People v. Rodriguez
| Decision Date | 29 May 1980 |
| Citation | 75 A.D.2d 781,429 N.Y.S.2d 872 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jose RODRIGUEZ, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
G. Goodman, New York City, for respondent.
D. B. Perlmutter, Bayside, for defendant.
Judgment, Supreme Court, New York County (Leff, J.), rendered October 17, 1979, affirmed.
All concur, except MURPHY, Presiding Justice who dissents in a memorandum as follows:
At the suppression hearing, detective Burbage confirmed that an informant named Garcia had told him about several known drug dealers in the Eldridge Street area. The informant also gave Burbage certain information about the defendant. Garcia accurately described the defendant and his car. He also told Burbage that the defendant was the manager of the Brown Social Club (club). For the prior two month period, Burbage had kept this club under surveillance since it was suspected to be a source of narcotics. On the same day that Burbage spoke to Garcia, he had previously seen the defendant conversing with individuals, both inside and outside the club. This was the only occasion that Burbage had seen the defendant in the vicinity of the club during the two month period.
Garcia also apprised Burbage of the fact that the defendant supplied the club with heroin. Burbage stated that the informant told him that the defendant went each day to an unknown building on Second Street between First and Second Avenues to procure heroin from an individual named 'Jerry'. The following morning, the police waited and watched the defendant enter and leave a building on Second Street. The police then stopped defendant's car, arrested him and discovered a substantial quantity of heroin on his person.
The overriding question presented upon appeal is whether the police had probable cause to arrest and search the defendant solely upon the information supplied by informant Garcia. To establish probable cause based upon an informant's tip, whether for issuance of a search warrant or for a warrantless arrest and search conducted in exigent circumstances, it must be known that the informant is credible or reliable, and also that he had a sufficient basis for concluding that the subject of the tip is engaged in illegal activities (People v. West, 44 N.Y.2d 656, 657, 405 N.Y.S.2d 29, 376 N.E.2d 190). The prosecution failed to satisfy this two prong test set forth in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 and its progeny.
Garcia can not be considered a reliable informer for many reasons. First, he did not tell Burbage that he had personally observed the criminal activities of the defendant, nor did he otherwise state the source of his information. (People v. West, supra). Garcia did state that he gained his knowledge about the club from his narcotics dealings with several people mentioned to Burbage. However, Burbage did not testify that Garcia had specific narcotics dealings with the defendant nor should that fact be presumed. (People v. Hendricks, 25 N.Y.2d 129, 137, 303 N.Y.S.2d 32, 250 N.E.2d 323).
Second, Garcia's reliability was neither established nor buttressed in any of the other ways mentioned in People v. Brown, 40 N.Y.2d 183, 187, 386 N.Y.S.2d 359, 352 N.E.2d 545:
'. . . This can be accomplished in various ways. For instance the police officer might be able to state that the informant has furnished reliable information in the past (Aguilar v. Texas, 378 U.S. 108, 114, n. 5 supra that he is a fellow law enforcement officer (United States v. Ventresca, 380 U.S. 102, 111 that the informant's statement was under oath, as before a Grand Jury (People v. Wheatman, 29 N.Y.2d 337, 345 compare United States v. Harris, supra at p. 575 or was obviously against penal interest (People v. Wheatman, supra; see, also, United States v. Harris, supra). And, of course, the police may objectively check the informer's tale (Spinelli v. United States, 393 U.S. 411, supra see, also, People v. Hanlon, 36 N.Y.2d 549, supra . . ..'
Third, there was a fundamental discrepancy in the observations made by the...
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People v. Rodriguez
...three to nine years. On appeal, the Appellate Division affirmed defendant's conviction, without opinion, one Justice dissenting, 75 A.D.2d 781, 429 N.Y.S.2d 872. In this court, defendant asserts, as he did below, that the warrantless seizure of his person and the concomitant seizure of the ......