People v. Schmoll, 417 N.Y.S.2d 834 (1979)

The marital privilege, a testimonial privilege, does not prevent police from acting on information provided by a spouse, especially when it involves threats against the spouse and children; such information, coupled with a consensual house search, can establish probable cause for arrest.

Summary

In this case, the defendant was convicted of criminal possession of dangerous drugs (marijuana) and illegal possession of a sawed-off shotgun. The police acted on information from the defendant’s wife about threats he made against her and their children, along with her consent to search the house. The search revealed the shotgun. The Court of Appeals held that the marital privilege did not bar the police from acting on the wife’s information to protect herself and her children. The Court reversed the marijuana conviction because the wife’s testimony, which was barred by the marital privilege, was the only evidence supporting that charge. However, the shotgun conviction was upheld because there was independent credible evidence to support it.

Facts

The defendant’s wife informed the police about threats made by the defendant against her and their children. She also consented to a search of their home. During the search, police discovered a sawed-off shotgun. Based on the wife’s information and the discovery of the shotgun, the police arrested the defendant. A subsequent search of the defendant’s person revealed lysergic acid diethylamide (LSD).

Procedural History

The defendant was convicted in the trial court of criminal possession of dangerous drugs (marijuana) and illegal possession of a sawed-off shotgun. The Appellate Division affirmed the convictions. The case then went to the New York Court of Appeals.

Issue(s)

1. Whether the marital privilege precluded the police from acting on information provided by the defendant’s wife and conducting a search consented to by her.
2. Whether the information provided by the wife and the subsequent house search provided probable cause for the defendant’s arrest.
3. Whether there was sufficient evidence, independent of the wife’s testimony, to convict the defendant of the marijuana offense.

Holding

1. No, because the marital privilege is a testimonial privilege and does not prevent the police from acting on information provided by a spouse, especially when it involves threats.
2. Yes, because the wife’s disclosures and the discovery of the sawed-off shotgun during the consensual search provided a reasonable belief that the defendant had committed a misdemeanor.
3. No, because without the wife’s testimony, there was insufficient evidence to convict the defendant of the marijuana offense.

Court’s Reasoning

The Court of Appeals reasoned that the marital privilege, as codified in CPLR 4502(b), is a testimonial privilege, not a universal “gag” rule. The wife’s disclosures to the police were made to protect herself and her children from the defendant’s threats, creating an exception to the privilege. The court emphasized that the police had a duty to act on this information. While the threats alone might not have justified an arrest, the wife’s disclosures combined with the discovery of the illegal shotgun during the consented search provided probable cause to believe the defendant had committed a misdemeanor, namely illegal possession of the shotgun, under Penal Law § 265.05(3). This lawful arrest then justified the incidental search that revealed the LSD. The court explicitly stated the wife’s disclosures were “exceptions to the privilege, which in any event is a testimonial privilege and not a universal ‘gag’ rule.” Regarding the marijuana conviction, the court found that the only evidence supporting it was the wife’s testimony, which was inadmissible due to the marital privilege; therefore, that conviction could not stand. The court also noted that, despite imperfections in the trial, the irregularities were either not properly preserved or were harmless in light of the admissible evidence. The court found credible evidence from witnesses other than the wife that the defendant had possessed the shotgun, justifying the inference that he possessed it in the home he jointly occupied with his wife until two days before his arrest.