Opinion
492 KA 22-01491
07-28-2023
The PEOPLE of the State of New York, Appellant, v. Shawn CONWAY, Defendant-Respondent.
JASON L. SCHMIDT, DISTRICT ATTORNEY, MAYVILLE (ERIK D. BENTLEY OF COUNSEL), FOR APPELLANT. NATHANIEL L. BARONE, II, PUBLIC DEFENDER, MAYVILLE (HEATHER R. BURLEY OF COUNSEL), FOR DEFENDANT-RESPONDENT.
JASON L. SCHMIDT, DISTRICT ATTORNEY, MAYVILLE (ERIK D. BENTLEY OF COUNSEL), FOR APPELLANT.
NATHANIEL L. BARONE, II, PUBLIC DEFENDER, MAYVILLE (HEATHER R. BURLEY OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law, that part of the omnibus motion seeking to suppress tangible evidence is denied, and the matter is remitted to Chautauqua County Court for further proceedings on the indictment.
Memorandum: The People appeal pursuant to CPL 450.20 (8) from an order granting that part of defendant's omnibus motion seeking suppression of tangible evidence seized pursuant to a search warrant. The record establishes that a police officer assigned as an investigator to a regional drug task force submitted a search warrant application to a town justice seeking authorization to search a specified room at a hotel that was occupied by defendant. In sum, the investigator averred that there was probable cause to believe that evidence of a drug crime, including methamphetamine, cocaine, and drug paraphernalia, would be found at the subject location based on, inter alia, the task force's month-long investigation of narcotics sales at the hotel and information from a particular confidential informant (CI) who had recently made observations of various drugs inside the hotel room and reported that defendant was selling certain drugs there. To establish the veracity of the CI, the investigator also averred regarding the nature of the CI's past collaborations with the police. After the town justice signed the search warrant, the police executed it and seized, among other things, methamphetamine, cocaine, fentanyl, nearly $600 in cash, multiple digital scales and cell phones, and boxes of packaging material.
Defendant was subsequently charged by indictment with criminal possession of a controlled substance in the second degree ( Penal Law § 220.18 [2] ) and criminal possession of a controlled substance in the third degree (§ 220.16 [7]). In his omnibus motion, defendant sought suppression of the tangible evidence seized upon execution of the search warrant on the ground that the search warrant application failed to establish the CI's veracity and basis of knowledge. Defendant also requested a Darden hearing to confirm the existence of the CI. The People opposed that part of the omnibus motion on the ground that the search warrant application satisfied the Aguilar-Spinelli test, but they consented to a Darden hearing.
County Court, without conducting a hearing, granted that part of defendant's omnibus motion seeking suppression of the tangible evidence. The court first determined that the basis of knowledge component of the Aguilar-Spinelli test was met by the CI's observations in the hotel room. The court further determined, however, that the veracity component of the test had not been satisfied. The court reasoned that, although the investigator minimally recited the CI's track record of reliability, the remainder of the application consisted of conclusory statements that the investigator and other officers had been investigating the narcotics operation for approximately one month, and did not provide details of any direct observations made by law enforcement officers during the investigation. The court rejected the People's contention that the CI's track record of reliability was enough on its own to satisfy the veracity prong. According to the court, the People's position was inconsistent with People v. DiFalco , 80 N.Y.2d 693, 594 N.Y.S.2d 679, 610 N.E.2d 352 (1993). The court concluded that the information provided by the CI failed to meet the Aguilar-Spinelli test and therefore that the search warrant was not supported by probable cause.
The People now contend on appeal that, contrary to the court's determinations, the information in the search warrant application satisfied the veracity component of the Aguilar-Spinelli test because it sufficiently established the CI's track record of reliability, and independent corroboration of the information provided by the CI was not required in this case. We agree.
It is well settled that a search warrant may be issued only "upon a showing of probable cause to believe that a crime has occurred, is occurring, or is about to occur" ( People v. Moxley , 137 A.D.3d 1655, 1656, 28 N.Y.S.3d 514 [4th Dept. 2016] ; see generally People v. Mercado , 68 N.Y.2d 874, 875-876, 508 N.Y.S.2d 419, 501 N.E.2d 27 [1986], cert denied 479 U.S. 1095, 107 S.Ct. 1313, 94 L.Ed.2d 166 [1987] ) and where there is sufficient evidence from which to form a reasonable belief that evidence of the crime may be found inside the location sought to be searched (see People v. Bigelow , 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ; People v. Pitcher , 199 A.D.3d 1493, 1493, 154 N.Y.S.3d 593 [4th Dept. 2021] ). "[P]robable cause may be supplied, in whole or in part, [by] hearsay information, provided [that] it satisfies the two-part Aguilar-Spinelli test requiring a showing that the informant is reliable and has a basis of knowledge for the information imparted" ( People v. Flowers , 59 A.D.3d 1141, 1142, 873 N.Y.S.2d 413 [4th Dept. 2009] [internal quotation marks omitted]; see Pitcher , 199 A.D.3d at 1493-1494, 154 N.Y.S.3d 593 ). Consequently, "in evaluating hearsay information[,] the [m]agistrate must find some minimum, reasonable showing that the informant was reliable and had a basis of knowledge" ( People v. Griminger , 71 N.Y.2d 635, 639, 529 N.Y.S.2d 55, 524 N.E.2d 409 [1988] ).
