People v. Gilligan
| Decision Date | 27 January 1975 |
| Citation | 363 N.Y.S.2d 760,80 Misc.2d 423 |
| Parties | The PEOPLE of the State of New York v. Joseph Francis GILLIGAN and Ralph Edward Stilz, Defendants. |
| Court | New York Supreme Court |
The defendants are charged with Criminal Possession of a Controlled Substance in the Fifth Degree.
Armed with a search warrant, detectives arrested the defendants at the Monroe County Airport. At the time of arrest the defendants had claimed from an airport freight office, and were in possession of, a suitcase, which when searched was found to contain a large quantity of marijuana. The defendants move to suppress this evidence claiming that the search warrant was improperly issued.
The search warrant, issued by a judge of the City Court of Rochester, was based upon an affidavit of a police officer of the City of Rochester who swore that he received information from a police officer in Tucson, Arizona that a suitcase had been delivered to the Tucson Airport for delivery to the defendant Joseph Gilligan in Rochester, New York by air freight; that a search warrant had been issued in Tucson and when this warrant was executed the Tucson police officer found that the suitcase contained marijuana; that the Tucson police officer knew it was marijuana since he had two years experience as a narcotics officer and was familiar with the appearance and odor of marijuana.
Defendants claim that the Rochester warrant was improperly issued because it was based upon nformation derived from an illegal search and seizure in Tucson. Specifically, it is claimed that the Tucson search warrant was invalid because it (a) was a general warrant, and (b) was issued without sufficient probable cause, and (c) was not legally executed.
The Tucson search warrant recited that there was at the Emery Air Freight Office at the Tucson Airport a specifically described suitcase which was addressed to the defendant Gilligan, and which contained a large amount of marijuana. The warrant authorized the search of 'the premises consisting of one story brick and steel frame building located at Emery Air Freight Office, Tucson International Airport * * * for the following property: An undetermined amount of marijuana.'
The defendants claim that the search warrant is too broad since it authorized the search of the entire Emery Air Freight premises for marijuana thereby allowing the police officers in Tucson to open and search all of the packages and luggage in that premises. (United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684.) As stated in People v. Johnson, 49 Misc.2d 244, 245, 267 N.Y.S.2d 301, 303, 'The warrant * * * need not be read with all the precision of a pedantic grammarian.'
In the Johnson case (supra), the warrant authorized the search of 'the premises located at 25 Trinity Place, Hewlett, County of Nassau, New York, occupied by Walter Johnson * * *.' It developed that 25 Trinity Place was an apartment house containing 25 apartments. It was held that the warrant did not authorize the search of all 25 apartments, but only the apartment occupied by Walter Johnson.
In People v. De Lago, 16 N.Y.2d 289, 290, 266 N.Y.S.2d 353, 355, 213 N.E.2d 659, 660, the warrant commanded the search of 'the structure, located at premises 2 and 3 Abendroth Place, Port Chester, New York, believed to be the framed (sic) dwelling occupied by one Anthony De Lago.' The caption of the warrant, however, described the place to be searched as 'The first floor apartment at 2 Abendroth Place, Port Chester * * *.' (pp. 290--291, 266 N.Y.S.2d p. 355, 213 N.E.2d p. 660.) This apartment was the one occupied by Anthony De Lago. The court held that the general description in the body of the warrant describing the premises to be searched was limited by the specific description in the caption.
To paraphrase Chief Judge Desmond in People v. Martell, 16 N.Y.2d 245, 247, 264 N.Y.S.2d 913, 914, 212 N.E.2d 433, 434: to get the sense out of a warrant one must read the whole of it. Here, reading the whole of the warrant, it is apparent that the sense of it is that only the particularly described suitcase addressed to the defendant Gilligan was to be opened and searched. Read in this sense, the warrant is not invalid as being general. (See also, People v. Mongno, 67 Misc.2d 815, 325 N.Y.S.2d 62.)
The affidavit supporting the application for the Tucson warrant recited that the affiant, Officer Morgan, had probable cause to believe that the particular described suitcase addressed to the defendant Gilligan was in the possession of the Emery Air Freight Office at the Tucson Airport and that the suitcase contained a large quantity of marijuana; that the affiant had two years experience in narcotics investigations and had investigated hundreds of marijuana cases and could identify marijuana by sight and smell; that he received information from a confidential informant that a brown suitcase at the Emery Air Freight Office possibly contained marijuana; that as a result he went to the Air Freight Office and asked to see the suitcase in question and he noticed a smell emitting from it; that he had smelled the same smell from other containers which have proved to contain marijuana.
Where probable cause is founded solely upon information supplied by a confidential informer, the affidavit should contain (1) facts showing the informer is reliable, and (2) the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were (Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723). Here, however, the probable cause was not based solely upon the tip supplied by an informer, but also upon the independent observations of the affiant police officer (People v. Munger, 24 N.Y.2d 445, 452, 301 N.Y.S.2d 39, 43, 248 N.E.2d 882, 885).
Information furnished by a police officer that he smelled the odor of marijuana emitting from a package or suitcase provides sufficient probable cause for the issuance of a search warrant (People v. Reisman, 29 N.Y.2d 278, 327 N.Y.S.2d 342, 277 N.E.2d 396; United States v. Pond, D.C., 382 F.Supp. 556).
The defendants claim they have a right to a hearing to determine the truthfulness of the statements in the Tucson affidavit. Recognizing a split of authority in the various jurisdictions, the Court of Appeals established the rule in New York that inquiry will be...
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Com. v. Weeks
...586 P.2d 210 (Ct.App.1978) (warrant to search "premises consisting of a package addressed to Larry Brown"); People v. Gilligan, 80 Misc.2d 423, 425, 363 N.E.2d 760 (N.Y.Sup.Ct.1975) (warrant to search suitcase addressed to defendant). There is no logical basis for distinguishing the figureh......