Opposition Brief — SANTIAGO V. NEW YORK (No. 74-1000)

Py.

TABLE OF CONTENTS a

/

Preliminary Statement

Jurisdiction

Statement of Facts

ARGUMENT :

POINT I - THE RELIABILITY OF THE

INFORMANT AND THE ACCURACY OF HIS

INFORMATION WERE CLEARLY STATED ON

THE FACE OF THE AFFIDAVIT.

POINT II - THE INSTANT WARRANT WAS

NOT BASED ON STALE INFORMATION.

CONCLUSION - FOR THE AFOREMENTIONED

REASONS, THE PETITION FOR WRIT OF

CERTIORARI SHOULD BE DENIED.

APPENDIX

TABLE OF AUTHORITIES ;

Cases }

Page :

‘

Aguilar v. Texas, 378 U.S. 108 (1964) 12

Albitez v. Beto, 465 F. 2d 954 (5th ;

r. 19725 16

Bastida v. Henderson, 487 F. 2d 860

th Cir. 1973) 19

Brinegar v. United States, 338 U.S.

a 15

Draper v. United States, 358 U.S. 307

T1359) 16

Durham v. United States, 403 F. 2d 190

th Cir. ,» Vacated on other

grounds, 401 U.S. 19

Jones v. United States, 362 U.S. 257

(1960)

16

Rider v. United States, 355 F. 2d 192

th Cir. 1966) 20

Rosencranz v. United States, 356 F. 2d

st Cir. 1566) 20

Sgro v. United States. 287 U.S. 206

(1932) 18

Spinelli v. United States, 393 U.S. 410

(1969) i2,43

United States y. Boyd, 422 F. 2d 791

t r. 1970) 20

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. Se Oars eer up ree LN ~ a a ME es Care Co en - --

; : ¢

q

United States

United ptates

PAniL tadinecawew. Ancien ae La AO” Sp cal,

United States

taco al

ake nd

United States

oe ee ee

United States

United States

t og

United States

: t

* Neb 0 ORL IRD

United States

r.

28 U.S.C. Sec.

iii

v. Comissiong, 429 F. 2d

1970)

v. Conti, 361 F. 2d 153

66), vace _vagated on other

srousda’ 390 U

v. Harris, 403 U.S. 573

v. Harris, 482 F. 2d

ae |

ar.

v. Johnson, 461 F. 2d

v. Neal, 500 F. 2d 305

1974)

v. Unger, 469 F. 2d 1283

972) }

v. Ventresca, 380 U.S.

Statutes

1257(3)

Page

16

21

15,18,21

12,13,14

19

19

19

20

19

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1974

No. 74-1000

CARMEN SANTIAGO,

Petitioner,

; ~against-

| THE PEOPLE OF THE STATE OF NEW YORK,

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

i PRELIMINARY STATEMENT

| The petitioner, Carmen Santiago, seeks a

writ of certiorari to review the order of the

Supreme Court of the State of New York,

RAN AIRE Lad al SL urota

Appellate Division, Second Department, which,

at

on June 24, 1974, affirmed without opinion a

judgment of the Supreme Court of the State of

New York, County of Kings, rendered July 15,

| 1971, convicting her of Criminal Possession of

a Dangerous Drug in the Second Degree; Criminal

Possession of a Dangerous Drug in the Fourth

—

Storer ee

Ban wie all elataeetun esa

Degree and Possession of a Weapon as a

Misdemeanor. She was sentenced to a term

of imprisonment of five to fifteen years on

the Second Degree count, a maximum of seven

years on the Fourth Degree count, and one year

on the Weapon count, said sentences to run

concurrently. Leave to appeal to the Court

of Appeals of the State of New York was denied

on November 15, 1974.

By Kings County Indictment No. 4236/1970,

the petitioner was charged with Assault in the

Second Degree, Criminal Possession of a Dangerous

Drug in the Second and Fourth Degrees, and

Criminal Possession of a Dangerous Weapon as a

Misdemeanor. On April 19th and 20th, 1971, a

hearing both to controvert a search warrant and

to suppress evidence was held. The motion to

controvert was denied, while the motion to

Suppress was granted in part and denied in part.

On May 5, 1971, a jury trial was held and the

petitioner was found guilty of the above, except

for the Assault charge. On July 15, 1971, the

petitioner was sentenced as aforesaid.

BONS ee EN ee ae ee ene

EESTI SEAR

~ JURISDICTION

Petitioner seeks to invoke the juris-

diction of this Court pursuant to 28 U.S.C.

