People v. Rodriguez

• Decision Date: 09 April 1981
• Citation: 52 N.Y.2d 483,438 N.Y.S.2d 754,420 N.E.2d 946
• Parties: , 420 N.E.2d 946 The PEOPLE of the State of New York, Respondent, v. Jose RODRIGUEZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 754

438 N.Y.S.2d 754

52 N.Y.2d 483, 420 N.E.2d 946

The PEOPLE of the State of New York, Respondent, v. Jose RODRIGUEZ, Appellant.

Court of Appeals of New York.

April 9, 1981.

David B. Perlmutter, Bayside, for appellant

Robert M. Morgenthau, Dist. Atty. (Grace Goodman and Vivian Berger, New York City, of counsel), for respondent.

OPINION OF THE COURT

JASEN, Judge.

The question before us is whether, in the circumstances of this case, the courts below could properly conclude that a police informant was sufficiently reliable and was possessed of a sufficient basis of knowledge to justify the warrantless arrest of defendant based upon that informant's tip.

This case arises out of a police investigation focused upon the Brown Social Club at 233 Eldridge Street in Manhattan, a gathering place thought by police to be a source of illegal narcotics. Detective William Burbage, a New York City police officer assigned to the United States Department of Justice to aid in narcotics investigations in the city, was charged with the duty of observing the club from the window of an apartment across the street. On October 31, 1977, Burbage observed the defendant Jose Rodriguez at the Brown Social Club between 2:00 and 3:00 P.M. talking to various people within and without the club. He was identified at that time by a motor vehicle registration check of his automobile which was parked in front of the club.

Later that day, Burbage was notified that an individual named Louis Garcia, who was in police custody on an unrelated charge, had information which he was willing to relate upon condition that his co-operation be noted with appropriate authorities. Burbage immediately went to meet Garcia at Beekman Downtown Hospital where the latter was receiving medical treatment while in custody. During a lengthy interview, Garcia gave what Burbage would later describe as a "run-down" on eight individuals involved in the sale of large quantities of heroin. The information conveyed matched to a great extent facts already uncovered by the police in their on-going investigation. Indeed, some of those mentioned had already been apprehended on drug charges. Garcia stated that he acquired his knowledge of this illegal activity through narcotics dealings with several people involved in the drug trade on Eldridge Street.

With respect to defendant Rodriguez, Garcia related the following information: that Rodriguez was the manager of the Brown Social Club; that he supplied the club with heroin for sale to customers; that he owned a 1965 Buick and that the first three numbers on its license were 964; that the Buick was multicolored on the right side because of body damage; that Rodriguez went daily between 8:00 and 9:00 A.M. to an apartment on Second Street between First and Second Avenues to obtain heroin from a white male named "Jerry", which Rodriguez would then deliver to the club; and that the heroin would be wrapped in multicolored packets which would in turn be wrapped in newspaper. Garcia also gave the police a description of Rodriguez which accurately described the man observed by the police earlier in the day.

On the strength of this information, a police surveillance team was set up the next morning to observe the area of Second Street between First and Second Avenues described by Garcia. At approximately 8:30 A.M., police observed defendant's car, a 1965 Buick, license number 964 GMY, with damage and coloration as described by Garcia, parked upon the described portion of Second Street with one unidentified female occupant. Police also observed defendant enter and later exit from 73 Second Street, a four-story apartment building. The police did not see what apartment defendant visited in 73 Second Street and did not know what if anything occurred upon his visit there. When defendant emerged into the street, he re-entered his car and began to drive away. He was stopped by the police shortly thereafter at Houston Street and Second Avenue. He was immediately arrested and searched.

As a result of the search, police found a newspaper- package containing 350 multicolored packets, each containing heroin, in defendant's sock. In his other sock was another package containing over 300 packets. Also, some 51 "aluminum" packets containing cocaine, along with two marihuana cigarettes, were found in defendant's shirt pocket.

