People v. Myhand

• Decision Date: 08 August 2014
• Citation: 120 A.D.3d 970,991 N.Y.S.2d 222,2014 N.Y. Slip Op. 05742
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Marshall D. MYHAND, also known as Marshall Mayhand, Defendant–Appellant.

120 A.D.3d 970

991 N.Y.S.2d 222

2014 N.Y. Slip Op. 05742

The PEOPLE of the State of New York, Respondent,

v.Marshall D. MYHAND, also known as Marshall Mayhand, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Aug. 8, 2014.

Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, and DeJOSEPH, JJ.

MEMORANDUM:

On appeal from a judgment convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the first degree (Penal Law § 220.21[1] ), defendant contends that County Court erred in refusing to suppress evidence obtained as a result of the execution of a search warrant at defendant's residence. Specifically, defendant contends that the search warrant was not supported by the requisite probable cause. We reject that contention.

“Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely [requires] information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place” (People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451). While New York has not adopted the “totality-of-the-circumstances analysis” adopted by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527, reh. denied463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453; see People v. Griminger, 71 N.Y.2d 635, 639, 529 N.Y.S.2d 55, 524 N.E.2d 409, the Court of Appeals has held that “[t]he legal conclusion [concerning the existence of probable cause] is to be made after considering all of the facts and circumstances together. Viewed singly, these may not be persuasive, yet when viewed together the puzzle may fit and probable cause found” (Bigelow, 66 N.Y.2d at 423, 497 N.Y.S.2d 630, 488 N.E.2d 451). In our view, this is one of those situations where the pieces of the puzzle fit in such a manner as to support a finding of probable cause.

In support of the application for a search warrant, the authoring officer noted that defendant had two prior convictions of possession of illegal substances, one of which was a 2002 conviction of criminal possession of a controlled substance in the third degree, i.e., possession with intent to sell (Penal Law § 220.16[1] ). The officer then summarized his prior experience with a particular confidential informant (CI–1), establishing that he had used CI–1 in previous investigations that led to successful prosecutions. Police officers used CI–1 to make a controlled purchase of cocaine from defendant at his former residence. Before and after the purchase, the officers searched CI–1 and his vehicle to ensure that CI–1 was not in possession of any cocaine, and they provided CI–1 with buy money. Immediately after observing CI–1 enter and exit defendant's former residence, the officers searched CI–1 again, recovering a substance that tested positive for cocaine. CI–1 informed the officers that defendant had sold CI–1 the cocaine. The circumstances of that sale are not challenged by defendant.

Following defendant's relocation to a different residence, officers placed that residence under surveillance. The officer who authored the search warrant application described the circumstances of a second purchase of cocaine. The officer and another officer met with CI–1, and they searched CI–1 as well as CI–1's vehicle to ensure that CI–1 was not in possession of cocaine. CI–1 was provided with buy money, and a plan was developed for CI–1 to pick up an “unwitting participant” (UP) who would make the actual purchase. Officers kept CI–1 under observation while CI–1 met with UP, a black male, who entered CI–1's vehicle. Officers continued to keep that vehicle under surveillance as it traveled to an area near defendant's new residence. UP exited the vehicle, walking in the direction of defendant's residence. He returned approximately 15 minutes later, and he entered and then subsequently exited CI–1's vehicle, which was under surveillance by the officers. The officers then met with CI–1, who was found to be in possession of a substance that tested positive for cocaine. CI–1 informed the officers that, in CI–1's presence, UP had telephoned “Dog,” i.e., defendant. When the call ended, UP told CI–1 that “Dog” was ready and directed CI–1 to the area near defendant's new residence.

A similar plan was developed for a third purchase of cocaine. The officer who authored the search warrant application and another officer met with CI–1, and they searched CI–1 and CI–1's vehicle to ensure that CI–1 was not in possession of any cocaine. They also again provided CI–1 with a predetermined amount of buy money. CI–1 was observed meeting the same UP used in sale number two. After that meeting, officers observed UP travel in his vehicle to an area near defendant's residence. Officers further observed UP exit his vehicle, enter defendant's residence, and exit that residence with defendant 11 minutes later. While still under observation, UP entered his vehicle and traveled to rendezvous with CI–1. After UP left the area, the officers met with CI–1, who informed the officers that, when CI–1 met UP, he told CI–1 that “Dog” was ready. CI–1 told the officers that he gave the buy money to UP, who then drove off in his own vehicle. CI–1 also told the officers that, when UP returned, he handed CI–1 a knotted sandwich bag that he told CI–1 he had received from “Dog.” The substance in the bag tested positive for cocaine.

