People v. Hanlon

• Decision Date: 08 May 1975
• Citation: 369 N.Y.S.2d 677,36 N.Y.2d 549,330 N.E.2d 631
• Parties: , 330 N.E.2d 631 The PEOPLE of the State of New York, Respondent, v. David Smith HANLON, Appellant. The PEOPLE of the State of New York, Appellant, v. Joseph ROSEN, Respondent. The PEOPLE of the State of New York, Appellant, v. Frederick FREDERICKS, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 677

369 N.Y.S.2d 677

36 N.Y.2d 549, 330 N.E.2d 631

The PEOPLE of the State of New York, Respondent, v. David Smith HANLON, Appellant.

The PEOPLE of the State of New York, Appellant, v. Joseph ROSEN, Respondent.

The PEOPLE of the State of New York, Appellant, v. Frederick FREDERICKS, Respondent.

Court of Appeals of New York.

May 8, 1975.

Lloyd A. Feuer and George Sandberg, Patchogue, for appellant David Smith Hanlon.

Henry G. Wenzel, III, Dist. Atty. (David F. Jordan, Riverhead, of counsel), for respondent People.

Edward C. Cosgrove, Dist. Atty. (William E. Balthasar, Buffalo, of counsel), for appellant People.

Lawrence A. Schulz and Michael J. Brown, Buffalo, for respondent Joseph Rosen.

Salten Rodenberg and Nathan D. Seeberg, Buffalo, for respondent Frederick Fredericks.

WACHTLER, Judge.

These appeals involve two distinct factual situations. Since these defendants challenge the sufficiency of affidavits submitted in support of applications for search warrants, the appeals will be considered together. Our focus rests essentially on the troublesome issue of whether information supplied by undisclosed informants, which is recited in the supporting affidavit, constitutes probable cause so as to justify the issuance of a search warrant.

In the first case the defendant Hanlon was indicted for criminal possession of marijuana (Penal Law, Consol.Laws, c. 40, § 220.05), possession of a weapon as a misdemeanor (Penal Law, § 265.05, subd. (2)), criminal possession of biphetamine capsules (Penal Law, § 220.05) and resisting arrest (Penal Law, § 195.05). The defendant moved to vacate the search warrant and to suppress the evidence seized pursuant to that warrant.

The facts and circumstances surrounding the issuance of the search warrant were developed at the suppression hearing and are uncontroverted. The sole witness called by the People was Detective Daniel Graniello, a member of the Narcotics Squad of the Suffolk County Police Department, who testified that on September 14, 1970 he applied to the District Court for a search warrant. The warrant application and supporting affidavit were based on the detective's personal observations as well as the information garnered from an undisclosed informant to whom he had been introduced earlier that month. The affidavit asserted that the confidential informant had supplied the affiant with grounds to believe that various crimes were being committed at the defendant's premises.

Specifically, the informant had stated that there was a large quantity of marijuana in block form concealed in a kitchen closet and that a small caliber chrome-plated, pearl-handled derringer was hidden in a dresser drawer in the rear bedroom of the house. The affidavit further noted that this informant had supplied 'information in the past that has led to the arrest of three persons whose cases are still pending' and that the informant had personally purchased drugs from the defendant. The officer's personal observations consisted of surveillance of the target premises on several different nights from four to six hours during which known narcotics users, one of whom was named, were seen entering and leaving the premises.

At the conclusion of the detective's testimony, defense counsel moved to have the warrant vacated on the grounds that the supporting affidavit was insufficient in that it failed to establish the reliability of the informant, and the timeliness and basis of the underlying information. These contentions were rejected by the County Court. The Appellate Term affirmed this judgment on different grounds.

The second appeal involves two defendants, one Rosen and one Fredericks, who were charged with possession of gambling records (Penal Law, § 225.15, subd. 2), promoting gambling (Penal Law, § 225.05) and conspiracy (Penal Law, § 105.00). Both moved to vacate the search warrants and to suppress the evidence seized during their execution. As in the preceding case the facts and circumstances surrounding the issuance of the search warrants are uncontroverted, thus presenting our court with a question of law as to the sufficiency of the search warrant applications.

