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New York State Police officers executed the warrant

In this Criminal case, Defendant has been convicted, upon his guilty plea, of criminal possession of a controlled substance in the first degree. On this appeal he challenges on several grounds the validity of a search warrant authorizing the search of his house and the seizure of various items of physical evidence, including approximately two pounds of cocaine found during the course of the search.

While investigating a drug ring involving the importation and distribution of cocaine in the Finger Lakes region, the State Police obtained authorization to place a wiretap on the phone of a known cocaine distributor operating at the middle level of the local drug distribution chain. By means of the wiretap, they intercepted coded conversations between the distributor and defendant suggestive of drug activity. Consequently, in June 1984 the Ontario County District Attorney sought an eavesdropping warrant for defendant’s telephone.

The application in support of the eavesdropping warrant included an affidavit from State Police Investigator who was the director of the area-wide drug investigation and an officer with substantial experience in drug enforcement. In his affidavit he summarized the results of the investigation and he attached to it several exhibits, including the results of a pen register surveillance which showed that over 2,000 telephone calls of short duration had been placed to and from defendant’s residence over a one-month period of time.

Another informant named defendant as a “marijuana and cocaine connection” for Canandaigua. Most significantly, the warrant application contained detailed summary and verbatim passages of phone conversations between defendant and distributor. The conversations were “coded” in an attempt to disguise their purpose, but according to Investigator, who had listened to the calls, read the transcripts of them and translated the coded language used by defendant and his companions, the conversations related to the distribution of cocaine in the Finger Lakes region.

The Court issued an order authorizing the police to tap defendant’s telephone. By means of the tap, State Police investigators intercepted several drug-related calls to and from defendant’s residence during the next 15 days.

Thereafter, the Investigator made an application to search the residence of one of the defendant’s associates in drug distribution. He requested that the Judge “incorporate by reference” all of the facts and circumstances contained in the application for the eavesdropping warrant issued 15 days earlier and he explained why he thought there was probable cause to search the residence. Specifically, he offered his expert explanation of each of 19 coded telephone conversations involving defendant and his companions, supplying the Judge with verbatim quotations of the salient portions of 15 of them.

Before the warrant could be executed, however, defendant and the codefendants left the residence and drove to defendant’s residence in Canandaigua. Accordingly, the investigator called the Judge to incorporate by reference all of the information supplied during the two earlier warrant applications, and then proceeded to tell him why he believed that cocaine was now present at criminal defendant’s residence.

That afternoon New York State Police officers executed the warrant and seized from defendant’s residence roughly two pounds of cocaine in numerous bags and containers as well as scales, dilutants, and other drug-related paraphernalia. Defendant was subsequently indicted for first degree possession of a controlled substance and when his motion to suppress the evidence seized pursuant to the search warrant was denied, he pleaded guilty.

Defendant contends first that the eavesdropping warrant issued by the Judge was not supported by probable cause and, therefore, all evidence obtained by means of that warrant, either directly or indirectly, must be suppressed under the State and Federal Constitutions.

It is settled that the probable cause necessary for the issuance of an eavesdropping warrant is measured by the same standards used to determine whether probable cause exists for the issuance of a search warrant. As in the case of warrants generally, whether eavesdropping warrants are supported by probable cause is a mixed question of law and fact and, therefore, this court is limited to reviewing the legal sufficiency of the evidence to determine whether the People have made the necessary minimum showing.

The record supports the finding of the courts below that there was sufficient evidence to support a finding of probable cause for the issuance of the eaves dropping warrant. First, there were the lawfully intercepted telephone calls. The conversations were coded and, therefore, ambiguous but Investigator Freeman were an experienced drug officer and he interpreted the language used. His analysis was properly accepted because, as the courts below quite correctly recognized, “cryptic and ambiguous conversations may serve as a predicate for probable cause when reasonably interpreted by an experienced investigator”. Moreover, review of the record supports the conclusion that Investigator Freeman’s interpretations of the telephone conversations were reasonable and they confirmed that defendant was probably a drug trafficker. In addition to these conversations, however, the results of pen register activity on defendant’s phone revealed that he had made several phone calls over a one-month period to three known drug dealers. Interpreting these affidavits and exhibits supporting the warrant application in a “commonsense and realistic fashion” and paying proper respect to the decision of the issuing Magistrate, the Court cannot state as a matter of law that probable cause was lacking for the issuance of the eavesdropping warrant.

