People v. Drain

— Order unanimously reversed on the law, defendant’s motion to suppress denied, and matter remitted to Erie County Court for further proceedings on the indictment. Memorandum: Although the police illegally seized evidence consisting of cash and a checkbook from defendant’s car, it may be admitted on defendant’s prosecution for perjury allegedly committed after the search (United States v Raftery, 534 F2d 854, cert denied 429 US 862; United States v Turk, 526 F2d 654, cert denied 429 US 823; cf., United States v Ceccolini, 435 US 268; People v McGrath, 46 NY2d 12, cert denied 440 US 972; United States v Paepke, 550 F2d 385). The application of the exclusionary rule in a given context depends on a balancing of its probable effect in deterring police misconduct against the negative impact suppression would have on the truth-finding process (People v McGrath, supra, at 21). Here, suppression would have little deterrent effect since defendant’s subsequent commission of perjury was unforeseeable by the officers who conducted the illegal search (see, United States v Turk, supra, at 667). The evidence is probative and reliable to establish defendant’s commission of perjury (see, United States v Turk, supra). Granting suppression in these circumstances would give defendant a license to commit perjury free from concern that his false statement might be contradicted by the prosecution’s use of the illegally seized evidence (see, United States v Turk, supra; cf., United States v Havens, 446 US 620; Walder v United States, 347 US 62). "[Ejvidence obtained in an illegal search may properly be admitted in the perjury trial of a victim of the search when the alleged perjury occurred after the search and with the knowledge on the part of the victim that the search had taken place” (United States v Turk, supra, at 667). (Appeal from order of Erie County Court, McCarthy, J. — motion to suppress evidence.) Present — Denman, J. P., Boomer, Pine, Balio and Davis, JJ.