People v. Fromen , 510 N.Y.S.2d 384 ( 1986 )

— Judgment reversed, on the law, motion to suppress granted, and matter remitted to Supreme Court, Erie County, for further proceedings on the indictment. Memorandum: "The 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 describing the place to be searched, and the persons or things to be seized” (US Const 4th Amend; NY Const, art I, § 12). The sole issue presented is whether the search warrants authorizing a search of a package addressed to defendant and of defendant’s apartment were issued upon probable cause supported by oath or sufficient affirmation.

The only sworn affidavit in support of the warrants was made by Bruce Johnson, a special agent of the Drug Enforcement Administration (DEA). Johnson alleged that a confidential informant had purchased cocaine from defendant "on several occasions in the past”; that an unidentified "associate” of the defendant told the informant that defendant had received packages of cocaine through the mail at an address near defendant’s residence; that a small package had been mailed from Boston, Massachusetts, to that address and that a police dog, allegedly reliable on two prior occasions, had reacted positively for the presence of drugs in that package.

CPL 690.35 (2) (c) requires that an application for a search warrant may be based "upon personal knowledge of the applicant or upon information and belief, provided that in the latter event the sources of such information and the grounds of such belief are stated” (emphasis added). The crucial flaw in Johnson’s affidavit is that although it appeared to the Magistrate that Johnson had personally perceived the factual events he alleged, Johnson did not have firsthand knowledge of any of these events at the time the warrant application was submitted. Indeed, at the suppression hearing, Johnson conceded that the application was misleading. Special Agent Johnson, by signing the affidavit listing the acts of criminal conduct, misled the Magistrate to believe that he personally had observed certain conduct and communicated with certain individuals when, in fact, he had done neither. Thus, " '[t]he magistrate * * * could not "judge for himself the persuasiveness of the facts relied on * * * to show probable cause” ’ ” (People v Hendricks, 25 NY2d 129, 135, quoting Aguilar v Texas, 378 US 108, 113-114; see also, Giordenello v United States, 357 US 480, 486).

Although Johnson had received his information from Richard Flis, a New York State Police Investigator, no supporting affidavit from Flis was presented to the Magistrate. Johnson readily admitted that Flis asked him to prepare the warrant application although there was no reason why Flis could not have done so himself, or why Flis could not personally appear before the Magistrate. Most alarming is Flis’ admission that on as many as 20 prior occasions he had submitted warrant applications without alerting the issuing Magistrate to the hearsay nature of the allegations contained therein.

Moreover, although Flis testified at the hearing that he was "familiar” with the confidential informant, neither he nor his partner stated that either officer had any personal contact with the informant. Also, Johnson received information from Flis regarding a postman’s recollection of prior packages having been delivered to an address near defendant’s residence, but Flis never stated he personally spoke to the mailman.

The Court of Appeals has recognized that "there is need for disclosure to the issuing magistrate of sufficient factual data to enable him to determine whether he may properly rely on the hearsay source of the officer’s information as well as whether he may credit the information itself’ (People v Bartolomeo, 53 NY2d 225, 234).

Although a reviewing court should give deference to a judicial determination of probable cause, the court must still insist that the Magistrate perform his neutral and detached function and not serve merely as a rubber stamp for the police (People v Hanlon, 36 NY2d 549, 559). As the Court of Appeals recently reaffirmed in People v P. J. Video (68 NY2d 296, 307), the Hanlon decision "imposed a specific, nondelegable burden on the magistrate which required that he, not the police, determine probable cause, and it required that his determination be objectively verifiable [citations omitted]. This is the standard that should be applied to protect the rights of New York citizens.” Accordingly, the judgment must be reserved and defendant’s motion to suppress granted.

All concur, except Boomer and Balio, JJ., who dissent and vote to affirm in the following memorandum.