People v Dillard
Annotate this CaseDecided on August 17, 2015
Criminal Court of the City of New York, Kings County
The People of the State of New York
against
Percy Dillard, Defendant.
2014KN095606
For Defendant:
Adam Axel
Brooklyn Defender Services
177 Livingston Street
Brooklyn, NY 11201
For the People:
Kenneth Thompson, District Attorney
Kings County
by Keaupuni Akina, Assistant District Attorney, Brooklyn, of Counsel
Andrew Borrok, J.
The instant motion is before the court because the defendant seeks to (i) controvert the search warrant or, in the alternative, have the court order an in camera hearing (i.e., a "Darden Hearing")[FN1] to verify the existence of the confidential informant (CI) and to ensure that the information provided by the CI was not fabricated and (ii) have the court unveil the redacted portions of the search warrant affidavit and minutes. The People oppose the motion. For the reasons set forth below, the defendant's motion is denied in its entirety.
THE RELEVANT FACTS AND CIRCUMSTANCES
On December 24, 2014, Detective Wailur Rahman, Shield Number 6428 of Narcotics Borough Brooklyn North, appeared before Acting New York State Supreme Court Justice William M. Harrington of the Criminal Court of the City of New York, Kings County, to obtain a search warrant authorizing the search of 1535 Sterling Place, Apartment 3B. The search warrant application was supported by the sworn affidavit of Detective Rahman and his testimony under oath. The affidavit stated that Detective Rahman has been a member of the New York City Police Department for approximately 20 years and during his tenure had participated in the execution of over 200 search warrants. The affidavit stated that the detective relied on information from a CI that the detective has worked with in the past and that on all prior occasions the CI has provided reliable information that has resulted in the issuance of numerous search warrants and arrests of [*2]individuals. The affidavit further stated that (i) prior to the execution of the search warrant in this case, he supervised two controlled buys on the part of the CI at the target location, (ii) on both such occasions, the detective searched the CI prior to entering the target location and that the CI did not have any narcotics or United States currency, (iii) the detective handed the CI a quantity of United States Currency, (iv) he observed the CI enter and leave the target location, whereupon (v) the CI handed the detective a quantity of white rocky substance which field tested positive for crack cocaine and that the CI no longer had the quantity of United States currency. The CI did not swear to the information provided to the detective under penalties of perjury before Justice Harrington. Nonetheless, Justice Harrington found probable cause that evidence of a crime existed at the target location and accordingly signed a "No-Knock" search warrant.
Recently, this court held a Darden Hearing (the Strawder Darden Hearing) in connection with a case captioned People v Kevin Strawder, 48 Misc 3d 1205(A) (Crim Ct, Kings County 2015). In reviewing the motion to controvert the search warrant that was issued in that case, this court learned that in fact on December 24, 2015, Detective Rahman had appeared in front of Justice Harrington to obtain five separate search warrants authorizing the search of 1535 Sterling Place, Apartments 1B, 1D, 2B, 3B, and 3C, in Kings County and that Detective Rahman relied on information from the same CI for all five apartments. The search warrant that was issued for Apartment 1B resulted in the arrest of Kevin Strawder [FN2] . At the Strawder Darden Hearing, both the CI and Detective Rahman testified. More specifically, Detective Rahman testified that the CI has provided reliable information on several occasions which resulted in the issuance of a number of narcotics related search warrants, the execution of which had led to the recovery of heroin, marihuana, drug paraphernalia, United States currency and the arrest of various individuals. The CI testified that the CI participated in controlled buys at five different apartments at 1353 Sterling Place on different days and at different times, including Apartment 3B. The CI testified that each controlled buy was done separately (i.e., at different times) and was completed before conducting the next buy at a different apartment. The court held that the CI in fact existed and that the information provided by the CI was not fabricated.
To be clear, this case involves the search warrant which was issued by Justice Harrington and executed by Detective Rahman for only Apartment 3B at 1535 Sterling Place (i.e., and not any of the other four search warrants issued at the same time by Justice Harrington for other apartments located at 1535 Sterling Place). The defendant was not the "target" of the search warrant. Six days after the search warrant was issued (i.e., on December 30, 2014), the search warrant was executed, the defendant was found inside the target location in close proximity to the crack cocaine which was recovered and the defendant was arrested.
