| People v Flowers |
| 2009 NY Slip Op 01044 [59 AD3d 1141] |
| February 11, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v PhillipFlowers, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Loretta S. Courtney of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), renderedSeptember 2, 2005. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,the plea is vacated, that part of the motion seeking to suppress defendant's statements made tothe police during the execution of the search warrant is granted and the matter is remitted toMonroe County Court for further proceedings on the indictment.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, ofcriminal possession of a controlled substance in the third degree (Penal Law § 220.16[12]), defendant contends that the search warrant in question was not issued upon probable causeand that County Court therefore erred in refusing to suppress physical evidence seized during theexecution of the search warrant. We reject that contention. It is well settled that "probable causemay be supplied, in whole or in part, [by] hearsay information, provided [that] it satisfies thetwo-part Aguilar-Spinelli test requiring a showing that the informant is reliable and has abasis of knowledge for the information imparted" (People v Bahr, 35 AD3d 909, 910 [2006], lv denied 8NY3d 919 [2007] [internal quotation marks omitted]; see People v Parris, 83 NY2d 342,346 [1994]). Here, probable cause for the search warrant was supplied by the firsthandknowledge of an experienced confidential informant whose reliability was established based onhis previous participation in three controlled buys of cocaine from the residence that was thesubject of the search warrant. Moreover, the confidential informant met with police officersimmediately before and after the prior controlled buys. We thus conclude that the Peoplesatisfied both prongs of the Aguilar-Spinelli test (see People v Johnson, 66NY2d 398, 403 [1985]; cf. People v Elwell, 50 NY2d 231, 237-242 [1980]).
We agree with defendant, however, that the court erred in refusing to suppress his statementsmade to the police during the execution of the search warrant. At that time, a narcotics officerasked defendant how much cash he had in his pockets, and defendant responded that he hadapproximately $600. The police then found over $600 on defendant's person. Defendant wassubsequently asked by the narcotics officer if he was the owner of $60 found in [*2]the kitchen of the residence that was the subject of the searchwarrant. Defendant denied ownership of the $60 at that time. When the narcotics officer laterasked him the same question, defendant again denied ownership of the $60. According to thetestimony of the narcotics officer at the suppression hearing, however, defendant also stated that"the only thing that was his was that weed" and that he "just sold weed." At the time of thosestatements, defendant was handcuffed and had not been advised of his Miranda rights.
We conclude that those statements should have been suppressed. Contrary to the People'scontention, they were not made in response to a routine processing question (cf. People vRodney, 85 NY2d 289, 293-294 [1995]; People v Langston, 243 AD2d 728 [1997],lv denied 91 NY2d 875 [1997]). Rather, we note that "the People may not rely on thepedigree exception if the question[ ], though facially appropriate, [is] likely to elicitincriminating admissions because of the circumstances of the particular case" (Rodney,85 NY2d at 293; see Pennsylvania v Muniz, 496 US 582, 602 n 14 [1990]). Here, thenarcotics officer testified at the suppression hearing that he questioned defendant for the purposeof completing a form that was required in the event of "an arrest for narcotics" (emphasisadded). Cash indisputably plays a significant role as circumstantial evidence in narcotics cases(see e.g. People v Sykes, 47 AD3d501 [2008], lv denied 10 NY3d 817 [2008]; People v Gadsden, 192 AD2d1103 [1993], lv denied 82 NY2d 718 [1993]; People v Orta, 184 AD2d 1052,1054-1055 [1992]), however, and we conclude that "an objective observer with the sameknowledge concerning the suspect as the police had would conclude that the [question of thenarcotics officer concerning the ownership of cash found in the kitchen during the execution ofthe search warrant] was reasonably likely to elicit [an incriminating] response" (People vFerro, 63 NY2d 316, 319 [1984], cert denied 472 US 1007 [1985]; see People vMarrow, 301 AD2d 673, 675-676 [2003]). Inasmuch as the erroneous suppression rulingmay have affected defendant's decision to plead guilty, we conclude that the plea must bevacated (see People v Brinson, 186 AD2d 1063 [1992]). Present—Hurlbutt, J.P.,Martoche, Fahey and Gorski, JJ.