MEMORANDUM
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS : CRIMINAL TERM : PART K-8
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X
THE PEOPLE OF THE STATE OF NEW YORK :
BY: ROBERT CHARLES KOHM, J.
:
-against- : DATE:
SEPTEMBER 21, 1999
:
DANIEL O'BOYLE,
: INDICT. NO. 11729/96
:
Defendant. :
X
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Defendant makes this motion to controvert the search warrant that was executed at his home and to suppress all physical evidence seized pursuant to that warrant.
A hearing was commenced on May 19, 1998, continued a number of times and concluded July 1, 1998. Subsequent to the hearing defense counsel and the Assistant District Attorney submitted memoranda of law. From the papers submitted and the testimony taken at the hearing, the court makes the following findings of fact and conclusion of law:
Detective Abatangelo submitted an affidavit to Justice McGann in support of the application for a search warrant. This affidavit included the incorporated application and eavesdropping warrants which had been granted by Justice McGann commencing from August 11, 1995 through the date of the execution of the search warrant which was September 5, 1996.
Defendant made a motion to suppress evidence obtained based on electronic eavesdropping surveillance. After a hearing, this court held that probable cause was demonstrated for the issuance of the wiretaps. The confidential informant provided credible and reliable information that was sufficient for the issuance of the eavesdropping warrants. The original eavesdropping warrant was issued on August 11, 1995 and was subsequently extended and amended in sixteen eavesdropping warrants with the last one terminating in September 1996.
Defendant now argues in support of this motion, inter alia, that the search warrant should be controverted and the property seized should be suppressed since the information contained in the affidavit submitted to Justice McGann in support of the application for a search warrant is inadequate to establish probable cause.
Also, Detective Abatangelo relied on an ambiguous telephone conversation more than eight months old and undated stale information from confidential informants. There is no merit to defendant arguments.
Probable cause exists when the facts and circumstances within the arresting officers= knowledge and of which they had reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable action in the belief that an offense has been or is being committed (Draper v US, 358 US 307). Probable cause exists when there is reasonable suspicion supported by facts and circumstances strong enough in themselves to warrant a cautious man in the belief that the law has been violated (People v Marshall, 13 NY2d 28). The standards used to determine whether probable cause exists for the issuance of a search warrant are the same standards that are used for the issuance of an eavesdropping warrant (People v Tambe, 71 NY2d 492; People v Ianniello, 156 AD2d 469). Probable cause requires proof that it is more probable than not that a crime has taken place and that the subjects are the perpetrators of the crime (People v Carrasquillo, 54 NY2d 248).
An application for a search warrant must contain allegations of fact that establish that there is reasonable cause to believe that property subject to seizure is in a designated or described place, person or vehicle (CPL 690.35 [3]).
'Probable cause under the Fourth Amendment exists where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed@ (Berger V New York, 388 US 41, 55).
In the case at bar, there is sufficient evidence to support a finding of probable cause for the issuance of the search warrant. The warrant application contained sufficient facts to support probable cause. In support of the search warrant Detective Abatangelo submitted information to Justice McGann which included wiretaps, voluminous transcripts of intercepted conversations, cloned beeper interceptions, police surveillance of the subjects and the premises, expert opinion of coded and encrypted conversations and beeper messages, results of undercover and confidential informant buys of narcotics, and laboratory results indicating narcotics. The detective's affidavit in support of the application for the search warrant specifically incorporated by reference all of the electronic surveillance warrants, applications and supporting affidavits for the wiretaps issued by Justice McGann from August 1995 through to September 1996.
In this case, the search warrant was not based on stale information.
'[P]robable 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; see also, Sgro v United States, 287 US 206; People v Padilla, 132 AD2d 578). The question of staleness of the facts alleged in support of the warrant application, turns upon the nature of the alleged offense and the degree to which it constitutes an ongoing or continuing activity. The number of days between the occurrence of the events relied upon and the issuance of the search warrant are not to be counted to determine if probable cause exists. (Town of East Hampton v Omabuild USA No. 1, Inc., 215 AD2d 746).
New York State Criminal Procedure Law does not impose any time limitation relating to the disclosure of the information in the application leading to the issuance of the search warrant. "Where there is a time lapse between disclosure of the information sought to establish probable cause and the issuance of a warrant, substantial reliance will be placed on the nature of the offense in order to determine whether the requisite probable cause continues to exist. Where, for instance, the activity is of a continuing nature, a greater time lapse is justified than where the offense is an isolated one (People v Acevedo, 175 AD2d 323, 324; see also People v Mallory, 234 AD2d 913).
The affidavit, submitted by the Detective, in support of the issuance of the warrant referred to a telephone conversation from January 1996 relating to a coded conversation about narcotics transactions. The Detective provided his analysis of the conversation as well as corroborative information from the two informants who were, at one time, part of this operation. Both informants advised that on many occasion they observed pre-packaged cocaine at Daniel O=Boyle's residence. The wiretaps that were incorporated in the application for the warrant presented evidence that drugs were being trafficked from Daniel O=Boyle's residence. These crimes were of a continuing nature. There was a continuing pattern of receiving, possession and selling narcotics from the subject premises. Along with the telephone conversation there was a pattern of recent criminal acts covering a year long period which is provided in the wiretap applications and supporting documentation. From the papers submitted in support of the warrant there was a substantial basis to conclude that the defendant was engaged in continuing criminal activity.
Based on the foregoing, the motion to controvert the search warrant and to suppress the evidence seized at the residence of the defendant is denied.
Order entered accordingly.
The clerk of the court is directed to mail a copy of this memorandum and decision to the attorney for defendant and to the District Attorney.
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ROBERT CHARLES KOHM, J.S.C.