The People of
the State of New York, Plaintiff,
against
Kevin Strawder, Defendant.
|
2014KN095633
Appearance of Counsel:
Melanie Marmer, Esq., 44 Court Street, Suite 917, Brooklyn, NY 11201,
attorney for defendant
Kenneth Thompson, District Attorney, Kings County, by Yasmin Dwedar
Esq., Assistant District Attorney, Brooklyn, of Counsel for the People
Andrew Borrok, J.
The defendant, who is charged with Criminal Possession of a Controlled Substance
in the Seventh Degree (Penal Law (PL) § 220.03), Criminally Using Drug
Paraphernalia in the Second Degree (PL § 220.50[2]) and Unlawful Possession of
Marihuana (PL § 221.05), seeks to (i) controvert a search warrant (the Warrant), (ii)
unveil the redacted portions of the Warrant affidavit and minutes, (iii) dismiss the
Information with Prejudice, and (iv) preserve the right to make further motions pursuant
to Criminal Procedure Law (CPL) §§ 690, 240.50, and 255.20(3). 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
Following two controlled buys of crack cocaine (more fully described below), 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 1B, in Kings County. The defendant was the "target" of the search warrant.
The target location (the target location) was Apartment 1B at 1535 Sterling Place. The
search warrant application was supported by the sworn affidavit of Detective Rahman
and his testimony under oath before Justice Harrington who found probable cause that
evidence of a crime by the defendant existed at the target location and, accordingly
signed the "No-Knock" Warrant. The Warrant was executed six days later on December
30, 2014 and the defendant was arrested.
On December 31, 2014, the defendant was arraigned on the pending charges.
The People indicated that they were ready and the court deemed the first party accusatory
instrument an information. The case was then adjourned until January 5, 2015 and
referred to the Misdemeanor Brooklyn Treatment Court (MBTC) for evaluation. On
January 5, 2015, the People contended that as the case involved the execution of the
Warrant targeting the defendant no drug treatment offer was appropriate. The case was
further adjourned until February 3, 2015, for discovery by [*2]stipulation (DBS). On February 3, 2015, the People served
and filed DBS and the case was further adjourned until February 25, 2015 for the
production of the search warrant materials. On February 25, 2015, the People did not
have the Warrant materials and the matter was still further adjourned to March 24, 2015.
Off-calendar, and prior to the March 24, 2015 scheduled court date, the People submitted
proposed redactions of the search warrant affidavit and the minutes to the court which
reviewed the redactions, returned the accepted redactions of the search warrant affidavit
to the People, and by Decision and Order, dated March 5, 2015, in accordance with CPL
§240, ordered the People to serve the search warrant affidavit and minutes (with the
proposed redactions which had been accepted) upon the defendant within seven days.
Additionally, the Court directed that the defendant serve and file any motion to
controvert the search warrant materials within 45 days following receipt thereof.
On April 14, 2015, the defendant filed the instant motion. This court
reviewed the defendant's motion and found that the defendant had standing to challenge
the search as the defendant had a reasonable expectation of privacy in his own apartment.
Inasmuch as the Warrant was based in part upon Detective Rahman's reliance on
information from a confidential informant (CI) who had not sworn to the information
provided to the detective under penalties of perjury before Justice Harrington, this court
ordered by Decision and Order, dated May 20, 2015, an in camera hearing (the
Darden Hearing), to (i) verify the existence of the confidential informant and (ii) to
ensure that the information provided to Justice Harrington was not fabricated.[FN1]
Defense counsel was ordered to submit any proposed written questions for the court's
consideration to be posed to the CI by June 5, 2015. On June 4, 2015, defense counsel
served written questions on the People but did not file the same with the court. Prior to
the commencement of the Darden Hearing, the People turned over to the court the
questions that defense counsel had served on the People.
On June __[FN2]
, 2015, the Court conducted the Darden Hearing. Detective Rahman appeared and
testified under oath. The CI however did not appear. At the Darden Hearing, Detective
Rahman testified that he has been a member of the New York City Police Department for
approximately 21 years and during his tenure had participated in the execution of over
200 search warrants. The detective testified that he has worked with the CI in the past
and that on all prior occasions the CI has provided reliable information that resulted in
the issuance of numerous search warrants and the arrest of individuals. Detective
Rahman also testified 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 one twist of a 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 appear at the Darden Hearing on the first date that
had been scheduled and the detective indicated that the CI was fearful for the CI's [*3]personal safety. Following that testimony, this court
scheduled a second day for the Darden Hearing and directed the People to either have the
CI appear and testify under penalties of perjury or be prepared to prove the existence of
the CI by extrinsic evidence.
