People v. Cantre

• Decision Date: 11 October 1983
• Citation: 95 A.D.2d 522,467 N.Y.S.2d 263
• Parties: The PEOPLE, etc., Appellant, v. Felipe CANTRE and Mayra Ayala, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 263

467 N.Y.S.2d 263

95 A.D.2d 522

The PEOPLE, etc., Appellant, v. Felipe CANTRE and Mayra Ayala, Respondents.

Supreme Court, Appellate Division Second Department.

Oct. 11, 1983.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Bruce B. Berger and Joel M. Goldberg, Asst. Dist. Attys., Brooklyn, of counsel), for appellant.

Manuel Nelson Zapata, New York City (Jerald Rosenthal, Brooklyn, of counsel), for respondent Cantre.

Robert I. Strougo, New York City, for respondent Ayala (relying on the brief submitted on behalf of respondent Cantre).

Before MOLLEN, P.J., and DAMIANI, TITONE and BRACKEN, JJ.

MOLLEN, Presiding Justice.

On this appeal, the People challenge an order which granted the defendants' motions to controvert a search warrant and to suppress the evidence seized under its authority. The warrant was issued upon information provided by one Rafael Lopez. The central question is whether the Judge who issued the warrant was justified in concluding that Mr. Lopez was a reliable informant.

On December 11, 1980, Detective Richard Sanchez appeared in Criminal Court, Kings County, with an application for a warrant authorizing the search of a certain Brooklyn apartment. In his affidavit in support of the application, Detective Sanchez averred in part as follows:

"I have information based upon statements made to me by Rafael Lopez, Jr. of Brooklyn, NY concerning a burglary that occured [sic] at a jewelry store at 1672 Pitkin Avenue, Bklyn, during the weekend of December 5-7, 1980. The informant has stated to me that at 2 AM in the lobby of 301 Sutter Ave, he saw four men known to him enter the lobby carrying sacks containing various items including gold watches, necklaces, chains, rings, coins and a quantity of U.S.C. and that one of the men Felipe Cantre who resides at 301 Sutter Ave, Apt 2B boasted that the property was 'all theirs' and thaey [sic] had just 'hit' a jewelry store. Informant further stated to me that he went into the apartment of Felix Cantre and Alberto Ayala, one of the four men who entered the lobby, and was shown the jewelry again. Informant tells men [sic] that at 4:45 P.M. on 12/11/80 he was again present in Apt. 2B with Felipe cantre that Cantre again showed him various items of gold including a medallion, chains, 2 rings and several watches and said that the items were from the jewelry store on Pitkin Avenue."

The court granted the application and issued a warrant authorizing the search of the apartment. The search uncovered various items of jewelry which had been stolen from the Pitkin Avenue jewelry store. Both defendants were arrested at the time of the search.

Following their indictment, the defendants moved to controvert the warrant and suppress the evidence seized in the apartment. At the subsequent suppression hearing, the People called Detective Sanchez who testified that sometime between Friday, December 5 and Sunday, December 7, 1980, a jewelry store on Pitkin Avenue in Brooklyn was burglarized, and that he was assigned to investigate the crime. Some three days later, the detective received an anonymous telephone call from a man who claimed to have information about the burglary. The anonymous caller also inquired about reports that a $5,000 reward had been posted for the return of the property and the arrest of the individuals involved. The detective confirmed that a reward had been offered and told the caller that, if his information proved to be true and led to the recovery of the property and the arrest of the perpetrators, the "proper persons" would be informed.

Later that day, the detective met the caller who proved to be Rafael Lopez, an unemployed 19-year-old with no prior criminal convictions. Mr. Lopez told the detective that, on the night of the burglary, he was in the lobby of 301 Sutter Avenue when defendant Cantre approached him and asked "if he wanted to accompany them for a score to make some money". Lopez refused the offer and remained in the lobby. A few hours later, Cantre and three others returned, carrying shopping bags filled with jewelry. Cantre saw Lopez and waved cash in his face. He boasted that he and his companions had just "hit" a jewelry store, and said, "You see what I mean, man. You should have came [sic] with us." Lopez then accompanied Cantre and the others to apartment 2B but did not enter. Mr. Lopez told Detective Sanchez that that apartment was shared by defendants Cantre and Ayala.

The day after meeting Detective Sanchez, Mr. Lopez twice returned to the precinct to give him additional information. Lopez reported that earlier that day he had been allowed to enter the defendants' apartment and, while inside, had seen Cantre remove jewelry from a kitchen cabinet. Cantre had shown Lopez some 20 items, including watches and chains.

