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FAILURE TO MOVE TO SUPPRESS WEAPON CONSTITUTED INEFFECTIVE ASSISTANCE.

The Court of Appeals determined defendant, who was charged with criminal possession of a weapon, was not afforded effective assistance of counsel in that defense counsel did not move to suppress the weapon. The matter was remitted for a suppression hearing. The underlying facts were not addressed in the decision. People v Bilal, 2016 NY Slip Op 02475, CtApp 3-31-16

CRIMINAL LAW (FAILURE TO MOVE TO SUPPRESS WEAPON CONSTITUTED INEFFECTIVE ASSISTANCE)/EVIDENCE (CRIMINAL LAW, FAILURE TO MOVE TO SUPPRESS WEAPON CONSTITUTED INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, FAILURE TO MOVE TO SUPPRESS WEAPON CONSTITUTED INEFFECTIVE ASSISTANCE)

JUROR SHOULD HAVE BEEN EXCUSED FOR CAUSE, CONVICTION REVERSED.

The Second Department determined defendant's conviction must be reversed because the trial court should have granted defense counsel request to excuse a prospective juror for cause. The juror said she “didn't know” whether the sexual assault of her aunt would affect her ability to judge the sexual-offense case for which the jury was being selected:

Here, during voir dire, one prospective juror indicated that because her aunt had been the victim of a violent sexual assault, it would “be a little bit hard” for her to keep an open mind when listening to the facts of this case. When asked whether she could “give the defendant in this case a fair trial,” she responded, “I can manage. Yes.” When asked if it was possible that her judgment in this case might be affected by her aunt's case, she responded, “Might.” The Supreme Court also asked the prospective juror if the fact that this case did not involve a sex crime would “change things” for her, and she responded, “Part of it. Yeah.” The prospective juror confirmed that she would refrain from blaming the defendant for what happened to her aunt or favoring the prosecution for successfully prosecuting her aunt's assailant, but when asked again by defense counsel whether her aunt's experience “might affect [her] ability to judge this case,” the juror paused and finally said, “I don't know.” The court denied the defendant's challenge for cause to this prospective juror. The defense then exercised a peremptory challenge to remove her and exhausted all of its peremptory challenges prior to the end of jury selection.

At no point did the prospective juror unequivocally state that her prior state of mind would not influence her verdict, and that she would render an impartial verdict based solely on the evidence. Under the circumstances, the Supreme Court should have granted the defense's challenge for cause to this prospective juror … . People v Malloy, 2016 NY Slip Op 02380, 2nd Dept 3-30-16

CRIMINAL LAW (JUROR SHOULD HAVE BEEN EXCUSED FOR CAUSE, CONVICTION REVERSED)/JURORS (CRIMINAL LAW, JUROR SHOULD HAVE BEEN EXCUSED FOR CAUSE, CONVICTION REVERSED)FOR CAUSE JUROR CHALLENGE (JUROR SHOULD HAVE BEEN EXCUSED FOR CAUSE, CONVICTION REVERSED)

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IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over an extensive dissenting opinion by Judge Fahey, determined the defendant should have been allowed to submit evidence of third-party culpability and ordered a new trial in this felony murder/rape case. The majority acknowledged the evidence against defendant was overwhelming. However, the third-party culpability evidence—hearsay admissions about the crime allegedly made to the declarant's cellmate in prison—qualified as statements against penal interest. Applying a balancing test, the Court of Appeals concluded the probative value of the hearsay was such that it was an abuse of discretion, as a matter of law, to exclude it:

Where, as here, the defendant makes an offer of proof to the court explaining the basis for a third-party culpability defense and connecting the third-party to the crime, and the probative value of the evidence “plainly outweighs the dangers of delay, prejudice and confusion,” then it is “error as a matter of law” to preclude the defendant from presenting such proof to the jury… .People v DiPippo, 2016  NY Slip Op 02279, CtApp 3-29-16

CRIMINAL LAW (IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)/EVIDENCE (CRIMINAL LAW, IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)/HEARSAY (CRIMINAL LAW, IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)/STATEMENT AGAINST PENAL INTEREST  (CRIMINAL LAW, IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)/THIRD-PARTY CULPABILITY (CRIMINAL LAW, IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)

