People v Berry

[*1] People v Berry 2007 NY Slip Op 52524(U) [18 Misc 3d 1121(A)] Decided on December 17, 2007 Criminal Court Of The City Of New York, Kings County Pickett, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2007
Criminal Court of the City of New York, Kings County

The People of the State of New York,

against

Christine Berry, Corey Stanley, Defendants.



2007KN008597



Brooklyn Public Defender Services, (Miriam J. Hibel, Esq., of counsel) for the defendant.

Charles J. Hynes, District Attorney of Kings County, Brooklyn, (Louis J. Bara, Esq., of counsel) for plaintiff.

Geraldine Pickett, J.

Defendant's motion is granted in part. The court dismisses the charges of Criminally Using Drug Paraphernalia In The Second Degree (PL 220.50 [2] and [3]).

Defendant was originally charged with one count each of Possession of Pistol Ammunition (AC 10-131[1] [3], Criminally Using Drug Paraphernalia In The Second Degree (PL 220.50 [2]), Criminally Using Drug Paraphernalia In The Second Degree (PL 220.50 [3]), Unlawful Possession Of Marihuana (PL 221.05), Criminal Possession Of Marihuana In The Fifth Degree (PL 221.10 [2]), and Criminal Possession Of A Weapon In The Fourth Degree (PL 265.01 [1]).

Facts

On January 26, 2007, Detective Shante Terrell, Shield No. 4424, of the Brooklyn South Narcotic Division Command ("Officer Terrell") appeared before the Honorable Joseph Kevin McKay, in Supreme Court Part 33, on an application for a search warrant for Apartment 1A at 58 Linden Boulevard in Kings County, New York (the "subject location"). The search warrant application and supporting affidavit of Officer Terrell was based on her own observations and information she received from a confidential informant ("CI"), who was present at the hearing.

Specifically, the Search Warrant Affidavit of Officer Terrell, dated January 26, 2007, (the "affidavit") states that the CI purchased marihuana from the subject location on three occasions [*2]with a sum of money Officer Terrell provided to the CI for the marihuana purchase. The affidavit describes the seller as a 35 year old Black male about 6'2" tall and weighing 280 pounds. The affidavit further states that after each marihuana purchase the CI informed Officer Terrell that he had purchased marihuana with the money given to him by Officer Terrell. The affidavit further details Officer Terrell's observations of the outside parameter of the subject location, the front entrance door, and the apartment entrance door. The affidavit describes the CI as a former user of marihuana and someone who recognizes marihuana by its appearance and packaging.

The affidavit related the following sequence of events. On January 16, 2007, January 18, 2007, and January 23, 2007, the CI purchased marihuana from the subject location. Officer Terrell states that she searched the CI for contraband or money, dropped the CI off near the subject location, gave the CI a pre-recorded sum of money and observed the CI go directly to and enter the subject location without stopping. Next, the affidavit states that Officer Terrell observed the CI exit the subject location and return directly to Officer Terrell without stopping and hand Officer Terrell a quantity of marihuana. The affidavit further states that Officer Terrell again searched the CI but found no money or contraband.

The purchase field tested positive for marihuana. Officer Terrell's affidavit justified a no knock warrant on the basis of the easiness and quickness with which the property could be disposed of or destroyed. The affidavit further noted Officer Terrell's training and experience in the identification of marihuana, and based on that experience, Officer Terrell informed the court that in addition to marihuana, paraphernalia proceeds and records relating to the trafficking would be kept at the subject location.

Defendant's Argument

The defendant puts forth several arguments as follows: (1) the application is based solely on the information provided by the CI; (2) there was an unspecified amount of marihuana purchased from a 6'2" Black male at the subject location; (3) the CI never mentioned that he was aware of the presence of a woman or ever described anyone else who might fit the defendant's description; (4) the CI did not state that he saw any drug paraphernalia or evidence of a large scale drug operation at the subject location; (5) neither Officer Terrell nor the CI mentioned that there were weapons at the subject location; (6) the justification for the "no knock" warrant is based solely on the fact that the marihuana could be easily and quickly disposed of or destroyed; (7) the Judge did not make an inquiry as to the necessity of a "no knock" warrant; (8) the offense charged does not involve a controlled substance; (9) the police executed the warrant without knocking, giving notice or announcing their authority; (10) as a matter of State Constitutional law, as well as Federal law, the search was illegal and the evidence obtained should be suppressed. The People oppose the motion.