On November 8, 1971 Detective Dragonette, a member of the Gambling Unit of the Buffalo Police Department, applied to City Court for the issuance of search warrants for search of the person and automobiles of the defendant Fredericks and for search of the New Rosen Printing Corporation. The detective submitted one affidavit in support of all three warrants. This affidavit which noted that Detective Dragonette had over five years of police experience working exclusively on gambling, incorporated information regarding the manufacture and distribution of football pool tickets used for illegal gambling The source of this information was a confidential informer and the affiant's personal investigation.

The sequence of events leading to the application for the search warrants was related in the affidavit. On October 18, 1971 the confidential informant gave the police a complete description of the operation of the illegal football pool in Buffalo. The informer advised Detective Dragonette, who was in charge of the operation, where the tickets were printed, how many were printed and distributed each week, the times and dates of the pickups for distribution including specifics as to the system used for transporting and disseminating the tickets throughout the city.

Acting on this information the police gambling unit established a surveillance of Rosen's print shop. During this stakeout, the operation of the football pool unfolded precisely as the source had indicated. At this time, the police observed and recognized the principal distributor as the defendant Fredericks who was known to them personally as a professional bookmaker. This information was also attested to by the informant who stated that Fredericks, a bookmaker who specialized in sporting events, was a prominent operator who was acting under the direct authority of one of four named 'Kingpins'. The police surveillance continued for three weeks and their observations confirmed in every detail the pattern of activity revealed by the confidential informer. The remainder of the affidavit outlined the informant's past record of supplying accurate information including the dates and names of two specific individuals who had been arrested and convicted.

At the suppression hearing the defendants conceded the reliability of the informant but argued that the affidavit was insufficient in that it failed to set forth the source of the informant's knowledge. The defendants' motions were granted. The People appeal this disposition.

These appeals frame several key issues indigenous to the establishment of probable cause based on communications of an undisclosed informant. The Hanlon case challenges the timeliness of the information and the reliability of the informer. Both cases question the basis of the informant's knowledge.

Since colonial times it has been the task of the courts to reconcile the dichotomy between efficient law enforcement and individual rights. Our courts have frequently grappled with these often antithetical interests in a myriad of situations. One of the most troublesome has been the use of hearsay information to establish probable cause. Not until Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, did the Supreme Court approve this use of hearsay. However, hearsay information was only permitted where there was a 'substantial basis for crediting' that evidence. It was not until subsequent cases that the precise import of these words was developed.

The test governing the use of hearsay was enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, where a two-pronged approach was established. The first prong, also known as the veracity test, concerns the trustworthiness of the person supplying the information and requires the affiant to set forth the reasons which led him to conclude that the informer was credible or that his information was reliable. The second, or basis of knowledge test, is directed toward the trustworthiness of the information and requires that the affiant delineate the facts and circumstances relied on by the informer in reaching his conclusions. By applying this test to the application before him, a Magistrate would be assured that the source was reliable, and could judge for himself the persuasiveness of the facts relied on thereby determining the probable accuracy of the information and of the soundness of the logical deductions drawn from that information.

The next important case in this area was Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, which explicated the Aguilar test. In Spinelli the warrant application failed to satisfy the two-pronged analysis and was deemed insufficient. The court noted that the veracity test, either personal credibility or informational reliability, could be satisfied by independent investigation which tended to corroborate the hearsay report, but that the partial corroboration by the FBI in the case before it, could not support the inference that the informer was credible or had gathered his data in a reliable way.

Turning to the second test, the court held that the basis of knowledge may be established in the absence of a statement recounting the manner in which the information was gathered, by providing such a detailed description of the suspect's criminal activity as to constitute self-verification. (See, also, United States v. Ventresca, 380 U.S. 102, 108--109, 85 S.Ct. 741, 13 L.Ed.2d 684.) Again, the court concluded that the test had not been satisfied by the relatively innocuous activity revealed by the informer. The significance of Spinelli lies in its application of the Aguilar formula and the supplementation of both prongs by suggesting additional methods of satisfying them. Spinelli was followed by United States v. Harris...