People v. Wirchansky

• Decision Date: 22 December 1976
• Citation: 391 N.Y.S.2d 70,41 N.Y.2d 130
• Parties: , 359 N.E.2d 666 The PEOPLE of the State of New York, Respondent, v. Stephen WIRCHANSKY, also known as Steven Wirchansky, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 70

391 N.Y.S.2d 70

41 N.Y.2d 130, 359 N.E.2d 666

The PEOPLE of the State of New York, Respondent, v. Stephen WIRCHANSKY, also known as Steven Wirchansky, Appellant.

Court of Appeals of New York.

Dec. 22, 1976.

Morton N. Wekstein, Bronxville, for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Carl F. Lodes, White Plains, of counsel), for respondent.

COOKE, Judge.

The issue before us is whether there was probable cause for the issuance of a search warrant. The warrant was issued by a Judge of the Court of Special Sessions of the City of Yonkers upon the application and affidavit of a police officer. County Court granted defendant's motion to suppress evidence of his participation in a gambling operation obtained by way of a search of his person pursuant to the warrant. With two Justices dissenting, the Appellate Division reversed. We hold that there was a lack of probable cause and, accordingly, reverse.

The information from a confidential informant described in the affidavit of the police officer did not satisfy the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. Aguilar established this two-prong standard: the Magistrate issuing the warrant must be informed of (1) some of the underlying circumstances from which the informant concluded that illegal activities were taking place, and (2) some of the underlying circumstances from which the officer concluded that the informant was credible or reliable (378 U.S. at p. 114, 84 S.Ct. 1509). Although the latter prong was satisfied, the former, sometimes called the 'basis of knowledge test' (People v. Hanlon, 36 N.Y.2d 549, 556, 369 N.Y.S.2d 677, 681--682, 330 N.E.2d 631, 635), was not. This was not a situation where the affidavit merely failed to disclose certain details. For example, had the affidavit disclosed the underlying circumstances from which the informant concluded that illegal activities were taking place, but failed to specify dates of his observation, detailed confirmatory observations of the police would be sufficient to verify the trustworthiness of his information (People v. Brandon, 38 N.Y.2d 814, 382 N.Y.S.2d 41, 345 N.E.2d 584). Here, the affidavit failed to disclose Any of the underlying circumstances from which the informant concluded that defendant was engaged in gambling activities. The purpose of the Aguilar requirement is to allow a 'neutral and detached magistrate' to determine independently whether the informant was justified in his conclusion (378 U.S at p. 115, 84 S.Ct. 1509; see Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503). Absent any recitation of the underlying circumstances, it was impossible for the Magistrate to perform this function which this court has suggested is 'the primary basis for the Aguilar holding' (People v. Brown, 40 N.Y.2d 183, 186, 386 N.Y.S.2d 359, 361, 352 N.E.2d 545, 547; see, also, People v. Hendricks, 25 N.Y.2d 129, 303 N.Y.S.2d 33, 250 N.E.2d 323; cf. People v. Montague, 19 N.Y.2d 121, 278 N.Y.S.2d 372, 224 N.E.2d 873).

Since the affidavit did not meet the standards established in Aguilar and thus the Judge issuing the warrant could not, within these standards, have determined that there was probable cause based on the 'tip' supplied by the informant, it is necessary to consider whether the other information supplied in the affidavit was sufficient to justify a finding of probable cause. This information was: first, that the police were aware that defendant was a known policy runner and had been arrested for gambling activities only 20 days prior to the signing of the warrant and, second, that the police conducted a surveillance of defendant to confirm the informant's tip.

With respect to the surveillance of defendant, the police officer's affidavit recites:

'Your deponent states that on Monday May 21, 1973 between the hours of 11:30 A.M. to 12:30 P.M. a surveillance was conducted of 8--10 School St. Yonkers, N.Y. At about 12:10 P.M. Stephen Wirchansky was observed driving a vehicle south on School St. slowing said vehicle down in the area of 8--10 School St. and looking in the area of that said address; then continuing south. A few moments later said vehicle and operator again came into School St. and parked his vehicle approximately 100 feet south of 8--10 School St. on the east side of the street. Said Wirchansky left vehicle walked to and entered the hallway of 8--10 School St. and remaining therein for a new minutes exiting same proceeded to his auto and drove off.

'Your deponent further states that on May 22, 23, 24, 1973 (Tues, Wed. Thurs.) between aforementioned times Stephen Wirchansky was observed continuing the same procedures as mentioned on Monday May 21, 1973.'

