Opinion
2014KN094346
07-14-2015
The People of the State of New York, v. Jeryl Credle, Defendant.
For Movant/Defendant : Jacob Lipsky, Esq., Brooklyn Defender Services For Respondent: DA Kenneth Thompson by Adam Wolk, Esq.
For Movant/Defendant : Jacob Lipsky, Esq., Brooklyn Defender Services
For Respondent: DA Kenneth Thompson by Adam Wolk, Esq.
Joy Campanelli, J.
By motion filed April 20, 2015 defendant Jeryl Credle moves pursuant to CPL 710.20 for an order suppressing evidence acquired during the execution of a search warrant on the grounds that the search warrant was not based on probable cause. By affidavit filed June 8, 2015 the People oppose the defendant's application to controvert the search warrant.
On December 21, 2014 the New York City Police Department entered 700 Quincy Street, Brooklyn, pursuant to a "no knock" search warrant signed on December 15, 2014 by Hon. William Harrington, Justice of the Supreme Court, Kings County
The complaint dated December 2, 2014 and executed by the arresting officer, PO Conrad Narcisse, states that cocaine in excess of 26 grams was found in the rear bedroom of the residence. At the time of the recovery of the drugs, the defendant was observed in the bed in the rear bedroom. Officer Narcisse further states that he found mail in the residence addressed to defendant Jeryl Credle.
Defendant was initially charged with three different felony counts and one misdemeanor count of possession of a controlled substance. The three felony counts were dismissed by the People on February 5, 2015, and the defendant remains charged with Criminal Possession of a Controlled Substance in the Seventh Degree — a class A misdemeanor (PL § 220.03).
In support of her motion the defendant has submitted the redacted affidavit of PO Narcisse dated December 15, 2014, the redacted minutes of the hearing, before Judge Harrington on December 15, 2014, and the search warrant issued on December 15, 2015.
The search warrant order and redacted affidavit were submitted by the defendant. The Court also reviewed an unredacted affidavit and minutes submitted by the People. After examination of the submissions by both parties, the Court finds that the defendant's allegations of possible "staleness" to be unfounded.
PO Narcisse presents "extensive narcotics related experience" during his six years as a police officer. He has participated in the execution of more than five drug related search warrants in which drug and related paraphernalia, weapons and currency were recovered. He has been involved in over 150 drug arrests, and has debriefed over 100 people regarding drug trafficking and unlawful weapons possession.
The affiant states that his information is based on his own experiences and conversations with confidential informant No. [redacted] who is a registered confidential informant.
Based solely on the police officer's own observations and conversations with the confidential informant, the officer ascertained that a black male approximately 5'9" — 5'10" tall, weighing approximately 170 pounds and identified as Ramel Cradle was using 700 Quincy Street, Apartment 1B, Brooklyn, New York to store and sell crack cocaine.
The police officer then represents that he conducted his own reconnaissance of the building, and described in detail the route to the target's apartment on the second floor. The affiant also asserts through his review of NYPD official records that the target Ramel Cradle had previously provided his address as 700 Quincy Street, Apt 1B, Brooklyn.
The CI gave the detective a physical description including height, weight and a brown mole on the left cheek, of a Black male named Ramal Cradle who was using 700 Quincy St. Apt 1B to sell crack cocaine.
The detective alleges that he supervised two "controlled buys" of drugs between the CI and the target. On the first occasion he observed the CI entering the building with money provided by a Sgt. Phillips, an 81st Pct. Intelligence Officer, and returned directly to Officer Narcisse with only a white rocky substance which field tested positive for crack cocaine .
Sgt. Phillips had both informed Office Narcisse that he had in fact provided the CI with "buy" money, and had also tested the white rocky substance "positive" for crack cocaine.
The affiant supervised a second and similar controlled buy. Upon return from the controlled buy the CI told officer Narcisse that on each occasion he had knocked on the door of the target's apartment. The target had opened the door from his apartment and stepped into the hallway where the CI exchanged his money for a quantity of crack cocaine.
The second field test was performed by Sgt. Shawn Brown who informed the affiant the results were positive for crack cocaine.
In a "photographic array" conducted by the police office, the CI identified Ramel Cradle as the target who sold him the crack cocaine on the two dates.
The affiant also states both Sgt. Phillips and Sgt. Brown had informed him that they had training and experience in field testing crack cocaine, and that, based on their experience and representations to him, he believes that the CI in fact purchased crack cocaine.
