Opinion
QN10177/08.
Decided July 9, 2009.
Scott Dufault, Esq., For the defendant Clifton.
Jason Russo, Esq., For the defendant Spurgeon.
Hon. Richard A. Brown, District Attorney, Queens, County, by: ADA Julie Trivedi, Esq.
The defendants, charged, inter alia, with Criminal Possession of a Controlled Substance in the Third Degree, move for an order controverting a search warrant.
The judge who decided the omnibus motion reviewed the search warrant in camera and determined that the warrant was sufficient to establish probable cause based on information provided in part by a confidential informant. The judge ordered a Darden hearing which I conducted on March 10, 2009.
At the Darden hearing, the People produced three members of law enforcement, the Confidential Informant was not produced at the hearing. At the hearing, the People through the sworn testimony of one law enforcement witness, indicated that due to the threats to safety concerns the informant refused to come to court. I was satisfied that the threats were real and imposed life threatening risks to the informant. The People contend that they were not required to produce the informant at the Darden hearing for safety reasons. I agree with the People. I reviewed the search warrant and the unredacted supporting affidavit. The unredacted affidavit indicated that there were at least two so called "controlled buys" using this informant before the search warrant application was requested.
In this case, two undercover officers explained the procedure utilized to effect the controlled buys. A third officer established the past reliability of this informant. The issue before me at the Darden hearing was whether the existence of the informant could be established through extrinsic evidence. After People v Edwards, 95 NY2d 486, many courts believed the informant utilized in a search warrant application would have to be produced in all instances at the Darden hearing. Subsequent case law has eroded this belief. See People v. Farrow, 98 NY2d 629; People v. Kimes, 37 Ad2d. 1. I am satisfied that the existence of an informant can be established through extrinsic evidence. I am satisfied that the extrinsic evidence in this case, the two controlled buys, established through the testimony of the witnesses who participated in these buys, established the existence of the informant. I concluded that the warrant was properly issued based on the informants information.
Three factors must exist to allow the People to prove the existence of a confidential informant through the use of extrinsic evidence:
1)the reasons for the informant's unavailability at the Darden hearing is established to the court's satisfaction.
2)there must be showing of past reliability of this informant and that the informant is an identifiable person
3)the basis of the informant's information in the current application must be established by the law personnel who have directly participated with this informant in which establishes the basis for the informant's information, utilized in the affidavit in support of the warrant.
In the present case, I am satisfied that the above three factors were met and that the third factor was established by my deliberate questioning of the three officers who were present at the Darden hearing and who testified under oath.
Accordingly, the motion to controvert the search warrant is denied.
So ordered.