SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
June 27, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
ROMEO E. PRIOLEAU, APPELLANT
Appeal from judgment of Oneida County Court, without a jury, convicting defendant of violation of subdivision 1 of section 1751 of the Penal Law.
Bastow, P. J., Del Vecchio, Marsh, Witmer and Henry, JJ.
Memorandum: Defendant appeals from a judgment of Oneida Trial Term convicting him of possession of a narcotic drug. Policemen arrested him on September 30, 1966, without a warrant when he got off a bus from New York City. They searched him and found a quantity of heroin cancealed on his person. If the police had probable cause to make the arrest and if the search was made as an incident thereof the conviction should be affirmed. On September 28 and 29, 1966 telephone conversations in which defendant participated were intercepted by the police. They disclosed that defendant would leave Utica on the 29th of September and would return the following day. The police watched defendant board a bus for New York City on the afternoon of September 29 and also observed him depart from a bus on the morning of September 30 when they arrested him. The wire tap order pursuant to which the telephone conversations were intercepted was a roving commission to intercept and overhear all conversations without limitations as to persons or purposes. It was fundamentally defective because it failed to describe particularly the person or persons whose conversations were to be overheard and the purpose thereof. (People v. Fino, 29 A.D.2d 227.) The fruit of the poisonous tree doctrine excludes evidence obtained as a consequence of unlawful eavesdropping but not evidence obtained from an independent source(Costello v. United States, 365 U.S. 265
, 280). The arresting police officers testified that they had received information from reliable informants that defendant was supplying narcotics to known users in the City of Utica and that they had observed known narcotic users entering the house where defendant resided. These facts without the wire tap information were insufficient to establish probable cause for defendant's arrest. (Cf. People v. Corrado 22 N.Y.2d 308.) The arrest having been made without probable cause the search of defendant's person was illegal and the evidence obtained as a result thereof was improperly received in evidence.
Judgment unanimously reversed on the law and facts and a new trial granted.
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