People v. Asaro

• Court: New York Supreme Court
• Writing for the Court: PETER T. FARRELL
• Citation: People v. Asaro, 57 Misc.2d 373, 291 N.Y.S.2d 613 (N.Y. Sup. Ct. 1968)
• Decision Date: 24 June 1968
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Richard ASARO, Lawrence Conklin, Frank Ferraro, Lebro Ferraro, Edward Foley, Milton Kellog, William D. Kieswer, Andrew Zum and Martin Skiffington, Defendants.

Page 613

291 N.Y.S.2d 613

57 Misc.2d 373

The PEOPLE of the State of New York, Plaintiff, v. Richard ASARO, Lawrence Conklin, Frank Ferraro, Lebro Ferraro, Edward Foley, Milton Kellog, William D Kieswer, Andrew Zum and Martin Skiffington, Defendants.

Supreme Court, Queens County, Criminal Term Part I.

June 24, 1968.

Leonard Gordon, Far Rockaway, for Richard Asaro and Martin skiffington.

George V. Marfeo, Bronxville, for Lawrence Conklin.

Michael C. Curci, Brooklyn (of counsel), for Frank Ferraro, Lebro Ferraro and Edward Foley.

John [57 Misc.2d 374] E. Shaffer, Syracuse, for Milton Kellog.

William Kerwick, Jamaica, for William D. Kieswer.

Robert J. Gill, Flushing (of counsel), for Andrew Zum.

Thomas J. Mackell, Dist. Atty. (Lawrence T. Gresser, Jamaica, of counsel), for the People.

MEMORANDUM

PETER T. FARRELL, Justice.

Opinion on decision of Motions for Suppression, etc.

The motions now decided, however styled, are treated as applications for orders suppressing the use in evidence--and directing the return--of property, including papers and personal effects seized in the execution of invalid search-warrants (Code Crim.Proc. secs. 813--c to 813--e). ¹ Insofar as they seek suppression of the things seized, the motions are granted. The applications for orders directing return of the property are granted as to the articles set forth in the schedules annexed to the respective short-form orders made and entered herewith. As to the remainder of the property taken under the warrants the motions are denied, without prejudice to the right of each moving party to bring on a new motion upon papers showing whether the items not theretofore returned are 'otherwise subject to lawful detention' (Code Crim.Proc. sec. 813--c) under applicable provisions of state, municipal or federal law, then in effect.

These motions are decided upon the respective warrants, the supporting affidavits (read collectively) and the credible evidence received upon an evidentiary hearing conducted in accordance with the provisions of an intermediate order of the court. My findings are embodied in the factual statements made in this opinion.

In granting these motions to the extent just indicated I hold (1) that all of the warrants in question were invalid because issued upon affidavits that were patently insufficient in that they failed to inform the issuing magistrate of the underlying circumstances supporting the affiant's conclusion that his confidential informants were credible and their information reliable; (2) that the deficiency was not cured by supplemental verbal statements which the officer-applicant made in response to the magistrate's questions on the occasions of the applications for the warrants because (a) the statements were not made under oath and (b) were not recorded nor judicially noted and are not a part of the record basis of the warrants. In view of these conclusions, it is unnecessary to pass upon the further issue arising from the magistrate's determination of probable cause for belief that some of the individuals possessed dangerous weapons, etc. upon their persons, in their homes or automobiles, upon broad allegations which, in most cases, fail to impute possession of anything specific to any named person in his 'above mentioned premises and automobile(s)' or anywhere else. ²

(1) I do not interpret the United States Supreme Court's preference for searches under warrants issued upon 'the informed and deliberate determinations of magistrates empowered to issue warrants' (Aguilar v. State of Texas, 278 U.S. 108, 110--111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723; United States v. Ventresca, 380 U.S. 102, 106--107, 85 S.Ct. 741, 745, 13 L.Ed.2d 684) as qualifying the well established rule that a warrant may rest upon hearsay information and need not reflect the direct personal observations of the affiant 'so long as the magistrate is 'informed of some of the underlying circumstances' supporting the affiant's conclusions and his belief that any informant involved * * * was 'credible' or his information 'reliable'. Aguilar v. State of Texas, supra, 378 U.S. at 114, 84 S.Ct., at 1514' (United States v. Ventresca, supra, 380 U.S. at 108, 85 S.Ct. at 745--746). No modification of constitutional standards is involved in the statement that 'affidavits for search warrants * * * must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion' nor is there any compromise with the propositions that probable cause cannot be made out by purely conclusory affidavits and that 'recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police.' However, 'where these circumstances are detailed, Where reason for crediting the source of the information is given * * * the courts should not invalidate the warrant by interpreting the affidavit in a hypertechincal, rather than a common-sense, manner.' (United States v. Ventresca, supra, 380 U.S. at 108--109, 85 S.Ct. at 746, Emphasis supplied). But what the highest court considered 'hypertechnical' was the Circuit Court's view that the affidavit was inadequate because the facts were not so detailed as to enable a reviewing court to single out any possible 'hearsay-upon-hearsay' and in shunning such 'an unduly technical and restrictive reading' (id. 380 U.S. at 110, 111, 85 S.Ct. 746, 747) the Supreme Court did not lessen the basic necessities.

