People v. Earley

76 A.D.2d 335, 430 N.Y.S.2d 641, 1980 N.Y. App. Div. LEXIS 11756
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 28, 1980
StatusPublished
Cited by18 cases

This text of 76 A.D.2d 335 (People v. Earley) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Earley, 76 A.D.2d 335, 430 N.Y.S.2d 641, 1980 N.Y. App. Div. LEXIS 11756 (N.Y. Ct. App. 1980).

Opinion

OPINION OF THE COURT

Mollen, P. J.

This appeal concerns the propriety of a warrantless arrest and seizure predicated entirely upon information provided by a citizen informant.

The defendant was charged with the possession of a sawed-off shotgun, and he moved, inter alia, to suppress the weapon. At the hearing held on the motion, Detective Peter Cifuni testified that, on the evening of June 6, 1976, he received a telephone call from one John Brisco, a cab driver, who informed him that he was going to pick up a man whom he feared because the man "carries a shotgun”. Brisco said that he would call back before he left to pick the man up and he suggested that the detective follow him at that time. The detective agreed and, later that night, he and another officer, dressed in plainclothes and driving an unmarked car, followed Brisco to a one-family home in a residential area of Queens. From a distance of some 75 yards the detectives observed a man, later identified as the defendant, emerge from the house and enter the passenger side of Brisco’s taxicab. When the cab drove off, the detectives pursued and, after only a block and a half, they signaled for the cab to stop. Detective Cifuni thereupon exited his car, "ran” to the passenger side of the cab, and "pulled” the defendant out of the vehicle. As he did so, he saw what he thought to be the stock of a gun under the front passenger seat of the cab. He immediately subjected the defendant to a search, finding five rounds of ammunition in his right-hand pocket. He then placed the defendant in hand[337]*337cuffs, and reached into the cab, removing a sawed-off shotgun from beneath the front passenger seat.

Detective Cifuni testified that he had spoken with Brisco only three times during the preceding year. Brisco was neither registered nor paid as an informant, but on one prior occasion he had provided information which led to the arrest and conviction of an individual in Queens County. The detective acknowledged that he knew nothing about Brisco beyond what he had been told by Brisco himself. He could not say, for example, whether he had a criminal record.

The detective testified further that he had observed no telltale bulge or other sign of a weapon when the defendant came out of the house and walked to the cab. As to his subsequent encounter with the defendant, Detective Cifuni was cross-examined as follows:

"Q What did you do after you got out of your car, if anything?

"A I ran around to the side where the passenger was, and I took him out of the car.

"Q You took him right out of the car; is that right?

"A Right out, yes, sir.

"Q Did you search him when you pulled him out of the car?

"A Yes,, sir.

"Q At this point, you hadn’t seen any gun, had you?

"A When I pulled him out of the car and the door opened, I saw the butt of a gun under a seat.

"Q You opened the door; is that correct?

"A Yes.

"Q And you pulled him out?

"A Yes, sir.

"Q Are you saying that as you pulled him out, you noticed the butt of the gun?

"A Yes, because I was looking.

"Q You were looking for a butt of a gun, were you not?

"A I was looking, because that was my information: the man had a gun.

"Q That was your information?

"A That’s correct.

"Q Up until that point, you saw no gun?

"A That’s correct.”

[338]*338Following his arrest, the defendant was advised of his constitutional (Miranda) rights, and he denied ownership of the weapon. However, when the detective remarked to him that "if [the shotgun] isn’t yours, it’s the cab driver’s”, the defendant relented and said, "I will take the weight for the shotgun.”

At the close of the hearing, all arguments were framed in terms of whether Detective Cifuni had probable cause to arrest the defendant. The court denied the motion to suppress and, following a jury trial, the defendant was convicted as charged. We now reverse.

Under the facts adduced at the suppression hearing, justification for Detective Cifuni’s actions depended entirely upon the information he received from Brisco since he had absolutely no independent knowledge linking the defendant to criminal activity of any kind. Indeed, the detective testified that he had never seen the defendant prior to the night in question, and the record makes clear that, before seizing him in the taxicab, the officer had made no observations which would indicate or suggest the defendant’s possession of a weapon or commission of any other offense.

It is now well settled that where the prosecution seeks to establish probable cause solely through information provided by an informant, there must appear in the record "(1) some of the underlying circumstances from which the informant concluded that illegal activities were taking place, and (2) some of the underlying circumstances from which the officer concluded that the informant was credible or reliable.” (People v Wirchansky, 41 NY2d 130, 131; see, also, Aguilar v Texas, 378 US 108, 114.) Although this rule is most often applied when evaluating an application for a search warrant, it is no less relevant in assessing the propriety of a warrantless arrest and search based upon information provided by an informant. (See People v Elwell, 50 NY2d 231; People v West, 44 NY2d 656, 657.)

Here, there was evidence supporting Brisco’s personal reliability in that he was shown to have previously provided information which led to an arrest and conviction. However, the first prong of the test, the so-called "basis of knowledge test” (see People v Hanlon, 36 NY2d 549, 556), was not satisfied, for the record of the suppression hearing is barren of any evidence showing the basis for Brisco’s accusation. It might be argued that the very nature of the accusation [339]*339suggests that it was based upon personal observation, and it is true that an informant’s information may be so detailed as to be self-verifying. (See, e.g., People v Hanlon, supra, p 557; United States v Ventresca, 380 US 102, 108-109.) However, Brisco’s report here could well have been nothing more than an expression of his belief, founded upon unsubstantiated rumor or hearsay, that the defendant was simply in the habit of carrying a weapon. (Cf. People v Elwell, supra.) And under such circumstances, we cannot presume that the accusation was predicated upon personal knowledge. (See People v West, supra, p 657; People v Hendricks, 25 NY2d 129, 137.) Significantly, Detective Cifuni had ample opportunity to elicit the basis for Brisco’s information. Unlike situations in which information is provided anonymously or in emergency settings, the detective here was not hampered by any limitations upon his access to the informant. (Cf. People v McLaurin, 43 NY2d 902, revg 56 AD2d 80 on the dissenting opn of Nunez, J.; People v Sustr, 73 AD2d 582.) Brisco apparently called the detective twice on the evening in question, and the detective testified that he had a telephone number at which to reach him. Yet the detective never inquired as to the basis of Brisco’s accusation—at least he never reported such an inquiry at the suppression hearing.

Moreover, the information itself suffered from a lack of specificity.

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Bluebook (online)
76 A.D.2d 335, 430 N.Y.S.2d 641, 1980 N.Y. App. Div. LEXIS 11756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-earley-nyappdiv-1980.