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THE SEARCH WARRANT APPLICATION AND SUPPORTING AFFIDAVIT DID NOT DEMONSTRATE THE RELIABILITY OF THE CONFIDENTIAL INFORMANT, MATTER SENT BACK FOR REVIEW OF THE TRANSCRIPT OF THE CONFIDENTIAL INFORMANT’S STATEMENT MADE BEFORE THE ISSUING MAGISTRATE (CT APP)

The Court of Appeals, over a dissent, determined the motion court should have looked at the transcript of the confidential informant’s statements before the magistrate before ruling on whether the search warrant was supported by probable cause. The application and affidavit did not demonstrate the reliability of the informant:

… Supreme Court erred by failing to examine the transcript of the confidential informant’s testimony before the magistrate to determine whether the search warrant was issued upon probable cause and that the formal requirements of CPL 690.40 (1) had been substantially complied with … . …

The search warrant and supporting affidavit do not by themselves establish probable cause in this case … . A warrant application containing information provided by a confidential informant must demonstrate “the veracity or reliability of the source of the information” … . There are no “factual averments” in the police officer’s affidavit that could have afforded the magistrate a basis for determining the reliability of the confidential informant … . The affidavit does not state that the informant had a proven “track record” of supplying reliable information in the past … , and it is not evident that the informant was under oath when information was given to the officer … .

Nor may the reliability of the confidential informant be inferred solely from the statement, set forth in the affidavit, that the informant bought cocaine from defendant. While admissions against penal interest may be sufficient to support a finding of probable cause … , “[s]uch admissions are not guarantees of truthfulness and they should be accepted only after careful consideration of all the relevant circumstances of the case indicates that there exists a basis for finding reliability” … . People v Chisholm, 2013 NY Slip Op 04841 [21 NY3d 990], CtApp 6-27-13

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