People v. Serrano, 93 N.Y.2d 73 (1999)

When a search warrant is based on a confidential informant’s testimony, and the warrant affidavit alone is insufficient to establish probable cause, the suppression court must examine the transcript of the informant’s testimony before the issuing magistrate to determine if probable cause existed and if CPL 690.40(1) was substantially complied with.

Summary

Serrano was convicted of robbery and homicide. Evidence against him, including photographs, was seized via a search warrant. The warrant was based on a police officer’s affidavit and a confidential informant’s testimony before the issuing judge. Because the prosecution sought to keep the informant’s identity secret, the defense was denied access to the warrant application. The suppression court denied Serrano’s motion to suppress the evidence, finding the warrant affidavit alone established probable cause. The Court of Appeals held that when the warrant affidavit is insufficient on its own, the suppression court must examine the transcript of the informant’s testimony to determine if probable cause existed. The case was remitted for a new suppression hearing.

Facts

Defendant was convicted of killing the occupant of an apartment while robbing him. The prosecution introduced photographs showing the defendant with another suspect and holding a handgun resembling the weapon used in the crime. These photographs were seized from the defendant’s mother’s home pursuant to a search warrant. The warrant was based on a police officer’s affidavit and the testimony of a confidential informant before the issuing Justice.

Procedural History

The defendant moved to suppress the evidence. The People requested a protective order sealing the warrant and affidavit to protect the informant’s identity. The suppression court held an ex parte in camera hearing and granted the protective order. The court denied the motion to suppress, finding the warrant affidavit itself established probable cause. The Appellate Division affirmed. The Court of Appeals granted leave to appeal.

Issue(s)

1. Whether the suppression court erred in failing to hold a Darden-type hearing where the confidential informant would have been produced for in camera examination.
2. Whether the suppression court erred in failing to examine the transcript of the informant’s testimony before the issuing Justice to determine if probable cause existed and if CPL 690.40(1) was substantially complied with.

Holding

1. No, because when the informant had appeared and testified before the magistrate who issued the search warrant, verification of the existence of the informant, and of what was told to the police, will have already been achieved and need not be duplicated before the suppression court.
2. Yes, because the search warrant and supporting affidavit did not, by themselves, establish probable cause, and the suppression court needed the transcript of the examination of the informant in order to properly determine that there was probable cause to issue the search warrant, and that CPL 690.40(1) was substantially complied with.

Court’s Reasoning

The Court of Appeals reasoned that a Darden hearing is not always required when search warrant papers are sealed, especially when the informant has already testified before the issuing magistrate. The purpose of a Darden hearing is to verify the informant’s existence and credibility, which is already achieved when the informant testifies before the magistrate. However, the Court emphasized that the suppression court must examine the transcript of the informant’s testimony to ensure probable cause and compliance with CPL 690.40(1), which requires the examination to be under oath and either recorded or summarized. The Court found that the warrant affidavit was insufficient to establish probable cause on its own because it lacked factual averments to determine the informant’s reliability as required by the Aguilar-Spinelli test. The Court quoted People v. Griminger, stating that a warrant application must demonstrate “(i) the veracity or reliability of the source of the information, and (ii) the basis of the informant’s knowledge.” Since the affidavit did not establish the informant’s reliability, the warrant papers did not alone establish probable cause. The failure to examine the transcript and ensure compliance with CPL 690.40(1) frustrated the statute’s objectives of assuring the regularity of the application process and preserving the grounds for appellate review. The Court remitted the case for a new suppression hearing, allowing the People to present the transcript or reconstruct the informant’s testimony. If the warrant was not supported by probable cause or CPL 690.40(1) was not substantially complied with, the judgment of conviction should be vacated, and the motion to suppress granted.