Opinion
Argued November 18, 1986
Decided December 16, 1986
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Eugene Nardelli, J.
Alan M. Dershowitz, of the Massachusetts Bar, admitted pro hac vice, Nathan Z. Dershowitz and Ellen J. Schneider for appellant.
Robert M. Morgenthau, District Attorney (Debora K. Grobman and Mark Dwyer of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, the motion to suppress granted and the indictment dismissed.
Because a warrantless intrusion by a government official is presumptively unreasonable, it is the People's burden in the first instance to establish justification (People v Calhoun, 49 N.Y.2d 398, 402; see, People v Knapp, 52 N.Y.2d 689, 694). Only after it has done so is it defendant's burden to prove illegality. Here there is nothing in the record, on either defendant's case or on the People's presentation, to support the Hearing Judge's finding that Officer McGovern "was told that it [defendant's canvas bag] had been opened and a bag of white pills taken out." It was, therefore, error to deny suppression.
Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur in memorandum.
Order reversed, etc.