New York Criminal Lawyer Blog
The April 25, 1975 affidavit of the State Police Investigator in support of the application for the warrant to search the house and automobile of the defendants contains five distinct elements which in some way indicate that defendants were keeping illicit drugs in or about their house. These elements are of two sorts: communications from confidential informants and observations by named police officers. The informant data can be summarized as follows:
Informant # 1 “who has provided criminal information which led to the arrest and conviction of two subjects for Murder, the arrest of one subject and the seizure of a quantity of controlled substances advised me approximately six months ago that a guy named M, living on East Lane, Burden Lake * * * with his girlfriend, C, was selling and packaging heroin at his residence on East Lane.”
Informant # 2 told me that “he overheard a conversation between a subject known to him, who let him hear what was being said and CN. In the conversation, CN discusses a quantity of heroin which was stolen from her residence on Burden Lake. He also overheard MS discuss the loss of 2 grams worth $200.00 apiece.”
Informant # 3 told me that “MS and CN of East Lane, Burden Lake * * * have had quantities of heroin in their house and hide it in the vicinity of the house in a shed or car. Thus (sic ) being done to prevent thefts of the heroin by burglars. Recently the house was broken into and a quantity of heroin and money were stolen.” (The affidavit goes on to state that police records indicate a burglary complaint on March 6, 1975, which complaint was withdrawn.)
Confidential informants alone may establish probable cause only if the Magistrate is “informed of (1) some of the underlying circumstances from which the informant concluded that illegal activities were taking place, and (2) some of the underlying circumstances from which the officer concluded that the informant was credible or reliable” Apart from the police observations, each of the three informants’ statements fails the Aguilar standard. Except for informant No. 2 there is no indication in the affidavit of the basis of the informant’s knowledge, and only as to informant No. 1, who gave accurate information in the past, is there sufficient showing of general credibility.
Of course the informants’ statements are not to be assessed in isolation, and the requirements of Aguilar can be satisfied by independent police observation. But rather than attempt to mechanically disassemble each statement and search for corroboration among the police observations, the court noted that the hearsay statements clearly constitute at least some reason to believe there were illicit drugs on the defendants’ premises and add crucial significance to the police observations. There were no weapons or larceny involved.
(T)he Fourth Amendment’s commands * * * are practical and not abstract. * * * (A)ffidavits for search warrants * * * must be tested and interpreted * * * in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.
Here the affiant police officer watched an informant under his direction enter and leave a residence where a reliable informant (Informant No. 1) had said drugs were being sold. The two met, and the officer was given heroin. It is clear the affiant meant to say that the informant said the heroin came from defendants’ house. Any other reading of the affidavit presupposes duplicity on the part of the officer, which presupposition is unjustified. “Where a search warrant has been secured, the bona fides of the police will be presumed * * *.” It is possible the informant had the heroin with him before entering the house, but such a possibility is reduced in view of the other evidence that the defendants were selling heroin. Robbery may have been on his mind.
It was not necessary for the warrant application to demonstrate defendants’ guilt, but merely probable cause to believe there were illegal drugs on the premises (statutory “reasonable cause” equivalent to constitutional “probable cause”).
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