Summary
In People v. LaDuke (206 A.D.2d 859, 860), we held that a consent to search based on a threatened confiscation is not invalid when "the police had valid legal grounds to threaten defendant with forfeiture of his property."
Summary of this case from People v. StorelliOpinion
July 15, 1994
Appeal from the Jefferson County Court, Clary, J.
Present — Green, J.P., Balio, Fallon, Callahan and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant pleaded guilty to criminal possession of marihuana in the third degree. He contends on appeal that County Court erred in determining that the search warrant executed by the police is supported by probable cause. In reviewing the validity of a search warrant to determine whether it is supported by probable cause or whether it contains a sufficiently particular description of its target, the critical facts and circumstances for the reviewing court are those that were made known to the issuing Magistrate at the time the warrant application was made (People v. Nieves, 36 N.Y.2d 396, 402; see, People v. Roberts, 195 A.D.2d 1018).
The information before the Magistrate indicated that the police had received information from "reliable informants" that the LaDukes were dealing in marihuana. It is, however, undisputed that the hearsay portions of the investigator's affidavit did not satisfy the Aguilar-Spinelli test (see, Aguilar v. Texas, 378 U.S. 108; Spinelli v. United States, 393 U.S. 410) for evaluating second-hand information. Thus, there had to be sufficient first-hand independent observations made by the police to establish probable cause for issuance of the warrant. The investigator asserted in his affidavit that he flew over defendant's property in a helicopter and observed a building composed of opaque fiberglass panels in which numerous green plants that appeared to be marihuana plants were growing. The fact that green plants are observed growing in a greenhouse is as consistent with innocence as it is with guilt. Conduct equally consistent with guilt or innocence will not suffice to establish probable cause (see, People v. Carrasquillo, 54 N.Y.2d 248, 254; People v. Miranda, 106 A.D.2d 407, 409). Thus, in our view, the investigator's observations of green plants growing inside a translucent building are insufficient to establish probable cause that the plants were marihuana plants.
We agree with defendant's contention that the search of the greenhouse exceeded the scope of the search warrant (see, People v. Caruso, 174 A.D.2d 1051). Although the officer asked for permission to search all "outbuildings located at the address", the Magistrate did not authorize such a search.
Nevertheless, we conclude that the search and seizure of the contraband are valid because defendant's wife and father freely and voluntarily consented to a search of their home and property. "[O]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent" (Schneckloth v Bustamonte, 412 U.S. 218, 219; see, People v. Jakubowski, 100 A.D.2d 112). Defendant contends that his consent to search was the product of coercive tactics on the part of the police, who threatened to confiscate his land and vehicles and arrest his wife and father. It is not, however, necessarily an improper tactic for the police to capitalize on the "`reluctance [of a defendant] to involve his family in a pending investigation'", especially where, as here, the police had a valid legal basis to carry out their threats to arrest defendant's wife and father (People v. Young, 197 A.D.2d 874, 875, lv denied 82 N.Y.2d 854; see, People v. Oxx, 155 A.D.2d 851, 852, lv denied 76 N.Y.2d 740). In addition, the police had valid legal grounds to threaten defendant with forfeiture of his property.
The court properly denied the motion to suppress defendant's statements to the police. Finally, there is no merit to the contention that defendant's sentence is harsh and excessive.