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PROOF AT DARDEN HEARING DID NOT DEMONSTRATE THAT THE PURPORTED CONFIDENTIAL INFORMANT EXISTED AND PROVIDED SUFFICIENT INFORMATION TO SUPPORT THE ISSUANCE OF A SEARCH WARRANT (SECOND DEPT).

The Second Department, reversing Supreme Court, over a two-justice dissent, determined the Darden hearing did not support the finding that the purported confidential informant existed and provided sufficient information for the issuance of the search warrant:

The Darden rule is necessary to insure “that the confidential informant both exists and gave the police information sufficient to establish probable cause, while protecting the informant’s identity” … . The rule, which “gives clear guidance to lower courts and guarantees that the protections of the Fourth Amendment have not been circumvented” … , “is necessary to properly test the officer’s credibility” … , and is “designed to protect against the contingency, of legitimate concern to a defendant, that the informer might have been wholly imaginary and the communication from him [or her] entirely fabricated” … . …

Here, the Supreme Court’s credibility determinations are not supported by the record. As will be shown, there were substantial material discrepancies between the detective’s affidavit in support of the search warrant, and the testimonies of the alleged CI and the detective at the Darden hearing pertaining to (1) the CI’s track record of reliability, (2) the prior relationship between the detective and the CI, and (3) the facts and circumstances of the alleged controlled buy or buys at the subject apartment. Consequently, we find that the People failed to meet their burden at the Darden hearing. People v Nettles, 2020 NY Slip Op 04776, Second Dept 8-26-20

 

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