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PEOPLE DID NOT DELIBERATELY CALL WITNESS FOR THE SOLE PURPOSE OF ELICITING THE ASSERTION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION; PEOPLE’S OWN WITNESS PROPERLY IMPEACHED WITH PRIOR STATEMENT; EXPERT TESTIMONY ON EFFECT OF EVENT STRESS ON IDENTIFICATION PROPERLY PRECLUDED.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined (1) the People did not improperly call an eyewitness to the shooting to invoke his privilege against self-incrimination in front of the jury; (2) the People were properly allowed to impeach the eyewitness with his statement made to police at the time of the incident; and (3) expert testimony offered by the defense on the effect of “event stress” on the identification of the defendant was properly precluded. A Frye hearing was not required before preclusion. The expert witness was allowed to testify about “weapon focus” and “witness confidence.” With respect to a witness' invocation of the privilege against self-incrimination in front of the jury, the court explained the analytical criteria:

The Fifth Amendment of the United States Constitution directs that no person “shall be compelled in any criminal case to be a witness against himself” (US Const Amend V). When a witness invokes the Fifth Amendment privilege in front of the jury, “the effect of the powerful but improper inference of what the witness might have said absent the claim of privilege can neither be quantified nor tested by cross-examination, imperiling the defendant's right to a fair trial” … . It is therefore reversible error for the trial court to permit the prosecutor to deliberately call a witness for the sole purpose of eliciting a claim of privilege … . The critical inquiry is whether the prosecution exploited the witness's invocation of the privilege, either by attempting “to build its case on inferences drawn from the witness's assertion of the privilege” or utilizing those inferences to “unfairly prejudice [the] defendant by adding 'critical weight' to the prosecution's case in a form not subject to cross-examination” … . People v Berry, 2016 NY Slip Op 02283, CtApp 3-29-16

CRIMINAL LAW (PEOPLE DID NOT DELIBERATELY CALL WITNESS FOR THE SOLE PURPOSE OF ELICITING THE ASSERTION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION)/CRIMINAL LAW (PEOPLE'S OWN WITNESS PROPERLY IMPEACHED WITH PRIOR STATEMENT)/CRIMINAL LAW (EXPERT TESTIMONY ON EFFECT OF EVENT STRESS ON IDENTIFICATION PROPERLY PRECLUDED)/EVIDENCE (CRIMINAL LAW, PEOPLE DID NOT DELIBERATELY CALL WITNESS FOR THE SOLE PURPOSE OF ELICITING THE ASSERTION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION)/EVIDENCE (CRIMINAL LAW, PEOPLE'S OWN WITNESS PROPERLY IMPEACHED WITH PRIOR STATEMENT)/EVIDENCE (CRIMINAL LAW, EXPERT TESTIMONY ON EFFECT OF EVENT STRESS ON IDENTIFICATION PROPERLY PRECLUDED)/IDENTIFICATION (CRIMINAL LAW, EXPERT TESTIMONY ON EFFECT OF EVENT STRESS ON IDENTIFICATION PROPERLY PRECLUDED)

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REDACTED STATEMENT OF CO-DEFENDANT IMPLICATED DEFENDANT IN VIOLATION OF BRUTON RULE, CONVICTION REVERSED.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge dissenting opinion, determined the redacted statement of a co-defendant (Villanueva), in its written form, left no doubt that the statement implicated defendant in this gang-assault murder case.  The error was not harmless and defendant's conviction was therefore reversed:

… [T]he written statement was not “effectively redacted so that the jury would not interpret its admissions as incriminating the nonconfessing defendant[s]” … . Rather, the statement, with large, “blank [spaces] prominent on its face, . . . 'facially incriminat[ed]'” a codefendant because it “involve[d] inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial” … . Any juror “wonder[ing] to whom the blank might refer need[ed] only lift his [or her] eyes to [Villanueva's codefendants], sitting at counsel table, to find what [would] seem the obvious answer” … . In our view, the replacement of the identifying descriptors of defendant with blank spaces did not leave “the slightest doubt as to whose name[] had been blacked out, but even if there had been, that blacking out itself would have not only laid the doubt but underscored the answer” … , particularly after the court instructed the jury that it was not to speculate about the redactions in any way. The redacted statement both “indicat[ed] to the jury that the original statement contained actual names” or clearly identifying descriptors and, “even if the very first item introduced at trial[,] [it] would immediately inculpate [a codefendant] in the charged crime”  … . Therefore, we conclude that its admission violated the Bruton rule. People v Cedeno, 2016 NY Slip Op 02281, CtApp 3-29-16

