclusion seems to me inescapable, as he and counsel for the defendants urge—that the integrity of the judicial process demands that there be a reallocation of the burden of proof. Accordingly, I strongly favor the view expressed by Mr. Hogan’s office that the rule be changed and the burden placed on the People to establish the legality of a search or seizure of evidence in narcotics and gambling prosecutions when made without a warrant.

Underlying the Fourth and Fourteenth Amendments is the basic proposition that “ no man is to be convicted on unconstitutional evidence.” (Mapp v. Ohio, 367 U. S. 643, 657.) In light of the situation as it today exists, the present rule—which imposes upon the accused the burden of proving the illegality of a seizure on a motion to suppress — subverts this principle by making it possible for some defendants to be convicted on evidence obtained in violation of constitutional guarantees. This follows from the fact that a trial judge who is unsure whether the prosecution’s account of the seizure is credible must, nevertheless, resolve his doubt in favor of the People and admit the evidence. To thus increase the likelihood of a conviction on proof of dubious constitutionality must be stamped as highly unrea*371sonable and unfair. A change in the rule will help assure that a defendant’s constitutional rights will not be violated since, by placing the burden on the People, the judge will be permitted to suppress evidence in cases where, for instance, he finds the testimony of each side evenly balanced on the scales of credibility and is unable to make up his mind as to who is telling the truth.

To the majority’s suggestion that “ principles of stare decisis do not allow a departure from our present rule ” (opn., p. 369), I would but say that, if a court-made rule, in its actual operation, impinges on an individual’s constitutional rights or otherwise offends against concepts of fair dealing, it should be discarded. Stare decisis ‘ was intended, not to effect a ‘ petrifying rigidity, ’ but to assure the justice that flows from certainty and stability.” (Bing v. Thunig, 2 N Y 2d 656, 667.) As already indicated, reappraisal and reconsideration of the existing rule, in the light of experience and objective studies, demonstrate that it is potentially destructive of defendants ’ rights because it does not sufficiently take into account the danger of false testimony. It is noteworthy that commentators2 and judges3—in addition to the New York County District Attorney—have noted the existence of possible fabrication, and the studies which have been made, based on research into arrest files and interviews with law enforcement officials, persuasively negate the court’s charge that this conclusion is based on post hoc ergo propter hoc reasoning ” (opn., p. 368).

Those who recognize the problem and favor a change in the burden of proof rule do not, contrary to the majority’s assertion (opn., p. 368), intend an “ attack on the integrity of our entire law enforcement system.” Bather, their concern is solely to promote adherence to the principles articulated in Mapp v. Ohio (367 TJ.S. 643, supra) and safeguard the rights granted defend*372ants by that decision. When there is a chance that some defendants are being denied the full protection thus mandated, this court should take action, as best it may, to assure such protection.

In point of fact, the suggested modification of the rule is not without support in the decisions. Thus, Federal courts4 and the courts of California5 hold that the prosecution should bear the burden of justifying a warrantless seizure of evidence. And, indeed, our court has already engrafted one exception on the present rule; “ [w]hen a search and seizure is based upon consent, ’ ’ we declared, ‘ ‘ the burden of proof rests heavily upon the People to establish the voluntariness of that waiver of a constitutional right. ’ ’ (People v. Whitehurst, 25 N Y 2d 389, 391; see, to same effect, Bumper v. North Carolina, 391 U. S. 543, 548-549.)

In short, reason and the imperative of judicial integrity, as well as substantial authority, dictate that the burden of proving the lawfulness of a search or seizure should be cast on the People in all narcotics and gambling cases when the search or seizure has been effected without a warrant. To do less, to shift the burden of proof to the People only in the classic dropsy situation, seems to me, as it does to the New York County District Attorney, ‘ ‘ unrealistic. ’ ’ This is so, as he observes, not only because an ‘ ‘ untruthful officer fearing rejection of tailored dropsy testimony could easily shift to the other scenarios which are familiar in narcotics and gambling cases in the lower courts ” but also because “it is the experience of many prosecutors and judges that the problems of credibility and fact-finding raised * * * are not limited to literal dropsy cases * * * but appear in all types of possessory narcotics and gambling cases.”

It follows, therefore, that each of the defendants on the appeals before us — except the defendant in People v. Bryant who voiced no objection to the use of the evidence in question— is entitled to a new hearing on his motion to suppress.

*373In People v. Brown, People v. Ortiz and People v. Tate: Order affirmed.

Judges Burke, Jasen and Gibson concur with Judge Scileppi ; Chief Judge Fuld dissents and votes to reverse in a separate opinion in which Judges Bergan and Breitel concur.

In People v. Berrios: Judgment affirmed.

Judges Burke, Jasen and Gibson concur with Judge Scileppi ; Chief Judge Fuld dissents and votes to reverse in a separate opinion in which Judges Bergan and Breitel concur.

In People v. Bryant: Judgment affirmed.

Chief Judge Fuld and Judges Burke, Bergan, Breitel, Jasen and Gibson concur.