People v. Jackson

• Citation: 653 N.Y.S.2d 419,235 A.D.2d 923
• Parties: The PEOPLE of the State of New York, Respondent, v. Dwayne JACKSON, Also Known as Tyrone McMillian, Appellant.
• Decision Date: 30 January 1997
• Court: New York Supreme Court Appellate Division

Page 419

653 N.Y.S.2d 419

235 A.D.2d 923

The PEOPLE of the State of New York, Respondent, v. Dwayne JACKSON, Also Known as Tyrone McMillian, Appellant.

Supreme Court, Appellate Division,

Third Department.

Jan. 30, 1997.

Marshall Nadan, Kingston, for appellant.

Michael Kavanagh, District Attorney (Joan Gudesblatt Lamb, of counsel), Kingston, for respondent.

Before CARDONA, P.J., and MERCURE, CREW, WHITE and PETERS, JJ.

CARDONA, Presiding Justice.

Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered October 26, 1994, upon a verdict convicting defendant of the crimes of robbery in the first degree (two counts), criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree.

In October 1993, defendant was indicted on two counts of robbery in the first degree, one count of criminal use of a firearm in the first degree and one count of criminal possession of a weapon in the second degree. The charges stem from an August 25, 1993 gunpoint robbery of a Cumberland Farms store located in the City of Kingston, Ulster County. Following a jury trial, defendant was convicted on all counts and sentenced, as a second felony offender, to concurrent prison terms of 7 1/2 to 15 years. Defendant appeals.

Defendant argues that the police lacked probable cause and exigent circumstances to justify their warrantless entry into the residence where he was staying to effect his arrest. The relevant facts leading to defendant's arrest are drawn from the suppression hearing.

In the early morning hours of August 23, 1993, two individuals, described as black men dressed in dark clothing, robbed the Broadway Grocery store in Kingston. On August 25, 1993, two individuals matching the same description robbed the Cumberland Farms store in Kingston. In each incident, one man pointed a gun at the store clerk while the other took money from the cash register. During an interview conducted after the first robbery but prior to the second robbery, Jamal Clinton admitted to Kingston Police Detective Jeffrey Whitaker that he had acted as a lookout in the Broadway Grocery robbery. Inexplicably, the police released Jamal. Following the second robbery, Kingston Police Officer Gary Brooks was requested to locate Jamal as a possible suspect in the Cumberland Farms robbery. When Brooks arrived at Jamal's residence he encountered Jamal's twin brother, Jameel Clinton. Jameel informed Brooks that Jamal could be found at 60 Van Deusen Street with defendant and Mario Perez, that defendant and Perez were involved in the robbery and that the gun involved in the robbery could be found at that address. Based on that information, the police proceeded to 60 Van Deusen Street. While Brooks questioned a woman occupant at that address concerning the whereabouts of Perez, Whitaker saw a maroon gym bag three feet inside. He tapped the bag with his foot and heard a heavy metallic sound. He bent down, grabbed the bag and felt a pistol grip. At that point, the woman objected to the presence of the officers in her house. Whitaker then announced that he found a gun. He immediately seized Perez who was standing three feet from him and other officers entered the house and seized defendant, who was upstairs. Defendant and Perez were arrested for criminal possession of a weapon. A later search of the house pursuant to a search warrant revealed evidence of the robbery.

Defendant initially contends that the hearsay information related to the police by Jameel was insufficient to establish probable cause for his warrantless arrest. It is axiomatic that hearsay statements will be deemed sufficient to establish probable cause for a warrantless search or arrest only if both prongs of the Aguilar- Spinelli test (see, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723) are satisfied (see, People v. Griminger, 71 N.Y.2d 635, 639, 529 N.Y.S.2d 55, 524 N.E.2d 409; People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451), i.e., that "there is a reasonable showing that the informant was reliable and had a basis of knowledge for the statement" (People v. Hetrick, 80 N.Y.2d 344, 348, 590 N.Y.S.2d 183, 604 N.E.2d 732). Here, Jameel's status as a citizen informant satisfied the first prong of the test (see, People v. Parris, 83 N.Y.2d 342, 349-50, 610 N.Y.S.2d 464, 632 N.E.2d 870; People v. Hetrick, supra, at 349, 590 N.Y.S.2d 183, 604 N.E.2d 732; People v. Slater, 173 A.D.2d 1024, 1026, 570 N.Y.S.2d 691, lv denied 78 N.Y.2d 974, 574 N.Y.S.2d 954, 580 N.E.2d 426).