§1257(3) and Rule 19, subdivision 1 of the

rules of this Court.

STATEMENT OF FACTS

At the hearing to controvert and suppress,

PATROLMAN STEPHEN SPINELLI testified that

during September, 1970, he was assigned to the

Narcotics Division to investigate illegal

narcotics activity. On September 17, 1970,

at approximately 8:30 p.m., the witness submitted

a search warrant and affidavit to Judge Murray

of the Brooklyn Criminal Court, who signed the

warrant (H4).* In connection with the affidavit

for the warrant, the witness received confidential

information from a registered police informant

who had previously given the witness information

concerning narcotics activities on thirty separ-

ate occasions. The witness then gave five

specific instances where information given by

* Numbers in parentheses preceded by the letter

"H" refer to pages of the minutes of the hearing.

PAVE CORE) NELLA I ELL IDLE TIN NOEL LN I ay a < tee emg

pee A

a ai

a aha

PPR PRT POI

VT ERAN TERS ENP AR OEP UPN TOE

SAEERY PPE ORIEN

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4

the informant led to arrest, indictment, and

conviction of five individuals for narcotic

activities. These individuals were listed in

the affidavit accompanying the instant search

warrant (although the appellant does not include

it, the respondent will provide the court, in

the appendix, with the relevant portions of

the affidavit under attack on appeal) (H5-8).

Concerning appellant, the registered

informant informed the witness that he observed

Se Ce, OS. ERE EY Ce

appellant selling narcotics and in possession

pe Abed Mle

of large quantities of narcotics both in the

Hotel St. George, room 851, and on the street.

As a result of this information, the witness

went to the Hotel St. George and made eighteen

observations of room 851 from July 17, 1970, to

September 16, 1970, at all hours of the day and

night. The affidavit listed four observations,

September 11, 14, 15, and 16, 1970. During

ei aNd tall Nia eh Ae a ell De Sate hk Rae tok pee Se ait

those September observations, the witness

observed individuals standing around the door of

851. Thereupon appellant would open the door,

= i ai i the ia Anal gables weet aed

OEE ge poteeg OM LSC AIH st re peg

ee

§. hand the individual a brown paper bag, and

appellant, in turn, would receive money from

the individual (H9-16). The witness was also

involved in a prior arrest of appellant in |

“October, 1969, involving illegal narcotic

activities in the Hotel St. George.

The warrant was executed by the witness and

three fellow officers in the Narcotics Division

at approximately 10 p.m. on September 17, 1970.

The hotel manager opened the door to room 851

and a search of the room ensued. In appellant's

closet, in her bag, was found a cunts of

heroin and all kinds of narcotic implements and.

cutting devices. Alco found in a shoe box was

nearly $5,000 in cash. | Besides this contraband,

the police also recovered items and articles of

personal property all bearing appellent's name. |

The room, however, was registered to a "Peter

Gomez'' who was also named in the Warrant, but

there was no evidence of a male living in the

room. Nor was this individual ever seen entering

or leaving the room (H18-21).

After searching the room, the police waited

for appellant's return. This came to pass at

about 7:30 a.m. the following morning. At that

time, the witness observed appellant from the

hotel window park her car and enter the hotel.

A few minutes later, the witness heard a key go

into the door, the door opened; appellant had

her hand in her pocketbook and as the witness

and his partner attempted to grab her, the

pocketbook fell to che floor and appellant had

a .38 caliber gun in her hand. The officers

SEN ES Pa

grabbed the gun and it was found to be loaded

(H31-35). The pocketbook was recovered and

heroin and cocaine were found within (H39).

(Heroin was also found in appellant's car but

the court ultimately ordered these narcotics

suppressed.)

Appellant was placed under arrest and was

put into the witness’ car. As the witness was

driving to the precinct, he observed appellant

through the rear view mirror adjusting her

blouse and pants and "when she made a move

b

n

4

Rene THT ee a

—$<_—_$_$_$_$__ RG OO AGLI Ie

TREES LY SP LLY LICE I LIE LENS GEL IBD SLO HALO UIC 2 BI AERBREY 8, oe

Shc ol OOR Lk A Rae

toward the window. . .", ostensibly to throw a

cigarette out, "I hit the brake of my car and

grabbed her hands, and I obtained a small package,

a plastic envelope, containing alleged cocaine"

(H41).

The return of the search warrant was made

on September 30, 1970, before Judge Murray (H42).

