People v. Loewel

• Decision Date: 16 January 1976
• Citation: 378 N.Y.S.2d 521,50 A.D.2d 483
• Parties: PEOPLE of the State of New York, Respondent, v. Anthony LOEWEL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 521

378 N.Y.S.2d 521

50 A.D.2d 483

PEOPLE of the State of New York, Respondent, v. Anthony LOEWEL, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Jan. 16, 1976.

Herald Price Fahringer, Buffalo (Paul J. Cambria, Jr., of counsel), for appellant.

Robert J. Sullivan Dist. Atty., Mayville (John Ward, Jr., of counsel), for respondent.

Before MOULE, J.P., and CARDAMONE, MAHONEY, GOLDMAN and WITMER, JJ.

OPINION

GOLDMAN, Justice.

Defendant appeals from a judgment of Chautauqua County Court, convicting him of attempted criminal possession of stolen property in the first degree and attempted criminal possession of a weapon in a third degree. The convictions were entered upon pleas to two indictments, following denials of motions to suppress evidence, in full satisfaction of other outstanding indictments.

(A) Attempted possession of stolen property.

The first indictment was based upon the seizure of stolen coins under a warrant which authorized the search of the basement of a house, owned but not occupied by appellant, for 'coins * * * removed from the premises of Ralph Jones and 9 suitcases in which they are contained'.

The application for the warrant was supported by two affidavits, one by Jamestown police officer Richard D. Ream, the other by New York State police investigator David L. Carr. ¹ Ream's affidavit, bearing the same date as the warrant, stated: (1) that a reliable informant had advised him that coins taken by appellant 'are located in a 2 1/2 story frame dwelling owned by (appellant) on * * * Lindquist Drive in the Town of Poland * * *'; (2) that the informant stated 'that (appellant) had been to the house of Ralph Jones * * * to work on a couple of his appliances located in the cellar next to the vault and that (appellant's) mode of operation is to case a place and then wait approximately a year and a half before hitting it'; (3) that the information was based on 'the informant personal knowledge and direct observation'; (4) that Ream knew the informant to be reliable 'because he has given information leading to the arrest and conviction of two individuals involved in narcotics'. Ream made further disclosures in camera which established the informant's reliability.

The affidavit of Inspector Carr, also bearing the same date as the warrant, alleged that appellant, on February 12, 1974, had tried to sell a coin collection to an underground police investigator named Wolthe. In his conversation with Wolthe, which was recorded on tape, appellant said that the coins 'were in 9 suitcases' and 'buried'. Independent investigation, Carr alleged, showed that none of the stolen coins had come to market since appellant and Wolthe talked. Carr's own investigation showed that appellant worked for an appliance company and had been to Ralph Jones' home on August 17, 1972 'to check appliances * * * located in the basement next to the vault room where the coins were kept'. The coin burglary, Carr stated, occurred on or about October 12, 1973. Carr alleged that 'the premises have been kept under surveillance since the informant advised us of the probable location of the coins', but Carr, like Ream, failed to say when the informant's information was received. Carr referred to Ream's affidavit for 'information that (appellant) has the coins' in the Lindquist Drive house. Carr stated that further investigation showed that the first and second floors of the house were rented to tenants and 'not under the control of the defendant'. The warrant, issued February 27, 1974 and executed the same day, authorized New York State police to search 'the cellar, beneath the floor of the cellar, behind the walls of the cellar' of appellant's Lindquist Drive house.

Appellant contends that County Court erred in denying his motion to suppress the coins seized in the search, because the warrant was issued upon an insufficient showing of probable cause.

When an affidavit in support of a warrant relies on hearsay information supplied by an informer, the affidavit must show '(1) whether the informant is in fact reliable, and (2) whether the underlying circumstances as to how the informant came by his information demonstrates sufficient probability of credibility to allow the search of the premises * * * in question' (People v. Hendricks, 25 N.Y.2d 129, 133, 303 N.Y.S.2d 33, 36, 250 N.E.2d 323, 325, citing Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637). Appellant concedes that in camera disclosures satisfied the first requirement, but urges that the second requirement was not met. The Ream affidavit simply states that the information was supplied 'on the informant's personal knowledge and direct observation', and gives no details regarding what the informant saw and how he otherwise learned what he knew. For that reason the Ream affidavit was, as County Court concluded, insufficient by itself to demonstrate the reliability of the informant's information.