Subsequently, an application for a search warrant, identifying Rafael Lopez as the source of information linking the defendants to the Pitkin Avenue burglary, was presented to the issuing Judge by Detective Sanchez. Mr. Lopez was sitting in the first row of the courtroom during this presentation. In the course of the subsequent suppression hearing, the detective testified that he thought that he had informed the issuing Judge of Mr. Lopez's presence and may have even pointed him out. However, the Judge was not advised that Mr. Lopez inquired about the $5,000 reward or that Detective Sanchez had given him a nominal amount for "food money" ($30 to $40). Mr. Lopez was not called upon by the Judge to make a statement.

Criminal Term granted the defendants' motions, reasoning that the information presented to the issuing Judge was insufficient to establish the informant's reliability. We now reverse.

It has long been the rule that, where an application for a search warrant is based not upon the affiant's personal knowledge but upon information provided to him by an informant, a warrant may issue only if the Judge to whom the application is addressed finds sufficient grounds to conclude both that the informant was reliable and that his information was credible (see, e.g., Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723). Stated otherwise, this two-pronged test requires that the issuing Judge be apprised of "some of the underlying circumstances from which the officer concluded that the informant was credible and reliable" and "some of the underlying circumstances from which the informant concluded that illegal activities were taking place" (People v. Wirchansky, 41 N.Y.2d 130, 131, 391 N.Y.S.2d 70, 359 N.E.2d 666; see, also, People v. Elwell, 50 N.Y.2d 231, 236, 428 N.Y.S.2d 655, 406 N.E.2d 471; People v. West, 44 N.Y.2d 656, 657, 405 N.Y.S.2d 29, 376 N.E.2d 190; People v. Hanlon, 36 N.Y.2d 549, 556, 369 N.Y.S.2d 677, 330 N.E.2d 631). Although the Supreme Court has recently held that strict adherence to the two-pronged test is no longer required as a matter of Federal constitutional law (see Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527), we need not reach the issue of whether such adherence remains a requirement of our State Constitution. We hold only that, in the case at bar, the two-pronged test was satisfied.

All members of this court agree with Criminal Term's finding that the issuing Judge was sufficiently apprised of "some of the underlying circumstances from which the informant concluded that illegal activities were taking place" (People v. Wirchansky, supra, 41 N.Y.2d p. 131, 391 N.Y.S.2d 70, 359 N.E.2d 666; see, also, Aguilar v. Texas, supra, 378 U.S. p. 114, 84 S.Ct. at p. 1513). The application for the warrant asserted that Mr. Lopez had seen the proceeds of the robbery on three separate occasions, twice in the apartment shared by the two defendants. Mr. Lopez had reported further that defendant Cantre had boasted to him that he and his companions had "hit" a jewelry store. Thus, the application was sufficient to demonstrate that Mr. Lopez's information was based upon his personal observations and upon statements made directly to him.

The question dividing this court is whether the issuing Judge was sufficiently informed of "some of the underlying circumstances from which [Detective Sanchez] concluded that [Mr. Lopez] was credible or reliable" (People v. Wirchansky, supra, 41 N.Y.2d p. 131, 391 N.Y.S.2d 70, 359 N.E.2d 666; see, also, Aguilar v. Texas, supra). The answer to this question depends at least to some extent upon Mr. Lopez's status as an informant.

The law is well settled that, for the purpose of establishing reliability or credibility, identified private citizens providing law enforcement officers with information pertaining to criminal activity are to be treated differently from unnamed confidential paid informants (see, e.g., People v. Hicks, 38 N.Y.2d 90, 94, 378 N.Y.S.2d 660, 341 N.E.2d 227; United States v. Fooladi, 703 F.2d 180, 182-183 (5th Cir.1983); United States v. Dennis, 625 F.2d 782, 791 (8th Cir.1979); United States v. Burke, 517 F.2d 377, 380 (2nd Cir.1975); United States v. Bell, 457 F.2d 1231, 1238-1239 (5th Cir.1972); United States v. Nilsen, 482 F.Supp. 1335, 1340; United States v. LaFond, 482 F.Supp. 1379, 1384; People v. Inman, 80 A.D.2d 622, 436 N.Y.S.2d 63; People v. Crespo, 70 A.D.2d 661, 417 N.Y.S.2d 19; People v. Hyter, 61 A.D.2d 990, 402 N.Y.S.2d 602). The "stringent tests of credibility", obligating the search warrant applicant to satisfactorily establish the informant's credibility or reliability, are applicable to the unidentified, paid professional informant (see, e.g., United States v. Dennis, supra, p. 791). In the case of a citizen informant, "there is 'built in' a substantial basis for crediting [his] reliability * * * and the credibility of his conclusion [that illegal activities were taking place]" (United States v. Nilsen, supra, p. 1340). An issuing Magistrate may reasonably rely on the information supplied by the latter (see, e.g., United States v. McCrea, 583 F.2d 1083, 1085 (9th Cir.1978)).

The...