Opinion
February 16, 1971
Appeal by the People, as limited by their brief, from so much of an order of the Supreme Court, Kings County, dated July 22, 1969, as, upon defendant's motion and after a hearing, suppressed evidence allegedly obtained by an illegal search and seizure. Order reversed insofar as appealed from, on the law and the facts, and case remitted to the Criminal Term for a further hearing and a new determination, in accordance with the views set forth herein. In our opinion, the testimony of the arresting officer as to information received from an informer who had proved to be reliable on previous occasions, together with observations made by the officer prior to the arrest, was sufficient to establish probable cause for the arrest and the seizure which was incidental thereto. However, at the hearing, the People refused to divulge the identity of the informer in spite of the fact that defendant questioned both the nature of the information received and the very existence of the informer. We find that there was insufficient evidence, apart from the testimony of the arresting officer as to the informer's communications, to establish probable cause for the arrest and seizure and also find that there was no independent corroboration of the fact of the informer's existence or of his informing. Under the circumstances, the identity of the informer was improperly withheld ( People v. Malinsky, 15 N.Y.2d 86; People v. Griffith, 25 A.D.2d 756). The People need not reveal the identity of the informer if, at the further suppression hearing directed herein, they offer corroborating evidence that information was actually received from a reliable informer or, failing this, additional evidence which would establish probable cause for the arrest independent of the informer's tip. If the People are unable to come forward with either type of proof, they must divulge the identity of the informer or suffer suppression of the evidence. Rabin, P.J., Hopkins, Munder and Martuscello, JJ., concur. Christ, J., concurs in the reversal of the order insofar as appealed from, but otherwise dissents and votes to deny the motion to suppress the seized evidence, with the following memorandum: Detective Nunziata, acting on an informant's tip, saw a crate filled with tinfoil-wrapped, brick-shaped packages in the trunk of defendant's automobile. The trunk had been voluntarily opened by defendant without any communication or direction from anyone. The crate was subsequently found to contain 54 pounds of marijuana. In my view, this independent observation by a trained police officer, a member of the Narcotics Squad knowledgeable as to the manner in which marijuana is usually packaged in block and kilo form, was sufficient to establish probable cause for the arrest and seizure ( People v. Sloan, 26 N.Y.2d 667; People v. Valentine, 17 N.Y.2d 128, 132).