On December 31, 2014, the defendant was arraigned and charged with Criminal Possession of a Controlled Substance in the Third Degree (Penal Law (PL) § 220.16[1]), Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.30) and Criminally Using Drug Paraphernalia in the Second Degree (PL § 220.50[2]). The case was adjourned until January 5, 2015 to part AP-D for evaluation. On January 5, 2015, the People indicated that a drug treatment offer was not appropriate, and the case was further adjourned until March 4, 2015, to Part AP1F for Grand Jury Action. On March 4, 2015, the People dismissed [*3]the charge of Criminal Possession of a Controlled Substance in the Third Degree (PL § 220.16[1]) and filed a lab report. The court deemed the accusatory instrument to be an information and the matter was adjourned until March 5, 2015 to Part AP2 for discovery by stipulation (DBS). On March 5, 2015, the People did not have the DBS and the matter was further adjourned until March 23, 2015 for DBS and search warrant materials. On March 23, 2015, the People did not have the search warrant materials and the matter was further adjourned until April 28, 2015. On April 28, 2015, the People still did not have the search warrant materials, and the court further adjourned the case until May 12, 2015. On May 12, 2015, the People submitted proposed redactions of the search warrant affidavit and minutes to the court and the matter was adjourned until June 24, 2015 for the court's decision on any motion to controvert made by the defendant of the search warrant and for any necessary hearings and trial (i.e., if the defendant did not file a motion to controvert the search warrant). On June 12, 2015, the defendant filed a motion to controvert the search warrant with the court, and on June 24, 2105, the People filed an Affirmation in Opposition to Defendant's Motion to Controvert the Search Warrant. On June 24, 2015, the matter was further adjourned until August 17, 2015 for the court's decision on the motion to controvert the search warrant and for any necessary hearings and trial.
Discussion
I. The Defendant Lacks Standing
As a preliminary matter, the court must determine whether the defendant has standing to challenge the legality of the search. People v Tejada, 81 NY2d 861, 864 (1993), citing People v Wesley, 73 NY2d 351, 355 (1989). The defendant bears the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises searched. People v Ramirez-Portoreal, 88 NY2d 99,108, app den 88 NY2d 1071 (1996); People v Ponder, 54 NY2d 160, 165 (1981). A defendant has standing to suppress items recovered from a search if said defendant "subjectively manifested an expectation of privacy with respect to the location or item searched that society recognizes to be objectively reasonable under the circumstances." People v Burton, 6 NY3d 584, 587-588 (2006).
Inasmuch as the defendant does not plead any facts to establish a legitimate expectation of privacy in the target premises, the defendant has failed to meet its burden to establish standing. Accordingly, the defendant's motion to controvert the search warrant issued on December 24, 2014 is denied.
II. Motion to Controvert the Search Warrant Denied and No Darden Hearing Required
Probable Cause
Upon appropriate motion of a defendant, the court may suppress the evidence if the search warrant issued was not based on probable cause. Under both the United States and New York Constitutions, no warrant may be issued except upon probable cause based on facts presented to the magistrate under oath or affirmation. US Const., 4th Amend; NY Const., Art 1, § 12. "Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely requires information sufficient to support a reasonable belief that an offense has [*4]been or is being committed or that evidence of a crime may be found at a certain place." People v Bigelow, 66 NY2d 417, 423 (1985). When determining whether probable cause exists, the Court of Appeals has stated that there is no "infallible formula":
"In the real world, we are confronted with search warrant applications which are generally not composed by lawyers in the quiet of a law library but rather by law enforcement officers who are acting under stress and often within the context of
a volatile situation. Consequently such search warrant applications should not be
read in a hyper-technical manner as if they were entries in an essay contest. On the contrary, they must be considered in the clear light of everyday experience accorded
with reasonable inferences." People v Hanlon, 36 NY2d 549, 559 (1975).