Based on the aforementioned facts, the authoring officer applied for a search warrant to search defendant's new residence. The application did not seek permission to search any particular person. The issue before us thus is whether the aforementioned information provided the requisite probable cause for the issuance of the search warrant, i.e., was it “sufficient to support a reasonable belief ... that evidence of a crime may be found” inside defendant's new residence (Bigelow, 66 N.Y.2d at 423, 497 N.Y.S.2d 630, 488 N.E.2d 451). We conclude that it was sufficient.

As a preliminary matter, we conclude that the search warrant application was sufficient without resorting to any hearsay from either CI–1 or UP. With respect to the first sale, officers confirmed that CI–1 was not in possession of any drugs, at which point they provided CI–1 with buy money. The officers then observed CI–1 enter defendant's residence and then exit that residence shortly thereafter. At that time CI–1 was in possession of cocaine but no longer in possession of the buy money. That evidence stands independent of any hearsay information from CI–1. Hearsay information would be required only if the issue before us concerned the identity of the person in that residence who sold the cocaine to CI–1.

The officers then confirmed that defendant relocated to a new residence. With respect to the second sale, the officers determined that CI–1 was not in possession of any cocaine before CI–1 met with UP, who was then observed by officers going to the area of defendant's new residence. Officers observed UP return to CI–1, after which the officers confirmed that CI–1 was in possession of cocaine. Again, none of that information requires resort to hearsay from either CI–1 or UP. It is based solely on the personal observations of the officers.

Finally, with respect to the third sale, the officers determined that CI–1 was not in possession of cocaine before CI–1 met with UP for a second time. The officers then observed UP drive his own vehicle to defendant's new residence. They further observed UP enter and remain inside defendant's residence for 11 minutes, after which they observed him exiting the residence with defendant. While under continual observation, UP met CI–1 and then drove away. Immediately thereafter, CI–1 was in possession of cocaine.

As defendant correctly contends, we cannot ignore the remote possibility that UP had cocaine on his person or in his vehicle before ever going near or inside defendant's new residence. That possibility, however, is not fatal to our analysis. Although “[h]uman imagination might conjure up possible innocent behavior [by the defendant,] ... that cannot be the test of probable cause ... Probable cause does not require proof to a mathematical certainty, or proof beyond a reasonable doubt. Based on the articulated, objective facts before [the issuing Judge], and the reasonable inferences to be drawn therefrom, it was ‘more probable than not’ that criminal activity was taking place inside” defendant's new residence (People v. Mercado, 68 N.Y.2d 874, 877, 508 N.Y.S.2d 419, 501 N.E.2d 27, cert. denied479 U.S. 1095, 107 S.Ct. 1313, 94 L.Ed.2d 166). In our view, it is more probable than not that the cocaine given to CI–1 was obtained from defendant's residence because, otherwise, UP would have simply sold the cocaine to CI–1 himself.

Even assuming, arguendo, that the search warrant application was not sufficient without resorting to any hearsay evidence provided by CI–1 and UP, we conclude that the hearsay information contained in the search warrant application passed the Aguilar–Spinelli test and could thus be used to establish probable cause for the search warrant. It is well established that “[p]robable cause may be supplied, in whole or part, through hearsay information ... New York's present law applies the Aguilar–Spinelli rule for evaluating secondhand information and holds that if probable cause is based on hearsay statements, the police must establish that the informant had some basis for the knowledge he [or she] transmitted to them and that he [or she] was reliable” (Bigelow, 66 N.Y.2d at 423, 497 N.Y.S.2d 630, 488 N.E.2d 451; see Griminger, 71 N.Y.2d at 639, 529 N.Y.S.2d 55, 524 N.E.2d 409)....