Opinion
12-1440
05-16-2013
The People of the State of New York, Plaintiff, v. Michael Flowers and GREGORY FLOWERS, Defendants.
FRANCISCO C. LUIS, ESQ. Office of the District Attorney of Westchester County ROBERT J. MANCUSO, ESQ. Mancuso, Rubin & Fufidio Attorney for Defendant, Michael FlowersJOSEPH P. ABINANTI, ESQ. Attorney for Defendant Gregory Flowers
FRANCISCO C. LUIS, ESQ.
Office of the District Attorney of Westchester County
ROBERT J. MANCUSO, ESQ.
Mancuso, Rubin & Fufidio
Attorney for Defendant, Michael FlowersJOSEPH P. ABINANTI, ESQ.
Attorney for Defendant Gregory Flowers
Susan I. Kettner, J.
Papers Read on This Motion:
Notice of Motion for Discovery pursuant to CPL Article 240
and Order to Unseal Search Warrant and Application
and Affirmation Annexed 1- 2, 3-4
Affirmation in Opposition 5-6
Defendants moves pursuant to CPL Article 240 for discovery and the unsealing of the search warrant and the search warrant application. The People do not oppose the unsealing of the search warrant but do oppose unsealing the search warrant application.
BACKGROUND
Defendants stand charged with Criminal Possession of a Controlled Substance in the Seventh Degree, a violation of Penal Law § 220.03, pursuant to a traffic stop conducted on December 5, 2012 at 50 Sickles Avenue, New Rochelle, New York. Prior to the stop, on or about November 29, 2012, a member of the New Rochelle Police Department submitted a Search Warrant Application seeking permission to search defendant Michael Flowers and a vehicle bearing NY Registration ESP-4191 for evidence relating to the possession and/or sale of narcotics. The Search Warrant Application included information learned from an alleged past, proven and reliable confidential informant (hereinafter CI). The Search Warrant was signed by New Rochelle City Court Judge Susan I. Kettner.
Discussion
Motion to Unseal the Search Warrant
The Court grants this branch of the defendants' motion to unseal the search warrant as it is unopposed by the People.
Motion for Discovery
Courts routinely recognize an "informer's privilege" in instances where it is determined necessary to protect a CI. The underlying rationale is to promote the public's interest in fostering effective law enforcement and to encourage the public to report criminal activity to the same end.
The motion to unseal the search warrant application is based, in part, upon information provided by a CI in the following scenarios: where, as here, the information provided by the CI is used to establish probable cause for an arrest or later, for trial purposes, where the issue of identification bears directly on a defendant's guilt or innocence.
Recognizing the dual purposes, New York courts have tended to react less stridently to due process considerations at the pre-trial suppression stage of the adversarial proceeding. In People v Castillo, 80 NY2d 578 (1992), the Court of Appeals noted:
[At a pretrial hearing,] we are not dealing with the trial of the criminal charge itself. There the need for a truthful verdict outweighs society's need for the informer privilege. Here, however, the accused seeks to avoid the truth. The very purpose of a motion to suppress is to escape the inculpatory thrust of evidence in hand, not because its probative force is diluted in the least by the mode of seizure, but rather as a sanction to compel enforcement officers to respect the constitutional security of all of us under the Fourth Amendment . . .Id. at 582, quoting from McCray v Illinois, 386 US 300, 307 (1967).
In People v Seychel, 136 Misc 2d 310 (Sup Ct, NY County 1987), the court enunciated a four step approach in cases where the People claim that a search warrant application must remain sealed to protect the CI's safety and/or future law enforcement investigations. This method received the Court of Appeals' imprimatur in Castillo, supra. The procedure calls for the court to review the search warrant to determine the existence of probable cause by application of the Aguilar-Spinelli test. Should the supporting affidavit appear perjurious on its face, the court would then conduct an in camera hearing to determine if the affidavit contained perjury, and if it did, would give the People the choice of turning over the affidavit for a hearing or discontinuing the prosecution.
Should the court find neither of the forgoing, it would then proceed to conduct an in camera, ex parte inquiry of the informant and the People's exhibits to determine whether the informant's life and/or future investigations would be jeopardized by disclosure. Should the court determine that confidentiality was essential, then it would attempt to redact those portions of the affidavit to conceal the informant's identity, while giving the defendant a description of the information resulting in his arrest. Should the court find this impossible, it would order the People to produce the informant for a Darden-type inquiry in which it could evaluate the informant's credibility. See, People v Darden, 34 NY2d 177 [1974].
In the present case, the Court has examined the search warrant application and is satisfied that it is not perjurious on its face, insofar as the presenting officer testified to the truth and accuracy of its contents. Because the CI was not produced for examination, the Court feels constrained, given the procedural posture of the case, to follow the methodology outlined in Seychel and adopted by the Court of Appeals in Castillo.
Accordingly, the Court hereby grants this branch of the defendant's motion seeking to unseal the search warrant application to the limited extent that the People are ordered to produce the CI and the People's exhibits, if applicable, for an in camera, ex parte examination by the Court to determine whether the CI's life and/or future investigations would be jeopardized by disclosure and to proceed then, in accordance with the procedure outlined in Seychel and Castillo.
The foregoing constitutes the Conclusions of Law and Decision and Order of the Court.
Dated: May 16, 2013
New Rochelle, New York
Hon. Susan I. KettnerCity Court Judge
The officer was sworn in upon presentation of the warrant application and swore to the truth and accuracy of the contents of the affidavit before Judge Kettner. The CI was not present.