Defendant further contends that even if there were probable cause to support the issuance of the eavesdropping warrant, there was an insufficient basis upon which to authorize a search of his residence.

The Magistrate had a good deal more evidence before him, however, in the application for a warrant to search the residence and the application supporting surveillance of defendant’s telephone. Under the circumstances, he could incorporate this information into the new warrant application to support a finding of probable cause. Doing so facilitated law enforcement authorities in presenting the full picture to him effectively and efficiently. The practice has been accepted by some departments of the Appellate Division as well as in other jurisdictions, and in the Federal courts. The Court held, therefore, that material previously submitted to a Judge may be incorporated by reference in a subsequent warrant application to him so long as the earlier information was given under oath, is either available to the Magistrate or sufficiently fresh in the Magistrate’s memory so that he or she can accurately assess it and it is available in a form which can be reviewed at a later date. Domestic Violence was no involved.

Based upon all the evidence properly before the Judge, it is apparent that the decisions of the courts below that the search warrant was based on probable cause have support in the record. First, the conversation, intercepted just two days before the search, reveals that defendant had in his possession 1 1/2 ounces of cocaine and that he was awaiting the second shipment which would become available as soon as Sterling returned from Florida. Second, a call intercepted later on the afternoon of the 28th indicates that defendant had a motive to acquire a substantial amount of cocaine as soon as possible so that he could fill existing buy orders. The remaining calls between defendant permit the reasonable conclusion that the purpose of the meeting at the residence on the morning of July 30 was to distribute cocaine recently acquired in Florida to meet this demand of defendant’s customers.

Defendant contends, however, that even if probable cause existed to search the residence, there was none to establish that evidence of a crime could be found in his residence. This is so, he maintains, because, even if the intercepted conversations are considered, his visit to the residence could have been completely unrelated to drug activity. He points out that there is no evidence that he obtained cocaine when he visited the residence or that after his visit he removed cocaine to his own residence. Whatever cocaine acquired during their trip to Florida could have remained at the residence.

When the police have probable cause to believe that several individuals are involved in criminal activity and that evidence of the crime is likely to be in the possession of one of them but they lack the necessary information to make one of the perpetrators the most likely possessor of the evidence at a particular time, the law permits a Magistrate to make a finding of probable cause to search the places in the control of one or more of the associates in crime, even though it cannot be said that it is more probable than not that the cocaine will be found at one particular location. The rule may be different where the fruits of the criminal enterprise are probably located in one of a few locations but the nature of the information is such that a search of each of these locations would intrude upon the rights of individuals in no way involved in the criminal activity under investigation. However, where each of the prospective places to search is controlled by someone involved in the criminal enterprise, “a magistrate need not determine that the evidence sought is in fact on the premises to be searched or that the evidence is more likely than not to be found where the search takes place.

Defendant next contends that the evidence must be suppressed as a matter of law because the investigator made statements to the issuing Magistrate which he knew to be false or which he made with reckless disregard for their truth. Defendant’s claim is based upon the Investigator’s mistaken report of 1 of the 19 separate telephone conversations in which defendant participated. The last of the intercepted conversations, identified as call “S”, slightly more than two hours before investigator made the application to search defendant residence.

The burden of proving investigator’s statement was knowingly false or made in reckless disregard of the truth rested on defendant and he failed to meet that burden. Several calls were made to the residence and a reading of the transcripts of them reveals that defendant did speak with the owner and that a meeting of Sterling, the owner and defendant was arranged for later that morning at the residence. The Investigator, working under the exigencies of the short time span between the interception of these calls and the application for the search warrant, apparently did not have a transcript before him and was relaying the information obtained from the various intercepted conversations to the Judge from memory. In doing so, he mistakenly described the conversation relating to the meeting on call “S” as between the homeowner and defendant. There was no reason to believe investigator deliberately misled the court on the matter, however, because no benefit was to be gained by reporting that the conversation took place between defendant and the homeowner rather than defendant.

Even if the statement was knowingly false, however, the remedy is to delete the robbery statement and review the sufficiency of the remaining evidence. When that is done and the conversation contained on call “S” is not considered, the warrant application contains sufficient evidence to support probable cause and suppression is not required.

Accordingly, the order of the Appellate Division, should be affirmed.

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