Opinion
3426/10.
Decided March 3, 2011.
ADA Colleen Walsh appeared for the People and Theodore M. Herlich, Esq. appeared for the defendant.
On July 7, 2010, Judge Abraham Clott of the New York City Criminal Court reviewed and approved a warrant authorizing the search of 105 West 128th Street, Apartment 4, New York, New York and seize cocaine and crack/cocaine and drug paraphernalia as well as any records and currency that would be indicative of drug trafficking.
Defendant is charged with Criminal Possession of a Controlled Substance in the Third and Fifth Degrees, two counts of Criminally Using Drug Paraphernalia in the Second Degree and Unlawful Possession of Marijuana. Defendant moves to controvert the search warrant on the ground that it was issued without reasonable cause. Specifically, defendant claims that there is no nexus between the apartment that is the subject of the search warrant and the facts upon which the search of the apartment was ordered. Defendant also moves, pursuant to CPLR 2221(d), for leave to reargue the Court's Order which granted the People's ex-parte motion for a Protective Order pertaining to paragraphs 6 and 7 of the search warrant affidavit.
According to defendant, he resided at 105 West 128th Street, Apt. 4, New York, New York for the past ten years. On July 8, 2010, at approximately 12:45 a.m., as defendant entered the ground floor lobby of 105 West 128th Street, the police rushed into the building and summarily seized and searched him. Two cellular phones, two keys to defendant's apartment and $26.00 in United States currency was recovered from defendant. He was then handcuffed and subjected to a custodial interrogation in the lobby of his residence, which resulted in defendant making a statement to the police. The police had a search warrant for defendant's apartment. However, defendant was not the subject of the warrant and the warrant did not authorize the search or seizure of any person "thereat or therein."
Upon execution of the search warrant, the police recovered 3,104 mg. of marijuana, 3,278 mg. cocaine, a .32 caliber magazine, six .32 caliber bullets, scales, ziplock bags, $70.00 in United States currency, an identification card in defendant's name, a letter addressed to defendant and a computer. According to defendant the police recovered a total of $889.00 in this case.
The warrant affidavit basically sets forth in substance, the following facts, namely, that Detective James South received information from an undercover police officer relating to the sale of cocaine by Tommy Miller and Wayne Harris out of Harris's barber shop located on the ground and first floor level of 237 Lenox Avenue. Those observations were set forth in the affidavit for a search warrant.
Additionally, Detective South also states that he was able to see through a window, Miller and Harris inside of the barber shop handling money.
Immediately after the transaction, Detective South stopped Miller who threw one rock of crack cocaine to the ground and that Detective Keith Cummings recovered the rock of cocaine. Miller the said in substance, ". . . Yo I got this from inside the barber shop from Hammer." and the "Hammer is the guy in green."
Detective South returned to the barber shop, where he stopped and frisked Harris, recovering one ziplock bag containing cocaine from Harris's right front pants pocket. Detective Harris also observed an open black bag containing "numerous rocks of cocaine" inside of an open drawer inside the barber shop. The detective also smelled a "strong odor of cooked crack cocaine coming from" the open drawer.
Harris and Miller was arrested. At the precinct, a Blackberry capable with internet and email capability was recovered from Harris and vouchered. The phone rang after it was recovered and when the detective attempted to turn off the phone, he observed a video message on the device depicting an adult female, wearing underwear and a bra, and a male child, wearing a diaper, appearing to be approximately three to four years old. In the video the male child rubbed his hand on the adult female's vagina, underneath her underwear. The video further depicted the male child climbing on top of the adult female, whereupon his penis comes out of his diaper and is pressed against the female's genital area. The video also depicts the adult female placing the child's head and mouth on her vagina. The device was finally shut off by removing the battery.
Finally, the detective states that during processing Harris's arrest, Harris produced a New York State Driver's License listing his address as 105 West 128th Street, apartment 4, New York, New York, which is within several blocks of the barber shop located at 237 Lenox Avenue, New York, New York.
Based on these facts, the Court issued the warrant at issue.
Defendant does not dispute that the police had probable cause to arrest Harris for the possession and sale of a controlled substance. Clearly, the officers personal observations of Miller and Harris at the barber shop selling crack cocaine provided the police with ample probable cause for Harris's subsequent arrest.
Defendant argues instead that the police lacked probable cause to believe that Harris sold and/or possessed controlled substances and/or child pornography at 105 West 128th Street, apartment 4, where he and Harris purportedly lived. Therefore, according to defendant, regardless of the existence of probable cause to justify Harris's arrest, the police lacked probable cause to connect Harris's alleged criminal activity to his apparent residence. Accordingly, defendant contends, there was a dearth of probable cause to support the issuance of a search warrant for 105 West 128th Street, apartment 4.
