New York Law Review

Tag: Destruction of Evidence

  • People v. Handy, 20 N.Y.3d 663 (2013): Entitlement to Adverse Inference Charge for Destroyed Evidence

    People v. Handy, 20 N.Y.3d 663 (2013)

    When a defendant in a criminal case, acting with due diligence, demands evidence that is reasonably likely to be of material importance, and that evidence has been destroyed by the State, the defendant is entitled to an adverse inference charge.

    Summary

    Handy, a jail inmate, was convicted of assaulting a deputy sheriff. A video camera recorded part of the initial altercation leading to the assault, but the video was destroyed before trial pursuant to jail policy. Handy requested an adverse inference charge, arguing the video’s destruction prejudiced his defense. The trial court denied the request for the counts related to the initial altercation, but granted it for a later count. The New York Court of Appeals reversed, holding that Handy was entitled to an adverse inference charge because he requested potentially material evidence with reasonable diligence, and the State destroyed it. This decision emphasizes the State’s responsibility to preserve potentially exculpatory evidence and provides a remedy when that duty is breached.

    Facts

    Handy, an inmate, was involved in an altercation with Deputy Saeva after refusing to hand over non-regulation sandals and boxer shorts. Saeva claimed Handy initiated the fight, injuring Saeva’s hand. Deputy Schliff intervened to escort Handy away, and Schliff alleges that Handy kicked him, resulting in a thumb injury. A video camera recorded a portion of the initial altercation with Saeva. The video was destroyed per jail policy after 30 days, before Handy was indicted. Handy requested the video’s preservation, but the request was not specifically focused on video of the November incidents until trial.

    Procedural History

    Handy was charged with three counts of assault. He was acquitted of assaulting Saeva but convicted of assaulting Schliff. The trial court granted an adverse inference charge for one count, but not for the counts related to the initial altercation with Saeva. The Appellate Division affirmed the conviction, stating Handy’s claim that the video was exculpatory was speculative. The Court of Appeals reversed, ordering a new trial.

    Issue(s)

    Whether a defendant is entitled to an adverse inference charge when they requested evidence reasonably likely to be material, and that evidence was destroyed by the State?

    Holding

    Yes, because under New York law of evidence, a permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State.

    Court’s Reasoning

    The Court of Appeals declined to address the constitutional issues or align itself directly with Arizona v. Youngblood, focusing instead on the evidentiary question of whether an adverse inference charge was warranted. The court adopted the approach taken in Cost v. State, emphasizing that such a charge is appropriate when the defendant diligently requests material evidence that the State destroys. The court reasoned that an adverse inference charge mitigates the harm to the defendant caused by the loss of evidence, without necessarily terminating the prosecution. Moreover, the rule incentivizes the State to preserve evidence. The court stated, “[A]t least as important, the rule gives the State an incentive to avoid the destruction of evidence. It is surely desirable to raise the consciousness of State employees on this subject.” The Court analogized the adverse inference charge to a “missing witness” instruction. The Court found that the video, though directly relevant to the assault on Saeva (count one), was also relevant to the subsequent assault on Schliff (count two) because it would shed light on whether Handy was a violent aggressor. Therefore, the court concluded that Handy was entitled to the adverse inference charge for all counts. The dissent is not noted because there was none.

  • People v. Joseph, 86 N.Y.2d 565 (1995): Destruction of Rosario Material and the Duplicative Equivalent Exception

    86 N.Y.2d 565 (1995)

    A destroyed document can never be deemed the “duplicative equivalent” of disclosed Rosario material because its unavailability prevents a detailed comparison to assess discrepancies that could be useful for cross-examination.

    Summary

    Lesly Joseph was convicted of drug sale and possession. The prosecution failed to disclose envelopes used by an officer to hold drugs seized from Joseph and another individual, Gerzbach, arguing the information was duplicated in disclosed reports. The Court of Appeals reversed, holding that destroyed evidence cannot be considered the “duplicative equivalent” of disclosed material under Rosario. The court emphasized that the inability to inspect the original document prevents a determination of exact equivalence, potentially prejudicing the defendant’s ability to cross-examine witnesses effectively. An adverse inference instruction was warranted given the circumstances.

