Opinion
February 23, 1971
Judgment, Supreme Court, New York County, rendered on September 25, 1969, convicting defendant after trial of felonious possession of a weapon and possession of a dangerous drug and sentencing him to an indeterminate term up to four years on the weapons charge, and an unconditional discharge on the drug charge, is affirmed. As stated in the dissenting opinion, the major issue herein is whether there was probable cause to make the arrest. We believe that probable cause was established. An officer was summoned by a manager of a rooming house and told that narcotics were being sold in the room occupied by defendant. The source of the informant's information was revealed as being his own observations of addicts going in and out of the room, and complaints which had been received from other tenants. The officer [together with two fellow officers] returned to the premises later in the evening pursuant to the manager's instructions, and observed four individuals separately enter and leave defendant's room during a 15-minute period. Each individual remained in the room but a couple of minutes; two of the individuals were recognized by the officer from the neighborhood as narcotic addicts; and one was observed upon entry into the room to be holding two bills in his hands. After making these observations, the officers entered the room using a key previously given them by the manager. Upon entry, the defendant was discovered holding a gun, and upon being searched was found to have on his person 22 glassine envelopes. As stated above, we find that under all the circumstances the officer had probable cause to believe that a felony had been committed, thereby justifying entry into the room to make an arrest (see Draper v. United States, 358 U.S. 307). The informant was, without doubt, established to be reliable. He was known to the officer for 10 years and information previously received from the informant led to prior arrests and convictions. Of equal importance is the fact that the informant's job as manager of the rooming house placed him in a position to be intimately aware of the activities on the premises, and to observe unusual activities on the premises, as well as observing strangers going in and out of rooms. The information he gave the police officer was therefore "`something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.'" ( People v. Hendricks, 25 N.Y.2d 129, 136; quoting from Spinelli v. United States, 393 U.S. 410, 416.) Furthermore, the officer's observations corroborated the informant's information in every detail. The stream of traffic occurred at the time the manager stated it would. The persons entering the room stayed but a few minutes, and two were recognized as being addicts. This latter fact was relevant as bearing on the issue of probable cause (cf. People v. Rosello, 36 A.D.2d 595), and the court below was correct in considering such testimony, given by the officer, whose expertise is not denied, and who clearly has sources of information other than from arrests. Considering all the above facts, there was "reasonable ground or probable cause * * * that is, observations or information sufficient to move a reasonable man to conclude that a crime" had been committed. ( People v. White, 16 N.Y.2d 270, 273; see, also, People v. Zimbardo, 21 N.Y.2d 15; People v. Valentine, 17 N.Y.2d 128.) People v. Hendricks ( supra) does not require a different conclusion for the tests set forth in that case were complied with. Not only was the informant reliable, but his information was proven reliable, being corroborated by "independent observations made by the police officer". ( People v. Hendricks, supra, p. 134.) In addition, we might add that there is question as to whether defendant has any standing to raise the issue as to the legality of the police officers' entry into the room. At the time of the officers' entry, there was doubt as to whether defendant was a legal occupant of the room and therefore he might not be a party aggrieved under section 813-c of the Code of Criminal Procedure (see People v. Cefaro, 28 A.D.2d 694, affd. 21 N.Y.2d 252, but, on rearg., revd. on other grounds, 23 N.Y.2d 283). It is also urged that the entry into the room was improper, for failure to comply with section 178 of the Code of Criminal Procedure, which requires the officer to give notice of his office and purpose. But, the law is clear that exigent circumstances may excuse compliance with section 178 of the Code of Criminal Procedure. (See People v. McIlwain, 28 A.D.2d 711; see, also, People v. De Lago, 16 N.Y.2d 289.) Considering the facts herein, and the possibility of destruction of the contraband, entry into the room unannounced was justified. People v. Floyd ( 26 N.Y.2d 558) does not hold otherwise, for in that case the court noted that there was no reason to believe that there was contraband in the room.
Since it is conceded that the officer had no warrant, the validity of this arrest and the search and seizure which followed, depend on there being probable cause to make the arrest. There must be reasonable cause to believe that a felony has been committed and that the person to be arrested has committed it. Whether these requirements were present in this case depend on the combination of facts and circumstances within the knowledge of the officer and credible information received from trustworthy informers. This record indicates that the informant was reliable because of the previous relations between him and the arresting officer. But this is not sufficient. In People v. Hendricks ( 25 N.Y.2d 129, 133) the court said as follows: "It is well settled that a police officer or other affiant may, in an affidavit in support of a warrant, rely upon hearsay information obtained from an informer rather than upon his own personal observation. * * * In such case, however, the affidavit must meet the two pronged test laid down in Aguilar v. Texas ( 378 U.S. 108) and most recently reaffirmed in Spinelli v. United States, ( 393 U.S. 410). In short that test requires that the affidavit show (1) whether the informant is in fact reliable, and (2) whether the underlying circumstances as to how the informant came by his information demonstrates sufficient probability or credibility to allow the search of the premises". What was the information which was reported in this case? At best, it was mere suspicion. The informant did not see drugs being sold, he saw no drugs in the apartment at any time, nor in the possession of anyone leaving the same. "In other words there is nothing in the affidavit to establish a basis for the reliability of the information as distinguished from the reliability of the informant." ( People v. Hendricks, supra, p. 134.) On the whole record, including the independent observations made by the arresting officer after speaking to the hotel clerk (informant). I am of the belief that there was no probable cause to break into the apartment without a search warrant and the officers were not justified in entering same with a duplicate key without announcing themselves to the occupants. (See People v. Floyd, 26 N.Y.2d 558; People v. Griffin, 22 A.D.2d 957.) I vote to reverse and dismiss the indictment.