[*3]Motion to Controvert the Search Warrant

I. Probable Cause

The Fourth Amendment provides that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describes the place to be searched, and the persons or things to be seized. (see US Const, Fourth Amend).

The warrant requirement of the Fourth Amendment mandates three things: first, absent certain exceptions, that warrant be issued by a neutral, disinterested magistrate (see Connally v Georgia, 429 US 245, 250-25, 97 S. Ct. 546, 548-549, 50 L. Ed. 2d 444 [1977]) (per curiam), United States v Crespo, 834 F.2d 267, 270-271 (2d Cir. 1987), cert denied, 485 US 1007, 108 S. Ct. 1471, 99 L. Ed. 2d 700 [1988]); second, there is probable cause to believe that "the evidence sought will aid in a particular apprehension or conviction" for a particular offense (see Warden v Hayden, 387 US 294, 307, 87 S. Ct. 1642, 1650, 18 L. Ed. 2d 782. [1967]); and third, the warrant "particularly describes the things to be seized,'" as well as the place to be search (see Stanford v Texas, 379 US 476, 485, 85 S. Ct. 506, 511, 13 L. Ed. 2d 431 [1965]). In this case, all of the above-mentioned requirements have been met.

Information supplied by an informant may support probable cause if it meets the two-pronged Aguilar-Spinelli test. Under this test, the source of the information must be reliable and the information must be credible (see also People v. Crawford, 221 AD2d 462 [1995]). The warrant was issued based upon (1) Officer Terrell's sworn warrant application in which she stated he was informed that marihuana was being stored and sold at the subject location, (2) she has been at the subject location and observed the front door and where Apt. 1A was located, (3) she has personally participated in over forty (40) search warrants where narcotics and marihuana, drug paraphernalia, currency, records of illegal trafficking and weapons were recovered, (4) she has been involved in the arrest of more than three-hundred (300) people for narcotics, marihuana and weapons violations, and (5) the information supplied by the CI in the past has been reliable. Based on the transcript of the hearing, Justice McKay did not "rubber stamp" the warrant application.

In evaluating the affidavit, the CI was before Justice McKay. Justice McKay questioned the CI and was satisfied that the was reliable. (People v. Hanlon, 36 NY2d 549 [1975]). The target was described with particularity by the CI. The target was described as a Black male, approximately 6'2" tall, 35 years old, and weighing approximately 280 pounds. Through a series of questions, Justice McKay made his own credibility finding that the CI was reliable and credible (Id.) The CI was sworn in when Justice McKay asked him "Are you the same one as providing information for the other warrant that we have just dealt with and signed, right?" You have also given previous information that turned out to be reliable for other cases in the past, right, for this detective?" "You also understand like the past case we just did, I am relying on what you are telling us, and you can be prosecuted for contempt or perjury or both if you mislead [*4]us deliberately" "Do you understand that, sir?"and the CI answered, under oath, "That's correct." This satisfied Justice McKay that the Aquilar-Spinelli test had been met because he granted the search warrant. "The existence of probable cause is a determination solely for the Magistrate, not the affiant, and should only be made when probable cause has been demonstrated as a matter of fact in the manner prescribed by statute and decisional law" (id. at 559).

It was Justice McKay's opinion that he had sufficient information before him to determine whether any of the information supplied by Officer Terrell were conclusory statements (id. at 558). Moreover, Justice McKay did not just rely on the affidavit alone, he also questioned the informant and made his own credibility finding. The court finds that the supporting affidavit under Aquilar-Spinelli is sufficient to establish probable cause. The defendant's objection to the information relied upon in the affidavit and the manner in which the CI was questioned by Justice McKay at the hearing is unpersuasive in cases where the Aquilar-Spinelli test has been satisfied. (Id.)

In applying the Aquilar-Spinelli test to the present facts, there is no impropriety in how Justice McKay conducted the warrant application hearing. Therefore, the court is satisfied that Judge McKay's inquiry of the CI along with the information in the affidavit constituted a sufficient basis for issuing the search warrant. The defendant's next argument that the search warrant was invalid because it did not mention or describe the presence of anyone else is not persuasive. Justice McKay authorized the search of the subject location and of and persons found therein. Thus, the language of the search warrant did not preclude the search of unnamed persons. Therefore, the search and seizure of the defendants were not unconstitutional.

