Summary
denying request to extend the holding of Franks "to permit a challenge to the veracity of a citizen informant who . . . testified before the Town Justice who issued the search warrant . . . because that would misapprehend the primary justification for the exclusionary rule, which is to deter governmental or police misconduct"
Summary of this case from U.S. v. WorjlohOpinion
July 16, 1993
Appeal from the Erie County Court, Rose D. LaMendola, J.
Lipsitz, Green, Fahringer, Roll, Salisbury Cambria, Buffalo (Paul J. Cambria, Jr., and Barry N. Covert of counsel), for appellant.
Kevin M. Dillon, District Attorney of Erie County, Buffalo (Raymond C. Herman and John J. DeFranks of counsel), for respondent.
On this appeal, the main issue we are asked to determine is whether defendant was entitled to a Franks hearing (see, Franks v Delaware, 438 U.S. 154) to challenge the veracity of a citizen informant whose in camera testimony before the issuing magistrate provided the probable cause necessary to support the issuance of a search warrant. We conclude that he was not entitled to that relief.
I
On August 27, 1990, a Town Justice of the Town of Amherst issued a search warrant that authorized the search of defendant's person and his residence at 55 Primrose Lane, Amherst. The Town Justice issued the warrant after reviewing the affidavit of Detective Michael Griffin of the Town of Amherst Police Department and hearing the in camera testimony of a citizen informant. The police executed the warrant on August 29, 1990 and seized drugs and weapons. Defendant was subsequently indicted for various drug-related and weapons possession crimes. Thereafter, in an omnibus motion, defendant challenged the validity of the warrant and sought, inter alia, the suppression of the tangible evidence seized pursuant to the warrant and the production of the identity and testimony of the citizen informant. The People opposed defendant's motion. County Court directed the People to provide defendant with a redacted version of the informant's in camera testimony.
In a supplemental notice of motion, defendant moved, inter alia, for a Franks hearing regarding the veracity of the informant, and alternatively, for a hearing to determine whether the informant was a government agent. County Court denied the motion. Defendant subsequently pleaded guilty to one count of criminal possession of a controlled substance in the second degree in full satisfaction of the indictment and was sentenced, pursuant to a plea and sentence agreement, to an indeterminate term of three years to life.
II
Defendant contends that County Court erred in denying his request for a Franks hearing regarding the veracity of the informant. We disagree.
In Franks v Delaware (supra, at 155-156), the United States Supreme Court stated: "[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit."
The Supreme Court specifically stated that "[t]he deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant" (Franks v Delaware, supra, at 171).
The holding in Franks restated the long-existing rule in New York that "a defendant is entitled to a hearing in which he may challenge the truthfulness of the allegations in the affidavit supporting a search warrant only where he attacks the veracity of the police officer affiant, and not where * * * the credibility of the source of information is challenged" (People v Slaughter, 37 N.Y.2d 596, 600; see, People v Solimine, 18 N.Y.2d 477, rearg denied 21 N.Y.2d 1041).
Defendant requests this Court to extend the scope of the holdings in Franks and Slaughter to permit a challenge to the veracity of a citizen informant who, as here, testified before the Town Justice who issued the search warrant. We decline to do so because that would misapprehend the primary justification for the exclusionary rule, which is to deter governmental or police misconduct (see, Stone v Powell, 428 U.S. 465, 486, reh denied 429 U.S. 874; Linkletter v Walker, 381 U.S. 618, 637; People v Bradley, 181 A.D.2d 316, 318-319, lv granted 80 N.Y.2d 936, appeal dismissed 81 N.Y.2d 760; People v Edmunds, 119 A.D.2d 901, 903). The alleged perjury by a citizen informant will not be deterred by suppressing evidence. That deterrence will be better achieved by prosecuting the informant for perjury.
In any event, defendant was not entitled to a Franks hearing because he failed to make "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit" (Franks v Delaware, supra, at 155-156). The affidavit of defendant's houseguest, proffered in support of defendant's supplemental motion, was factually insufficient to demonstrate that the informant falsely testified, either knowingly or with reckless disregard for the truth, about the presence of cocaine in defendant's residence.
III
Defendant further contends that County Court erred in denying his motion for a hearing to determine whether the informant was a government agent. There is no merit to that contention. Defendant failed to allege facts to support his contention that the informant was a government agent (see, People v Cardona, 41 N.Y.2d 333, 335; People v Gibbs, 157 A.D.2d 799, appeal dismissed 76 N.Y.2d 851, rearg denied 77 N.Y.2d 835). Finally, the record shows that the informant, acting on his own initiative, provided information to the police. "Defendant present[ed] no evidence of an agreement between any government official and the [informant] to provide information about the defendant, nor instructions from the official concerning how the [informant] should have obtained the information, nor the promise or receipt of benefits to the [informant] as a result of the information he was providing" (People v Belgrave, 172 A.D.2d 335, 336, lv denied 78 N.Y.2d 962). Under those circumstances, defendant was not entitled to a hearing on that issue (cf., People v Carlisle, 172 A.D.2d 169, 171, lv dismissed 80 N.Y.2d 973).
IV
Accordingly, the judgment of conviction should be affirmed.
DENMAN, P.J., BALIO, LAWTON and FALLON, JJ., concur.
Judgment unanimously affirmed.