People v. Elwell

• Citation: 50 N.Y.2d 231,406 N.E.2d 471,428 N.Y.S.2d 655
• Parties: , 406 N.E.2d 471 The PEOPLE of the State of New York, Appellant, v. Steve J. ELWELL, Respondent.
• Decision Date: 06 May 1980
• Court: New York Court of Appeals

Page 655

428 N.Y.S.2d 655

50 N.Y.2d 231, 406 N.E.2d 471

The PEOPLE of the State of New York, Appellant, v. Steve J. ELWELL, Respondent.

Court of Appeals of New York.

May 6, 1980.

D. Bruce Crew, III, Dist. Atty. (Kevin M. O'Shea, Asst. Dist. Atty., of counsel), for appellant

Thomas E. Reilly, Elmira, for respondent.

OPINION OF THE COURT

MEYER, Judge.

The core issue on this appeal is whether a warrantless search is permissible on the basis of information supplied without any indication of how the informant acquired his knowledge when the police have been able to confirm by their own inquiry and observation details supplied by the informant which are personal in nature and not in any way suggestive of criminal activity. In the jargon of criminal law practitioners, we deal with the Spinelli ¹-Draper ² aspects of the second ("basis of knowledge") prong ³ of the Aguilar ⁴ test. The Trial Judge denied suppression of the gun seized as a result of the search, after which defendant pleaded guilty and then appealed the denial of his suppression motion (CPL 710.70, subd. 2). The Appellate Division, 66 A.D.2d 172, 413 N.Y.S.2d 225, by a divided court, reversed. The majority concluded on the basis of our decisions in People v. West, 44 N.Y.2d 656, 405 N.Y.S.2d 29, 376 N.E.2d 190, People v. Wirchansky, 41 N.Y.2d 130, 391 N.Y.S.2d 70, 359 N.E.2d 666, and People v. Hanlon, 36 N.Y.2d 549, 369 N.Y.S.2d 677, 330 N.E.2d 631, that, as a matter of law, probable cause had not been demonstrated since the observations by the police were as consistent with innocent behavior as with criminal conduct. The dissenters reasoned, on the basis of Spinelli and Draper, that the latter fact was not dispositive when the corroborated noncriminal facts set "the information apart from the category of rumor" and "supplied the police with an ample basis for crediting the information. ⁵ (66 A.D.2d at pp. 176, 177, 413 N.Y.S.2d at pp. 229.)

We affirm the Appellate Division's holding that for police observation to constitute the verification that will establish probable cause and permit a warrantless search or arrest predicated upon data from an informer who has not revealed the basis for his knowledge, it is not enough that a number, even a large number, of details of noncriminal activity supplied by the informer be confirmed. Probable cause for such an arrest or search will have been demonstrated only when there has been confirmation of sufficient details suggestive of or directly related to the criminal activity informed about to make reasonable the conclusion that the informer has not simply passed along rumor, or is not involved (whether purposefully or as a dupe) in an effort to "frame" the person informed against. To the extent that Spinelli and Draper may be read as imposing a less stringent test under the Federal Constitution, ⁶ we decline to construe the parallel provision of our State Constitution ⁷ similarly and adopt the rule set forth above as a matter of State constitutional law. ⁸

The context in which the issue arises is a telephone call received on February 18, 1977 at 11 p. m. by Charles Hancock, an investigator in narcotic matters employed by the City of Elmira, from a person with whom he had previously dealt and who had provided him with information which Hancock had been able to verify as reliable. The informant advised Hancock that Steve Elwell and Joanne Smith were in possession of a .25 caliber automatic pistol, were operating a red Le Mans bearing New York registration 915 DWY with a CB antenna on the back, that the car was in the vicinity of Lincoln Street and that Elwell and Smith would be leaving the area at any time. The informant did not say how he knew or obtained the information he gave Hancock.

