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The People had an opportunity to establish that fact

In May 1964 a search warrant authorizing a search of the person and the Queens County residence of the defendant was issued, based upon a supporting affidavit sworn to by a Detective. Armed with the warrant, the Detective and two other detectives took the defendant into custody in Manhattan, near his place of business. They frisked him but did not then open the attache case that he was carrying.

A Queens County Gun Crime lawyer said that the detectives informed the criminal defendant that they had the warrant and that with or without him they were going to proceed to Queens County to execute it. He apparently chose to accompany them. Just before entering the house, the detectives opened the attache case and discovered a loaded gun and a large quantity of airline tickets. The search of the house resulted in the seizure of another loaded gun, a pair of brass knuckles and a blackjack.

After the search was concluded, the officers asked the criminal defendant about the items found in the attache case and in the house, and he admitted ownership of the gun, brass knuckles and blackjack. According to the record, defendant made no statement until the weapon had been found.

Based upon the evidence seized, defendant was indicted and charged with several counts of illegal possession of weapons as well as forgery in the second degree.

The defendant concedes the reliability of the informant but contends that the affidavit is insufficient in that it fails to set forth the underlying circumstances from which the informant concluded that a sex crimes had been committed and that the property was where he said it was. In other words there is nothing in the affidavit to establish a basis for the reliability of the information as distinguished from the reliability of the informant. There must be more than an ultimate conclusion of probable cause or the affiant’s mere assertion that the information received was reliable. The reliability of the information may be based on independent observations made by the police officer. It may also be found where the information is so detailed that it is set apart from the category of rumor, or it is clear the informant was speaking from firsthand knowledge. None of these elements, however, is present in the instant case.

In holding that this affidavit was insufficient to establish probable cause, the Supreme Court said:

‘Although the reviewing court will pay substantial deference to judicial determinations of probable cause, the court must still insist that the magistrate perform his ‘neutral and detached’ function and not serve merely as a rubber stamp for the police.

‘Here the ‘mere conclusion’ that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit here not only ‘contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,’ It does not even contain an ‘affirmative allegation’ that the affiant’s unidentified source ‘spoke with personal knowledge’. For all that appears, the source here merely suspected, believed or concluded that there were criminal narcotics in petitioner’s possession. The magistrate here certainly could not ‘judge for himself the persuasiveness of the facts relied on to show probable cause.’ He necessarily accepted ‘without question’ the informant’s ‘suspicion,’ ‘belief’ or ‘mere conclusion. “The criticism of the Aguilar affidavit is equally applicable to the instant affidavit.

The Supreme Court held that the informant’s tip was insufficient under the standards since the affidavit contained no support for the affiant’s conclusion that his informant was reliable. Nor did the affidavit contain a sufficient statement of the underlying circumstances from which the informer concluded that a crime had been committed.

The court noted that: ‘In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail so that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.’

Where the detail is sufficient, the Magistrate could reasonably infer that the informant had gained his information in a reliable way but in the instant case such inference cannot be drawn because no detail is provided. All we have here is the informant’s assertion that the defendant has concealed on his person and in his residence certain contraband and stolen property.

The People argue, however, that this language is sufficient because it can be presumed, when the language is given its ordinary meaning, that the informant Saw the pistol alleged to be in defendant’s possession.

The factual assertion by the informant in this case is no different from the informant’s assertion that narcotics are being kept at the described premises. And neither does it differ from the informant’s assertion in Spinelli ‘that William Spinelli is operating a handbook and accepting wagers’.

It seems clear to the Court that, if it was impermissible to presume that the affiant, a Federal narcotics agent, was speaking from personal observation, it would likewise be impermissible in this case to presume that the hearsay informant had gained his knowledge firsthand.

While courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a common sense, manner, the law is nevertheless clear that the Magistrate must be informed of some of the underlying circumstances which support the conclusion and belief of the affiant that his informer was credible and his information reliable. In short under both the Federal cases and our own State cases, this affidavit fails to pass constitutional muster.

The People argue that, if the affidavit is held to be insufficient, there should not be an outright reversal but rather we should remand the case for a further hearing to enable the People to establish whether the informer’s information was based on his personal observation.

It is true that on several occasions we have ordered further hearings in other probable cause situations but never in a situation such as is presented here. In this case, the record is complete and there is nothing to indicate that the Detective did not include in the affidavit all the information he possessed. Moreover, since the issuance of a warrant is a discretionary act based upon a finding of probable cause as a result of certain information given to the Magistrate, it seems to us that the reviewing court is bound to pass upon that exercise of discretion only in light of the evidence which the Magistrate had before him. Furthermore, it would be manifestly unfair to the defendant to now allow the People to offer proof that the informer told the officer he saw the defendant in possession of the gun.

The People had an opportunity to establish that fact when the warrant was originally sought and at the suppression hearing. A remand with the benefit of hindsight derived from an appellate court opinion offers too facile a means for establishing probable cause after the event.

In the view that we have taken of this case, the defendant’s admissions made to the police only after he had been confronted with the illegally seized items should also be suppressed. Prior to the illegal search and seizure, the defendant had not incriminated himself. Upon being confronted with the illegally seized items, however, he immediately responded to Detective’s questions. Under these circumstances, it is clear that the admissions are tainted by the primary illegality. The link between the illegal search and seizure and the subsequent admissions is not only straight but short and immediate. Nor is there anything in this record to indicate that the relationship between the primary illegality and the resulting admissions had ‘become so attenuated as to dissipate the taint’.

Accordingly, the judgment appealed from should be reversed and the indictment dismissed.

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