    Facts

    Officer Wasson, from a rooftop, observed Joseph engage in transactions appearing to be drug sales. He radioed Officer Wynne, who arrested Joseph and Gerzbach. Wynne seized cocaine vials from both, placing them in separate envelopes, noting names, times, and locations on the envelopes. Upon returning to the precinct, Wynne transferred the information from the envelopes to an on-line booking sheet and complaint report, then destroyed the envelopes. The prosecution disclosed the complaint report but not the envelopes. At trial, Joseph argued he was misidentified as the seller and that he was the buyer of the drugs. The defense requested an adverse-inference charge due to the destruction of the envelopes, which was denied.

    Procedural History

    Joseph was convicted of criminal sale and possession of a controlled substance. The Appellate Division affirmed, finding the envelope information was the “duplicative equivalent” of disclosed reports and irrelevant to Joseph’s identification. Joseph appealed to the Court of Appeals.

    Issue(s)

    Whether a destroyed document can be considered the “duplicative equivalent” of disclosed material under the Rosario rule, such that the failure to disclose the original document does not constitute a Rosario violation.

    Holding

    No, because a destroyed document, unavailable for inspection, cannot be deemed the “duplicative equivalent” of disclosed material, and the trial court erred in declining to give an adverse-inference instruction.

    Court’s Reasoning

    The Court of Appeals emphasized the necessity of precise correlation between disclosed and undisclosed material to qualify for the duplicative-equivalent exception. The court stated, “a document that has been lost or destroyed and is therefore no longer available for judicial inspection cannot be deemed the ‘duplicative equivalent’ of Rosario material that has previously been disclosed.” The court reasoned that even if the contents of a destroyed document are purportedly transcribed verbatim, there can be inadvertent errors that are helpful for cross-examination. “Even where a document has purportedly been transcribed verbatim, inadvertent errors, omissions and deletions can occur, giving rise to precisely the kind of discrepancies that are most useful in cross-examination.” Testimony about the destroyed document’s contents is not an acceptable substitute. Since the destroyed envelopes could have supported Joseph’s defense of mistaken identity, the trial court abused its discretion by not giving an adverse-inference instruction. The court distinguished cases where relevance was marginal or the destruction was accidental, stating, “Given the articulable showing of prejudice that the defendant made, the unavailability of the documents from which a less conjectural showing might have been made and, finally, the circumstances of the documents’ loss, the trial court’s refusal to impose the limited sanction counsel requested constituted an abuse of discretion as a matter of law”.

  • People v. Wallace, 76 N.Y.2d 953 (1990): Duty to Preserve Rosario Material and Sanctions for Failure

    People v. Wallace, 76 N.Y.2d 953 (1990)

    When the prosecution fails to exercise due care in preserving Rosario material and the defendant is prejudiced, the trial court must impose an appropriate sanction.

    Summary

    Wallace was convicted of criminal sale of a controlled substance. Undercover and arresting officers discarded notes containing the defendant’s description after the arrest. The Court of Appeals held that discarding these notes, which constituted Rosario material, prejudiced the defendant because they would have been helpful for cross-examining the officers on the identification issue. The court emphasized that while the specific sanction is discretionary, the failure to impose any sanction when the defendant is prejudiced is an abuse of discretion.

    Facts

    An undercover officer purchased drugs from the defendant and broadcasted a description over the police radio, which the arresting officer recorded. The undercover officer performed a post-arrest “drive-by” identification. The undercover officer made two subsequent drug purchases. Both officers discarded their written descriptions of the defendant after the arrest, but the undercover officer claimed to have incorporated the description into a “buy” report created later that evening.

    Procedural History

    The defendant was convicted of criminal sale of a controlled substance in the third degree. The Court of Appeals reviewed the case after the lower courts affirmed the conviction, focusing on the issue of whether the discarding of the notes prejudiced the defendant.

    Issue(s)

    Whether the trial court erred in failing to impose any sanction for the officers’ discarding of notes containing a description of the defendant, when those notes constituted Rosario material and the defendant was prejudiced by their absence.

    Holding

    Yes, because the written descriptions would have been helpful to the defendant in cross-examining the officers on the critical issue of identification, and the People failed to exercise due care in preserving the Rosario material. The court must impose a sanction when prejudice occurs.

