PEOPLE v. DENNIS (2023)

The indictment charges defendant with one count of criminal possession of a firearm for allegedly possessing a pistol inside a bedroom at an apartment on Nostrand Avenue in Brooklyn. Police found the pistol while executing a search warrant that authorized a search of the apartment for clothing worn by Tesfa Lewis during an alleged discharge of a firearm. This decision addresses the branch of defendant's omnibus motion that moves to controvert the search warrant. The issue presented is whether the warrant was supported by probable cause to believe that the clothing would be found at the apartment.

Defendant has standing to challenge the seizure of the pistol (see People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]). He alleged that he resides in the apartment and that the pistol was seized from his private bedroom. This claim is supported by police body-worn camera video and establishes that defendant had a legitimate expectation of privacy in the area searched. The district attorney does not contest defendant's standing to challenge the seizure of the pistol pursuant to the search warrant (see Hoang aff in resp at ¶ 74). This court may, therefore, address the merits of defendant's motion.

The search warrant was supported by the sworn affidavit of a police officer. The affidavit alleged that surveillance video depicted a person discharging a firearm multiple times on the street on December 30, 2022. The affidavit described the clothing worn by the shooter and annexed two still video images depicting the shooter and his clothing. According to the affidavit, a police detective identified Lewis as the shooter in the video. The affidavit further alleged that “[o]n February 8, 2023, the Warrants Squad picked up TESFA LEWIS at the Subject Location which understood [sic] to be his residence” (Torres aff and memo of law in supp, exh B, ¶ 12).

One requirement for a valid search warrant is that the application for the warrant must provide “information sufficient to support a reasonable belief that evidence of a crime may be found in a certain place” (People v Bigelow, 66 NY2d 417, 423 [1985]; see CPL 690.35 [3] [b]). The factual allegations in a supporting affidavit “may be based upon personal knowledge of the applicant or upon information and belief, provided that in the latter event the sources of such information and the grounds of such belief are stated” (CPL 690.35 [3] [c]). A search warrant based on unsworn hearsay must satisfy the two-pronged Aguilar-Spinelli test by establishing that the informant was reliable and had a basis of knowledge for the information provided (see People v Griminger, 71 NY2d 635, 639 [1988]).

An allegation that Lewis resided at the target location was essential to a finding of probable cause to believe that the clothing sought by the police would be found at that location. The affidavit did not contain any other information that supported a reasonable belief that the clothing would be at the target location unless it was his residence. Here, the police officer affiant did not allege based on personal knowledge that Lewis resided at the target location. Instead, the affiant relied on information obtained from unnamed fellow police officers on the Warrants Squad. The validity of the warrant thus depends on whether that information satisfies the requirement for establishing probable cause based on unsworn hearsay.

To uphold the warrant, the district attorney relies on the fellow officer rule, which allows a police officer to act on information obtained from a fellow officer “in possession of information sufficient to constitute probable cause” (People v Ketcham, 93 NY2d 416, 419 [1999] [internal citations omitted]). “The fellow officer rule is a ‘straightforward application’ of the two-pronged Aguilar-Spinelli test” (People v Mortel, 197 AD3d 196, 204 [2d Dept 2021], lv denied 37 NY3d 1097 [2021]). Although a police officer is presumed to be reliable under the first prong, the information conveyed by the officer must still satisfy the basis-of-knowledge prong by showing “how the transmitting officer acquired that information” and “that the information imparted was obtained in a reliable way” (id. [cleaned up]). As the Court of Appeals has stated: “An unsubstantiated hearsay communication—even when transmitted by a fellow officer—will not satisfy the People's burden” (People v Ketcham, 93 NY2d at 420).

Contrary to the district attorney's contention, the supporting affidavit here does not satisfy the second prong of the Aguilar-Spinelli test. The supporting affidavit does not establish the basis of knowledge for the understanding of someone on the Warrants Squad that Lewis resided at the target location. The basis of knowledge could have been established by a hearsay statement of a Warrants Squad officer, provided that the content of the hearsay statement was recounted in the supporting affidavit and established the reliability of the information that provided the basis for believing that Lewis resided at the target location (see id. at 421 [“hearsay-upon-hearsay” may establish probable cause “so long as both prongs of Aguilar—Spinelli are met at every link in the hearsay chain”] [cleaned up]). But the supporting affidavit is silent about how the Warrants Squad learned or knew that Lewis resided at the target location. The failure to supply that information prevented the judge who reviewed the warrant application from independently determining whether the basis for the Warrants Squad's alleged understanding was sufficient to justify issuance of the warrant (see People v Brown, 40 NY2d 183, 186 [1976] [“If the affidavit or deposition does not indicate how the information was acquired, by the affiant or [the] source, the court cannot judge for [oneself] the persuasiveness of the facts relied on to *** show probable cause”] [cleaned up]).

The district attorney can rely on circumstantial evidence to demonstrate an adequate basis of knowledge for the information conveyed (see People v Ketcham, 93 NY2d at 421 [“Although there was no direct evidence regarding the ghost's basis of knowledge, here the suppression court could draw an inference, from the evidence presented, as to how that officer received his information”] [internal citations omitted]). But not in this case. The mere fact that the Warrants Squad arrested Lewis at the target location does not support a reasonable inference that Lewis resided there. Perhaps that inference could have been drawn if the affidavit had stated why the Warrants Squad went to the target location on the day of the arrest or who, if anyone, was interviewed by the Warrants Squad that day or at that location, and what was learned from any such interview. But no information like that was supplied in the supporting affidavit. The sufficiency of the factual basis for the Warrants Squad's understanding that Lewis resided at the target location cannot be presumed (see People v Dodt, 61 NY2d 408, 416 [1984] [“the information conveyed must be proved; there is no presumption of its sufficiency to establish probable cause for an arrest or search”] [emphasis in original]). The district attorney cannot save this warrant by invoking the fellow officer rule.

For the reasons stated above, the motion to controvert the search warrant and suppress the pistol seized pursuant to the search warrant is GRANTED.

Based on the foregoing, this court need not address the other arguments made in support of the motion to controvert the search warrant. The remainder of defendant's omnibus motion is moot.

So Ordered.

Heidi C. Cesare, J.