Opinion
Argued January 12, 1987
Decided February 19, 1987
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Lawrence N. Martin, Jr., J.
Joel A. Brenner for appellant.
Carl A. Vergari, District Attorney (Diane E. Selker and Anthony Joseph Servino of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, defendant's motion to suppress granted, the judgments of conviction vacated and the indictments dismissed.
Although probable cause determinations that involve questions of fact, or mixed questions of law and fact, are generally beyond the scope of review of this court (see, People v McCray, 51 N.Y.2d 594, 601), where, as here, the issue is the minimum showing necessary to establish probable cause, a question of law is presented (People v Bigelow, 66 N.Y.2d 417, 420-421; People v Johnson, 66 N.Y.2d 398). Although there is a strong judicial preference for search warrants (People v Potwora, 48 N.Y.2d 91, 95; People v Vaccaro, 39 N.Y.2d 468, 472; People v Hanlon, 36 N.Y.2d 549) and courts should not analyze applications in a grudging or hypertechnical manner when determining whether they meet constitutional standards (People v P.J. Video, 65 N.Y.2d 566, 571, revd sub nom. New York v P.J. Video, 475 U.S. 868, 106 S Ct 1610, on remand 68 N.Y.2d 296; People v Hanlon, 36 N.Y.2d 549, 558, supra), 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 specific time and place of the search (People v Bigelow, 66 N.Y.2d, at p 423, supra).
The affidavit submitted in support of the application for the search warrant here fails to meet that minimum standard. That affidavit relied primarily on hearsay information but failed to satisfy the "basis of knowledge" requirement for use of such information (People v Bigelow, 66 N.Y.2d 417, 423, supra; People v Rodriguez, 52 N.Y.2d 483, 490). The results of a pen register and surveillance of defendant's activities were as consistent with innocence as with guilt (see, People v Yedvobnik, 48 N.Y.2d 910, 911; People v Wirchansky, 41 N.Y.2d 130, 134-135; People v Germano, 91 A.D.2d 1137, 1138). Finally, the positive reaction at the door of defendant's apartment by a dog trained to detect the odor of narcotics, even if otherwise lawful and sufficient to establish probable cause, was not "so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time" (Sgro v United States, 287 U.S. 206, 210).
In light of this disposition, we find it unnecessary to reach any of defendant's remaining contentions.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.
Order reversed, etc.