    Court’s Reasoning

    The Court of Appeals found that the discarded notes constituted Rosario material, and the People did not dispute this point or contend that the officers exercised due care in preserving them. The court limited its review to whether the defendant was prejudiced. The court reasoned that the written descriptions would have been helpful to the defendant in cross-examining the officers, especially given the importance of the identification issue. The undercover officer’s claim that he incorporated the description into his “buy” report did not alleviate the prejudice because there was no way to verify if the description in the report matched the lost notes, especially since the report was prepared after a confirmatory “drive-by” identification. The court cited People v. Martinez, 71 NY2d 937, 940, stating that “the [trial] court must impose an appropriate sanction” where the People fail to exercise due care in preserving Rosario material, and the defendant is prejudiced. While the specific sanction is discretionary (People v. Kelly, 62 NY2d 516, 521), it was an abuse of discretion to decline to impose any sanction. The court reversed the order and ordered a new trial.

  • People v. Bay, 67 N.Y.2d 788 (1986): Admissibility of Circumstantial Evidence and Destruction of Evidence

    People v. Bay, 67 N.Y.2d 788 (1986)

    Circumstantial evidence is sufficient to support a conviction if it logically points to the defendant’s guilt and excludes any reasonable hypothesis of innocence; furthermore, the destruction of evidence does not warrant preclusion of related evidence if the destruction was in good faith and the defendant is not unduly prejudiced.

    Summary

    The New York Court of Appeals affirmed the defendant’s conviction for second-degree murder based on circumstantial evidence. The court found that the evidence, including a pubic hair microscopically similar to the defendant’s, a footprint matching the defendant’s, the defendant’s fingerprint near the crime scene, and the defendant’s knowledge of non-public details about the crime, sufficiently supported the jury’s verdict. The court also addressed the destruction of the pubic hair by the F.B.I., holding that it did not deprive the defendant of a fair trial because the destruction was in good faith and the defendant could still challenge the reliability of the hair comparison evidence. The court emphasized the wide latitude given to the defendant in cross-examining the People’s expert and the jury instruction to weigh the evidence, considering the defendant’s inability to present contrary expert testimony.

    Facts

    Roberta Fort was found murdered in her apartment building. The defendant lived in the same building. The evidence presented at trial included:

    • The defendant had a habit of walking barefoot on the building’s roof.
    • A pubic hair found near the victim’s body was microscopically indistinguishable in 22 particulars from the defendant’s.
    • The defendant’s footprint measured within five millimeters of a footprint found in plaster powder at the crime scene.
    • The defendant’s fingerprint was on the roof door near running footprints.
    • The defendant knew the victim’s hands were tied with her bra, a fact not publicly known.
    • Stains outside the defendant’s door were the victim’s blood type.

    Procedural History

    The defendant was convicted of second-degree murder. A prior conviction based on a guilty plea was reversed by the Appellate Division due to an involuntary confession (76 AD2d 592). On appeal from the second conviction, the Court of Appeals affirmed the judgment of the Appellate Division, which upheld the conviction.

    Issue(s)

    1. Whether the circumstantial evidence presented at trial was sufficient to establish the defendant’s guilt for second-degree murder.
    2. Whether the destruction of a pubic hair found near the victim’s body by the F.B.I. deprived the defendant of a fair trial.

    Holding

    1. Yes, because viewing the evidence in the light most favorable to the prosecution, the jury’s verdict was sufficiently supported by the circumstantial evidence.
    2. No, because the pubic hair was destroyed in good faith, and the defendant was not unduly prejudiced, as he was able to cross-examine the prosecution’s expert and challenge the evidence.

    Court’s Reasoning

    The Court reasoned that the circumstantial evidence, when viewed in its totality, provided a sufficient basis for the jury to find the defendant guilty beyond a reasonable doubt. The Court noted that it must view the evidence in the light most favorable to the People and give them the benefit of every reasonable inference.

    Regarding the destruction of the pubic hair, the Court relied on the trial court’s finding that defense counsel made a “specific trial decision” not to examine the hair prior to its destruction. The Court emphasized that the exculpatory aspects of the evidence remained available for use at trial, and the defendant was given wide latitude in cross-examining the People’s expert. The Court cited People v. Kelly, 62 NY2d 516, stating that the trial court struck the appropriate balance of eliminating prejudice to the defendant while protecting society’s interests.

    The court noted, “At trial, the defendant was given wide latitude in cross-examining the People’s expert, and the court properly instructed the jury to weigh that evidence in light of defendant’s inability to present contrary expert testimony. In these circumstances, we conclude that Criminal Term’s determination struck the appropriate balance of eliminating prejudice to defendant while, at the same time, protecting the interests of society.”