Shortly thereafter Hancock, together with a New York State police investigator, drove down Lincoln Street until they found the described car. A license check showed the vehicle to be registered to Joanne Smith. Not long thereafter a woman drove the Le Mans out of the driveway in which it was parked. The investigators followed her to a grocery store and then back to the Lincoln Street driveway. Sometime later the same woman, now accompanied by a man, entered the vehicle and drove away, the man driving. A short distance away the car was stopped, the occupants were identified as Steve Elwell and Joanne Smith and advised that the investigators had information that Elwell had a loaded firearm in his possession. A search of Elwell's person was negative but on looking under the front seat the investigators found a loaded .25 caliber Colt automatic. The gun was not in plain view although as the State investigator approached the car he was able to see on the back seat a shoe box on top of which were some targets used for target practice. ⁹

It would be an act of supererogation to repeat the history so fully reviewed in Mr. Justice Douglas' dissent in (Draper v. United States, supra, 358 U.S. at p. 314, 79 S.Ct. at p. 333), of the oppressive practices which led to the adoption of the Fourth Amendment. Suffice it to note that the purpose of the amendment, as well as of the corresponding State constitutional provision, is protection of innocent and guilty alike from search or arrest based upon suspicion or upon common rumor and report rather than upon proof of reasonable grounds for believing a crime to have been committed, either through direct evidence or through reasonable inferences from suspicious acts. The reason as so succinctly put by Professors Hogan and Snee in their article entitled The McNabb-Mallory Rule: Its Rise, Rationale and Rescue (47 Geo.L.J. 1, 22) is that: "Arrest on mere suspicion collides violently with the basic human right of liberty. It can be tolerated only in a society which is willing to concede to its government powers which history and experience teach are the inevitable accoutrements of tyranny."

Out of this deep concern for individual liberty have evolved the concepts that the standards for assessment of the existence of probable cause are at least as stringent for a warrantless search or arrest as are those applied when reviewing the materials presented to a Magistrate as the basis for his issuance of a warrant (Whiteley v. Warden, 401 U.S. 560, 566, 91 S.Ct. 1031, 1035, 28 L.Ed.2d 306) ¹⁰ and that though the issuance of a warrant or the making of a warrantless search or arrest may be based upon hearsay information the Magistrate or officer must be informed of the underlying circumstances from which the informant concluded that there was criminal activity and which establish the informant's reliability (Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723). The purpose for requiring that the hearsay informant be of known reliability and that the source of his knowledge be revealed is to assure that action infringing upon a person's liberty not be taken without "reasonably trustworthy information (of facts and circumstances) sufficient in themselves to warrant a man of reasonable caution in the belief" that an offense has been committed (Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543; Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142; see CPL 140.10, subd. 1, par. (b)).

The central thought, therefore, is that there be evidence suggestive of criminal activity of a quality, though hearsay, reasonably to be acted upon. The possibility that the informant's guile, gregariousness or gullibility may cause him to pass on unreliable or even deliberately false information mandates Aguilar's "reliability" and "basis of knowledge" tests, and requires that when either is not met the search or arrest be invalidated unless the quality of the information can be otherwise established.

Reliability of the informant as distinct from his information can be established either by the arresting, or warrant-seeking, officer attesting to past instances of reliability or by the personal observation by the police of sufficient details corroborative of the informant's data to indicate that he knew whereof he spoke. Reliability of the informant, therefore, can be corroborated by details concerning dress, mannerisms, route or conveyance to be used by the subject of the information, which in themselves are wholly unsuggestive of crime.

That the informant has demonstrated general reliability in the past, is, however, no index of the reliability of specific information he passes on; he may have received it from a totally unreliable source. There being no presumption that the informant speaks with personal knowledge (Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503; People v. West, 44 N.Y.2d 656, 657, 405 N.Y.S.2d 29, 376 N.E.2d 190, supra; People v. Hendricks, 25 N.Y.2d 129, 137, 303 N.Y.S.2d 33, 250 N.E.2d 323), the basis of knowledge test is, therefore, intended to weed out, as not of sufficient quality, data received by the informant from others who have not themselves observed facts suggestive of criminal activity. It follows that when the basis of the informant's knowledge is not given, personal police observation corroborative of data received from the informant should be regarded as sufficient only when the police observe facts suggestive of criminal activity. Otherwise privacy and liberty may be invaded by a warrantless search or arrest based solely on the quality of the informant and not at all on the quality of the information, i. e., its suggestiveness of criminal activity.

With few exceptions ¹¹ our decisions, while not fully articulating the basis for so doing, have followed that reasoning. Thus in People v. West, 44 N.Y.2d 656, 405 N.Y.S.2d 29, 376 N.E.2d 190, supra, we reversed and dismissed the indictment where arrest was made on information which did not reveal the informant's source and police surveillance disclosed only that defendant had a conversation with a third person in front of his home and was present at the...