Opinion
08-09755.
Decided May 13, 2009.
Easton Thompson Kasperek Shiffrin LLP (Lawrence L. Kasperek, Esq., of counsel), for defendant.
Michael C. Green, Monroe County District Attorney (Michael L. Dollinger, Assistant District Attorney, of counsel), for plaintiff.
INTRODUCTION
Defendant Christina Shaw is charged with three counts of Criminal Possession of a Weapon in the Fourth Degree. She has moved to suppress the firearms that were seized from her and her boyfriend's house following the issuance of a search warrant that was targeted not at her, but at her boyfriend. Defendant contends that the search warrant violated her constitutional rights in three respects: (1) there was an absence of probable cause to search the premises; (2) there was a lack of sufficient evidence to believe that defendant's boyfriend lived at the house; and (3) the inclusion in the warrant of a "no-knock" provision was unjustified. Each of defendant's arguments is addressed below.
A fourth charge, Criminal Possession of Marijuana in the Fourth Degree, was dismissed.
FACTUAL BACKGROUND
On June 12, 2008, Rochester Police Officer Daniel Gonzalez obtained a no-knock search warrant to search the premises at 221 Arborwood Lane, Rochester, New York, where defendant resides with her boyfriend, Richard Miller. Specifically, the warrant was sought to permit a search for marijuana, firearms, and ammunition.
According to his warrant application, Officer Gonzalez believed that Richard Miller, whom he had been surveilling, was a marijuana dealer who lived at 221 Arborwood Lane. The salient facts underlying Officer Gonzalez's beliefs were as follows.
First, on July 27, 2007, Officer Gonzalez obtained information from Rochester Gas and Electric that an individual identified as Richard Miller lived at 221 Arborwood Lane and used Rochester Gas Electric utility services at that address.
Second, on March 31, 2008, at approximately 3:00 p.m., Officer Gonzalez and other police officers observed a confidential informant make a controlled buy of marijuana from Richard Miller at an undisclosed location. The observed marijuana sale was made from a white 2002 Hyundai bearing New York registration DXU-1458 that Mr. Miller had driven to the site. Following the transaction, and after Mr. Miller drove away, the informant walked directly to Officer Gonzalez's undercover vehicle with the marijuana he had just purchased from Mr. Miller.
Third, sometime during the week of June 2, 2008, at approximately 12:20 p.m., Officer Gonzalez and other police officers observed the same confidential informant make another controlled buy of marijuana from Richard Miller at an undisclosed location. Like the earlier transaction, the observed marijuana sale was made from a white 2002 Hyundai bearing New York registration DXU-1458 that Mr. Miller had driven to the site. Following the sale, and after Mr. Miller drove away, the informant walked directly to Officer Gonzalez's undercover vehicle with the marijuana he had just purchased from Mr. Miller.
Fourth, on June 10, 2008, Officer Gonzalez and another officer conducted surveillance at 221 Arborwood Lane, a single family house, "which is the location [Officer Gonzalez had] identified as the home address of Richard Miller." Gonzalez Affidavit, ¶ 4. At about 9:00 a.m. that day, Officer Gonzalez saw the 2002 white Hyundai bearing New York registration DXU-1458 park in front of 221 Arborwood Lane. As he watched, Officer Gonzalez saw Richard Miller and an unidentified woman leave the car. Officer Gonzalez then watched Mr. Miller walk directly into 221 Arborwood Lane, and saw the woman follow Mr. Miller into the house.
Fifth, during the week of June 9, 2008, the confidential informant saw Richard Miller in possession of a black 9mm semi-automatic weapon.
On the basis of Officer Gonzalez's application, Monroe County Court Judge John Connell signed a no-knock search warrant of 221 Arborwood Lane on June 12, 2008. The police executed the search warrant on June 20, 2008. In the course of their search, the police seized a loaded 9 mm High Point semi-automatic handgun, a loaded Stoeger Arms Lama Especial .32 caliber revolver, a loaded Interarms .38 caliber revolver that previously had been reported as stolen, and marijuana. Following the seizure of these items, defendant was arrested on the pending charges.
On December 22, 2008, defendant's boyfriend, Richard Miller, was arraigned in the United States District Court for the Western District of New York on federal weapons possession and marijuana sales charges.
LEGAL ANALYSIS I. Introduction
It is black letter constitutional law that a search warrant cannot be issued upon less than probable cause. 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 417, 423 (1985).
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 (1986), quoting People v. Hanlon, 36 NY2d 549, 559 (1975). 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. Furthermore:
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 555. See People v. Guerrero, 181 AD2d 1030, 1031 (4th Dep't 1992). The June 12, 2008 search warrant must be examined within these parameters.
