Summary
In Bigelow, the Fourth Department specifically refused to apply the "totality of circumstances" test of Illinois v Gates (462 U.S. 213) or the good-faith exception of United States v Leon (468 US ___, 104 S Ct 3405).
Summary of this case from People v. WindrumOpinion
November 7, 1984
Appeal from the Wyoming County Court, Conable, J.
Present — Callahan, J.P., Doerr, Denman, Boomer and O'Donnell, JJ.
Judgment unanimously reversed, on the law and facts, plea vacated, motion to suppress granted and defendant remanded to Wyoming County Court for further proceedings on the indictment. Memorandum: The suppression court erred by refusing to suppress evidence seized pursuant to a warrantless arrest and a search warrant. The information on the warrant application failed to meet the second prong of the Aguilar-Spinelli test (see Aguilar v Texas, 378 U.S. 108; Spinelli v United States, 393 U.S. 410), since the warrant application does not state the informant's "basis of knowledge", nor was the information so detailed as to make clear that it was based on personal observation ( People v Elwell, 50 N.Y.2d 231, 242). Although we would find the warrant application sufficient under the "totality of the circumstances" test ( Illinois v Gates, 462 U.S. 213), that test has not yet been adopted by the Court of Appeals (see, e.g., People v Landy, 59 N.Y.2d 369, 375), which has continued to apply the two-pronged Aguilar test (see People v Comforto, 62 N.Y.2d 725; see, also, People v Brown, 95 A.D.2d 569, 572; People v Lopez, 95 A.D.2d 241, 251 [applying the two-pronged test]). Nor is there any indication that the good-faith exception ( United States v Leon, 468 US ___, 104 S Ct 3405) will apply in New York. We conclude, moreover, that the police did not have probable cause for the warrantless arrest of defendant. The suppression court specifically found that the informant had not told the officers that he saw defendant in possession of drugs. Thus, there was no "basis of knowledge" established for the warrantless arrest.