People v. Caputo

Herlihy, P. J.

(concurring). The reliability of the informant was conceded by the defendant and, as found by the trial court, there remained only the question of whether the information supplied was of such reliability and credibility as to permit the search of the automobile by the police officers without a warrant and which resulted in the criminal charges now under consideration.

In my opinion, under the present circumstances, if the police officers had not stopped the automobile, they would have been derelict in their duties. The officers who knew one of the defendants, after checking for motor vehicle violations, requested the passenger to alight from the automobile which he did. The officer then observed in the car a set of scales on the back seat and a can of mace on the floor of the automobile. He also observed a box of .25 calibre pistol ammunition on the console of the ear. These observations, together with the information already supplied, constituted a sufficient basis for continuing the search by directing the defendant to open the trunk of the automobile where the officers found the drugs. Thereafter, a .25 calibre semi-automatic pistol was taken from the defendant Joseph whom the police officer testified he recognized and had known prior to the particular date.

These facts make clear the distinction between the present appeal and where a police officer, without probable cause, stops *168an automobile and conducts an unlawful search. (See People v. Castro, 29 N Y 2d 324; cf. People v. Amanatides, 39 A D 2d 1010.)