Defendant was charged with several crimes based upon his possession of illegal drugs. He moved to suppress the physical evidence obtained from him at the time of his arrest. This motion was denied after a hearing on November 20, 1978. Following the denial of his suppression motion, defendant failed to appear at his next scheduled court appearance. His bail was declared forfeited and a warrant was issued for his arrest. He was later arrested and pleaded guilty to one count of criminal possession of a controlled substance in the third degree (Penal Law, § 220.16) in satisfaction of the entire indictment and was sentenced to a term of imprisonment of from 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 illegal drugs he carried were unlawful because the police did not have probable cause to believe he had committed any crime. He argues that the information provided by the informant Garcia did not provide probable cause because Garcia had not been shown to be a reliable informant and because the People failed to demonstrate that the information conveyed was based upon Garcia's personal knowledge or observation of defendant. He concludes that his conviction must be reversed and an order of suppression granted.

This case presents a question by now familiar to this court, to wit: whether and under what circumstances an informant's tip may be relied upon by police officers to justify a warrantless arrest and search of a citizen. The standard to be applied in such cases is also familiar. Before the liberty of one of our citizens may be placed in jeopardy on the hearsay relation of another, it must be shown that the informant has some "basis of knowledge" from which he could properly conclude that the subject of the tip was indeed involved in illegal activity and that the informant himself is reliable. (Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723.) It is our task upon this appeal to determine whether each of the components of this "two-prong test" have been satisfied.

We address ourselves first to the question whether the informant in this case can be considered to be "reliable" and conclude that he can be. To be considered "reliable", an informant need not be a disinterested public-spirited citizen. The courts have long recognized that many police informants are not pillars of the community and many co-operate with the police only to curry favor with the authorities at a time when their own right to continued liberty is in peril. Indeed, the criminal record of an informant or the current predicament in which he finds himself within the criminal justice system does not necessarily render him unreliable. Neither, however, can we blithely accept as true the accusations of an informant unless some good reason for doing so has been established. Otherwise the liberty of each of us is at too great a risk. Thus, before the police can act upon the informant's tale, they must be prepared to demonstrate that they had good reason to believe that this particular informant was telling the truth.

There is, of course, no one acid test of reliability. Over the years several factors have been considered by the courts to be adequate indicia of reliability. For example, an informant will be considered reliable if he has come forward with accurate information in the past. (Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, supra.) He may also be considered reliable if he makes a statement under oath (People v. Wheatman, 29 N.Y.2d 337, 345, 327 N.Y.S.2d 643, 277 N.E.2d 662) or where details of his story have been confirmed by police observation (People v. Elwell, 50 N.Y.2d 231, 237, 428 N.Y.S.2d 655, 406 N.E.2d 471). It must be emphasized that the above-mentioned factors are merely illustrative and that no one factor is the sine qua non of reliability. In most cases, a combination of factors, considered together, lead the court to conclude that an informant is worthy of belief. So it is in this case.

Here, although Garcia had never before given information to police, there are other indicia of reliability in the record before us from which the courts below could properly conclude that Garcia was reliable. First, the information given by Garcia corresponded exactly with information already in the possession of the police. His tip was not limited to an accusation of defendant. Rather, it also included a "run-down" of at least seven other individuals. Much of the information in this part of the tip had already been confirmed by the police in their independent investigation. Thus, while Garcia had never come forward before, the police could at least assure themselves that much of what he said was accurate, for they already knew it to be true. (See United States v. Canestri, 518 F.2d 269, 272 (2 Cir.); People v. Coffey, 12 N.Y.2d 443, 240 N.Y.S.2d 721, 191 N.E.2d 263, cert. den. 376 U.S. 916, 84 S.Ct. 671, 11 L.Ed.2d 612.) Second, Garcia's description of defendant with regard to his appearance and his mode of operation was also confirmed by the police. This, too, could properly be considered as evidence of Garcia's veracity. (People v. Elwell, 50 N.Y.2d 231, 237, 428 N.Y.S.2d 655, 406 N.E.2d 471, supra.)

Defendant makes much of the fact that Garcia was in custody at the time of his statement, noting that he may have been willing to offer any statement, even a false...