People v Burgos

[*1] People v Burgos 2009 NY Slip Op 50018(U) [22 Misc 3d 1105(A)] Decided on January 5, 2009 Supreme Court, New York County Ward, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 5, 2009
Supreme Court, New York County

The People of the State of New York

against

Stephen Burgos, Defendant.



383/08



Defense counsel is Alex Grossshern, 299 Broadway, Suite 1305, NY, NY 10007

The prosecutor is A.D.A. Ayodele Olusunde, Special Narcotics Prosecutor, 80 Centre Street, NY, NY 10013

Laura A. Ward, J.

On January 17, 2008, a warrant authorizing a search of apartment 8B located in 440 East 105th Street, in New York County, was executed. The search resulted in the seizure of a quantity of cocaine, marihuana and drug paraphernalia and the arrest of the defendant and others. The defendant has moved to controvert the search warrant and for suppression of those items seized pursuant to the execution of the warrant.

The search warrant application was based upon information received from a confidential informant. A search warrant application based upon information received from a confidential informant, not appearing before the issuing judge, must establish the reliability of the informant and the basis of the informant's knowledge. People v. Griminger, 71 NY2d 635(1988). Following the issuing judge's determination of the informant's reliability and basis of knowledge, the issuing judge must decide whether there is probable cause to believe that a crime has been or is being committed or that the evidence of criminality sought in the warrant is presently located in the premises to be searched. People v. Bigelow, 66 NY2d 417, 423(1985). When the information contained in the application establishes that a crime had been committed in the past or that evidence of a crime was located at the subject premises in the past, the information must also lead to the conclusion that the evidence sought to be seized pursuant to the search warrant still exists at the subject premises at the time application is made for the search warrant. If the information does not lend itself to a reasonable belief that the evidence of criminality is presently located at the subject premises, the information is deemed to be "stale." People v. Munoz, 205 AD2d 452, lv. denied, 84 NY2d 870 (1994). When the information is stale, the search warrant is not based upon probable cause to believe that the evidence of criminality will be found in the subject premises. See, e.g., Sgro v. United States, 287 U.S. 206, 210 - 211 (1932).

The search warrant application before this court contains sufficient information to establish the reliability of the informant. The application states that the confidential informant [*2]"has a proven history of reliability based on his/her having provided reliable information on one occasion. For example, in January 2008, information provided by [the confidential informant] led to a search warrant that resulted in the seizure of controlled substances, confirmed to be marijuana, and the arrest of 4 individuals."Affidavit in Support of Search Warrant ("Affidavit") at ¶ 4. People v. Walters, 187 AD2d 472, lv. denied, 81 NY2d 849 (1993).

In support of probable cause to believe that a crime has been or is being committed or that the evidence of criminality sought in the warrant is presently located in the premises to be searched, the search warrant application sets forth two occasions on which the confidential informant made controlled buys of marihuana from the target premises. The Affidavit states that these controlled buys were made "[w]ithin the last month." Affidavit at ¶¶ 7 and 8. The Affidavit also states that the affiant conducted a reconnaissance of the target premises on January 10, 2008. Affidavit at ¶ 10. The defendant argues that the information with regard to the buys may have been stale and urges the court to "scrutinize the warrant affidavit for the time -frame between the last controlled buy and the time when the warrant was issued considering that the controlled buy described in paragraph 8 of the affidavit sets forth that the buy was conducted within the last month.'"

In People v. Bilsky, 95 NY2d 172, 177 (2000), the Court, citing People v. Nieves, 36 NY2d 396 (1975), stated that "the critical element, in reviewing the validity of a search warrant to determine whether it was supported by probable cause, was whether facts and circumstances made known to the issuing Magistrate at the time the warrant application was determined were sufficient to establish that nucleic ingredient of probable cause." In determining whether the time differential between the occurrence of the events set forth in the warrant application and the date of the application for the search warrant affects the finding of probable cause, "is not to be determined by counting the number of days between the occurrence of the events relied upon and the issuance of the search warrant. Information may be acted upon as long as the practicalities dictate that a state of facts existing in the past, which is sufficient to give rise to probable cause, continues to exist at the time the application for a search warrant is made." People v. Clarke, 173 AD2d 550 (1991).

The information set forth in the warrant application refers to two separate purchases of marihuana "[w]ithin the last month." No other information was provided as to when within the last month the controlled buys were made. "Within the last month" could refer to two controlled buys occurring up to 30 days before the application. The buys could have been made on the same day, one day apart or several days apart. While the number of days between the controlled buys and the date of the application are not dispositive of whether the information is stale, the fact that the warrant does not contain any information indicative of the ongoing nature of the criminal activity occurring at the time of the controlled buys, the application fails to establish probable cause to believe that criminal activity was ongoing at the time of the application or evidence of criminal activity would be found at that time. There is no information contained in the warrant application from which it could be inferred that drugs were continuing to be sold or [*3]that shipments of drugs were being received at the subject premises.[FN1] Therefore, the information relied upon for establishing probable cause is stale.

In view of the fact that the information relied upon to establish probable cause is stale, the search warrant was not based upon probable cause and the motion to controvert the search warrant is granted and the items of physical evidence recovered as a result of the execution of the search warrant are suppressed.

The foregoing is the decision and order of the court.

Dated: New York, New York

January 5, 2009

Laura A. Ward

Acting Justice Supreme Court Footnotes

Footnote 1:The court requested a copy of the sealed proceedings of the application made before theissuing judge to see if any additional information was given to the issuing judgeregarding the dates the confidential informant made the controlled buys. No additionalinformation was given to the issuing judge.