A Kings Marijuana Possession Lawyer said that, defendant is charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL Sec. 220.03), a Class A misdemeanor, and one count of Unlawful Possession of Marijuana, a violation. By motion dated June 29, 2012, Defendant seeks leave to renew, pursuant to CPL Sec. 2221(e) his motion dated October 4, 2011 to controvert the search warrant. That motion was denied by this Court’s order dated November 7, 2011.
A Kings Drug Possession Lawyer said that, as noted in this Court’s decision of November 7, 2011, Defendant was arrested on May 18, 2011 after the execution of a search warrant at Apartment 3F of 1782 Bay Ridge Parkway, Brooklyn, New York. Among the items recovered during the search of the premises were 1 zip lock bag of marijuana possession, 1 marijuana cigar, and 1 zip lock bag of cocaine possession residue.
A Kings Criminal Lawyer said that, the Court has reviewed the Court file, which includes Defendant’s prior motion, People’s response dated October 31, 2011, and the Court’s decision, dated November 7, 2011. The Court has also reviewed Defendant’s current motion, the People’s response dated August 8, 2012, and Defendant’s Reply dated August 10, 2012.
The issue in this case is whether defendant’s motion to renew his motion to controvert the search warrant should be granted.
In its prior decision, this Court applied the “two-pronged” test in a 1969, which the New York Court of Appeals adopted in a 1988 case, and found that “the information presented to the issuing court established probable cause for the Justice to issue the search warrant on said date. Further, this Court finds that it was reasonable for the Justice to rely upon Police Officer’s warrant application. The application confirms that the confidential informant exists, was reliable, and had a basis for the knowledge they communicated to the police and the court.”
In seeking renewal of the denial of his initial motion to controvert the search warrant, Defendant relies upon a 2012 case decision. Defendant asserts that “in the said case, a hearing pursuant to People v. Darden was ordered on facts nearly identical to the instant case.” However, save for the fact that the confidential informant did not appear before the Court which issued the search warrant, is easily distinguishable from the instant matter.
In the said case, the Court ordered a hearing to determine whether or not there was probable cause for the issuance of a warrant. The case relies upon the holding of a 1987. There, a Darden hearing was ordered “because the police did not verify that the purchase (of narcotics made by the confidential informant) actually occurred at defendant’s apartment, but merely that it came from the same building in which defendant’s apartment is located.”
In the previous case, “the informant made two so-called ‘controlled buys’ in each of which he or she entered the six-story apartment building in which the target apartment is located and allegedly purchased crack cocaine from an individual in the apartment.” As in the 1987 case, the specific apartment of the purchase is not identified, leading the Court to conclude “that the informant may have obtained the cocaine from another apartment or a public area of the building.” In the instant matter, the specific apartment where the “controlled buys” were made is identified, that being Apartment 3F of 1782 Bay Ridge Parkway, Brooklyn, New York.
Further, in the 1987 case, “the affidavit in support of the warrant stated that the informant was of ‘no known reliability.’ ” In the instant matter, “the confidential informant had previously participated in the issuance and execution of 11 search warrants in Kings County. The execution of 9 of these search warrants led to the recovery of weapons, ammunition, controlled substances, marijuana, paraphernalia, and United States Currency, and led to the arrest and prosecution of at least 10 individuals in Kings County.’
In fact, the case cites to cases more recent than Burks, which hold that a Darden hearing is unnecessary where “the information provided by the confidential informant was corroborated in every relevant respect by the personal observations of the police officers who utilized the informant in conducting’ multiple controlled buys.” This line of authority has been consistently followed by the Second Department. Following this line of authority, this Court found that the information received from the confidential informant, which was detailed in Officer Jackson’s affidavit, was corroborated “in every relevant respect by the personal observations of the police officers who utilized the informant in conducting’ multiple controlled buys.”
This language from this Court’s decision of November 7, 2011 should also be emphasized: Courts have found probable cause for the issuance of a search warrant so long as the “information presented the issuing judge is sufficient to support a reasonable belief that evidence of a crime might be found’ at the premises and that it was more probable than not that criminal activity was taking place at the place to be searched.” Thus, there is no per se requirement that the issuing Court conduct an examination of the confidential informant before issuing a search warrant based upon information that individual presents to an Officer, who then provides that information to a Court in the form of a sworn affidavit. It should also be noted that the procedure endorsed in Johnson calls for the police to “verify that the purchase actually occurred at defendant’s apartment.” To accomplish this, the police would be required to have officer’s stationed outside of the drug seller’s apartment, watching the confidential informant make contact with the drug seller. It takes very little imagination to see the physical dangers such close police surveillance of a drug transaction would entail for both the police and the confidential informant.
Accordingly, Defendant’s motion to renew the denial of his motion to controvert the search warrant pursuant to CPL Article 690, and suppress any evidence recovered pursuant to the search warrant, is hereby denied in its entirety. All other arguments advanced by Defendant have been reviewed and rejected by this court as being without merit. This shall constitute the opinion, decision, and order of the Court.
If you have been charged of a criminal possession of marijuana, seek the legal advice of a Kings Drug Possession Attorney and/or Kings Marijuana Possession Defense Attorney at Stephen Bilkis and Associates in order to defend your case. Call us.