| People v Myhand |
| 2014 NY Slip Op 05742 [120 AD3d 970] |
| August 8, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMarshall D. Myhand, Also Known as Marshall Mayhand,Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered March 17, 2010. The judgment convicted defendant, upon a plea of guilty, ofcriminal possession of a controlled substance in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty,of criminal possession of a controlled substance in the first degree (Penal Law§ 220.21 [1]), defendant contends that County Court erred in refusing tosuppress evidence obtained as a result of the execution of a search warrant at defendant'sresidence. Specifically, defendant contends that the search warrant was not supported bythe requisite probable cause. We reject that contention.
"Probable cause does not require proof sufficient to warrant a conviction beyond areasonable doubt but merely [requires] information sufficient to support a reasonablebelief that an offense has been or is being committed or that evidence of a crime may befound in a certain place" (People v Bigelow, 66 NY2d 417, 423 [1985]). WhileNew York has not adopted the "totality-of-the-circumstances analysis" adopted by theUnited States Supreme Court in Illinois v Gates (462 US 213, 238 [1983], rehdenied 463 US 1237 [1983]; see People v Griminger, 71 NY2d 635, 639[1988]), the Court of Appeals has held that "[t]he legal conclusion [concerning theexistence of probable cause] is to be made after considering all of the facts andcircumstances together. Viewed singly, these may not be persuasive, yet when viewedtogether the puzzle may fit and probable cause found" (Bigelow, 66 NY2d at423). In our view, this is one of those situations where the pieces of the puzzle fit in sucha manner as to support a finding of probable cause.
In support of the application for a search warrant, the authoring officer noted thatdefendant had two prior convictions of possession of illegal substances, one of whichwas a 2002 conviction of criminal possession of a controlled substance in the thirddegree, i.e., possession with intent to sell (Penal Law § 220.16 [1]). Theofficer then summarized his prior experience with a particular confidential informant(CI-1), establishing that he had used CI-1 in previous investigations that led to successfulprosecutions. Police officers used CI-1 to make a controlled purchase of cocaine fromdefendant at his former residence. Before and after the purchase, the officers searchedCI-1 and his vehicle to ensure that CI-1 was not in possession of any cocaine, and theyprovided CI-1 with buy money. Immediately after observing CI-1 enter and exitdefendant's former residence, the officers searched CI-1 again, recovering a substancethat tested positive for cocaine. CI-1 informed the officers that defendant had sold CI-1the cocaine. The circumstances of that sale are not challenged by defendant.
Following defendant's relocation to a different residence, officers placed thatresidence [*2]under surveillance. The officer whoauthored the search warrant application described the circumstances of a second purchaseof cocaine. The officer and another officer met with CI-1, and they searched CI-1 as wellas CI-1's vehicle to ensure that CI-1 was not in possession of cocaine. CI-1 was providedwith buy money, and a plan was developed for CI-1 to pick up an "unwitting participant"(UP) who would make the actual purchase. Officers kept CI-1 under observation whileCI-1 met with UP, a black male, who entered CI-1's vehicle. Officers continued to keepthat vehicle under surveillance as it traveled to an area near defendant's new residence.UP exited the vehicle, walking in the direction of defendant's residence. He returnedapproximately 15 minutes later, and he entered and then subsequently exited CI-1'svehicle, which was under surveillance by the officers. The officers then met with CI-1,who was found to be in possession of a substance that tested positive for cocaine. CI-1informed the officers that, in CI-1's presence, UP had telephoned "Dog," i.e., defendant.When the call ended, UP told CI-1 that "Dog" was ready and directed CI-1 to the areanear defendant's new residence.
A similar plan was developed for a third purchase of cocaine. The officer whoauthored the search warrant application and another officer met with CI-1, and theysearched CI-1 and CI-1's vehicle to ensure that CI-1 was not in possession of anycocaine. They also again provided CI-1 with a predetermined amount of buy money. CI-1was observed meeting the same UP used in sale number two. After that meeting, officersobserved UP travel in his vehicle to an area near defendant's residence. Officers furtherobserved UP exit his vehicle, enter defendant's residence, and exit that residence withdefendant 11 minutes later. While still under observation, UP entered his vehicle andtraveled to rendevous with CI-1. After UP left the area, the officers met with CI-1, whoinformed the officers that, when CI-1 met UP, he told CI-1 that "Dog" was ready. CI-1told the officers that he gave the buy money to UP, who then drove off in his ownvehicle. CI-1 also told the officers that, when UP returned, he handed CI-1 a knottedsandwich bag that he told CI-1 he had received from "Dog." The substance in the bagtested positive for cocaine.