The question is whether these observations indicate criminal activities on the part of defendant. A similar description of the movements of an individual engaged in gambling activities was set forth in the affidavit considered in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. There, the FBI affidavit stated that information had been given by a confidential informant but failed, as in the instant case, to disclose any of the underlying circumstances from which the informant concluded that gambling was taking place. There, as here, the Government sought to corroborate the informant's tip with its observations of the suspect's conduct. As to these observations, the court concluded: 'Spinelli's travels to and from the apartment building and his entry into a particular apartment on one occasion could hardly be taken as bespeaking gambling activity' (393 U.S. at p. 414, 89 S.Ct. at p. 588). Nevertheless, although the observations in Spinelli were held insufficient to corroborate the informant's tip, the instant matter is somewhat different because the police claim that appellant's movements in fact 'bespeak' gambling activities.

The affidavit under review contains this statement regarding the informant's tip: 'Your deponent also states that information (was) received from a confidential informant that gambling paraphernalia commonly associated with a bookmaking and policy scheme, are being left in a common hallway of 8--10 School St. mainly a mailbox, which is picked up by Stephen Wirchansky each day.'

Although this information was quite specific, since the affidavit does not disclose how the informant came to know these facts, the Aguilar test was nonetheless not satisfied. To measure up to Aguilar, the affidavit should have described either that the informant saw defendant make a pickup (see People v. Hendricks, 25 N.Y.2d 129, 136, 303 N.Y.S.2d 33, 38--39, 250 N.E.2d 323, 327, Supra) or, if the informer did not see defendant, the sources from which the informer learned of defendant's activities (People v. Sutton, 32 N.Y.2d 923, 347 N.Y.S.2d 192, 300 N.E.2d 726, cert. den. 415 U.S. 983, 94 S.Ct. 1576, 39 L.Ed.2d 880). In this respect, similar specific information from an informer, i.e., specific telephone numbers from which wagering information was disseminate was rejected in Spinelli because: 'This meager report could easily have been obtained from an offhand remark heard at a neighborhood bar' (393 U.S. at p. 417, 89 S.Ct. at p. 589). In the instant matter, the informer could have overheard that defendant was making a pickup from a mailbox at a specific address--a rumor such as that would not amount to probable cause for a search of defendant.

In Spinelli, the FBI's affidavit stated that an informant had advised it that 'Spinelli is operating a handbook and accepting wagers' (393 U.S. at p. 422, 89 S.Ct. at p. 592). By contrast, the police affidavit here concluded: 'It also should be noted that it is your deponent's opinion based upon numerous gambling investigations in which your deponent has been involved over a period of the last two (2) years that Stephen Wirchansky's activities are that of a pick-up man in a policy operation. This is based upon observations of Wirchansky's activities and especially the times in which this activity takes place.' Thus, unlike Spinelli where the observations of daily travels did not indicate any particular activity other than to place the suspect at the location of the gambling operation, the activity described here is, according to an experienced police officer, that of a pick-up man in a policy operation.

There have been instances where certain conduct which, although innocent-seeming to the untrained eye, may indicate illegal conduct to a trained police officer (People v. Valentine, 17 N.Y.2d 128, 132, 269 N.Y.S.2d 111, 114, 216 N.E.2d 321, 323; see People v. Castro, 29 N.Y.2d 324, 327, 327 N.Y.S.2d 632, 634--635, 277 N.E.2d 654, 655--656). Those instances are, however, unusual because the expertise of the police officer is generally not enough to justify a search of one engaged in seemingly innocent conduct (see People v. Corrado, 22 N.Y.2d 308, 292 N.Y.S.2d 648, 239 N.E.2d 526; cf. People v. Davis, 36 N.Y.2d 280, 367 N.Y.S.2d 256, 326 N.E.2d 818; People v. Brown, 32 N.Y.2d 172, 174, 344 N.Y.S.2d 356, 357, 297 N.E.2d 94, 95). The principle is aptly expressed as follows: 'The logical and practical problem is that even accepting urgrudgingly, as one should, the police officer's expertness in detecting a pattern of conduct characteristic of a particular criminal activity, the detected pattern, being only the superficial part of a sequence, does not provide probable cause for arrest if the same sketchy pattern occurs just as frequently or even more frequently in innocent transactions. The point is that the pattern is equivocal and is neither uniquely nor generally associated with criminal conduct, and unless it is there is no probable cause.' (People v. Brown, 24 N.Y.2d 421, 424, 301 N.Y.S.2d 18, 20, 248 N.E.2d 867, 868.)

Even paying great respect to the specialized knowledge of the police officer in this situation, we cannot say that the conduct described in the affidavit was...