Warrants should be scrutinized in a "common sense and realistic fashion." People v Glen, 30 NY2d 252, 262 (1971).
Probable cause may be supplied, in whole or part, through hearsay information. Bigelow, 66 NY2d. Where hearsay information from an undisclosed informant is the basis for the issuance of a search warrant, such information must be examined under the Anguilar-Spinelli two-prong test. Aguilar v Texas, 378 U.S. 108 (1964); Spinelli v United States, 393 U.S. 410 (1968). This two-prong test requires that the officer's affidavit show (1) the veracity or reliability of the informant's knowledge, and (2) the basis of the informant's knowledge. When probable cause is determined based on information from a confidential informant, the New York Court of Appeals has expressly rejected the more recent relaxed "totality of the circumstances" standard to determine probable cause set forth in Illinois v Gates, 462 U.S. 213 (1983) and held that instead the Anguilar-Spinelli two-prong test should be applied. See People v Griminger, 71 NY2d 635, 639 (2d Dept. 1988).
When information from a confidential informant provides part of the basis for probable cause, difficult issues may arise. The People, particularly in the early stages of a criminal proceeding, have a significant interest e.g., in protecting the identity of the confidential informant.[FN3] However, this may severely inhibit the defendant's right to confront and cross-examine the People's witnesses at a suppression hearing. In balancing these countervailing principles, the New York Court of Appeals in People v Darden, 34 NY2d 177 (1974) "established a procedure to verify the testifying officer's credibility while keeping the informant's identity a secret." Edwards, 95 NY2d at 492. The purpose of this in camera inquiry is to ensure that the informant is not "wholly imaginary" and that the information provided by the informant to the police is not "fabricated." Id at 493.
When a confidential informant has previously testified before the magistrate who issued the search warrant, such confidential informant need not be produced for a Darden Hearing because their existence and statements have already been verified. Edwards, 95 NY2d at 493 citing People v Serrano, 93 NY2d 73, 76-77 (1999). There simply is no need for duplication before the suppression court. See Serrano, 93 NY2d. Similarly, this court holds that when a CI has previously appeared before the court in a Darden Hearing relating to one of a series of related search warrants issued at the same time, there is no need for another Darden Hearing before the [*5]same judge who has already verified the CI's existence and determined that the information is not fabricated. As discussed above, although the CI has not previously sworn under penalties of perjury in front of Justice Harrington (i.e., the judge who issued the warrant), both Detective Rahman and the CI have testified under penalties of perjury in front of the suppression judge about the target location in this case at the Strawder Darden Hearing. During the course of the Strawder Darden Hearing, the court learned that five search warrants were issued by Justice Harrington on December 24, 2014 for apartments located at 1535 Sterling Place. As part of the Strawder Darden Hearing, the court inquired as to the basis for the CI's information which information was supplied to Detective Rahman and learned that controlled buys were separately conducted at each of the five target apartments — including the target location in this case, Apartment 3B. Accordingly, the court finds that the CI is not "wholly imaginary" and the information is not fabricated and therefore there is no need for what would amount to a second Darden Hearing with respect to this CI. Finally, inasmuch as a Darden Hearing is an in camera hearing (i.e., outside the presence of the parties) solely for court to verify the existence of the confidential informant and to ensure that the information provided was not fabricated which supported the issuance of the search warrant in question, and this has already occurred in front of the suppression judge, the court notes that the defendant is simply not prejudiced in anyway by not holding what would amount to a second or duplicative in camera hearing. Accordingly, the defendant's request for a Darden Hearing is denied.
Veracity of the CI's knowledge
Detective Rahman's affidavit presented to Justice Harrington indicated, and Detective Rahman testified at the Strawder Darden Hearing, that the CI has provided reliable information on several occasions which resulted in the issuance of a number of narcotics related search warrants, the execution of which had led to the recovery of heroin, marihuana, drug paraphernalia, United States currency and the arrest of various individuals. Additionally, when the CI testified at the Strawder Darden Hearing, the CI corroborated Detective Rahman's affidavit and testimony that the CI had previously provided information to the police that resulted in the execution of numerous narcotics related search warrants and led to the arrest of certain individuals. Accordingly, the first prong of the Anguilar-Spinelli test has been met.
