The People contend that the Assistant District Attorney’s stipulation removing from the court’s consideration upon a suppression hearing the question of abandonment as
The informant accurately described defendant in terms of height, weight, color, nationality and attire; this description led the officer to defendant and defendant’s companion, also accurately described, when the officer first observed them upon the street; and thus became a substantial factor in testing the reliability of the information (see Draper v. United States, 358 TJ. S. 307, 309, 313). The informant reported upon personal knowledge, based on his present observation of narcotics in defendant’s possession; factors whose absence was notable and the subject of comment in People v. Hendricks (25 N Y 2d 129, 136, 137,138, supra), in Spinelli v. United States (393 U. S. 410, 416) and in Aguilar v. Texas (378 U. S. 108, 113-114). Important, too, was the informant’s specification of the location of defendant’s activities as in front of No. 32 Fort Greene Place, where the officer shortly found him.
In sum, then, an informant of demonstrated past reliability reported his actual observation of the present possession of a narcotic, at a specific location, by an individual for whom he furnished a description so accurate as to enable the officer to make immediate identification, some 30 minutes later, upon encountering defendant at the location where he was reportedly
The order should be affirmed.
Chief Judge Fuld (dissenting). The critical question presented on this appeal is whether the People were under the necessity of disclosing the identity of the police informant. In my view, such disclosure was required since, apart from the arresting officer’s own testimony as to the informant’s communications to him, there was no evidence to establish probable cause for the defendant’s arrest. In Draper v. United States (358 U. S. 307), upon which the majority places reliance, the informer’s identity was disclosed (see United States v. Robinson, 325 F. 2d 391, 394) and, consequently, nothing decided or stated in that case supports an affirmance here.
At the hearing on the defendant’s motion to suppress the heroin taken from him, the arresting officer testified that, after receiving a tip from a confidential informer that he had observed “ two fellows dealing drugs at Fort Greene Place ” in Brooklyn, he went there and saw the defendant and another man who fitted the descriptions given to him. Although he acknowledged that
As the record makes clear, the officer did no more than testify that his own observations at Fort Greene Place corresponded with what he himself said his informer had told him; thus, there was no independent substantiation of the fact of the informer’s existence or of his act of informing. Consequently, in order to be in a position to refute the officer’s story, defense counsel requested disclosure of the informer’s name.2 The request was denied and, at the hearing’s conclusion, the judge denied the motion to suppress; on appeal, the Appellate Term affirmed on the ground that ‘ ‘ the information given supplied probable cause for the defendant’s arrest and the search incidental thereto ”.
It is indisputable that a search and seizure, not authorized by consent or a search warrant, is permissible only if conducted as incident to a lawful arrest and that, to accomplish such an arrest, the officer must, at least, have reasonable or probable cause for believing that a crime has been committed. (See, e.g., People v. Malinsky, 15 N Y 2d 86, 91 [same case, 19 N Y 2d 262]; People v. Loria, 10 N Y 2d 368, 373; Beck v. Ohio, 379 U. S. 89.) Even if I were to assume that probable cause was established in this case by the officer’s testimony as to what he claimed his informer told him and his further testimony that the physical appearance of the defendant and his companion tallied with the informer’s description of the two men at Fort Greene Place, it would not decide the issue before us. In short, it does not resolve the defendant’s claim that, by refusing to reveal the informer’s identity, the State denied him a fair hearing since
In the case before us, it seems to me manifest that the officer’s observations were insufficient to support a finding of probable cause, or even of reasonable suspicion, that a crime was being committed or attempted. (See, e.g., People v. Verrecchio, 23 N Y 2d489, supra-, People v. Gorrado, 22 N Y 2d 308.) Phrased somewhat differently, on the facts adduced, it is clear — and the majority recognizes this by its references to, and its reliance upon, “ the informant’s accurate report” and his description of the defendant (opn., p. 326)—that the finding of probable cause necessarily depends on the informer’s communications as related by the arresting officer. Nothing the officer personally observed at the scene indicated that the defendant was ‘ ‘ dealing [in] drugs ’ ’ or was engaged in any other criminal activity; he merely saw, as he drew near, that the defendant and his companion were talking together and that a cigarette pack fell from the defendant’s hand.3 By no stretch of reason or logic could
Since, then, the officer’s own observations completely failed to prove probable cause — in other words, since there was insufficient evidence to sustain such a finding, apart from the communication attributed by him to the informer-—it follows that the People were required to divulge his identity.
Were the rule otherwise, and if disclosure could properly be withheld, a police officer would be allowed to establish unimpeachably the lawfulness of an arrest merely by testifying that he received justifying information from a reliable informer whose identity cannot be revealed. Such a result is intolerable, ■for, as we declared in Málinsky (15 N Y 2d, at p. 94), it “ would completely deprive the defense of the opportunity of showing that there was in fact no reliable informer or, if there was, that his communication to the police was different from that testified to and that, for either of those reasons, the police did not have probable cause to make the arrest ’ ’. Consequently, the court concluded, “ the prosecution must either disclose or run the risk of having the arrest and search held illegal.”
The order appealed from should be reversed and the case remitted to the Criminal Court, Kings County, for a further hearing on the motion to suppress.
1.
The District Attorney stipulated that the cigarette package had not been “ abandoned ” and that probable cause for the arrest depended solely upon the information conveyed to the police by the informer, and the entire court recognizes that the stipulation may not now be disregarded or disavowed by the People.
2.
As to the informer’s reliability, it is of more than passing significance that, although the officer declared that on 10 previous occasions the information supplied had led to arrests, he admittedly could recall on cross-examination the names of only three of those arrested and of these, he stated, only one had been convicted.
3.
As already noted (supra, p. 328, n. 1), the prosecutor stipulated that the defendant had not “ abandoned ” the package.