People v. Bigelow

• Decision Date: 26 November 1985
• Parties: , 488 N.E.2d 451, 54 USLW 2308 The PEOPLE of the State of New York, Appellant, v. Richard James BIGELOW, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 630

497 N.Y.S.2d 630

66 N.Y.2d 417, 488 N.E.2d 451, 54 USLW 2308

The PEOPLE of the State of New York, Appellant, v. Richard James BIGELOW, Respondent.

Court of Appeals of New York.

Nov. 26, 1985.

Michael F. Griffith, Dist. Atty., Warsaw, (John L. Callaghan of counsel), for appellant.

Alan S. Hoffman for respondent.

Jerrold L. Neugarten, Anthony J. Girese and Norman Barclay, New York City, for New York State Dist. Attys. Ass'n., amicus curiae.

Mark J. Mahoney, Buffalo, Ephraim Margolin, San Francisco, Cal., Jonathan E. Gradess and Jean Corigliano, Albany, for The National Association of Criminal Defense Lawyers and another, amici curiae.

OPINION OF THE COURT

SIMONS, Judge.

On December 26, 1981 while driving in the Village of Arcade, New York, defendant was arrested without a warrant and his automobile seized. He was subsequently charged and convicted of criminal possession of a controlled substance in the third degree and criminal possession of hypodermic needles. The contraband upon which his conviction rests was not seized by a search incident to the arrest but was discovered by subsequent searches of his person and automobile authorized by a search warrant issued 30 minutes after the arrest.

Before pleading guilty defendant moved to suppress the evidence, but the suppression court found probable cause for the arrest and the search based on evidence known to the police through their investigation and on hearsay information supplied them by an informant. The Appellate Division reversed the judgment, granted the motion to suppress and remitted the matter to County Court for further proceedings on the indictment (see, 105 A.D.2d 1110, 482 N.Y.S.2d 397). It found probable cause lacking for both the arrest and the search because the police failed to demonstrate the informant's basis of knowledge under the Aguilar-Spinelli rules applicable to the evaluation of hearsay (see, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637). The court noted, however, that it would find the warrant application sufficient under the "totality of the circumstances" test enunciated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, if this court adopted that test.

As we have noted before, probable cause determinations that involve questions of fact, or mixed questions of law and fact, are generally beyond the jurisdiction of this court (see, People v. McRay, 51 N.Y.2d 594, 601, 435 N.Y.S.2d 679, 416 N.E.2d 1015; People v. Wharton, 46 N.Y.2d 924, 925, 415 N.Y.S.2d 204, 388 N.E.2d 341, cert. denied, 444 U.S. 880, 100 S.Ct. 169, 62 L.Ed.2d 110). When the issue is the minimum showing necessary to establish probable cause, howeve a question of law is presented for our review (see, People v. Johnson, 66 N.Y.2d 398, 497 N.Y.S.2d 618, 488 N.E.2d 439 [decided herewith]; People v. McRay, supra ). This appeal raises such a question.

The police first became suspicious of defendant during an investigation of drug trafficking in the western New York area when they acquired information which led them to suspect that defendant was involved in narcotics transactions. Specifically, the police learned that defendant had telegraphed almost $25,000 to a Florida resident over a four-month period and that the address to which the money was sent was near an area of Florida known for drug activity; that he had rented a post-office box in Caneadea, New York, where he had received two packages from Florida, one in August 1981 and the other in September of 1981; that defendant had rented a post-office box in Arcade, New York, and that he had received mail there in December 1981. Finally, the police knew that defendant frequented the apartment of Kenneth Sutz, a known drug user and sometime drug dealer.

On December 24, 1981 the police observed defendant go to the Arcade Post Office, apparently to pick up a package from Florida addressed to him. He was unable to do so because the post office was closed. The police returned to the post office on December 26, 1981 and saw defendant pick up a package and then drive to the Sutz apartment. While some officers maintained the surveillance of the Sutz apartment, two others returned to the Arcade Police Department and contacted an informant who had previously indicated he had some knowledge about defendant and Sutz. The informant came to the station and was interviewed by a police officer for approximately 15 minutes. He told the officers that the defendant was a "drugger" who had arrived in the Arcade area from Florida during the summer of 1981, that he had no job but plenty of money, that he was dealing in cocaine shipped from Florida and that he had a close relative in Florida. The informant told the police that the defendant had conducted drug transactions as recently as "Christmas week of 1981." (The suppression court found, however, that the informant had not seen defendant sell drugs or in possession of them at any time.)

