The proposition that private papers and documents may legally be taken from the body of a person lawfully arrested upon a criminal charge seems fairly well established. (See notes to 59 L. R. A. 465; 8 L. R. A. [N. S.] 762; 18 id. 253; 34 id. 58; L. R. A. 1915 B, 834; L. R. A. 1916 E, 714.) In Smith v. Jerome (47 Misc. Rep. 22) it was said by Gaynor, J.: “ The police have the power and it is also their duty to search the person of one lawfully arrested, and also the room or place in which he is arrested, and also any other place to which they can get lawful access, for articles that may be used in evidence to prove the charge on which he is arrested.” The further proposition that the mere act of introducing seized papers in evidence, whether their seizure be lawful or unlawful, does not involve a violation of the constitutional guaranty that no person shall be compelled to be “ a witness against himself ” (State Const, art. 1, § 6) is equally well settled. In the case of People v. Adams (176 N. Y. 351) private papers seized from the possession of an accused person, upon a search of his office desk, were held to be admissible in evidence against him. The court said: “ In the case at bar, the defendant was not sworn as a witness, nor was he required to produce any books or papers. So far as this case is concerned, as already pointed out, the manner in which the witnesses for the People became possessed of the documentary evidence is a matter of no importance. We are of the opinion, therefore, that the defendant was not, in any legal sense, called upon to be a witness against himself in this criminal proceeding.” In saying that the defendant was not “ required to produce any books or papers ” the court undoubtedly had in mind the fact that he was not so required by subpoena, and, therefore, that since he had never enjoyed the character of a witness, no compulsion was exercised against him as such. In People v. Mandel (90 Misc. Rep. 174) it was said by Page, J., that the constitutional provision merely “ protects a person from any disclosure sought by legal process against him as a witness.” That is the view expressed by Professor Wigmore who, in section 2263 of his work on Evi*708deuce, says: “ In other words, it is not merely compulsion that is the kernel of the privilege, in history and in the constitutional definitions, but testimonial compulsion; ” and again says: “ The privilege protects a person from any disclosure sought by legal process against him as a witness.” The decision made in Boyd v. United States (116 U. S. 616) does not conflict with this view. In that case the admission in evidence of certain private papers was condemned, but their production upon the trial by the person possessing them had been secured by a court order, so that the “ compulsion ” exercised was “ testimonial.” The seizure in our case consisted of removing from the person of the defendant, while lawfully under arrest, certain letters which may be incriminating. It is clear that these letters cannot be ordered returned on the ground of the unlawfulness of their seizure. It is equally clear that the defendant has not as yet been made a witness against himself, and that he will not hereafter be made such a witness through the introduction of the letters in evidence. Consequently, the papers cannot be ordered returned upon the theory that their use has offended or will offend against the constitutional provision protecting the accused from self-incrimination. It is urged that the letters will not be admissible in evidence because not written by the accused. It is entirely conceivable that the conduct of the defendant in dealing with the letters may make them competent. Their admissibility as competent and material proof will become a matter for decision by the judge who tries the case. It would be premature to decide the matter now. Therefore, it seems to me that the order should be affirmed.
Van Kirk and Hinman, JJ., concur; Hasbrotjck, J., dissents, with an opinion, in which Kiley, J., concurs.