II.Execution of the Warrant Without Prior Notice Violated

the Fourth Amendment of the United States Constitution

Courts have the expressed inherent power to issue a warrant when the requirements of the Fourteenth Amendment have been met (see United States v Villagas, 899 F.2d 1324, 1334 2d Cir. [1990]). In conjunction with the warrant requirements, our judicial system firmly establishes notice before entry is made into a person's home (see Miller v United States, 357 US 301, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 [1958]). This principal was reaffirmed in Wilson v Arkansas, 514 US 927, 115 S. Ct. 1914 [1995]). However, the Fourth Amendment does not require that every search warrant be preceded by an announcement (Id. at 934). It is within the purview of the issuing court to decide when to issue a "no knock" warrant (Id. at 927).

The Federal Courts have held that a "no knock" warrant is necessary in cases where there is possible danger or harm to the occupants and officers and where there is an unreasonable risk that the evidence could easily destroyed or removed (Id. at 937). Here, Justice McKay, after conducting a hearing, was satisfied that a "no knock" warrant was justified based on the disposable nature marihuana. Based on the above discussion, defendant's motion to controvert the search warrant is denied.

III. Request For A Hearing

This court is satisfied that the hearing conducted by Justice McKay's fulfilled all of the Constitutional requirement for issuing a search warrant. Therefore, defendant's request for a hearing is denied

Facial Sufficiency of the Charges of Criminally Using Drug Paraphernalia

in the Second Degree (PL 220.50 [2] and [3])

"A person is guilty of criminally using drug paraphernalia in the second degree when he or she knowingly possesses or sells:

2. Gelatine capsules, glassine envelopes, vials, capsules or any other material suitable for the packaging of individual quantities of narcotic drugs or stimulants under circumstances evincing an intent to use, or under circumstances evincing knowledge that some person intends to use, the same for the purpose of unlawfully manufacturing, packaging or dispensing or any narcotic drug or stimulant;

3. Scales and balances used or designed for the purpose of weighing or measuring controlled substances, under circumstances evincing an intent to use, or under circumstances evincing knowledge that some person intends to use, the same for purpose of unlawfully manufacturing, packaging or dispensing of any narcotic drug or stimulant." (PL 220.50 [2] [3]).

An information is facially sufficient if it contains facts of an evidentiary character tending to support the charges (CPL 100.15 [3]; People v Dumas, 68 NY2d 729 [1986]). Furthermore, the information must contain non-hearsay allegations which establish, if true, every element of the offense charged and defendant's commission thereof (CPL 100.40 [1] [b], [c]). An information which fails to satisfy these requirements is fatally defective (People v Alejandro, 70 NY2d 133, 139 [1987]).

The prima facie case requirement is a lower threshold than the burden of proof beyond a reasonable doubt required at trial (People v Henderson, 92 NY2d 677, 680 [1999]; People v Hyde, 302 AD2d 101, [1st Dept. 2003]). The allegations must establish a prima facie case that there is reasonable cause to believe that a defendant is guilty of the crimes charged (People v Allen, 92 NY2d 378, 385 [1998]). If the evidence supporting the charges is circumstantial, it will be sufficient only if the allegations, and the logical inferences which flow from them, supply proof of every element of the crimes charged, and defendant's commission thereof (see People v Cooks, 230 AD2d 683, 684 [1st Dept.], lv denied 89 NY2d 863 [1996] [sufficiency of evidence before the Grand Jury]).

There are no factual allegations in the accusatory instrument establishing that the weapon, ammunition, scale, or ziplock bags were for the purpose of manufacturing, packaging or dispensing a narcotic drug or stimulant, given the fact only marihuana which is not classified as a narcotic drug or stimulant was recovered at the subject location. Accordingly, the defendant's motion to dismiss the charges of criminally using drug paraphernalia in the second [*5]degree (PL 220.50 [2] [3]) is granted.

The foregoing constitutes a decision and order of this court.

__________________________________

Hon. Gerri Pickett

Judge of the Criminal Court

Dated:Brooklyn, New York

December 17, 2007