I. Probable Cause to Search Richard Miller's Residence
Defendant Christina Shaw does not dispute that the police had probable cause to arrest Richard Miller for the possession and sale of marijuana. Clearly, Officer Gonzalez's personal observations of Richard Miller selling marijuana to a confidential informant provided the police with ample probable cause for Mr. Miller's subsequent arrest.
Defendant argues instead that the police lacked probable cause to believe that Mr. Miller sold marijuana from 221 Arborwood Lane, where he purportedly lived. Therefore, according to defendant, regardless of the existence of probable cause to justify his arrest, the police lacked probable cause to connect Mr. Miller'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 221 Arborwood Lane.
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. Miller's alleged criminal activities and 221 Arborwood Lane. The warrant application contains no specific assertion that illegal drug activities were taking place at or near 221 Arborwood Lane. The application includes no explicit allegation that Mr. Miller possessed marijuana at or near 221 Arborwood Lane. To the contrary, the only allegation in the warrant application connecting 221 Arborwood Lane to Mr. Miller is that Mr. Miller resides at that house.
Putting aside for a moment defendant's second argument, namely, that the allegations supporting the identification of 221 Arborwood Lane as Mr. Miller's residence are deficient, the key legal issue here is whether there was probable cause to search Mr. Miller's house 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. Rather, probable cause exists as well 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 at 423. In this case, the fact that the police had probable cause to arrest Richard Miller for the criminal sale of marijuana comprised sufficient information to support a reasonable belief that evidence of Mr. Miller's criminal conduct would be found in his house.
New York State courts have repeatedly emphasized 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 Dep't 1984), rev'd on other grounds 65 NY2d 417 (1985), rearg. denied 65 NY2d 1054 (1985). For that reason, 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.
In People v. Robinson, for example, the police suspected that defendant had robbed a bank. The Court of Appeals found that probable cause existed to permit the search of defendant's dormitory room because it was reasonable for the police to deduce that the items used by the bank robber would be found in his living quarters. See People v. Robinson, 68 NY2d at 551-52.
Similarly, in People v. Paccione, 259 AD2d 563 (2d Dep't), lv. denied 93 NY2d 975 (1999), the Second Department found that where a search warrant application contained sufficient information identifying defendant as an armed robber, there was probable cause to search defendant's home for evidence of the robbery despite the absence of evidence linking defendant's house to the robbery. The court concluded that given defendant's identification 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.
As in Robinson and Paccione, the search warrant application in this case sufficiently identified Richard Miller as the alleged perpetrator based on Officer Gonzalez's personal observations. As in Robinson and Paccione, it was reasonable for the police to deduce that evidence of Mr. Miller's illicit marijuana sales would be found in his house, where he exercised some control. See United States v. Baldwin, 987 F.2d 1432, 1435 (9th Cir. 1993) (it is reasonable to infer that in the case of drug dealers, relevant evidence is likely to be found where the dealers live). People v. Burks, 134 AD2d 604 (2d Dep't 1987), a decision relied on by defendant, is consistent with this Court's analysis and conclusion. In Burks, a search warrant of defendant's apartment was issued based on information provided by a confidential informant of "no known reliability," and on the police officer's personal observations that cocaine was obtainable from somewhere in the apartment building in which defendant resided. Although the informant allegedly made a controlled buy of cocaine from defendant's apartment, there was no police verification that the cocaine was actually sold by defendant or from his apartment. Under these circumstances, the court concluded that the warrant was defective because the application contained no indicia of the confidential informant's reliability and no police corroboration of the informant's information. People v. Burks, 134 AD2d at 605-06.
See, e.g., People v. Walker, 285 AD2d 660, 662 (3rd Dep't), lv. denied 97 NY2d 659 (2001), cert. denied 535 U.S. 1064 (2002) (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 Dep't 2000), aff'd 96 NY2d 80 (2001) (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 Dep't 1998), lv. denied 95 NY2d 801 (2000)(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 Dep't), lv. denied 92 NY2d 1037 (1998) (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 Dep't 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 Dep't 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).
In contrast, Officer Gonzalez knew that the confidential informant in this case had provided reliable information to the police on several prior occasions. Moreover, police officer observations corroborated the information provided by the confidential informant to Officer Gonzalez about Mr. Miller's marijuana sales activities. These factors, absent in Burks, provided the probable cause to believe that Mr. Miller was engaged in criminal activity so as to justify a search of his premises.
III. Probable Cause That Richard Miller Lived at 221 Arborwood Lane
Defendant maintains that even if the police had probable cause to search Richard Miller's home, there was insufficient evidence to support a reasonable belief that Mr. Miller lived at 221 Arborwood Lane. As defendant observes, the only factual assertions in the warrant application linking Mr. Miller to 221 Arborwood Lane were the July 27, 2007 information from Rochester Gas Electric, and Officer Gonzalez's June 10, 2008 observation of Mr. Miller walking directly from the same car from which he had sold marijuana into 221 Arborwood Lane. According to his application, these two distinct pieces of information led Officer Gonzalez to believe that Richard Miller resided at 221 Arborwood Lane.
