In March 1986, the police and agents of the United States Secret Service executed a search warrant at the premises of a specific location. The affidavits submitted in support of the application for this warrant contained allegations that an informant, who had previously been arrested in connection with a credit card scheme, had stated that the defendant was providing the informant with forged and altered credit cards and was receiving stolen property obtained with the credit cards. The informant further alleged that the defendant received the stolen goods at his home at the corner of a street. The informant provided the police with the defendant’s telephone number and a description of his automobile. The police thereafter conducted an investigation which consisted of verifying that the defendant’s address, telephone number and automobile registration were as the informant had stated. The police investigated the defendant’s prior criminal history and found that in the prior year he had pleaded guilty to grand larceny in the third degree in connection with a credit card scheme perpetrated against a retail store in New York County. The police also conducted a one-day surveillance of the defendant’s residence but did not observe any criminal activity. Based upon the aforementioned information the search warrant was issued by the Criminal Court, Queens County.
A Queens County Criminal attorney said that during the search of the defendant’s home, no stolen goods or forgery or altered credit cards were found but the police discovered a .45 caliber pistol and a .22 caliber rifle which the defendant admitted were unlicensed and unregistered. Following the denial of the defendant’s motion to controvert the warrant and suppress the evidence and the statements made by him at the time of his arrest, he pleaded guilty to attempted criminal possession of a weapon in the third degree in full satisfaction of the indictment. The defendant argues that the police lacked the requisite degree of probable cause to obtain a warrant to search his residence and therefore the evidence and statements obtained in connection therewith must be suppressed.
The issue to be resolved in this case is whether or not there is probable cause to obtain a warrant to search defendant’s residence.
The court agrees. As a rule, the probable cause necessary to obtain a search warrant need not be sufficient to sustain a conviction beyond a reasonable doubt but may merely constitute information sufficient to support a reasonable belief that an offense is being committed or that evidence of a crime may be found in a certain place.
Based on the facts of this case, the court concludes that the prosecution failed to establish that the informant was reliable. The informant did not have a previous history as a supplier of accurate information to the police nor were the informant’s statements regarding the defendant given under oath. Moreover, although the informant’s statements could arguably be considered as a declaration against his penal interest, we disagree with our dissenting colleague’s position that this fact was sufficient to establish the informant’s reliability. The Court of Appeals has recognized that while declarations against an informant’s penal interest give reasonable assurances as to the reliability of the informant’s statements, such admissions are not guarantees of truthfulness and they should be accepted only after careful consideration of all the relevant circumstances of the case indicates that there exists a basis for finding reliability.
At the time the informant herein provided the information to the police regarding the defendant, he was already under arrest and had made admissions as to his involvement in a credit card scheme. These circumstances make it apparent that the informant, who was already subject to criminal liability, was seeking to gain favor with the police on his own behalf by implicating the defendant as a supplier of the fraudulent credit cards, and accordingly cast doubt on the informant’s reliability.
Moreover, the Court concludes that the fact that the information provided by the informant regarding the defendant’s residence, automobile and telephone number were corroborated by independent police investigation did not, in and of itself, constitute a basis for finding that the informant was reliable. The independent police investigation consisted of merely verifying the ownership of the defendant’s automobile and residence and determining that the defendant had pleaded guilty to a similar offense several months previously. The police investigation did not in any way verify the informant’s allegations that the defendant was in possession of stolen property. This investigation was clearly insufficient to serve to verify the informant’s allegations regarding the defendant.
Finally, the court finds that the informant’s statements did not reflect an adequate basis for his knowledge of the defendant’s criminal activity. The informant merely provided general information regarding the defendant’s residence, automobile and telephone. Notably, the description of the defendant’s residence did not include any specific details such as the layout of the house or the location of stolen property allegedly stored therein.
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