Basis of informant's knowledge
There are two ways of verifying an informant's basis of knowledge. "The most reliable is through his own description of underlying circumstances personally observed." Bigelow, 66 NY2d at 423. However, "while it is true that the issuing Judge may examine under oath, any person who possesses pertinent information in order to determine reasonable cause, a Judge is not required to conduct such an examination if he or she is satisfied that the submitted affidavits establish reasonable cause (see CPL 690.40[2])." People v Israel, 161 AD2d 730, 731 (2d Dept. 1990). The informant's basis of knowledge may also be "verified by police investigation that corroborates the defendant's actions or that develops information consistent with detailed predictions by the informant." Bigelow, 66 NY2d at 423-424.
Here, the CI testified at the Strawder Darden Hearing that the CI participated in controlled buys at all five apartments at the target location, 1535 Sterling Place, on different days [*6]and at different times. The CI testified that each buy was done separately, and was completed before conducting the next controlled buy at a different apartment. The CI's testimony was consistent both with Detective Rahman's affidavit that was presented to Justice Harrington at the time the search warrant was issued and Detective Rahman's testimony at the Strawder Darden Hearing. Accordingly, the second prong of the Anguilar-Spinelli test also having been met, it follows that the warrant was issued on probable cause and, therefore, the defendant's motion to controvert the search warrant is denied.
No-Knock Warrant
When an initial search warrant application alleges that drugs are being sold out of the premises to be searched, an issuing judge may properly infer that these drugs can be easily destroyed, thus providing a sufficient basis for the issuance of a no-knock warrant. See People v DeLago, 16 NY2d 289 (1965), cert. den. 383 U.S. 963; People v Lewis, 25 AD3d 824 (3d Dept, 2006), lv den. 7 NY3d 791 (2006). It is axiomatic that the issuing judge has authority to issue a search warrant without giving notice of the police officer's authority or purpose if there is "reasonable cause to believe that (i) the property sought may be easily and quickly destroyed or disposed of, or (ii) the giving of such notice may endanger the life or safety of the executing officer or another person " CPL § 690.35(4)(b). In the instant matter, the search warrant application was for the recovery of crack cocaine which can be easily destroyed or discarded. Therefore, the "no-knock" warrant issued by Justice Harrington was properly granted.
III. Redaction of Search Warrant Materials
The purpose of the People's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers is "the furtherance and protection of the public interest in effective law enforcement." Roviaro v U.S., 353 U.S. 53, 59 (1957). "The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officials, and by preserving their anonymity, encourages them to perform that obligation." Id. However this privilege is not absolute and upon application to the court certain disclosures may be required. Nevertheless, the court has the discretion to prohibit a defendant from eliciting the informant's name or any other information that could reveal the informant's identity. Edwards, 95 NY2d. There is no fixed rule with what should or should not be disclosed but it falls to the court to "balance the flow of information against the individual's right to prepare his defense." Id at 62.
The court reviewed the search warrant materials with the People's proposed redactions which related to the date and times of the CI's interactions with the defendant. In sum, the court finds that such redacted information could lead to the identification of the CI and was not necessary to describe the basis upon which the search warrant was issued. For the foregoing reasons, and because Detective Rahman had testified at the Strawder Darden Hearing that the CI was concerned about his or her safety, the defendant's motion to unveil the redactions of the search warrant materials is denied.
The foregoing constitutes the decision and order of the court.
Dated: Brooklyn, NY
August 17, 2015
________________________
ANDREW BORROK
J.C.C.
Darden Footnotes
Footnote 1:See People v Darden, 34 NY2d 177 (1974).
Footnote 2:See People v Kevin Strawder, 48 Misc 3d 1205(A) (Crim Ct, Kings County 2015).
Footnote 3:See People v Edwards, 95 NY2d 486, 492 (2000).
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