On June __[FN3]
, 2015, the second date of the Darden Hearing, both Detective Rahman and the CI
appeared and testified under penalties of perjury. Detective Rahman testified that the CI,
who was present at the hearing, was the person with whom he had conducted the two
controlled buys at the target location that he had testified to on the first day of the Darden
Hearing, and which are discussed in the search warrant affidavit presented to the court
which issued the Warrant.
The CI testified that the CI has been working with Detective Rahman as a
confidential informant for several months and had previously provided information that
had resulted in the issuance and execution of narcotics related search warrants and the
subsequent arrest of individuals. In addition, the CI testified that on two occasions prior
to the issuance of the Warrant the CI had purchased crack cocaine from the defendant at
the target location using money provided to the CI by Detective Rahman. The CI also
described the building in which the target location is located, the burgundy colored
apartment door marked "1B" and the interior of the apartment. The CI further testified
that the CI entered the target location with a sum of United States currency, provided to
the CI by Detective Rahman, with no narcotics, but then returned to Detective Rahman
with one twist of crack cocaine immediately after exiting the target location and without
first entering any other apartments at 1535 Sterling Place or going to any other
location.
DISCUSSION
CONTROVERT THE SEARCH WARRANT
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
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. People v Griminger, 71 NY2d 635, 639 (2d Dept., 1988).
"The Anguilar-Spinelli two-prong inquiry has proven a satisfactory
method of
providing reasonable assurance that probable cause determinations are based
on information derived from a credible source with firsthand information, and we
are not convinced that the Gates test offers a satisfactory alternative."
Griminger, 71 NY2d at 639.
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.[FN4]
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. As discussed above, because the search warrant in this case was issued based
on information provided by a confidential information, the court ordered an in
camera hearing in accordance with People v Darden, supra.
Veracity of the CI's knowledge
Detective Rahman's affidavit presented to Justice Harrington indicates, and
Detective Rahman testified at the 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 Darden Hearing, the CI
corroborated Detective Rahman's affidavit and testimony that the CI had [*4]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 Darden Hearing that the CI participated in two controlled
crack cocaine buys from the defendant at the target location. The CI described the two
controlled buys as well as the building, apartment door and inside of apartment 1B where
such controlled buys took place. The CI's testimony was consistent both with Detective
Rahman's affidavit that had been presented to Justice Harrington at the time the Warrant
was issued and Detective Rahman's testimony at the 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 beyond cavil 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.
REDACTION OF SEARCH WARARNT 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 [*5]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 Warrant was issued.
For the foregoing reasons, and because Detective Rahman had testified at the 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.
DISMISS WITH PREJUDICE
The defendant argues that the Warrant was supposed to be issued for
apartment "3B" and not apartment "1B" and that, accordingly, the contraband vouchered
in connection with the execution of the search warrant should be suppressed and the case
dismissed with prejudice. In other words, the defendant argues that essentially Detective
Rahman "got lucky" in finding narcotics in apartment "1B" when he intended apartment
"3B" as the location for the search. The court does not agree. Having reviewed the
affidavit of Detective Rahman and the minutes of his testimony at the Darden Hearing, it
appears that although search warrants were issued for many apartments at 1535 Sterling
Place including Apartment 3B, no mistake was made in the issuance of the Warrant for
apartment "1B" as the location for this defendant notwithstanding that Justice Harrington
misspoke "3B" on the record when he issued the search warrant on December 24, 2014.
On the record before this Court, there can be no doubt that the Warrant was issued based
upon probable cause, and that every other reference in the record related to the search
warrant application refers to apartment "1B". Therefore, the defendant's motion to
dismiss with prejudice is denied.
RESERVATION OF RIGHTS
The branch of the defendant's motion seeking the right to make further
motions is granted to the extent provided for by CPL § 255.20.
The foregoing constitutes the decision and order of the court.
Dated: Brooklyn, NY
June 22, 2015
________________________
ANDREW BORROK
J.C.C.
Footnotes
Footnote 1:See People v
Darden, 34 NY2d 177 (1974).
Footnote 2:Intentionally omitted.
Footnote 3:Intentionally omitted.
Footnote 4:See People v
Edwards, 95 NY2d 486, 492 (2000).