"Only the veracity component of the test is at issue here" ( DiFalco , 80 N.Y.2d at 696, 594 N.Y.S.2d 679, 610 N.E.2d 352 ). That component "concerns the trustworthiness of the person supplying the information and requires the affiant to set forth the reasons which led [the affiant] to conclude that the informer was credible or that [the] information was reliable" ( People v. Hanlon , 36 N.Y.2d 549, 556, 369 N.Y.S.2d 677, 330 N.E.2d 631 [1975] ). The veracity component thus "relates to the validity of the information and requires a showing either that the informant is credible and that the information supplied may, for that reason, be accepted as true or , in the absence of such showing, that the specific information given is reliable" ( DiFalco , 80 N.Y.2d at 696-697, 594 N.Y.S.2d 679, 610 N.E.2d 352 ). Regarding the "informant credibility" basis for establishing veracity, "the veracity component may be met by showing that the informant was credible because [the informant] had a ‘track-record’ " ( id. at 697 n. 2, 594 N.Y.S.2d 679, 610 N.E.2d 352 ), which refers to the informant's "past performance as a supplier of information" ( People v. Johnson , 66 N.Y.2d 398, 403, 497 N.Y.S.2d 618, 488 N.E.2d 439 [1985] ; see People v. Rodriguez , 52 N.Y.2d 483, 489, 438 N.Y.S.2d 754, 420 N.E.2d 946 [1981] ).
With respect to judicial review of the validity of search warrants, it is well established that "search warrant applications should not be read in a hypertechnical manner as if they were entries in an essay contest"; rather, such applications "must be considered in the clear light of everyday experience and accorded all reasonable inferences" ( Hanlon , 36 N.Y.2d at 559, 369 N.Y.S.2d 677, 330 N.E.2d 631 ; see Griminger , 71 N.Y.2d at 640, 529 N.Y.S.2d 55, 524 N.E.2d 409 ; People v. Hightower , 207 A.D.3d 1199, 1201, 171 N.Y.S.3d 297 [4th Dept. 2022], lv denied 38 N.Y.3d 1188, 176 N.Y.S.3d 202, 197 N.E.3d 482 [2022] ). Indeed, "reviewing courts should accord the process proper deference and not defeat search warrants (or discourage law enforcement officials from seeking them) by imposing overly technical requirements or interpreting them incompatibly with common sense" ( People v. Cahill , 2 N.Y.3d 14, 41, 777 N.Y.S.2d 332, 809 N.E.2d 561 [2003] ). In that regard, "[a]pproval by a reviewing magistrate cloaks a search warrant with ‘a presumption of validity’ " ( People v. DeProspero , 91 A.D.3d 39, 44, 932 N.Y.S.2d 789 [4th Dept. 2011], affd 20 N.Y.3d 527, 964 N.Y.S.2d 487, 987 N.E.2d 264 [2013], quoting People v. Castillo , 80 N.Y.2d 578, 585, 592 N.Y.S.2d 945, 607 N.E.2d 1050 [1992], cert denied 507 U.S. 1033, 113 S.Ct. 1854, 123 L.Ed.2d 477 [1993] ; see People v. Socciarelli , 203 A.D.3d 1556, 1557-1558, 164 N.Y.S.3d 749 [4th Dept. 2022], lv denied 38 N.Y.3d 1035, 169 N.Y.S.3d 241, 242, 189 N.E.3d 348, 349 [2022]). "In reviewing the validity of a search warrant to determine whether it was supported by probable cause ..., the critical facts and circumstances for the reviewing court are those which were made known to the issuing [m]agistrate at the time the warrant application was determined" ( People v. Nieves , 36 N.Y.2d 396, 402, 369 N.Y.S.2d 50, 330 N.E.2d 26 [1975] ; see Pitcher , 199 A.D.3d at 1494, 154 N.Y.S.3d 593 ). Here, regarding the veracity of the CI, the investigator averred in support of the search warrant application that the CI, who had been assigned a particular confidential informant number, was found to be honest, trustworthy, and reliable based on the CI's past work with the investigator. The investigator specified that prior information supplied by the CI had led to search warrants, one of which led to the arrest of an individual. Additionally, the investigator averred that the CI had performed controlled drug transactions on behalf of law enforcement that had resulted in the arrests of other suspects. Applying the requisite standard of review to the search warrant application, we conclude that "[t]he reliability of the CI was established by the [investigator's] statements that the CI had given credible and accurate information in the past" ( People v. Colon , 192 A.D.3d 1567, 1568, 144 N.Y.S.3d 499 [4th Dept. 2021], lv denied 37 N.Y.3d 955, 147 N.Y.S.3d 535, 536, 170 N.E.3d 409, 410 [2021] ).