  • People v. Farrell, 58 N.Y.2d 637 (1982): Admissibility of Breathalyzer Test Results and Destruction of Evidence

    People v. Farrell, 58 N.Y.2d 637 (1982)

    The prosecution is not required to preserve breathalyzer test ampoules if the defendant fails to show the ampoule could be reanalyzed to produce material evidence and the opportunity to examine another ampoule from the same batch is provided.

    Summary

    The New York Court of Appeals addressed whether the prosecution was required to preserve the test ampoule used in a breathalyzer test and whether certain certificates showing the results of analyses of a sample ampoule were admissible as business records. The court held that the prosecution was not required to preserve the ampoule, as the defendant failed to show it could be reanalyzed to produce material evidence. Further, the certificates were properly admitted as business records, as they were prepared in the ordinary course of business and detailed the test results.

    Facts

    The defendant was arrested for driving while having .10 of one per centum or more by weight of alcohol in his blood and driving while ability impaired by the consumption of alcohol. A breathalyzer test was administered, and the ampoule used in the test was subsequently destroyed in accordance with routine practice by the New York State Police. Two and a half months after his arrest, the defendant moved for inspection of the test ampoule or dismissal of the indictment.

    Procedural History

    The trial court denied the defendant’s motion for inspection of the test ampoule or dismissal of the indictment. The Appellate Division affirmed the trial court’s decision. The case was then appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the People were required to preserve the test ampoule used in the breathalyzer test for the defendant’s inspection?

    2. Whether the certificates showing the results of analyses of a sample ampoule were admissible as business records?

    Holding

    1. No, because the defendant submitted no evidence to show that the ampoule could have been reanalyzed to produce material evidence, and the option of examining another ampoule from the same batch, along with authentication procedures, provided adequate protection of the defendant’s due process rights.

    2. Yes, because the certificates recited and uncontroverted testimony showed that the reports were prepared in the ordinary course of the New York State Police Laboratory’s business, and it is the regular course of the laboratory’s business to make such records.

    Court’s Reasoning

    The Court of Appeals reasoned that the prosecution’s routine destruction of the breathalyzer ampoule did not violate the defendant’s due process rights. The court emphasized that the defendant had not demonstrated that reanalysis of the ampoule would yield material evidence. Additionally, the availability of another ampoule from the same batch and the procedures for authenticating the test results provided adequate safeguards. As such, the court found no basis to require the People to preserve the test ampoule.

    Regarding the admissibility of the certificates, the court applied the business records exception to the hearsay rule, citing People v. Gower, 42 N.Y.2d 117, 121. The court noted that the certificates were prepared in the ordinary course of the New York State Police Laboratory’s business, detailing the date of analysis, the individuals who conducted the tests, the materials analyzed, and the test results. The court concluded that these certificates met the criteria for admissibility as business records.

    The court stated, “Thus, the trial court correctly ruled that the People were not required to preserve the test ampoule and that the option of examining another ampoule from the same batch along with the procedures required to authenticate the test results provided adequate protection of defendant’s due process rights.”

  • People v. Reed, 44 N.Y.2d 799 (1978): Admissibility of Evidence After Inadvertent Destruction of Contraband

    44 N.Y.2d 799 (1978)

    When the police inadvertently destroy evidence, testimony about the nature and amount of the evidence is admissible if the destruction is explained, there is no bad faith, and the defendant had an opportunity to examine the evidence before its destruction.

    Summary

    Kenneth Reed was convicted of criminal possession of a dangerous drug. Prior to the trial, the police inadvertently destroyed the drug due to a clerical error. Reed argued that the prosecution should not be allowed to present testimony about the drug’s nature and quantity because the procedures for pre-trial destruction of large quantities of dangerous drugs were not followed. The New York Court of Appeals affirmed the conviction, holding that the prosecution sufficiently explained the destruction and there was no evidence of bad faith. Furthermore, Reed had ample opportunity to examine the drugs before they were destroyed but failed to do so, meaning he was not prejudiced.

    Facts

    In May 1973, police seized drugs from Kenneth Reed. In November 1973, Reed moved to suppress the evidence, alleging an illegal search and seizure. The police custodian inadvertently destroyed the drugs on February 19, 1975, due to a clerical error that led him to believe the case had been dismissed. This destruction occurred while Reed’s suppression motion was pending. Reed never requested an independent analysis or measurement of the drugs; he only requested a copy of the police laboratory report.

