45 A.D.2d 699 | N.Y. App. Div. | 1974
Judgment, Supreme Court, New York County, rendered October 23, 1973, convicting defendant after a nonjury trial of two counts of criminal possession of a dangerous drug in the third degree, and one count of possession of a weapon as a misdemeanor, and sentencing him to concurrent terms of one year on the weapons charge and up to nine years on each of the drug charges, reversed, on the law, the motion to controvert granted, and the indictment dismissed. Prior to trial defendant moved to controvert the search warrant and after a hearing the motion was denied. The search warrant was issued upon the affidavit of a police officer who stated therein that he had obtained information from a reliable informant who had given information in the past, leading to two seizures of narcotics from two different individuals. The informant stated that he had spoken to a third party who claimed to have been in the defendant’s apartment in order to collect $2,000 on behalf of his (the third party’s) father, which amount of money represented the father’s share in a purchase of a quarter kilo of cocaine. That third individual, who was unknown to the police officer, allegedly observed defendant in possession of over one pound of cocaine. Additionally, the defendant allegedly gave the third individual a sample of the cocaine, which was turned over to the informant, who in turn gave it to the police officer. The affidavit further indicated that the third party’s father was the subject of independent investigations by narcotic divisions and was believed to be a large scale dealer. It was also stated that the records showed that defendant had two prior arrests, one for homicide and one for possession of dangerous drugs. Finally, it was stated that the informant had, three months previously, personally observed cocaine and guns in defendant’s apartment. We find that the affidavit was patently deficient and failed to establish probable cause to believe that defendant was then in possession of drugs. Although an officer in his affidavit in support of a warrant may rely upon hearsay information obtained from an informer, the affidavit must 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.) These standards were not met by the affidavit herein. Although the police officer’s informant was demonstrated to be reliable (see United States v. Harris, 403 U. S. 573), the information related by him was not based upon his own personal observation. The fact that he had seen drugs in the apartment three months earlier, had little, if any relevance, to whether defendant presently possessed drugs. (Cf. People v. Beshany, 43 Misc 2d 521.) Anin any event, that statement was too vague to be of value since it failed to set forth any of the details relating to such observation. Additionally, while the informant turned over a quantity of cocaine to the officer, the source of such drugs depended on the authenticity of the third party’s story. Therefore, the affidavit supporting the search warrant was not based upon facts actually known to the informant, but was in reality based upon a story related by an individual who was completely unknown to the officer, and whose reliability as such was clearly not demonstrated. Nor was there any independent verification of the third party’s tale which would tend to establish its authenticity and his reliability. The only independent investigation taken by the officer estab