1. Whether a hearing regarding a motion to suppress, in which a confidential informant would have been produced before the court for an in camera examination to consider his actual existence and credibility, is required when a defendant is denied access to a search warrant and supporting affidavits.
2. Whether the suppression court erred in failing to examine the transcript of the informant before the issuing justice to determine whether the warrant was issued upon probable cause and whether the issuing court substantially complied with the formal requirements of CPL § 690.40(1) for taking testimony.
1. No. People v. Castillo, 80 N.Y.2d 578 (N.Y. 1992), does not require a hearing in which the confidential informant would have to be produced in all cases where the court denied a defendant access to the search warrant and supporting affidavits.
2. Yes. Because the supporting affidavit failed to establish that the informant was reliable, the warrant papers did not alone establish probable cause, and therefore the suppression court needed the transcript of the examination of the informant in order properly to determine that there was probable cause to issue the search warrant. In addition, by failing to read the informant's testimony, the suppression court failed to ensure compliance with the requirements of CPL § 690.40(1).
Defendant was convicted of killing an individual while robbing him of a large quantity of marijuana. Two photographs were introduced into evidence which were seized pursuant to a search warrant issued by a justice of the Supreme Court for the home of Defendant's mother. The issuance of the warrant was based upon an affidavit of a police officer and upon his testimony and the testimony of an unnamed confidential informant. Defendant moved for a suppression of the evidence and the People applied for a protective order sealing the warrant and supporting affidavit on the ground that they would reveal the identify of the confidential informant and pose a risk to his life. An in camera ex parte hearing was held in which only the assistant district attorney who presented the warrant testified. The assistant district attorney stated that the justice who issued the warrant had questioned the informant and that the transcript of that interview was unavailable because the court reporter was ill. In addition, the assistant district attorney maintained that protecting the identity of the confidential informant was of the utmost importance. The court granted the protective order and determined that the affidavit and warrant could not be revealed to Defendant. Further, the court denied Defendant's motion to suppress without either examining the informant personally or examining the transcript of his testimony. The Appellate Division affirmed the conviction and agreed that the warrant affidavit established probable cause to issue the warrant. The Court of Appeals granted leave to appeal and modified the Appellate Division's order remitting the case to the Supreme Court for a new suppression hearing.
The Court of Appeals held that a hearing is not required whenever a defendant is denied discovery of the identity of an informant and of the warrant application papers. Since the informant had already testified, before the Magistrate who had issued the search warrant, verification of the existence of the informant and of what was told to the police was already achieved and did not need to be duplicated.
The Court found merit in Defendant's alternative argument that the suppression court erred in failing to examine the transcript of the informant's testimony before the issuing justice to determine whether the warrant was issued upon probable cause and whether the formal requirements of CPL § 690.40(1) had been complied with. The search warrant and supporting affidavit themselves do not establish probable cause, and compliance with the requirements of CPL § 690.40(1) must be verified in order to provide an assurance of the regularity of the application process. Therefore, the case must be remitted to hold a new suppression hearing. More specifically, if the Supreme Court concludes on remittal that the warrant was not supported by probable cause, or that CPL § 690.40(1) was not complied with, then the conviction should be vacated and the motion to suppress granted. Alternatively, if the court concludes that probable cause existed and that the issuing court complied with CPL § 690.40(1), then the conviction should be amended to reflect that result.
Prepared by the liibulletin-ny Editorial Board.