    Procedural History

    The trial court convicted Reed of criminal possession of a dangerous drug in the fourth degree. Reed appealed, arguing that the destruction of the drug warranted preclusion of any testimony regarding its nature and amount. The appellate division affirmed, and Reed appealed to the New York Court of Appeals.

    Issue(s)

    Whether the prosecution should be precluded from offering testimony about the nature and amount of a drug when the police inadvertently destroyed the drug prior to trial, but after the defendant had an opportunity to examine it.

    Holding

    No, because the prosecution sufficiently explained the destruction, there was no indication of bad faith, and the defendant was not prejudiced by the destruction since he had nearly two years to examine the drugs before they were destroyed.

    Court’s Reasoning

    The Court of Appeals acknowledged that CPL article 715 outlines procedures for the destruction of large amounts of dangerous drugs prior to trial and that these statutes should be followed when applicable. However, the Court reasoned that the failure to follow these procedures in this particular case did not warrant precluding testimony about the drug. The court emphasized that the destruction was due to a clerical error, and the prosecution provided a sufficient explanation. The Court also highlighted the lack of bad faith on the part of the police.

    Most importantly, the Court focused on the fact that Reed was not prejudiced by the destruction of the evidence. As the court stated, “The drugs were available to defendant for independent analysis or measurement for nearly two years, and were not destroyed until just prior to trial. At no time during this long period that the police had the substance did defendant seek to have the drugs examined; instead, he simply requested a copy of the police laboratory report.”

    The court concluded that allowing testimony regarding the nature and amount of the seized material did not constitute an error under these circumstances.

  • People v. Kass, 32 N.Y.2d 123 (1973): Admissibility of Cross-Examination Regarding Prior Bad Acts and Destruction of Evidence

    People v. Kass, 32 N.Y.2d 123 (1973)

    A prosecutor may cross-examine a testifying defendant about prior immoral, vicious, or criminal acts relevant to credibility if the questions have a good faith basis in fact; however, a new trial is warranted if the prosecution misled the defense regarding the destruction of original evidence and substitution with retranscribed notes.

    Summary

    Defendant Kass, an attorney, was convicted of bribery and conspiracy. The prosecution’s case hinged on Sergeant Hoelzer’s testimony that Kass paid him for police protection. On cross-examination, the prosecutor asked Kass about misappropriating diamonds. Kass argued this was improper. The court held the cross-examination permissible, finding a good-faith basis. However, the court reversed the conviction and ordered a new trial because Kass received retranscribed notes of Sergeant Hoelzer and was misled into believing he possessed the original notes, which had been destroyed after a prior trial. The court reasoned that the destruction of the original notes prejudiced the defense’s ability to effectively cross-examine the key prosecution witness.

    Facts

    • Kass, an attorney, was charged with bribery and conspiracy related to payments for police protection.
    • Sergeant Hoelzer testified that Kass agreed to pay him $500 weekly for protection of illegal activities and made the first payment.
    • Kass admitted many events but denied wrongdoing.
    • During cross-examination, the prosecutor asked Kass if he had “misappropriated two diamonds worth about $4,000 from a jeweler.”
    • Original notes of Sergeant Hoelzer regarding his investigation were given to Kass at a previous trial but were destroyed after the first trial. At the second trial, he was provided with retranscribed notes.

    Procedural History

    • Kass was initially tried on charges related to conspiracy and bribery of Sergeant Hoelzer but was acquitted.
    • He was then separately tried and convicted on a second indictment charging him with conspiracy to bribe and bribery of a public officer.
    • Kass appealed, arguing the cross-examination about the diamonds was improper and that he was misled regarding the notes.

    Issue(s)

    1. Whether the prosecutor’s cross-examination of Kass regarding the alleged misappropriation of diamonds was proper.
    2. Whether the destruction of Sergeant Hoelzer’s original notes and the provision of retranscribed copies to the defense warrants a new trial.

    Holding

    1. Yes, because the prosecutor demonstrated good faith and had a factual basis for asking about the diamond misappropriation.
    2. Yes, because Kass was misled into believing he possessed the original notes, hindering his ability to effectively cross-examine the key prosecution witness.

