Opinion
Argued September 6, 1977
Decided October 4, 1977
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, IRVING LANG, J.
Robert M. Morgenthau, District Attorney (Robert M. Pitler, Peter L. Zimroth and Richard M. Seltzer of counsel), for appellant.
Arthur M. Unterman and Milton M. Rosenberg for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed.
On the last appeal the only question we had before us was whether the warrants authorized a search of the defendant outside the Lucas apartment. We held that the search was beyond the scope of the warrants and did not address the question of probable cause to arrest. Although the People had argued, in the alternative, that the search could be justified as incident to an arrest based on probable cause, we could not reach that issue since it had not been raised at the original hearing. Upon remand the trial court conducted a further hearing and found that the police had information from a reliable informant that the defendant and Lucas were drug dealers and that narcotics had been observed at the premises. In our view this was sufficient to establish probable cause to believe that the defendant had committed a crime. Thus the arrest, and the incidental search were lawful.
Accordingly, the order of the Appellate Division should be reversed and the case remitted to the Appellate Division for review of the facts.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
Order reversed and the case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.