People v. Malinsky, 15 N.Y.2d 86 (1965)

When probable cause for an arrest depends solely on an informant’s tip, the prosecution must disclose the informant’s identity to allow the defendant a fair opportunity to challenge the basis for probable cause, unless the prosecution presents independent evidence corroborating the tip or the informant’s reliability.

Summary

Malinsky and others were convicted of concealing stolen goods. Prior to trial, they moved to suppress evidence seized during their arrest, arguing the search warrant was improperly executed. The trial court ruled the nighttime execution invalid but ordered a hearing to determine if the search was incident to a lawful arrest based on probable cause stemming from an informant’s tip. The defense was denied the ability to question the detective about the informant. The New York Court of Appeals held that while prior statements of a witness must be disclosed under People v. Rosario, the informant’s identity need only be disclosed if probable cause hinges solely on the informant’s tip without independent corroboration. The case was remanded for a new hearing to allow the prosecution to present additional evidence, if any, supporting the informant’s reliability or independent probable cause.

Facts

A trailer containing drugs and cosmetics was stolen from a terminal in Boston. Three days later, New York City police, acting on a search warrant, seized the stolen goods as the defendants removed them from a warehouse in Queens. Prior to obtaining the warrant, police had observed the defendants and received a tip from an unnamed informant, who had previously provided reliable information, stating that there was a stolen load of goods at the warehouse and that Malinsky and Lustigman were involved. The police saw the defendants loading cartons onto a truck before arresting them. Only after the arrest did the officers confirm that the goods were stolen from the Boston terminal. The cartons lacked identifiable markings, and the informant did not describe the goods or their packaging.

Procedural History

The defendants were indicted and moved to suppress the evidence seized, arguing the search warrant was improperly executed at night. The trial court agreed the nighttime execution was unauthorized but ordered a separate hearing to determine if the search was justified as incident to a lawful arrest. The suppression hearing court denied the motion to suppress, and the evidence was admitted at trial, resulting in the defendants’ convictions. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

Issue(s)

1. Whether the trial court erred in denying the defendants access to the notes made by Detective Sullivan regarding the arrest.
2. Whether the trial court erred in refusing to compel disclosure of the identity of the confidential informant.

Holding

1. Yes, because under People v. Rosario, defense counsel must be permitted to examine a witness’ prior statement that relates to the subject matter of the testimony.
2. No, not necessarily, because disclosure of an informant’s identity is only required where probable cause depends solely on the arresting officer’s testimony about the informant’s communications and there is insufficient other evidence to establish probable cause.

Court’s Reasoning

Regarding the detective’s notes, the court cited People v. Rosario, emphasizing that defense counsel must be allowed to examine a witness’ prior statements related to their testimony, provided the statements don’t contain confidential information. The court held that the Rosario rule applies equally to hearings and trials.

Regarding the informant, the court acknowledged the government’s privilege to protect the identity of informants to encourage citizens to report crimes, citing Roviaro v. United States. However, this privilege is limited by fairness requirements. Quoting Roviaro, the court stated, “the privilege must give way” where “the disclosure of an informer’s identity, or of the contents of his communication, * * * is essential to a fair determination of a cause.”
The court noted that when the legality of a search without a warrant relies on an informant’s communications to establish probable cause, the government must disclose the informant’s identity unless there is sufficient evidence apart from the confidential communication to sustain such a finding.”

The court found that in this case, probable cause rested almost entirely on the informant’s tip, with limited corroborating evidence. The officers’ observations of the defendants loading cartons onto a truck did not, by themselves, establish probable cause without knowing the goods were stolen or that the defendants were not authorized to be there.

The court remanded the case to allow the prosecution the opportunity to present further evidence to support the informant’s reliability or establish independent probable cause based on the police’s own investigation. The court concluded that “unless the prosecution is required to disclose the informer’s identity— so that he may be produced for possible questioning—the defendants will be denied the opportunity, to which they are entitled, of rebutting the detective’s crucial testimony.” If the prosecution fails to provide additional support, the court indicated that the informer’s identity must be disclosed or the evidence suppressed.