According to the affiant, it is common practice for crack cocaine traffickers to keep paraphernalia, including cell phones where records are stored, proceeds, and related records in the same location. The police officer believes that the target is using the location to store and sell crack cocaine and, accordingly, related paraphernalia and records, including records stored on cell phones, will be found within the apartment. Furthermore, since the drugs and related items can quickly and easily be destroyed or disposed, the police officer asked the Court, pursuant to CPL 690.35(4) (b) that the officers executing the warrant be permitted to enter without prior notice of authority or purpose ("no-knock").
The minutes of the hearing before the court were annexed to the defendant's affirmation. Both Officer Narcisse and the confidential informant were present at the hearing and were "sworn in." The court asked the police officer to affirm that he had gone to the subject premises and that the description of the location in his affidavit matched his personal observations.
The court then questioned the CI, asking when the CI had last appeared at the location, and what transpired. The CI then informed the court about his last appearance and his purchase of the rock cocaine. He described the seller's height, medium brown complexion, goatee, low haircut and medium built.
At the court's request, the CI described in detail the route that he took from the front of the apartment house to the target's apartment . Upon further inquiry, the CI informed the court that when he deals with the target he "usually call(s) first" to the target's cell phone.
The Court notes the similarity between the CI's description and the police officer's own observations.
The court found "the informant to be credible, and based on the affidavit and the testimony of the officer and the informant, there's reasonable cause for the warrant to issue."
As a preliminary matter, the Court must determine whether the defendant has standing to challenge the legality of a search. The right of protection against unreasonable searches and seizures and its exclusionary enforcement requires personal standing to challenge the government's action (People v Rodriguez, 69 NY2d 159, 161 [1987]). Defendant's motion makes no specific claim of standing, but the affidavit of defendant's attorney asserts that the defendant Credle "had an expectation of privacy in her home, particularly in her bedroom." The accusatory instrument and the affidavit of Officer Narcisse indicate that the defendant was in bed in the bedroom where drugs were found. Furthermore, the police officer had recovered in the apartment mail addressed to defendant Jeryl Credle. Accordingly, the defendant has standing to make an application to suppress the evidence recovered pursuant to the search warrant.
Defendant's motion to controvert the search warrant to the extent that it contained a no-knock" provision is denied. Defendant's contention that because other items such as drug paraphernalia were also targeted by the search and are not easily destroyed, a "no-knock" warrant should not have been issued. The purpose of the warrant was to find evidence of the sale of narcotics, and, more specifically, the drugs themselves. These drugs are readily disposable items, which are precisely the type of case where a "no-knock" approach is necessary.
The Court has the authority to issue a search warrant "without giving notice of the police officer's authority and purpose" (CPL 690.45[7]) if the court is presented with "reasonable cause to believe that (i) the property sought may be easily and quickly destroyed or disposed of, or (ii) the giving of such notice may endanger the life or safety of the executing officer or another person " (CPL 690.35[4][b])
Furthermore, a seasoned police officer with over six years drug related experience requested that the warrant be executed by entry without prior notice of authority or purpose, because "in view of the fact that the nature of the property sought to be seized is crack cocaine, paraphernalia and/or other evidence that can be easily and readily disposed of or destroyed." See People v Kusse, 288 AD2d 860 (4th Dept 2001) People v Ackerman, 237 AD2d 849 (3d Dept 1997), lv denied 89 NY2d 1087 (1997), People v Skeete, 257 AD2d 426 [1st Dept 1999] where "no-knock" warrants were granted upon similar representations of easily disposable drugs.
Accordingly, the court recited the disposability of the drugs in the order and executed the search warrant order with the "no-knock" provision. This Court sees no reason to question the Order of the sitting judge. A presumption of validity attaches to a search warrant because the information supporting it has already been judicially reviewed and approved ( People v Calise, 256 AD2d 64, 65 [1st Dept 1998]).
Defendant concedes that an Aguilar-Spinelli review is not applicable because both the informant police officer and the confidential informer appeared before a judge, who is charged to make a determination of reliability and knowledge (citing People v Darden, 34 NY2d 177, 181-82 [1974], People v Rodriguez, 182 AD2d 439 [1st Dept 1992]). Where the confidential informant was produced before a magistrate for the application of a warrant that served as a predicate for the warrant, the test is not applicable because the information came from the confidential informant's sworn statement, rather than just hearsay information submitted by a police officer (People v Walker, 244 AD2d 796,797 [3d Dept 1997], citations omitted).
Search warrant applications are often drafted by law officers under stressful and volatile situations, and therefore "should not be read in a hyper technical manner they must be considered in the clear light of everyday experience and accorded all reasonable inferences" (People v Hanlon, 36 NY2d 549, 559 [1975]).