Corroboration supplied by a police officer's independent investigation can establish the credibility of an informant's information (People v. Hendricks, 25 N.Y.2d 129, 134, 303 N.Y.S.2d 33, 36, 250 N.E.2d 323, 325 Supra) and the Carr affidavit did corroborate some, though not all, of the important elements of the informant's story. Carr's personal investigation, disclosing that appellant worked on appliances near Jones' coin vault on August 17, 1972, closely corroborates rates the informant's account of how appellant 'cased' the premises. The fact of the delay of almost 14 months between appellant's visit and the burglary jibes reasonably well with the informant's description of appellant's mode of operation. Appellant's own words, recorded on tape some 15 days before the warrant was issued, leave little doubt that he knew of a coin collection buried in suitcases somewhere and that he was trying to sell it. However, the corroboration going specifically to the question of whether the coins were in the house is very weak. Carr verified that appellant owned the house and he implied that he had control of the basement. That merely suggests that it was feasible for him to hide the coins there, but falls far short of showing that he actually did so, especially since he lived elsewhere. Carr's allegation that the house had been watched since the receipt of the informant's story, although it suggests that no coins were removed during that indefinite time span, supports no inference that the coins were ever in the house.

As it happens, we need not decide whether Carr's corroboration adequately assured that the informant's facts were accurate when gathered. Even if they were, we would still be constrained to hold this warrant invalid. The reason is that the affidavits utterly fail to show that the information is current (Cf., Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260). The Ream affidavit simply states that the coins 'are located' in the house. It does not indicate when the informant learned his facts or when he communicated them. A similar situation was presented in Rosencranz v. United States (1 Cir.), 356 F.2d 310. There, according to the affidavit, an anonymous informant had stated that illegal whiskey and materials for its manufacture 'are being held on said premises', and the affiant himself had detected 'a strong odor of mash outside the premises'. The affidavit did not give the date of the informant's information or of the affiant's own observations. The court, in holding the warrant invalid, stated:

'The present tense is suspended in the air; it has no point of reference. It speaks, after all, of the time when an anonymous informant conveyed information to the officer, which could have been a days, a week, or months before the date of the affidavit. To (uphold the warrant) * * * would be be open the door to the unsupervised issuance of search warrants on the basis of aging information. Officers with information of questionable recency could escape embarrassment by simply omitting averments as to time * * *. Magistrates would have less opportunity to perform their 'natural and detached' function. Indeed, if the affidavit in this case be adjudged valid, it is difficult to see how any function but that of a rubber stamp remains for them.' (356 F.2d, pp. 316--317.)

The Ream affidavit, reporting the informant's information, was dated February 27, 1974. According to Carr's affidavit, the burglary occurred on October 12, 1973. Thus the information placing the coins in the house could have been as much as 4 1/2 months old, and the affidavits 'failed to negate the possibility that the information furnished by the informant was 'stale" (People v. Kramer, 38 Misc.2d 889, 891, 239 N.Y.S.2d 303, 305). ² The affidavits were not 'bolstered by the detailed independent and confirmatory observations of the police officers themselves made as recently as the day before the warrant issued', as was the case in People v. Brandon and Green (38 N.Y.2d 814, 382 N.Y.S.2d 41, 345 N.E.2d 584, decided December 29, 1975) where the Court of Appeals held that the warrant withstood the attack on its issuance even though the affidavits did not contain specific dates. Appellant's statement on February 12, 1974 that the coins were 'buried' does not cure the defect, because it does not corroborate the informant's statement that the coins were in the house.

We stop short of holding that affidavits in support of a search warrant are per se insufficient if they lack specific time averments. An affidavit that fails to mention times or dates might nonetheless set forth other facts and circumstances which make it obvious that the information is fresh. The present affidavits, however, give no such indication.

The People urge that a magistrate could properly assume that a 'reliable' informant would not delay unreasonably in giving his information to the police. To repose such blind...