Opinion
1014 KA 20-01516
11-19-2021
The PEOPLE of the State of New York, Appellant, v. Amber S. PITCHER, Defendant-Respondent.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (MORGAN R. MAYER OF COUNSEL), FOR APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (MORGAN R. MAYER OF COUNSEL), FOR APPELLANT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed and the indictment is dismissed.
Memorandum: The People appeal from an order granting that part of defendant's omnibus motion seeking suppression of tangible evidence seized pursuant to a search warrant. Contrary to the People's contention, County Court properly concluded that the warrant was not based on probable cause. "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] ). "[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]). Furthermore, when reviewing 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 Magistrate 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] ).
Here, the majority of the information provided in support of the warrant application was in an affidavit prepared by a detective, and that affidavit "does not ‘permit a reasonable inference that it was based upon [the detective]’s personal knowledge’ " ( People v. Bartholomew , 132 A.D.3d 1279, 1281, 17 N.Y.S.3d 222 [4th Dept. 2015] ; cf. People v. Perez , 298 A.D.2d 935, 936, 747 N.Y.S.2d 654 [4th Dept. 2002], lv denied 99 N.Y.2d 562, 754 N.Y.S.2d 215, 784 N.E.2d 88 [2002] ). Additionally, with respect to the parts of the warrant application that were based on hearsay information, the application failed to meet the Aguilar-Spinelli test with respect to the sources of that information. Although the detective indicated that he obtained some of that hearsay information from other officers, he did not name the officers and they did not provide affidavits or any basis for their knowledge, thus that information was not sufficiently reliable (see People v. Augustus , 163 A.D.3d 981, 982-983, 83 N.Y.S.3d 281 [2d Dept. 2018] ; cf. People v. Slater , 141 A.D.3d 677, 677-678, 35 N.Y.S.3d 452 [2d Dept. 2016], lv denied 28 N.Y.3d 1031, 45 N.Y.S.3d 382, 68 N.E.3d 111 [2016] ; People v. Williams , 127 A.D.3d 612, 612, 8 N.Y.S.3d 133 [1st Dept. 2015], lv denied 27 N.Y.3d 1009, 38 N.Y.S.3d 118, 59 N.E.3d 1230 [2016] ). Other hearsay information was purportedly received from two confidential informants, but it is well settled that, "once an appropriate challenge by the defense has been raised, the People are required to produce the police informant for an in camera inquiry unless they can demonstrate that the informant is unavailable and cannot be produced through the exercise of due diligence" ( People v. Adrion , 82 N.Y.2d 628, 634, 606 N.Y.S.2d 893, 627 N.E.2d 973 [1993] ; see generally People v. Edwards , 95 N.Y.2d 486, 493, 719 N.Y.S.2d 202, 741 N.E.2d 876 [2000] ). Here, after defendant raised the requisite challenge, those two informants did not appear to testify at a Darden hearing (cf. People v. Steinmetz , 177 A.D.3d 1292, 1293, 112 N.Y.S.3d 833 [4th Dept. 2019], lv denied 34 N.Y.3d 1133, 118 N.Y.S.3d 530, 141 N.E.3d 486 [2020] ; People v. Mercer , 38 A.D.3d 1367, 1368, 831 N.Y.S.2d 628 [4th Dept. 2007], lv denied 9 N.Y.3d 879, 842 N.Y.S.2d 791, 874 N.E.2d 758 [2007] ), and the People failed to make "a threshold showing that the informant[s are] ‘unavailable and cannot be produced through the exercise of due diligence’ " ( People v. Givans , 170 A.D.3d 1638, 1640, 96 N.Y.S.3d 808 [4th Dept. 2019] ; see generally Adrion , 82 N.Y.2d at 634, 606 N.Y.S.2d 893, 627 N.E.2d 973 ). The People therefore failed to establish the basis of the information allegedly provided by those informants. Contrary to the People's further contention, although a third confidential informant who submitted an affidavit in support of the warrant testified at the Darden hearing, the information that informant provided did not establish the requisite probable cause to support the warrant (cf. People v. Middleton , 283 A.D.2d 663, 665, 725 N.Y.S.2d 701 [3d Dept. 2001] ).
Additionally, although the People are correct that the court erred in referencing CPL 120.10 (2) during its analysis of the evidence submitted in support of the warrant, rather than CPL 690.15, that error did not affect the court's determination that some of the evidence submitted in support of the warrant was inadmissible and that, viewed as a whole, it failed to provide probable cause to issue the warrant.
We have considered the People's remaining contentions, and we conclude that none warrants reversal or modification of the order.