Opinion
November 10, 1987
Appeal from the Erie County Court, McCarthy, J.
Present — Dillon, P.J., Callahan, Green, Pine and Balio, JJ.
Judgment unanimously reversed on the law, defendant's motion to suppress granted and indictment dismissed. Memorandum: Defendant pleaded guilty to criminal possession of a controlled substance in the seventh degree following denial of his motion to suppress evidence. The suppression hearing testimony reveals that between 8:30 P.M. and 1:00 A.M. the New York State Police conducted a surveillance of a vehicle owned by defendant while the car was parked in front of a tavern. A State Police officer had received information from an informant that defendant was going to sell the informant one ounce of cocaine through an intermediary. The officer later learned that this sale did not occur but the record is silent as to the reason. The surveilling officer also was informed by two fellow officers that the intermediary believed defendant would be at the tavern in possession of an ounce of cocaine. When defendant left the tavern a few hours after the initial drug deal was to have taken place, the surveilling officer hurriedly approached defendant and ordered him out of his car while other officers searched defendant and the car. The suppression court found that "the police who were surveilling the defendant's vehicle * * * had reasonable cause to believe he remained in possession of the drugs". We disagree.
When the police forcibly stopped defendant and prevented his car from leaving the area, defendant was effectively under arrest (see, People v. Cantor, 36 N.Y.2d 106, 111; People v. Yukl, 25 N.Y.2d 585, 589, cert denied 400 U.S. 851; cf., People v. Hicks, 68 N.Y.2d 234, 239-240; People v. Chestnut, 51 N.Y.2d 14, 20-21, cert denied 449 U.S. 1018). There was no probable cause to justify the arrest because there was no showing to establish the reliability of the intermediary who provided the crucial information that defendant would possess cocaine in the tavern. There was no testimony regarding the intermediary's past reliability in supplying similar information (see, Aguilar v Texas, 378 U.S. 108), no statement by the intermediary under oath (see, People v. Wheatman, 29 N.Y.2d 337, 345), no confirmation by the police of the details of the intermediary's information (see, People v. Elwell, 50 N.Y.2d 231, 237), and no indication that the information was against the intermediary's penal interest (see, People v. Comforto, 62 N.Y.2d 725). Thus, the arrest of the defendant was unlawful because the police acted upon hearsay from an intermediary whose information did not satisfy the reliability requirement of the Aguilar-Spinelli rule (see, Aguilar v. Texas, supra; Spinelli v. United States,
393 U.S. 410; see also, People v. Johnson, 66 N.Y.2d 398, 402-405). In the absence of such proof, the police lacked probable cause to arrest the defendant (see, People v. Elwell, supra; People v Verrecchio, 23 N.Y.2d 489; People v. Mingo, 117 A.D.2d 353, lv denied 68 N.Y.2d 772), and all evidence obtained as a result of the unlawful arrest must be suppressed (see, Wong Sun v. United States, 371 U.S. 471; People v. Gleeson, 36 N.Y.2d 462; People v Floyd, 26 N.Y.2d 558).
The People's reliance on the plain view doctrine is misplaced. To justify a seizure in plain view, the discovery must be inadvertent (Coolidge v. New Hampshire, 403 U.S. 443). Here, it was not until police rushed to defendant's car that they saw marihuana in defendant's hand. Since the discovery was the result of illegal police conduct, the plain view doctrine is inapt (see, People v. Wilkerson, 64 N.Y.2d 749; People v. Boodle, 47 N.Y.2d 398, 402-403, cert denied 444 U.S. 969).
Accordingly, defendant's motion to suppress must be granted.