Opinion
July 8, 1970
Appeal from a judgment of the County Court, Clinton County, convicting defendant upon his plea of guilty of criminal possession of a dangerous drug, fourth degree. On February 6, 1969 appellant moved to suppress certain evidence seized as the result of a search on the ground that there was not sufficient evidence presented to the Magistrate who issued the warrant for a determination by him that there was probable cause for believing the existence of the grounds on which the warrant was based. A hearing was held on the motion to suppress on February 18, 1969 at which the only witness to testify was the Justice of the Peace who issued the search warrant. He testified that, on the evening of January 6, 1969, he received a telephone call from the State Police barracks asking if he was available; that thereafter Trooper Kenneth Edwards and Investigator John Fountain arrived at his home; that Investigator Fountain told him he wanted a search warrant and explained what he wanted it for; that he was presented with an unsigned affidavit which he read and which Investigator Fountain thereafter signed; that he did not administer any oath to Investigator Fountain before he signed it; that he thereafter witnessed Investigator Fountain's signature on the affidavit upon the investigator's request; that he was then presented with a search warrant which he signed; that he observed the mention of an informer in the affidavit. His further testimony reveals that he did not see the informer, and made no inquiry concerning the informer; and Investigator Fountain discussed nothing with him concerning the informer. After the hearing County Court denied the motion to suppress. Thereafter, appellant was convicted upon his plea of guilty to criminal possession of a dangerous drug in the fourth degree. Defendant appealed from the judgment of conviction contending that the motion to suppress should have been granted, and that the search is void because the issuing judge failed to administer an oath to the applicant for the warrant; that the affidavit in support of the search warrant did not contain facts sufficient to establish probable cause; and, further, that the error to deny defendant's motion requiring the People to disclose the identity of the informant. On that appeal, this court held that there was no independent corroboration of the fact of the informer's existence nor any separate checking out of the principal elements of his story upon which the affidavit was based to obtain the search warrant, and the case was remitted to County Court for a further hearing on the motion to suppress. ( People v. Jonas, 33 A.D.2d 831.) On the hearing Investigator Fountain did not testify, and the identity of the informant was not revealed. The sole witness for the People was Investigator Garrant of the State Police who testified that he worked with Fountain on the Jonas case; that the informant had given information prior to the execution of the affidavit on which the search warrant involved here was based, which led to the search of the Coakley apartment at 105 Margaret Street, Plattsburgh, New York, on January 6, 1969 where hypodermic needles were found; that Garrant searched another apartment at 105 Margaret Street on the same evening where Jonas had previously lived, but had moved out about noon of that day; that, during the search, a water pipe and a corn cob pipe, which he believed contained marijuana residue were found; that he then talked with the informant in Fountain's presence after the Margaret Street search, and they were told that Jonas had moved to Keeseville, and had taken his belongings with him. Garrant further admitted that he did not ask the informant how long he had known Jonas, or how he knew there were drugs in the Jonas' apartment in Plattsburgh, or what the drugs were, or if they were owned by Jonas. He based his reliability on the alleged informant by reason of the discovery of the hypodermic needles in the apartment where the informant said they would be. The record is completely devoid of any direct communications between Fountain and the informant other than the fact that he was present when Garrant talked to the informant. The statement in the affidavit that Jonas had moved to Keeseville "with the drugs he possessed at 105 Margaret Street, Plattsburgh, New York", is wholly unsupported by the evidence. Where an affidavit in support of a search warrant is based upon information supplied to the affiant-police officer by an undisclosed informant, the informant's statements must be reasonably corroborated by other matters within the officer's knowledge demonstrating that the informant was credible or his information reliable. ( People v. Cerrato, 24 N.Y.2d 1; People v. Montague, 19 N.Y.2d 121, cert. den. 389 U.S. 862.) Such support for the officer's affidavit is not found here. ( People v. Schnell, 30 A.D.2d 631.) Other contentions were not dispositive in the deciding of this appeal. We should point out, however, that a search warrant may be issued only upon probable cause supported by oath or affirmation. (N.Y. Const., art I, § 12; Code Crim. Pro., § 794.) To validate an affidavit, the administration of an oath to the declarant by some person who has authority to administer an oath, is essential. ( O'Reilley v. People, 86 N.Y. 154; 2 C.J.S. Affidavits, § 1.) Judgment reversed, on the law and the facts; order denying motion to suppress reversed, motion granted and a new trial ordered. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur in memorandum by Staley, Jr., J.