Opinion
December 7, 1970
Appeal from an order of the County Court of Clinton County, entered April 23, 1969, which granted a motion by defendant to suppress evidence. (Code Crim. Pro., § 813-c.) On January 6, 1969 a search warrant was issued by the Town Justice of the Town of Beekmantown, Clinton County, New York, directing "an immediate search of the frame one story wooden house, brown in color with yellow trim, with garage, Mounted Route 8, Cumberland Head occupied by David Matzner, Alan Weiss, and a David Wait and of the person of these subjects and of any other person who may be found to have such property in his possession or under his control or to whom such property may be delivered, for Marijuana, Amphetamines, Barbiturates, Hallucinogenics and other dangerous drugs and the apparatus for administering same." This warrant was issued upon an affidavit made by an investigator of the New York State Police which stated: "I have information based upon information and belief from a confidential source who has furnished reliable information in the past, that on January 4, 1969, he observed Hashish in possession of David Matzner at Filion's Bar on Bridge Street, Plattsburgh, New York, and further that Matzner told this informant he had some to sell. This Hashish he had to sell was at his residence located on Cumberland Head, New York. Matzner rents a house on Cumberland Head jointly with Alan Weiss * * *. Based upon the foregoing reliable information * * * there is probable cause to believe that such property is unlawful may be found in the possession of David Matzner, Alan Weiss, David Wait or at the premises situated, viz; and premises occupied jointly by them at a one story wooden frame house, brown with yellow trim and located at Mounted Route 8, Cumberland Head." Armed with this warrant, several members of the New York State Police proceeded to the premises where they were let in by David Matzner. A search of his bedroom was conducted which resulted in the discovery of what was believed to be a dangerous drug. Matzner was then arrested and the remainder of the premises was searched including a bedroom allegedly occupied by and belonging to the defendant Alan Weiss. The search of this room revealed further items believed to be dangerous drugs. Sometime later the defendant Alan Weiss while operating his automobile on a public highway, was stopped and placed under arrest. On February 5, 1969 defendant Alan Weiss moved in the County Court, Clinton County, for the suppression of evidence obtained as a result of the search. The County Court determined that "Such information as was furnished to the issuing magistrate was aimed entirely at the defendant Matzner and was marginal in value, even as to him. There was no information furnished the issuing magistrate to show that defendant Weiss or Mr. Wait were violating the law or that there was any cause to search their persons or property. As to Mr. Wait and defendant Weiss, the court finds that there was no probable cause to search their persons or property." Upon this determination, the court granted the motion to suppress. On this appeal the District Attorney contends that the search warrant, as it was directed against the defendant Weiss, was proper in all respects, and that the facts contained in the affidavit are sufficient to establish probable cause for the search of the jointly leased premises, and "because of the nature of the items for which the search was to be conducted, i.e., dangerous drugs (which are easily secreted) also for the individuals named in the warrant." "A search warrant cannot be issued, but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property, and the place to be searched." (Code Crim. Pro., § 793.) Probable cause "is not a matter for technical rules or tight and exact definition. The question always is: what in the common judgment of reasonable men would be regarded as good, sound cause, remembering that we seek only probable, not absolute cause? * * * Whether probable cause is present in a particular case must be determined from the facts of that case ( United States v. Ramirez, 279 F.2d 712, 714, cert. den. 364 U.S. 850)." ( People v. Lawrence, 31 A.D.2d 712.) Where a search warrant is issued solely upon hearsay from a confidential informant, the Magistrate must be afforded a sufficient basis upon which to independently evaluate the source of the informant's information and his reliability. ( Spinelli v. United States, 393 U.S. 410; Aguilar v. Texas, 378 U.S. 108; Jones v. United States, 362 U.S. 257.) The test of the sufficiency of such an affidavit requires "that the affidavit show (1) whether the informant is in fact reliable, and (2) whether the underlying circumstances as to how the informant came by his information demonstrates sufficient probability of credibility to allow the search of the premises or person in question." ( People v. Hendricks, 25 N.Y.2d 129, 133.) The affidavit here clearly does not meet either of these tests. As to these tests the affidavit herein was made by a police officer based solely upon information received from a confidential informant "who has furnished reliable information in the past" with no recital of any independent investigation having been made by the police officer or of other facts indicating reliability of the informer. There is nothing in this affidavit showing that the informant is, in fact, reliable and the underlying circumstances as to how he came by this information supplies no facts of sufficient probability of credibility to allow a search of respondent or his room. The search warrant, as to respondent, was invalid since the supporting affidavit failed to satisfy the tests of sufficiency and the basic requirements of probable cause. ( People v. Ryerson, 33 A.D.2d 639.) The order suppressing the evidence obtained thereunder should be affirmed. Order affirmed. Staley, Jr., Greenblott and Sweeney, JJ., concur; Herlihy, P.J., concurs in a separate memorandum, in which Greenblott and Sweeney, JJ., concur; Cooke, J., concurs in a separate memorandum.
I agree with the conclusion of the majority that the affidavit submitted in evidence in support of the search warrant is entirely insufficient to support the validity of the issuance of the said warrant. It should be noted that the question at issue in regard to the issuance of a search warrant is not necessarily limited to the affidavit and/or affidavits presented to the issuing Magistrate, but includes everything which transpired before the Magistrate. However, in the present case the Magistrate was not examined as a part of the hearing held and the witnesses were not asked in regard to what transpired before the issuing Magistrate other than to establish the fact that the affidavit was submitted. The failure of the People to adduce any evidence as to what might have taken place before the issuing Magistrate requires the conclusion that the sole basis for the issuance of the search warrant was a defective affidavit (cf. People v. Kaifetz, 35 A.D.2d 1025).
I concur in the result and on the ground that there was insufficient submitted concerning informant's reliability.