Similar issue and result in a full-fledged opinion by Judge Rivera, over a three-judge dissenting opinion— People v Johnson, 2016 NY Slip Op 02282, CtApp 3-29-16

CRIMINAL LAW (REDACTED STATEMENT OF CO-DEFENDANT IMPLICATED DEFENDANT IN VIOLATION OF BRUTON RULE, CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, REDACTED STATEMENT OF CO-DEFENDANT IMPLICATED DEFENDANT IN VIOLATION OF BRUTON RULE, CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, REDACTED STATEMENT OF CO-DEFENDANT IMPLICATED DEFENDANT IN VIOLATION OF BRUTON RULE, CONVICTION REVERSED)/BRUTON RULE (CRIMINAL LAW, REDACTED STATEMENT OF CO-DEFENDANT IMPLICATED DEFENDANT IN VIOLATION OF BRUTON RULE, CONVICTION REVERSED)

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PROCEDURE USED TO EXCUSE PROSPECTIVE JURORS ON HARDSHIP GROUNDS WAS NOT A MODE OF PROCEEDINGS ERROR; FAILURE TO OBJECT TO PROSECUTOR’S APPEAL TO GENDER BIAS DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over an extensive dissenting opinion by Judge Rivera, determined the procedure used by the trial judge to excuse prospective jurors on hardship grounds was not a mode of proceedings error warranting reversal in the absence of preservation. At the outset of jury selection, the judge told the prospective jurors the trial might take five days. Anyone who felt they could not sit for five days was then allowed to leave the courtroom with the clerk who would evaluate the extent of the hardship.  The Court of Appeals held the hardship questioning occurred prior to formal voir dire and did not concern a prospective juror's fitness to serve, thereby distinguishing cases where the judge was absent during formal voir dire. The Court of Appeals further determined defense counsel's failure to object to the prosecutor's remarks in summation which appealed to gender bias did not constitute ineffective assistance of counsel. The defendant in this assault /burglary case was a woman, as was the victim. The victim's boyfriend was the father of defendant's children. To counter the defendant's argument that the attacker was a male, the prosecutor told the jury the case was about “jealousy” and “obsession” and “only a woman” would inflict “this kind of injury.” With respect to the juror-hardship issue, the court explained:

Preservation is particularly important in a case like this because the defense, faced with the prospect that certain prospective jurors were claiming that they were unable to serve due to hardship, may very well have made a strategic decision not to challenge the procedure because he did not want to risk having those prospective jurors end up on the jury when it became apparent that they did not wish to serve. If defense counsel had an objection to the procedure employed by the trial court, he should have voiced it so that the court could have corrected any alleged error. People v King, 2016 NY Slip Op 02278, CtApp 3-29-16

CRIMINAL LAW (ALLOWING CLERK TO EVALUATE JURORS' REQUESTS TO BE EXCUSED ON HARDSHIP GROUNDS WAS NOT A MODE OF PROCEEDINGS ERROR)/APPEALS (CRIMINAL LAW, ALLOWING CLERK TO EVALUATE JURORS' REQUEST TO BE EXCUSED FROM SITTING ON HARDSHIP GROUNDS WAS NOT A MODE OF PROCEEDINGS ERROR)/ATTORNEYS (FAILURE TO OBJECT TO PROSECUTOR'S APPEAL TO GENDER BIAS DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE OF COUNSEL (FAILURE TO OBJECT TO PROSECUTOR'S APPEAL TO GENDER BIAS DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)

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SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED; RULING THAT DETENTION WAS ILLEGAL WAS NOT ADVERSE TO THE DEFENDANT AND THEREFORE COULD NOT BE RECONSIDERED ON APPEAL.