Turning to the "basis of knowledge" requirement, we conclude that it was not satisfied. Notably, Jameel's information contained no statement that it was based on personal observation (see, People v. Bigelow, supra at 424, 497 N.Y.S.2d 630, 488 N.E.2d 451; see also, People v. Parris, supra at 350, 610 N.Y.S.2d 464, 632 N.E.2d 870). The People argue that Jamal was the source of Jameel's information. Even assuming that Jamal conveyed this information to Jameel, a proposition lacking support in the record, Jamal's basis of knowledge must still be demonstrated inasmuch as this information constitutes double hearsay (see, People v. Rosenholm, 222 A.D.2d 909, 910, 635 N.Y.S.2d 337, lv denied 88 N.Y.2d 884, 645 N.Y.S.2d 459, 668 N.E.2d 430). We note that the information itself is not sufficiently detailed to permit a reasonable inference that it was based upon Jamal's personal knowledge (see, People v. Bigelow, supra at 424, 497 N.Y.S.2d 630, 488 N.E.2d 451; see also, People v. Parris, supra at 350, 610 N.Y.S.2d 464, 632 N.E.2d 870). Significantly, if the information related to the police by Jameel had described the robbery in minute detail, it would have dispelled any inference that he, or Jamal, was relying upon mere rumor or conjecture, and would have been an independent base upon which to predicate a finding that it was derived from personal observation (see, People v. Rodriguez, 52 N.Y.2d 483, 491, 438 N.Y.S.2d 754, 420 N.E.2d 946).

The People also contend that the observation by the police of Perez and defendant at the 60 Van Deusen Street address permits this court to infer that Jameel spoke from personal knowledge. We disagree. Where, as here, the informant does not specifically provide the source of his information, nor furnish detailed information about the criminal activity, subsequent police verification of innocent acts will not support the inference that the informant spoke with personal knowledge (see, id. at 491, 438 N.Y.S.2d 754, 420 N.E.2d 946). The mere presence of Perez and defendant at 60 Van Deusen Street was innocuous, and could not suffice to validate defendant's arrest (see, id. at 492, 438 N.Y.S.2d 754, 420 N.E.2d 946). Moreover, police verification of an informant's story must occur before an arrest is made and not, as here, contemporaneously with the arrest (see, id. at 491, 438 N.Y.S.2d 754, 420 N.E.2d 946).

Having failed to satisfy the "basis of knowledge" requirement, we conclude that the police lacked probable cause to sustain either the warrantless search of the gym bag or defendant's arrest. As to the former, we also note that "there is no 'plain touch' exception to the warrant requirement for a search of a concealed object not in plain view" (People v. Miles, 208 A.D.2d 1089, 1092, 617 N.Y.S.2d 916; see, People v. Diaz, 81 N.Y.2d 106, 110, 595 N.Y.S.2d 940, 612 N.E.2d 298). Moreover, because the police relied upon the same information in obtaining their search warrant, we likewise find the warrant invalid and suppress the fruits of that search (see, People v. Bigelow, 66 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451, supra ).

Inasmuch as the police lacked probable cause to search or arrest, we need not consider the parties' remaining arguments, including the People's argument that the actions of the police were justified by "exigent circumstances" (see generally, People v. Burr, 70 N.Y.2d 354, 360, 520 N.Y.S.2d 739, 514 N.E.2d 1363, cert denied 485 U.S. 989, 108 S.Ct. 1294, 99 L.Ed.2d 505; People v. Knapp, 52 N.Y.2d 689, 695-96, 439 N.Y.S.2d 871, 422 N.E.2d 531; People v. Price, 211 A.D.2d 943, 944, 621 N.Y.S.2d 413, lv denied 86 N.Y.2d 739, 631 N.Y.S.2d 620, 655 N.E.2d 717).

ORDERED that the judgment is reversed, on the law and the facts, motion to suppress granted and indictment dismissed.

MERCURE and CREW, JJ., concur.

PETERS, Justice (dissenting).

We respectfully dissent from the majority's conclusion that the second prong of the Aguilar-Spinelli (see, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723) test was not met here (see, People v. Hetrick, 80 N.Y.2d 344, 348, 590 N.Y.S.2d 183, 604 N.E.2d 732).

Mindful that the "raison d'etre of all * * * judicial tests * * * enunciated by the courts with respect to informants' tips is to ensure that no arrest or search will be made without probable cause * * * [w]e must not become so involved in the intricacies...