In this motion to controvert a search warrant and to suppress the evidence obtained by means of the warrant, a hearing was held at which time the People produced, inter alia, evidence that I consider to be particularly somewhat devastating in quality.
The hearing, by stipulation of the parties, covered the two indictments involved herein, Indictment No. 1809 and Indictment No. 2281.
Briefly stated, without extending this opinion, the proof shows, with respect to the foregoing phase of the evidence, that on March 24, 1969, at 2:30 p.m., the defendant, without "bulges" on his person, was seen by a detective, entering apartment 2E of premises 670 East 176 Street, with the aid of a key. The apartment was, by reason thereof, kept under surveillance until 6:05 p.m., when the defendant finally emerged therefrom, with "bulges" on his person, and then proceeded to Belmont Avenue. On Belmont Avenue, in an alleyway between two apartment houses, Nos. 1908 and 1910, the defendant was seen by the surveillant detective throwing three packages to the ground. At no time during this mobile surveillance were these packages lost sight of by the detective. These packages were soon retrieved by the detective and when they were opened later they were found to contain policy slips. The defendant was followed back to premises 670 East 176 Street, by the same surveillant detective.
The record reveals that the defendant had had several other arrests for gambling violations.
On March 25, 1969, the next day, a search warrant was obtained from the Criminal Court and on that day apartment 2E of 670 East 176 Street was entered by the police and the defendant was thereupon placed under arrest. The police saw and seized other slips together with paraphernalia found in the apartment.
The whole point of the case turns on this: Is this phase of the proof, together with the other proof in the record, potent enough in law to sustain the validity of the search warrant?
The defendant maintains that the warrant was issued without probable cause because the affidavit in support thereof had been issued on sworn statements by a detective who had gained knowledge of these facts not by ocular means but from the mouth of another detective working in co-operation with the affiant; therefore, he contends, such statements, not being based on direct evidence, were hearsay and not admissible. In other words, the affiant's role was in the nature of an intermediate witness.
The District Attorney takes a contrary stand concerning the challenge directed at the warrant and the concomitant search and seizure.
Another point raised by the defendant is this: Because the supporting affidavit failed to allege that the defendant had entered the apartment with a key, such omission should have barred the people from adducing evidence of such a fact at the hearing.
My view regarding the over-all picture furnished by the evidence is that the defendant's contentions fall short of being forceful enough to be accommodated to the rules and the principles laid down by the courts, as we shall see from the citations that follow, thereby providing the District Attorney with the legal leverage that, in effect, has influenced me in favoring his position on the issues. REASONABLE AND PROBABLE CAUSE
In People v. Lombardi (18 A.D.2d 177, 180, affd. 13 N.Y.2d 1014), the court speaks of reasonable cause in this language: "Reasonable cause in this context is equated with 'probable cause,' as the term is used in the Fourth Amendment (Draper v. United States, 358 U.S. 307, 310). It has been interpreted to mean such reasonably trustworthy information as would warrant a man of reasonable caution to believe that the defendant was guilty of the commission of crime (Carroll v. United States, 267 U.S. 132, 162). It is not a mechanical standard of legal proof, applied with the rigidity and nicety of a highly specialized technique. 'In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of every-day life on which reasonable and prudent men, not legal technicians, act' (Brinegar v. United States, 338 U.S. 160, 175)."
Another point of view is the classic statement of probable, or reasonable, cause as expressed by Chief Justice Marshall in Locke v. United States (7 Cranch [11 U.S.] 339, 348): "It may be added, that the term 'probable cause,' according to its usual acceptation, means less than evidence which would justify condemnation * * * It imports a seizure made under circumstances which warrant suspicion " (italics supplied). (Henry v. United States, 361 U.S. 98, ...