Based on the aforementioned facts, the authoring officer applied for a search warrantto search defendant's new residence. The application did not seek permission to searchany particular person. The issue before us thus is whether the aforementionedinformation provided the requisite probable cause for the issuance of the search warrant,i.e., was it "sufficient to support a reasonable belief . . . that evidence of acrime may be found" inside defendant's new residence (Bigelow, 66 NY2d at423). We conclude that it was sufficient.
As a preliminary matter, we conclude that the search warrant application wassufficient without resorting to any hearsay from either CI-1 or UP. With respect to thefirst sale, officers confirmed that CI-1 was not in possession of any drugs, at which pointthey provided CI-1 with buy money. The officers then observed CI-1 enter defendant'sresidence and then exit that residence shortly thereafter. At that time CI-1 was inpossession of cocaine but no longer in possession of the buy money. That evidencestands independent of any hearsay information from CI-1. Hearsay information would berequired only if the issue before us concerned the identity of the person in that residencewho sold the cocaine to CI-1.
The officers then confirmed that defendant relocated to a new residence. Withrespect to the second sale, the officers determined that CI-1 was not in possession of anycocaine before CI-1 met with UP, who was then observed by officers going to the area ofdefendant's new residence. Officers observed UP return to CI-1, after which the officersconfirmed that CI-1 was in possession of cocaine. Again, none of that informationrequires resort to hearsay from either CI-1 or UP. It is based solely on the personalobservations of the officers.
Finally, with respect to the third sale, the officers determined that CI-1 was not inpossession of cocaine before CI-1 met with UP for a second time. The officers thenobserved UP drive his own vehicle to defendant's new residence. They further observedUP enter and remain inside defendant's residence for 11 minutes, after which theyobserved him exiting the residence with defendant. While under continual observation,UP met CI-1 and then drove away. Immediately thereafter, CI-1 was in possession ofcocaine.
As defendant correctly contends, we cannot ignore the remote possibility that UP hadcocaine on his person or in his vehicle before ever going near or inside defendant's newresidence. That possibility, however, is not fatal to our analysis. Although "[h]umanimagination might conjure up possible innocent behavior [by the defendant,]. . . that cannot be [*3]the test of probablecause . . . Probable cause does not require proof to a mathematical certainty,or proof beyond a reasonable doubt. Based on the articulated, objective facts before [theissuing Judge], and the reasonable inferences to be drawn therefrom, it was 'moreprobable than not' that criminal activity was taking place inside" defendant's newresidence (People v Mercado, 68 NY2d 874, 877 [1986], cert denied 479US 1095 [1987]). In our view, it is more probable than not that the cocaine given to CI-1was obtained from defendant's residence because, otherwise, UP would have simply soldthe cocaine to CI-1 himself.
Even assuming, arguendo, that the search warrant application was not sufficientwithout resorting to any hearsay evidence provided by CI-1 and UP, we conclude that thehearsay information contained in the search warrant application passed theAguilar-Spinelli test and could thus be used to establish probable cause for thesearch warrant. It is well established that "[p]robable cause may be supplied, in whole orpart, through hearsay information . . . New York's present law applies theAguilar-Spinelli rule for evaluating secondhand information and holds that ifprobable cause is based on hearsay statements, the police must establish that theinformant had some basis for the knowledge he [or she] transmitted to them and that he[or she] was reliable" (Bigelow, 66 NY2d at 423; see Griminger, 71NY2d at 639). "Notably, where the information is based upon double hearsay, theforegoing requirements must be met with respect to each individual providinginformation" (People vMabeus, 63 AD3d 1447, 1450 [2009], citing People v Ketcham, 93NY2d 416, 421 [1999], and People v Parris, 83 NY2d 342, 347-348 [1994]).
" 'If the affidavit rests on hearsay—an informant's report—whatis necessary under Aguilar is one of two things: the informant must declare either(1) that he has himself seen or perceived the fact or facts asserted; or (2) that hisinformation is hearsay, but there is good reason for believing it' "(Parris, 83 NY2d at 347, quoting Spinelli v United States, 393 US 410,425 [1969]).