Furthermore, a presumption of validity attaches to a search warrant that has already been reviewed and approved by the court (People v Castillo, 80 NY2d 578, 585 [1992]). See also, Hanlon supra at 558-9, where once a search warrant has been executed by a court, the "Bona fides of the police will be presumed and the subsequent search upheld in a marginal or doubtful case." Nor should the inclusion of the Court of Appeals' reference to marginal or doubtful cases be meant to infer that the matter presented before this Court is of marginal or doubtful character. Rather, the quote is meant to indicate that even in such situations, as long as proper guidelines and procedures as enumerated by the courts are followed, deference must be given to the sitting magistrate.
The magistrate, charged with determining probable cause for a search warrant, is afforded great deference. As a trier of facts, the sitting judge can best resolve issues of credibility "because those who see and hear the witnesses can assess their credibility and reliability in a manner that is far superior to that of a reviewing judge who must rely on the printed record" (People v Walker, 117 AD3d 1441, 1442 [4th Dept 2014]). The confidential informant testified under oath and his testimony was responsive to the court, which had the opportunity to observe his demeanor (People v Serrano, 292 AD2d 249, 250 [1st Dept 2002]). Certainly, the sitting judge is in a better position to assess the credibility of the confidential informant, who stands before him and who is being examined under circumstances where his statements, if deemed false by the court, would subject the informant to possible criminal sanctions (People v Brown, 40 NY2d 183, 188 [1976]; see also People v White, 258 AD2d 677 [2d Dept 1999]).
The Court of Appeals in Brown noted that (like the matter before this Court) the information that the informant had previously provided to the police corresponded to the information that the informant gave to the judge
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The CI's relationship and history with the NYPD and the detective has already been summarized herein above. Thus, defendant's argument that the application lacks sufficient representation of reliability because of the affiant's failure to present previous tips as the bellwether indication of reliability is rejected. See, for example, the Court of Appeals' holding in People v Rodriguez, 52 NY2d 483, 489-90 (1981), where the fact that the police informant had never previously supplied information to the police was mitigated by other indicia of reliability in the record before the court. The confidential informant was registered with the proper NYC agency. His lack of presented history is more than offset by his dealings with Officer Narcisse, his role in properly identifying the target, his participation in two controlled buys involving Officer Narcisse and two NYP sergeants, and his testimony before the magistrate relating his history of drug buys from the target and his description of the controlled buys which did net narcotics.
Indeed, if the courts had accepted the notion that a confidential informant is required to have a history of reliability, then any information from a new informant would have to be rejected.
Contrary to defendant's allegations, the apartment building and the apartment number were properly identified. Detective Narcisse's detailed description of the apartment building, the entrance area to the apartment and the two controlled buys has already been summarized hereinabove. The Court notes that the defendant argues that to ensure reliability the police officer would have to accompany the CI on the buy; and make sure that the CI entered the apartment so as to verify the controlled sale. In a borough with untold thousands of apartment houses, such intrusion would be impractical at the very least and "it takes very little imagination to see the physical dangers such close police surveillance of a drug transaction would entail for both the police office and the confidential informant" (People v Miles, 37 Misc 3d 666, 670 [Crim Ct, Kings County 2012]).
Defendant claims that the search warrant was unconstitutional for being overbroad. In support of this notion defendant relies on People v Nieves, 36 NY2d 396 [1975]. That case is inapposite and easily distinguishable from the instant case. In Nieves, the court found a search warrant to be overbroad when the warrant allowed the search of any individual patronizing a bar/restaurant. The issued warrant in Nieves could have included any person dining, or working in the kitchen or behind the bar. Obviously, the search of a small apartment is quite different and much narrower than the search of an entire restaurant and all of its occupants. The search warrant adequately described how the apartment located at 700 Quincy St. Apartment 1B was being used for the trafficking of narcotics; thus it was quite reasonable for the search warrant to include the entire apartment.
Lastly, the defendant argues that the court erred in the signing the search warrant because the controlled sale transpired outside the doorway to the target premises. Again, given the totality of the information in the affidavits and the testimony before the sitting judge, "it is a logical inference that a person who, on separate occasions, responds to a knock at an apartment door and sells drugs to a stranger is involved with a drug operation being conducted out of that apartment, and it is also a logical inference that a supply of drugs is likely to be found somewhere therein" (People v Vasquez-Mendez, 115 AD3d 593 [1st Dept 2014]).
Accordingly, the defendant's motion is denied. This constitutes the Decision and Order of the Court.
Dated: July 14, 2015
_______________________________
JOY CAMPANELLI, J.C.C.