The Fourth Department determined cocaine found on defendant's person in a strip search should have been suppressed. Defendant was stopped on the street after the police saw an exchange between defendant and a woman. The defendant was patted down with his consent but nothing was found. The defendant was then placed in the back of a police car uncuffed. When the police questioned the woman, she told them defendant had cocaine between his buttocks, where it was eventually found. The trial court found defendant had been illegally detained but did not suppress. The court noted that, because the illegal detention finding was not adverse to the defendant, the court could not consider the issue on appeal. Therefore, the People's argument that the police actions were proper from the outset could not be entertained. The court concluded the seizure of the cocaine was not sufficiently attenuated from the illegal detention:

As a preliminary matter, we note that, “[s]ince we are reviewing a judgment on the defendant's appeal, and the issue of whether the defendant was [unlawfully detained] was not decided adversely to him, we are jurisdictionally barred from considering” the People's contention that the police officers' encounter with defendant was lawful at its inception and at every stage thereafter … .

We agree with defendant that the court erred in determining that the seizure of evidence from his person was attenuated from the taint of the illegality … . “While the effect of illegally initiated police intrusion may potentially become attenuated, as a practical matter there is rarely opportunity for the attenuation of primary official illegality in the context of brief, rapidly unfolding street or roadside encounters predicated on less than probable cause . . . [O]nce a wrongful police-initiated intrusion is established, suppression of closely after-acquired evidence appears to follow ineluctably” … . People v King, 2016 NY Slip Op 02264, 4th Dept 3-25-16

CRIMINAL LAW (SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED)/EVIDENCE (SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED)/SUPPRESSION (SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED)/SEARCHES AND SEIZURES (SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED)/STREET STOPS (SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED)/APPEALS (CRIMINAL LAW, RULING THAT DETENTION WAS ILLEGAL WAS NOT ADVERSE TO THE DEFENDANT AND THEREFORE COULD NOT BE RECONSIDERED ON APPEAL)

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MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT’S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER.

The Fourth Department determined the denial of defendant's midtrial motion to suppress evidence seized pursuant to a search warrant should not have been denied without a hearing. The search warrant application was not provided to the defense until after the trial had begun. The application indicated probable cause for the warrant was gained through a prior “security sweep” of the building:

In determining whether a hearing is required pursuant to CPL 710.60, “the sufficiency of defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant's access to information” … . We note that the motion was not required to be made in writing, as would be required for a pretrial motion to suppress (see CPL 710.60 [1]) and, because it was properly “made orally in open court” during trial, the court was required, “where necessary, [to] conduct a hearing as provided in [CPL 710.60 (4)], out of the presence of the jury if any, and make findings of fact essential to the determination of the motion” (CPL 710.60 [5]).

We conclude that a hearing was necessary herein. Defendant's allegation that the search was of his home was sufficient “to demonstrate a personal legitimate expectation of privacy in the searched premises” … . * * * … [T]he People's current contention [that the sweep was justified by exigent circumstances] … ” raise[s] a factual dispute on a material point which must be resolved before the court can decide the legal issue' of whether evidence was obtained in a constitutionally permissible manner” … . Thus, before ruling on the motion, “it was incumbent upon [Supreme C]ourt to conduct a hearing to determine whether there were sufficient exigent circumstances [or other factors such as an ongoing emergency situation that would] justify the . . . warrantless entry” into the building … . Therefore, we hold the case, reserve decision, and remit the matter to Supreme Court for a hearing on defendant's midtrial suppression motion … . People v Samuel, 2016 NY Slip Op 02222, 4th Dept 3-25-16

CRIMINAL LAW (MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT'S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER)/EVIDENCE (CRIMINAL LAW, MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT'S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER)/SUPPRESSION (CRIMINAL LAW, MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT'S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER)/SEARCHES AND SEIZURES (MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT'S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER)

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JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL ORDERED.