We conclude that the application established the reliability and basis of knowledge ofCI-1. Reliability was established by the fact that CI-1 "ha[d] come forward with accurateinformation in the past" (People v Rodriguez, 52 NY2d 483, 489 [1981]).Furthermore, the application also established CI-1's basis of knowledge. With respect tothe basis of knowledge prong, "there is no requirement that the information furnished by[the informant] had to be the product of his [or her] personal observations of criminalactivity . . . 'What is required is information of such quality, considering itssource and the circumstances in which it came into possession of the informant, that areasonable observer would be warranted in determining that the basis of the informant'sknowledge was such that it led logically to the conclusion that a crime had been. . . committed' " (People v Greene, 153 AD2d 439, 443-444[1990], lv denied 76 NY2d 735 [1990], cert denied 498 US 947 [1990])."[T]he basis of knowledge test is . . . intended to weed out, as not ofsufficient quality, data received by the informant from others who have not themselvesobserved facts suggestive of criminal activity" (People v Elwell, 50 NY2d 231,237 [1980]). Inasmuch as CI-1 received data from someone who had himself observedcriminal activity, the goal of the basis of knowledge test has been met (seeGreene, 153 AD2d at 443-444; cf. People v Rosenholm, 222 AD2d 909, 910[1995], lv denied 88 NY2d 884 [1996]). Although CI-1 did not personallyobserve any alleged illegality inside or near defendant's new residence, the informationprovided by CI-1 to the officers was " 'of such quality. . . that areasonable observer would be warranted in determining that the basis of [CI-1's]knowledge was such that it led logically to the conclusion that a crime had been. . . committed' " (Greene, 153 AD2d at 444). Notably, UP'sidentity was known to CI-1 (see id.; see also Rosenholm, 222 AD2d at910).
We further conclude that the application established the reliability and basis ofknowledge of UP. Addressing first UP's basis of knowledge, we note that it is largelyundisputed that UP had the requisite basis of knowledge due to his "personal knowledgeof the criminal enterprise" (Mabeus, 63 AD3d at 1450), and his "personalobservations of defendant's possession and sale . . . of cocaine" (Peoplev Peterson, 269 AD2d 788, 789 [2000], lv denied 94 NY2d 951 [2000]).Moreover, unlike the situation in People v Mercado (45 AD2d 699, 700 [1974]),the officers' observations of UP both before and after the second and third sales "had [a]bearing on whether [UP] had actually been in [defendant's residence] and made theobservation[s] he alleged or that he obtained the [cocaine] from this defendant."
We reject defendant's contention that nothing in the search warrant established UP'sreliability. While an informant's reliability is often established by the fact that theinformant had provided reliable information in the past, "there are, of course, othercircumstances [*4]demonstrating his [or her] probablereliability. For instance, [the Court of Appeals] . . . [has] noted that amagistrate may rely upon the fact that the information was given under oath, that thestatements were against the informant's penal interest and that two or moreinformants tended to confirm the information which each gave" (People vWheatman, 29 NY2d 337, 345 [1971] [emphasis added]). In addressing the use ofstatements against penal interest as a basis to establish an informant's reliability, theCourt of Appeals wrote that, "[w]hile admissions against penal interest may be sufficientto support a finding of probable cause . . . , '[s]uch admissions are notguarantees of truthfulness and they should be accepted only after careful consideration ofall the relevant circumstances of the case indicates that there exists a basis for findingreliability' " (People vChisholm, 21 NY3d 990, 992-993 [2013]).
After careful consideration of all the relevant circumstances of the case, we concludethat " 'there [was] good reason for believing' " the informationsupplied by UP to CI-1 (Parris, 83 NY2d at 347; cf. People v Burks, 134AD2d 604, 605-606 [1987]). First, UP's statement that he obtained the drugs fromdefendant was a "significant declaration[ ] against penal interest" (People vStroman, 293 AD2d 350, 350 [2002], lv denied 98 NY2d 702 [2002]), i.e.,the statements admitting to the purchase and possession of cocaine would have subjectedhim to criminal liability (see Greene, 153 AD2d at 444; see generally People vJames, 93 NY2d 620, 643 [1999]). Moreover, UP knew, at the time of his statement,that the statement was against his penal interest (see People v Harvey, 270 AD2d959, 960 [2000], lv denied 95 NY2d 835 [2000], lv dismissed 95 NY2d853 [2000]; see generally People v Brensic, 70 NY2d 9, 15 [1987], remittituramended 70 NY2d 722 [1987]; Jerome Prince, Richardson on Evidence§ 8-411 [Farrell 11th ed 1995]), and his statement was a specific statementabout a just-completed purchase (compare People v Comforto, 62 NY2d 725,727 [1984], with Burks, 134 AD2d at 605). In Burks, a case relied uponby defendant, the informant's statement was only that "he had, on some unspecified pastoccasions, purchased cocaine from the defendant" (134 AD2d at 605). The SecondDepartment in Burks deemed that statement "not sufficiently contrary to theinformant's penal interest to establish reliability" (id.).
