I dissent from the conclusion reached by the presiding justice upon the order denying the motion for the return of the letters taken compulsorily from the pockets of the defendant upon his arrest. The letters are the defendant’s property. Their possession can only be denied him on the ground that the public has a superior right to them.
The only right that the public can claim to retain them, that I can see, would be the right to use them in evidence against the defendant upon the trial for the crime of which he has been accused. I maintain that such a use cannot be made of them.
The Constitution of the State of New York (Art. 1, § 6) provides: “No person shall be * * * compelled in any criminal case to be a witness against himself.” (Civil Rights Law, § 8.)
*709The presiding justice holds that testimonial compulsion does not arise until the defendant becomes a witness.
The effect of this argument is to render secure the possession of the letters in the hands of the district attorney until the time of the trial, when he may offer them and rob the accused of his constitutional right by invoicing the rule of the trial that the court will not indulge an inquiry in the collateral matter of how the people became possessed of the letters.
I think the law remains as Mr. Justice Bradley, imbued with the spirit of the National Constitution, analogically laid it down. The Constitution since Marshall has had no greater interpreter. Mr. Justice Bradley writing for the court says: “We have been unable to perceive that the seizure of a man’s private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself.” (Boyd v. United States, 116 U. S. 633; Laughter v. United States, 259 Fed. Rep. 98; Youman v. Commonwealth, 189 Ky. 152; 224 S. W. Rep. 860. See American Bar Association Journal, Aug. 1922, vol. 8, p. 479 et seq.)
What difference does it make whether the seizure be by the process of search and seizure, by subpoena, by order of a magistrate under section 813 of the Code of Criminal Procedure, or by the right of the custodial officer under the common law at the time of making an arrest? What vitiates the act of any such seizure is its compulsion and the purpose to use the letters as evidence.
If Mr. Justice Bradley is right in stating that there is no difference in seizing papers for the purpose of using them against the defendant as evidence on a criminal trial and compelling him to be a witness against himself at the trial then the district attorney should be divested of the possession of these letters for he has sworn in answer to the petition herein for their return, that the letters seized are material, competent, relevant and incriminating evidence against the defendant.
Since the law as laid down in People v. Adams (176 N. Y. 351) is that no defendant can avail himself of his constitutional right not to be compelled to be a witness against himself by letters taken from his pocket against his will except by moving the court in advance of the trial to have his letters returned, the defendant here will suffer the denial of his constitutional right if his motion is denied.
I vote for reversal.
Kiley, J., concurs.
Order affirmed.