    Court’s Reasoning

    • Cross-Examination: The court stated that a testifying defendant may be cross-examined about immoral, vicious, or criminal acts bearing on credibility, even if not similar to the charged crime, provided there is a good faith basis in fact. The court found the prosecutor showed good faith by stating he’d been informed by the jeweler’s attorney that Kass received the diamonds on consignment and failed to return them. The jeweler’s concern and willingness to travel to the trial supported the prosecutor’s good faith. The court cited People v. Schwartzman, 24 N.Y.2d 241, 244 and People v. Alamo, 23 N.Y.2d 630.
    • Destruction of Notes: The court acknowledged Kass’s right to examine a witness’s prior statements relating to their testimony under People v. Malinsky, 15 N.Y.2d 86, 90, and People v. Rosario, 9 N.Y.2d 286. While Kass received notes, he was misled into believing they were original. The court reasoned this prejudiced Kass, as he could not inquire into the circumstances of the destruction to test Hoelzer’s credibility. The court mandated that at the new trial, the jury be instructed to weigh Hoelzer’s testimony considering the unavailability of the original notes for cross-examination.

  • People v. De Lago, 16 N.Y.2d 287 (1965): The ‘No-Knock’ Exception to Warrant Requirements

    People v. De Lago, 16 N.Y.2d 287 (1965)

    A ‘no-knock’ search warrant is permissible under the Fourth Amendment when there is reasonable cause to believe that evidence sought will be quickly destroyed if notice is given.

    Summary

    This case addresses the constitutionality of a ‘no-knock’ search warrant, specifically, whether police officers must announce their presence and purpose before forcibly entering a residence. The New York Court of Appeals held that a ‘no-knock’ warrant is permissible under the Fourth Amendment if the issuing judge finds, based on sworn proof, that the property sought (here, gambling paraphernalia) is easily destroyed or disposed of if advance notice is given. The court emphasized that the validity of a warrant is assessed at the time of its issuance, and the judge can infer the likelihood of destruction based on the nature of the contraband.

    Facts

    Police obtained a warrant to search the apartment of Anthony De Lago, located in a four-apartment building. The warrant authorized a search of “the structure” at a specified address, believed to be occupied by De Lago, but the caption clarified it was for “The first floor apartment at 2 Abendroth Place.” Based on an affidavit, the warrant included a provision dispensing with the need for the officers to announce their authority and purpose before entering. Police executed the warrant, found policy slips and other gambling paraphernalia in De Lago’s apartment, and arrested him.

    Procedural History

    De Lago was convicted based on the evidence seized during the search. He moved to suppress the evidence, arguing the search warrant was invalid because it was overly broad and unconstitutionally authorized a ‘no-knock’ entry. The trial court denied the motion to suppress. De Lago appealed to the New York Court of Appeals, challenging the validity of the search warrant.

    Issue(s)

    1. Whether the search warrant, which authorized a search of “the structure” but was clarified in the caption to specify De Lago’s apartment, was sufficiently particular to satisfy the Fourth Amendment’s requirement that warrants “particularly describ[e] the place to be searched.”

    2. Whether Section 799 of the Code of Criminal Procedure, which allowed a judge to authorize a ‘no-knock’ entry if there was proof that the property sought could be easily destroyed, violated the Fourth Amendment.

    Holding

    1. Yes, because the caption of the warrant clarified that the search was limited to De Lago’s apartment, thus curing any ambiguity in the broader language of the warrant’s body.

    2. No, because the Fourth Amendment permits a ‘no-knock’ entry where there is reasonable cause to believe that giving notice would lead to the destruction of the evidence sought.

    Court’s Reasoning

    Regarding the warrant’s specificity, the court held that the caption clarified the scope of the search to De Lago’s apartment, curing any potential overbreadth in the initial description. The court cited People v. Martell and Squadrito v. Griebsch to support using the caption for clarification.

    On the ‘no-knock’ provision, the court acknowledged the general Fourth Amendment requirement of announcement, citing Boyd v. United States. However, it also recognized an exception when police have a reasonable basis to believe that evidence will be destroyed if notice is given, citing Ker v. California. The court noted that even Ker, which reaffirmed the announcement requirement, upheld a search where officers entered quietly to prevent the destruction of contraband.

    The court reasoned that the validity of the warrant is determined at the time of its issuance. The judge issuing the warrant could reasonably infer, based on the affidavit presented and judicial notice, that gambling materials are easily secreted or destroyed if the occupants are alerted to an impending search. The court stated, “Even though there is nothing in the affidavit to show specifically how or where these gambling materials would be likely to be destroyed or removed, the likelihood that they would be was an inference of fact which the Judge signing the warrant might draw.” The court concluded that Section 799 of the Code of Criminal Procedure, as applied here, complied with the Fourth Amendment.