Opinion
February 2, 1990
Appeal from the Supreme Court, Erie County, Kubiniec, J.
Present — Callahan, J.P., Denman, Green, Balio and Lawton, JJ.
Judgment unanimously reversed on the law, motion to suppress granted, and indictment dismissed. Memorandum: Defendants appeal from judgments convicting them, upon their pleas of guilty, of attempted criminal possession of a controlled substance in the second degree. We are asked to review the court's denial of defendants' motions to suppress drugs, guns and money seized pursuant to a search warrant from the side panels of an automobile in which they were riding. The suppression court determined that the warrant was invalid for lack of probable cause, but found that the police had probable cause for a warrantless search of the automobile as an incident to defendants' arrest.
We conclude that the court properly invalidated the search warrant. The informant's and officer's averments and testimony in support of the warrant application were vague and contradictory. Further, there was an insufficient showing that the informant's allegations were based on personal knowledge. Finally, neither the applicant nor the informant established a sufficient connection between their allegations and the car sought to be searched.
Additionally, we conclude that police had insufficient information to support a warrantless search of the vehicle as incident to the defendants' arrest. Assuming, arguendo, that police properly stopped the car and arrested certain of its occupants for assault on the informant's wife, we nonetheless conclude that police lacked the requisite probable cause to search the car pursuant to the incidental search or automobile search doctrines (see, United States v Ross, 456 U.S. 798; New York v Belton, 453 U.S. 454; People v Torres, 74 N.Y.2d 224, 227; People v Langen, 60 N.Y.2d 170, cert denied 465 U.S. 1028; People v Belton, 55 N.Y.2d 49). The suspicion that the car contained drugs, money and weapons was based on mere speculation.