Defendant insists that Officer Gonzalez's belief was unreasonable because the Rochester Gas Electric information was stale. Additionally, according to defendant, Officer Gonzalez's observations of Richard Miller walking directly into 221 Arborwood Lane, standing alone, were inadequate to provide a nexus between Mr. Miller and 221 Arborwood Lane.
Undeniably, a considerable period of time elapsed between the time Officer Gonzalez obtained the Rochester Gas Electric information and the time he requested the search warrant. Whether information provided in a search warrant application is stale, however, is not determined exclusively by the date it was obtained relative to the date the warrant was requested. Instead, the staleness of a warrant application's information is case specific, and rests upon an analysis of various factors, including the source of the information, the manner in which it was acquired, the extent to which the information was verified, and the nature of the crime. See People v. Hanlon, 36 NY2d at 559; People v. Christopher, 101 AD2d at 527. Importantly:
[i]nformation may be acted upon as long as the practicalities dictate that a state of facts existing in the past, which is sufficient to give rise to probable cause, continues to exist at the time the application for the warrant is made.
People v. Woodring , 48 AD3d 1273 , 1275 (4th Dep't), lv. denied NY3d 846 (2008). See People v. Coleman , 26 AD3d 773 , 774 (4th Dep't), lv. denied 7 NY3d 754 (2006). In this regard, where information is of a continuing nature, "a greater lapse of time between the acquisition of the information supporting the . . . application and the issuance of the search warrant" is justified. People v. Gilfus , 4 AD3d 788 , 788-89 (4th Dep't), lv. denied 1 NY3d 628 (2004).
Applying these principles, the Christopher court held that in requesting a warrant to search defendant's house for, among other items, a 10/22 Ruger rifle, the police reasonably relied on information that defendant's friend had seen defendant with the rifle a year earlier. The court explained that because this information was supplemented and "freshened" by current information regarding defendant's emotional attachment to the rifle, it was reasonable to believe that defendant's ownership of the rifle was continuous. See People v. Christopher, 101 AD2d at 527-28.
Like the year-old information regarding the rifle's location in Christopher, the July 2007 Rochester Gas Electric information linking Richard Miller to 221 Arborwood Lane was supplemented and freshened by current police observations linking Mr. Miller to 221 Arborwood Lane. As in Christopher, both pieces of information, viewed in tandem, entitled the warrant court to conclude that Mr. Miller's residence at 221 Arborwood Lane was continuous. Accordingly, under all the circumstances, it was reasonable for Officer Gonzalez to believe that when he applied for the search warrant of 221 Arborwood Lane, Richard Miller lived at that location.
IV. Propriety of the Search Warrant's "No Knock" Provision
Defendant challenges the search warrant's "no knock" provision that authorized the police to enter 221 Arborwood Lane without advance notice. Defendant correctly notes that a warrant's "no knock" provision is legally and constitutionally authorized only when there is reasonable cause to believe that the property to be seized is subject to quick or easy destruction or disposal, or when the giving of notice may endanger the life or safety of the executing officer or another person. See NY Criminal Procedure Law § 690.35(4)(b); People v. Kusse, 288 AD2d 860 (4th Dep't 2001), lv. denied 97 NY2d 730 (2002); People v. Ackerman, 237 AD2d 849, 850-51 (3rd Dep't), lv. denied 89 NY2d 1087 (1997).
Both justifications for a "no knock" provision exist in this case. Officer Gonzalez's warrant application states that based on his many years of experience in illegal drug investigations, he is aware that marijuana, which was expressly sought, is easily flushed down the toilet or placed in predetermined hiding places to prevent its seizure by police officers. The application also states that within three days of the warrant application, the confidential informant saw Richard Miller in possession of a black 9mm semi-automatic weapon. Consequently, a no-knock search warrant was specifically authorized in this case to prevent the easy destruction or disposal of marijuana and to protect the life and safety of the executing police officers.
CONCLUSION
For the foregoing reasons, the search warrant issued by Monroe County Court on June 12, 2008 was based upon the requisite probable cause necessary to search 221 Arborwood Lane for evidence related to Richard Miller's involvement in the criminal sale of marijuana. Further, the warrant's "no knock" provision is constitutionally and legally justified. Accordingly, defendant's motion to suppress the evidence seized pursuant to the June 12, 2008 search warrant is denied.
If analyzed only under federal constitutional doctrine, a reviewing court would also consider whether, even if there were no probable cause for the search warrant, the police relied upon the warrant in objective good faith. See United States v. Leon, 468 U.S. 897, 920 (1984). The New York Court of Appeals, however, long ago rejected the "good faith exception" on state constitutional grounds. See People v. Bigelow, 66 NY2d at 427.