After the interview with the informant had concluded, one of the officers telephoned a local County Judge and requested him to come to the police department to issue a search warrant based upon an application being prepared. Before the application could be completed or the warrant signed, howeve the officer received word that the defendant had left the Sutz apartment, put a suitcase in his car, and driven away. The officers left the station, joined the surveillance team and helped intercept defendant's automobile. Defendant was asked to get out, frisked, read his Miranda rights and then taken to the police station where he was held and his automobile impounded until the search warrant was executed. Defendant was seized within the meaning of the 4th Amendment proscriptions at that time and unless the police had probable cause to hold him, his arrest was unlawful (see, Dunaway v. New York, 442 U.S. 200, 207, 99 S.Ct. 2248, 2253, 60 L.Ed.2d 824).

The County Judge arrived at the station after defendant had been taken into custody. After reading the warrant application and taking in camera testimony from the officer (the Judge did not interview the informant), he approved a search warrant authorizing police to search defendant's person and vehicle for cocaine. When the police executed the warrant, they discovered a quantity of amphetamines, hypodermic needles and over $4,500 in cash, but no cocaine. Defendant was formally arrested and, after his motion to suppress the evidence was denied, he pleaded guilty.

The People contend that the arrest was lawful, but that even if it was not, the conviction should be upheld because the search warrant was supported by probable cause under the Aguilar-Spinelli test and the contraband seized pursuant to it supplied the necessary evidence of guilt. Alternatively, they claim the evidence supporting the warrant established probable cause when judged by the "totality of the circumstances" test recently adopted by the Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, supra. Finally, they claim that even if probable cause was not demonstrated, the police acted in objective good faith in executing the warrant and, therefore, under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, reh. denied, 468 U.S. 1250, 105 S.Ct. 52, 82 L.Ed.2d 942, the exclusionary rule does not require suppression of the evidence. The People did not urge below that exigent circumstances justified the police action and consequently the courts did not rule on that issue.

There should be an affirmance. The evidence in the record does not support a finding of probable cause for the arrest or the search when measured by either the Aguilar-Spinelli rule or the Gates rule and exclusion cannot be avoided because, as a matter of State constitutional law, we decline to apply the Leon good-faith standard. Our analysis traces traditional lines of authority, compares the rule in Illinois v. Gates and its effect on these facts and then considers the People's contention that the "good faith" exception stated in United States v. Leon (supra) warrants admission of the evidence seized pursuant to the warrant. Our discussion of the Gates holding addresses the People's contentions. It is not intended as approval or adoption of that decision as a matter of State constitutional law.

Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely 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 in a certain place (People v. McRay, 51 N.Y.2d 594, 602, 435 N.Y.S.2d 679, 416 N.E.2d 1015, supra; see also, Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, reh. denied 338 U.S. 839, 70 S.Ct. 31, 94 L.Ed. 513). The legal conclusion is to be made after considering all of the facts and circumstances together. Viewed singly, these may not be persuasive, yet when viewed together the puzzle may fit and probable cause found (see generally, Illinois v. Gates, 462 U.S. 213, 231-235, 103 S.Ct. 2317, 2328-31, 76 L.Ed.2d 527, supra; United States v. Davis, 458 F.2d 819, 821 (D.C.1972); 1 LaFave, Search and Seizure § 3.2 et seq.).

Probable cause may be supplied, in whole or part, through hearsay information (see, People v. Landy, 59 N.Y.2d 369, 375, 465 N.Y.S.2d 857, 452 N.E.2d 1185; People v. Rodriguez, 52 N.Y.2d 483, 488-489, 438 N.Y.S.2d 754, 420 N.E.2d 946; People v. Hanlon, 36 N.Y.2d 549, 556, 369 N.Y.S.2d 677, 330 N.E.2d 631). New York's present law applies the Aguilar-Spinelli rule for evaluating secondhand information and holds that if probable cause is based on hearsay statements, the police must establish that the informant had some basis for the knowledge he transmitted to them and that he was reliable (People v. Landy, supra, 59 N.Y.2d p. 375, 465...