Defendant points out, and the Court concurs, that the warrant application in this case is devoid of any explicit facts demonstrating a nexus between Mr. Harris's alleged criminal activities and 105 West 128th Street, apartment 4. The warrant application contains no specific assertion that illegal drug activities or child pornography were taking place at or near 105 West 128th Street, apartment 4. The application includes no explicit allegation that Harris possessed crack cocaine or any other controlled substance or child pornography at or near 105 West 128th Street, apartment 4. To the contrary, the only allegation in the warrant application connecting 105 West 128th Street, apartment 4 to Harris is that Harris resides at that house.
The key legal issue here is whether there was probable cause to search Harris's apartment for evidence of criminality simply and solely because he lived there. The Court concludes that there was.
Probable cause to search a particular place exists not only where there is sufficient information that an offense has been or is being committed at that place, but also where there is sufficient evidence to support a reasonable belief that evidence of a crime may be found in a certain place (see People v. Bigelow, 66 NY2d 417, 423; People v. Shaw, 23 Misc 3d 1132(A), 2009 NY Slip Op 51052(U) [Rochester City Ct. 2009]). In this case, the fact that the police had probable cause to arrest Harris for the criminal sale and for criminal possession of a controlled substance with respect to the rocks of crack cocaine and that Harris had to get the crack cocaine and that his home was in the vicinity of the barber shop comprised sufficient information to support a reasonable belief that evidence of Harris's criminal conduct would be found in his house.
New York State courts have consistently observed that "logic suggests that person who has committed a crime and who wished to conceal evidence thereof would choose to hide it at a place where he exercises some control" ( People v. Christopher, 101 AD2d 504, 526 [4th Dept. 1984], rev'd on other grounds 65 NY2d 417, rearg. denied 65 NY2d 1054; see also People v. Shaw, 23 Misc 3d 1132(A)). Therefore, "New York courts routinely sustain search warrants issued to allow the search of homes of persons identified as criminal perpetrators for evidence of the alleged crimes, despite the absence of direct evidence linking the perpetrators' alleged criminal conduct to their homes" ( People v. Shaw, 23 Misc 3d 1132(A)).
In People v. Shaw, supra, the Court found probable cause to search the residence of a co-defendant, who was arrested on probable cause, despite a lack of a nexus between the criminal activity that led to the co-defendant's arrest and the co-defendant's residence. The Court found it reasonable to deduce that evidence of the crimes upon which the co-defendant was arrested would also be found in his home.
Similarly, in People v. Robinson, 68 NY2d, 541, 551-52 (1986), the Court of Appeals found probable cause existed for a search of the dormitory room of a defendant suspected of bank robbery. The Court recognized that it was reasonable for the police to believe that evidence of the bank robbery would be found in defendant's living quarters (see People v. Robinson, 68 NY2d, at 551-52; see People v. Shaw, 23 Misc 3d 1132(A)).
In People v. Paccione, 259 AD2d 563 [2d Dept.], lv. denied 93 NY2d 975), the Second Department found there was probable cause to search the home of a defendant for evidence of the robbery where the search warrant application sufficiently identified him as a robber despite the absence of evidence linking defendant's house to the robbery. Since defendant had been identified as one of the robbery participants, "it was entirely reasonable to deduce' that evidence of the robbery would be found [at defendant's home]" ( People v. Paccione, 259 AD2d, at 564, quoting People v. Robinson, 68 NY2d, at 552; see People v. Shaw, 23 Misc 3d 1132(A)).
As in Shaw, Robinson and Paccione, the search warrant application in this case sufficiently identified Harris as one of the alleged perpetrators based on the personal observations related in the warrant affidavit. As in Robinson and Paccione, it was reasonable for the police to deduce that evidence of Harris's illicit possession and sale of crack cocaine and/or child pornography would be found in his apartment, where he exercised some control (see United States v. Baldwin, 987 F.2d 1432, 1435 [9th Cir. 1993][reasonable to infer in case of drug dealers that relevant evidence is likely to be found where the dealers live]; see also People v. Walker, 285 AD2d 660, 662 [3rd Dept.], lv. denied 97 NY2d 659, cert. denied 535 U.S. 1064[where defendant was identified as the murder suspect, probable cause existed for search of defendant's house because it was not unreasonable to infer that evidence of the murder would be found there); People v. Brown, 269 AD2d 809 [4th Dept. 2000], aff'd 96 NY2d 80[where defendant was identified as the perpetrator of a theft, there was probable cause to search defendant's property for evidence of the crime]; People v. Ortiz, 256 AD2d 424, 425 [2d Dept. 1998], lv. denied 95 NY2d 801[investigator's observations that defendant delivered a car he had purchased for cash to other persons who used the car to transport cocaine provided sufficient probable cause to search defendant's home for evidence of illegal drug activity]; People v. Pettigrew, 255 AD2d 969, 970 [4th Dept.), lv. denied 92 NY2d 1037[in a robbery, rape and murder case, probable cause existed to search defendant's house based on defendant's cash purchase of two cars, the discovery of sunglasses similar to defendant's at the crime scene, and the discovery of blood with defendant's type at the crime scene]; People v. Truver, 244 AD2d 990, 991-92 [4th Dept. 1997][intercepted phone calls of cryptic conversations regarding shipments and money exchanges provided probable cause to search defendant's house for evidence of illegal drug activity); People v. De Sivo, 194 AD2d 935, 937 [3rd Dept. 1993][despite no direct link of criminal activity to sheds surrounding defendant's trailer, it was reasonable to infer that evidence would be hidden in sheds over which defendant had control]; People v. Christopher, 101 AD2d, at 526 [probable cause existed to search the house of a suspected murderer for evidence where probable cause existed to arrest defendant, despite no allegation that criminal activity occurred in defendant's house]; People v. Shaw, 23 Misc 3d 1132(A)). Here, the police had probable cause to believe that Harris and Miller were selling cocaine. Detective South observed Harris and Miller handling money inside the barbershop right before Miller exited it to hand the UC crack cocaine. More crack cocaine was recovered in the barber shop when Detective South went there to arrest Harris, thus corroborating the facts in Detective South's observations. These factors provided probable cause to believe that Harris was engaged in criminal activity so as to justify a search of his premises. Moreover, Harris's driver's license provided probable cause to believe that 105 West 128th Street, apartment 4 was his home address.