'The holding of the * * * majority opinion * * * might be summarized thus: in a doubtful or marginal case a search under a warrant should be sustained; an affidavit for a search warrant may be based on hearsay So long as the magistrate is informed of the underlying circumstances which support the conclusion and belief of the affiant that his informer was credible or his information reliable * * *' (People v. Rogers, 15 N.Y.2d 422, 425, 260 N.Y.S.2d 433, 436, 208 N.E.2d 168, 170, emphasis supplied). 'The 'underlying circumstance' from which the affiant and the issuing officer in Ventresca could have concluded that the informants were credible or their information reliable was the fact that the informants were Government agents whose veracity could with relative assurance be relied upon' (People v. Montague, 19 N.Y.2d 121, 123, 278 N.Y.S.2d 372, 374, 224 N.E.2d 873, 874), or, 'were presumed to be reliable' (People v. Horowitz, 21 N.Y.2d 55, 59, 286 N.Y.S.2d 473, 475, 233 N.E.2d 453, 454). The affidavits in this case set forth no facts upon which the magistrate could have made an independent determination that the officer's informants were credible and their information reliable.

All were sworn to the same day, by the same officer, before the same magistrate and in all but one the affiant stated that he had received recent information from 'a reliable and confidential informant' (the other assigned it to a 'reliable and confidential source') but nowhere did he disclose the fact that the informant was a fellow-police officer assigned to investigate the matter and that in the performance of his duty the unidentified informant had 'joined' the 'violent organization' mentioned, and thus gained direct personal knowledge of the facts abridged in the affidavit. The omission violated the precepts of both the federal and New York cases ³ and ignored a specific statutory directive that the affidavit 'describe (the) source (and) Facts indicating reliability of (the) source and nature of information' relied upon (Code Crim.Proc., sec. 797--a, emphasis supplied). The hearing-evidence justifies an inference that because the magistrate considered the affidavits to be insufficient he interrogated the officer further.

(2) The warrants now under review were part of some twenty which the magistrate was called upon to issue in one day. Some were proferred in the morning, in his chambers, and the others at his home, about nine o'clock that night. The Judge spent about a half-hour in consideration of the application on each such occasion. In the initial stage he questioned the affiant about the nature of the organization and thus elicited details not spread out in the affidavits. He inquired about the identity of the 'reliable and confidential informant' and the officer then disclosed that actually there were two such informants; that both were police officers operating as 'undercover' men in the conduct of an official investigation; that they had penetrated the organization by gaining membership therein and that revelation of their names would endanger their lives. The Judge read each affidavit as it was submitted and questioned the affiant at some length about the person against whom the warrant was sought. An assistant district attorney was present and took part in what the officer described as the 'conversation' between himself, the assistant and the magistrate but there is no evidence that the assistant's contributions were under oath and the officer's uncontradicted and credible testimony was that he was Not put under oath at or before the time of the interrogation. After its conclusion he was sworn As to the truth of the averments in the affidavit and the magistrate thereupon signed the jurat. The proceedings were not recorded, stenographically or otherwise and the Judge made no notes of his own.

(a) Had the affidavits themselves satisfied the judge of the existence of sufficient grounds for doing so, he could have issued the warrants forthwith (Code Crim.Proc., sec. 796) but if not, he was only empowered to 'examine, On oath, the person seeking the warrant' (Code Crim.Proc., sec. 794, emphasis supplied). In following the course that he did, he may very well have been misled by an authoritative comment to the effect that, as a matter of common judicial knowledge, 'search warrants have in practice usually been issued on affidavits with the Judge making such oral inquiries as he thought appropriate' (People...