The Fourth Department reversed defendant's conviction for possession of a weapon, finding the People's request for a constructive-possession jury instruction should not have been granted. The defendant had been seen holding an object that appeared to have been fired and DNA evidence tied defendant to a revolver that was found five feet away from where defendant was lying, shot, in a parking lot.  There was no evidence which warranted a jury charge on constructive, as opposed to physical, possession of the weapon:

To meet their burden of proving defendant's constructive possession of the [revolver], the People had to establish that defendant exercised dominion or control over [the revolver] by a sufficient level of control over the area in which [it was] found” … . Here, we conclude that there is no view of the evidence that defendant had constructive possession of the revolver … . Defendant's “mere presence in an area where” the revolver was found “is not sufficient to establish that he exercised such dominion and control as to establish constructive possession” … . We further conclude that the error is not harmless inasmuch as we cannot determine if the verdict was based upon defendant's physical possession of the revolver or his constructive possession of it … . People v Diallo, 2016 NY Slip Op 02213, 4th Dept 3-25-16

CRIMINAL LAW (JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL ORDERED)/EVIDENCE (CRIMINAL LAW, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL ORDERED)/CONSTRUCTIVE POSSESSION (CRIMINAL LAW, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL ORDERED)

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SEARCH WARRANT WAS NOT BASED UPON PROBABLE CAUSE TO BELIEVE THE EVIDENCE SOUGHT WOULD BE AT THE SEARCHED LOCATION, MOTION TO SUPPRESS WAS PROPERLY GRANTED AND INDICTMENT WAS PROPERLY DISMISSED.

The Fourth Department affirmed Supreme Court's granting of defendant's motion to suppress the fruits of a search warrant for a house (285 Lincoln Avenue). The search warrant sought evidence of a murder at a residence on Grafton Street. The defendant had been driven to the Grafton Street residence on the day of the murder. The search warrant at issue was for a different residence, 285 Lincoln Avenue. The search warrant application was based upon evidence the defendant's cell phone had been in the vicinity of the 285 Lincoln Avenue, the defendant had been seen in the driveway of 285 Lincoln Avenue, and defendant was a Facebook friend of the person to whom the utilities at 285 Lincoln Avenue were registered. However defendant was never seen entering 295 Lincoln Avenue and the search warrant application did not provide probable cause to believe evidence of the Grafton Street murder would be found at the property:

It is well settled that a search warrant may be issued only upon a showing of probable cause to believe that a crime has occurred, is occurring, or is about to occur … , and where there is sufficient evidence from which to form a reasonable belief that evidence of the crime may be found inside the location sought to be searched … . Here, we conclude that the Supreme Court properly determined that the application for the search warrant contained no specific factual allegations that tied the location of 285 Lincoln Avenue to the evidence sought to be seized; failed to establish any dominion and control of 285 Lincoln Avenue by defendant; and failed to tie defendant to the Grafton Street murder, or to his possession of evidence or contraband pertaining to that murder … . People v Moxley, 2016 NY Slip Op 02192, 4th Dept 3-25-16

CRIMINAL LAW (SEARCH WARRANT WAS NOT BASED UPON PROBABLE CAUSE TO BELIEVE THE EVIDENCE SOUGHT WOULD BE AT THE SEARCHED LOCATION, MOTION TO SUPPRESS WAS PROPERLY GRANTED AND INDICTMENT WAS PROPERLY DISMISSED)/EVIDENCE (CRIMINAL LAW, SEARCH WARRANT WAS NOT BASED UPON PROBABLE CAUSE TO BELIEVE THE EVIDENCE SOUGHT WOULD BE AT THE SEARCHED LOCATION, MOTION TO SUPPRESS WAS PROPERLY GRANTED AND INDICTMENT WAS PROPERLY DISMISSED)/SUPPRESSION (SEARCH WARRANT WAS NOT BASED UPON PROBABLE CAUSE TO BELIEVE THE EVIDENCE SOUGHT WOULD BE AT THE SEARCHED LOCATION, MOTION TO SUPPRESS WAS PROPERLY GRANTED AND INDICTMENT WAS PROPERLY DISMISSED)/SEARCHES AND SEIZURES  (SEARCH WARRANT WAS NOT BASED UPON PROBABLE CAUSE TO BELIEVE THE EVIDENCE SOUGHT WOULD BE AT THE SEARCHED LOCATION, MOTION TO SUPPRESS WAS PROPERLY GRANTED AND INDICTMENT WAS PROPERLY DISMISSED)

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