In reaching that conclusion, we reject defendant's assertion that information from a registered confidential informant leading to a single prior arrest cannot be indicative of reliability (see People v. Walters , 187 A.D.2d 472, 473, 589 N.Y.S.2d 892 [2d Dept. 1992], lv denied 81 N.Y.2d 849, 595 N.Y.S.2d 748, 611 N.E.2d 787 [1993] ). Indeed, "[a]pplying a quantitative rather than a qualitative analysis of an informant's reliability places a burden on the police in using confidential informants not contemplated by the standard articulated by the Court of Appeals, of ‘some minimum, reasonable showing that the informant was reliable’ " ( People v. Proctor , 155 A.D.2d 624, 625, 547 N.Y.S.2d 673 [2d Dept. 1989], lv denied 75 N.Y.2d 923, 555 N.Y.S.2d 41, 554 N.E.2d 78 [1990], quoting Griminger , 71 N.Y.2d at 639, 529 N.Y.S.2d 55, 524 N.E.2d 409 ; see Walters , 187 A.D.2d at 473, 589 N.Y.S.2d 892 ). Contrary to defendant's related assertion, although information leading to prior arrests and convictions would certainly strengthen an informant's reliability, information leading to search warrants or arrests alone may be considered positively in evaluating the reliability of an informant, along with other indicia (see e.g. Hanlon , 36 N.Y.2d at 554, 369 N.Y.S.2d 677, 330 N.E.2d 631 ; People v. Patterson , 199 A.D.3d 1072, 1073, 157 N.Y.S.3d 179 [3d Dept. 2021], lv denied 37 N.Y.3d 1163, 160 N.Y.S.3d 709, 181 N.E.3d 1137 [2022] ; People v. Stephens , 209 A.D.2d 999, 999, 619 N.Y.S.2d 445 [4th Dept. 1994], lv denied 84 N.Y.2d 1039, 623 N.Y.S.2d 195, 647 N.E.2d 467 [1995] ; People v. Collier , 89 A.D.2d 1041, 1042, 456 N.Y.S.2d 119 [3d Dept. 1982] ). Here, in addition to the prior tip that had led to the issuance of a search warrant and an arrest, the CI had also successfully worked with law enforcement on other narcotics investigations inasmuch as the CI had performed controlled drug transactions that had resulted in the arrests of suspects, which provided further indicia of the CI's reliability (see generally People v. Baptista , 130 A.D.3d 1541, 1542, 13 N.Y.S.3d 759 [4th Dept. 2015], lv denied 27 N.Y.3d 991, 38 N.Y.S.3d 102, 59 N.E.3d 1214 [2016] ; Flowers , 59 A.D.3d at 1142, 873 N.Y.S.2d 413 ; People v. Johnson , 237 A.D.2d 916, 917, 654 N.Y.S.2d 514 [4th Dept. 1997], lv denied 90 N.Y.2d 859, 661 N.Y.S.2d 186, 683 N.E.2d 1060 [1997] ).
Defendant questions the lack of detail provided about the prior arrests that resulted from the CI's collaborations with the police, and contends that the investigator's "representations lacked sufficient specificity because no details were provided as to the legality of the arrests, whether evidence was seized and whether prosecutions resulted from them" ( People v. Calise , 256 A.D.2d 64, 66, 682 N.Y.S.2d 149 [1st Dept. 1998], lv denied 93 N.Y.2d 851, 688 N.Y.S.2d 498, 710 N.E.2d 1097 [1999] ). We reject that contention. Instead, "[a]ll that is required is a sworn statement by the applicant regarding a ‘verified history of success with this informant’ ..., and that is exactly what occurred here" ( id. ).
The court recognized that the investigator had made some minimum, reasonable showing of the CI's track record of reliability, but nonetheless determined that, in light of "the holding of DiFalco ," the veracity component of the Aguilar-Spinelli test had not been satisfied because the application did not include any independent corroboration of the CI's information through investigation and direct observations by the police. That was error inasmuch as DiFalco states that the veracity component "requires a showing either that the informant is credible and that the information supplied may, for that reason, be accepted as true or , in the absence of such showing, that the specific information given is reliable" ( 80 N.Y.2d at 696-697, 594 N.Y.S.2d 679, 610 N.E.2d 352 ). Here, for the reasons previously set forth, we conclude that "the [CI's] track record alone provided a sufficient basis for the issuing [town justice's] determination of reliability" ( Calise , 256 A.D.2d at 66, 682 N.Y.S.2d 149 ).
Based on the foregoing, we reverse the order, deny that part of the omnibus motion seeking suppression of tangible evidence, and remit the matter to County Court for further proceedings on the indictment. We note that, upon remittal, defendant should be allowed to renew that part of his omnibus motion seeking a Darden hearing to challenge the existence of the CI (see People v. Scavone , 59 A.D.2d 62, 66, 397 N.Y.S.2d 212 [3d Dept. 1977] ).