Accordingly, the search warrant issued by New York County Criminal Court on July 7, 2010 was based upon the requisite probable cause necessary to search 105 West 128th Street, apartment 4, for evidence related to Harris's involvement in the criminal sale and possession of crack cocaine and defendant's motion to controvert the search warrant and to suppress the evidence seized pursuant to it is denied.
As the Court of Appeals noted in People v. Bilsky, 95 NY2d 172, 177 (2000), citing People v. Nieves, 36 NY2d 396 (1975), "the critical element, in reviewing the validity of a search warrant to determine whether it was supported by probable cause, was whether facts and circumstances made known to the issuing Magistrate at the time the warrant application was determined were sufficient to establish that nucleic ingredient of probable cause." Again, probable cause for the issuance of a search warrant exists where there is "information sufficient to support a reasonable belief" that an offense has been or is being committed in a certain place, or that evidence of a crime may be found in a certain place ( People v. Bigelow, 66 NY2d, at 423). In evaluating the validity of a search warrant, a court must be mindful that "search warrants, which are composed not by lawyers but by police officers acting under stress, are not to be read hypertechnically and may be accorded all reasonable inferences" ( People v. Robinson, 68 NY2d 541, 551-52, quoting People v. Hanlon, 36 NY2d 549, 559). In determining whether reasonable cause exists, the Court should "consider the probabilities as perceived by a reasonable, cautious and prudent police officer" ( People v. Hanlon, 36 NY2d, at 559). For that reason, a search warrant must be analyzed in light of common sense and everyday experience (see People v. Hanlon, 36 NY2d at 559).
Moreover, its well established that a presumption of validity attaches to a warrant, which has already been tested by the issuing Judge, thus leaving the suppression court with the task of determining whether the issuing Judge could reasonably have concluded that probable cause existed ( People v. Castillo, 80 NY2d 578, 585, cert. denied 507 U.S. 1033). "[A] search warrant application must provide the magistrate with information sufficient to support a reasonable belief that evidence of illegal activity will be present at the time and place of the search" ( People v. Edwards, 69 NY2d 814, 815). A magistrate's "determination of probable cause should be paid great deference by reviewing courts" ( Spinelli v. U.S., 393 U.S. 410, 419; see People v. Martinez , 9 AD3d 679 , 680 [3rd Dept. 2004]). As the United States Supreme Court has observed, the Fourth Amendment does not require more than the magistrate had a "substantial basis for . . . conclud[ing]" that a search would uncover evidence of wrongdoing" ( Illinois v. Gates, 462 U.S. 213, 236, citing Jones v. United States, 362 U.S. 257, 271). "Where a search warrant has been secured, the bona fides of the police will be presumed and the subsequent search upheld in a marginal or doubtful case" ( People v. Hanlon, 36 NY2d, at 558).
Therefore, defendant's motion for a hearing to controvert the search warrant is denied.
Nor do the other assertions by defendant provide a legal basis for controverting the search warrants or suppressing evidence. Accordingly, defendant's motion to controvert the search warrant is denied in all respects.
The defendant also seeks to reargue this Court's Order which granted the People's ex-parte motion for a protective order pertaining to Paragraphs 6 and 7 of the search warrant. The People oppose this motion. The People argue that the reasons for the protective order still exists with respect to the identity of the undercover police officer and the information provided by that officer. Specifically, the People argue that there is a substantial risk of intimidation and/or harm to the undercover officer that outweighs the usefulness of discovery at this stage of the proceedings (CPL 240.50). As the People note, the affidavit filed in support of the search warrant references the date and surrounding circumstances where the undercover police officer purchased cocaine from a separately charged defendant in the vicinity of Lenox Avenue where the undercover officer police is still working as an undercover officer and has open investigations.
Accordingly, the motion to reargue the granting of the Protective Order is denied at this time and the Protective Order will remain in effect.
This constitutes the decision and order of this Court.