We likewise reject defendant's contention that UP's statements to CI-1 cannot satisfythe Aguilar-Spinelli test because UP's statements were made only to CI-1 andthus were not made with the knowledge that they were against his penal interest, i.e., UP"thought he was speaking in confidence to a confederate and had no idea there was anyrisk that the statement would be used against him" (People v Schmotzer, 87AD2d 792, 794 [1982]). The First Department dispensed with such a contention, writingthat, to reject statements against penal interest on that ground, which is "the mostprobable situation in which a declaration against penal interest would be truthful," would"almost make the possibility of inculpatory use of declarations against penal interest amerely academic exercise without any real situation in which it could be applied"(id.). Indeed, in a strikingly similar case, the First Department held that astatement to a friend, "trusted by the declarant not to reveal it to the police," can qualifyas a declaration against penal interest (People v Thomas, 264 AD2d 691, 692[1999], lv denied 94 NY2d 867 [1999]; see also James, 93 NY2d at 643;People v Ivy, 217 AD2d 948, 949 [1995], lv denied 86 NY2d 843[1995]).
As further support for our conclusion that " 'there [was] good reason forbelieving' " the information supplied by UP to CI-1 (Parris, 83 NY2dat 347), we note that the declaration against penal interest was "amply corroborated by'information obtained from a source other than [UP's] statement' "(Stroman, 293 AD2d at 350; see Ivy, 217 AD2d at 949). Importantly, theactions of UP and some of his dealings with defendant were personally observed bypolice officers (cf. Burks, 134 AD2d at 605-606). In Burks, the Courtrecognized that "[t]he corroborated details need not be criminal in nature. . . ; however, they must establish 'good reason to believe' that theinformant was telling the truth" (id. at 606, quoting Rodriguez, 52 NY2dat 489). Here, the officers actually observed UP interacting with defendant at defendant'snew residence, which corroborated significant details of his statements to CI-1 (cf.id. at 605). Significantly, following both the second and third sales and CI-1'smeetings with UP, the officers, who had confirmed that CI-1 had not been in possessionof cocaine before meeting with UP, obtained cocaine from CI-1.
We thus conclude that "[t]he court properly found that the drug runner who providedthe police confidential informant with information was both reliable and had a basis ofknowledge for such information. The drug runner's basis of knowledge was establishedby personal observation of criminal activity[,] . . . [and the] drug runner'sreliability was established by the fact that the statements the runner made to theconfidential informant were against the runner's [*5]penalinterest in that the runner implicated himself in the crime" (Thomas, 264 AD2d at692).
We again emphasize that the issue here is not whether there was probable cause tobelieve that defendant himself was selling cocaine. He was never charged with sellingcocaine. Rather, the issue is whether the information contained in the search warrantapplication was "sufficient to support a reasonable belief that an offense has been or isbeing committed or that evidence of a crime may be found in a certain place"(Bigelow, 66 NY2d at 423). Based on the information provided by CI-1 and UP,as well as the officers' personal observations, the search warrant application establishedprobable cause to believe that cocaine would be found inside defendant's newresidence.
Defendant further contends that the court erred in refusing to conduct aDarden hearing with respect to UP. Inasmuch as defendant does not challenge theexistence of UP and indeed was able to identify UP, there was no basis for aDarden hearing (seePeople v Brown, 2 AD3d 1423, 1424 [2003], lv denied 1 NY3d 625[2004]).
We thus conclude that the court properly refused to suppress the evidence obtainedas a result of the execution of the search warrant. Present—Scudder, P.J., Fahey,Peradotto and DeJoseph, JJ.