Upon cross-examination, the witness stated

that he first learned that appellant was involved

in narcotics and was a wholesale supplier in

Brooklyn in 1969 (H45-46). Concerning the

observations, Patrolman Taylor, the witness’

Partner, was not allowed near room 851 as

appellant knew him (H56). As to the informant,

the witness could not recall the date of the

conversation but it was months before the

arrest (H58). The last time the witness saw

the informant was during the summer of 1970 (H59).

The witness was then questioned about the

names of the arrested individuals listed in the

affidavit and it was noted that although these

individuals were subsequently convicted for

_ Marcotic sales to undercover police officers, the

i

|

z

E

SEERA DET ye

ALIENS SE

fact that they were convicted was not mentioned

in the affidavit (H65-70-b).

The first time the informant told the witness

about appellant's narcotics operation was in the

early part of 1970. The informant was in the

room with appellant maybe seven times and the

informant is himself an addict (H79). Concerning

paragraph 3 of the affidavit, the informant told

the witness that he and others purchased drugs

from appellant in room 851 of the Hotel St.

George (H85). Again the witness could not recall

‘the exact date of this conversation except that

it occurred during the early part of 1970 (H87).

After receiving this confidential information,

the witness initiated a “questioning investi-

gation, just checking around" (H88). However,

actual observations of the subject room commenced

during July, 1970 (H89).

The questioning turned to the witness'

observation. On September 11, 1970, the witness

observed seven addicts known to him from the 76th

Precinct area, enter and leave room 851 (H91).

os POPPI OLE FP NYOL TT CLAN TOT ec a eee

During this period, the witness observed

appellant open the door (H96,99). On September

14, 15, and 16, 1970, five addicts were seen

entering and leaving the room. However, the

total individuals known to the witness was nine

(H99,101-102). The witness also had information

that others were working for appellant, “dealing”

on the street (H103). Concerning the search of

the roon, when the room was searched, only female

clothing was found (H156).

PATROLMAN THOMAS JACKSON was called as a

defense witness and stated that since September,

1970, he was Spinelli's partner. When the

questioning turned to the observations made by

Spinelli on September 11, 1970, the witness

stated that, "Patrolman Spinelli and I never

stayed together really on the observations”

(H172). The witness, however, was on the eighth

floor but he had no independent recollection of

anyone entering or leaving room 851 (H173).

However, his notes indicated that he and Spinelli

observed addicts leaving the room on various

dates (H174,176,178). Further, during those

CPO eres seman meen ei IR OM ie ea le Be ed OR A Say ee

dates, the witness observed appellant in the

lobby of the hotel in the morning (H179).

Concerning the execution of the warrant, the

seizing of the narcotics, the apprehension of

appellant with her gun, and the recovery of the

narcotics in her pocketbook, the officer's

testimony was substantially that of Patrolman

Spinelli.

PATROLMAN WILLIAM TAYLOR was called as a

defense witness and stated that prior to

September 17, 1970, he worked with Patrolman

Spinelli on this case and was present in early

1970 when Spinelli had a conversation relating

to narcotics with the informant concerning

appellant (H209-210). Further, the witness

knew appellant (H211). The questioning then

turned to that portion of Spinelli's affidavit

where the individuals arrested as a result of

the informant's information were listed. It

was brought out that these individuals were

arrested and charged with crimes involving

dangerous drugs. The arrests were effected by

the witness and Spinelli (H211-228).

After the witness and Spinelli received

the information concerning appellant, Spinelli

made observations in the hotel. The witness was

in the hotel when Spinelli made these observations

(H230). More than likely, however, as to the

observations listed in the affidavit, the witness

was not present at the hotel (H237-238).

At the hearing's conclusion, the court made

findings of fact and concluded that the reliability

of the informant was shown and there was probable

cause on the face of the affidavit for a Warrant

to issue.

ARGUMENT

POINT I

THE RELIABILITY OF THE INFORMANT AND THE

ACCURACY OF HIS INFORMATION WERE CLEARLY STATED

ON THE FACE OF THE AFFIDAVIT.

The law is well settled, and the petitioner

does not contest, that an affidavit for a search

warrant may be based on hearsay and need not

reflect the personal observations of the

affiant. When such a situation obtains,

however, the affidavit must meet the two-prong

test first laid down by this Court in Aguilar v.

Texas, 378 U.S. 108, 114-15 (1964), and expounded

upon in Spinelli v. United States, 393 U.S. 410

(1969), and United States v. Harris, 403 U.S. |

_ 573 (1971).

The test of Aguilar requires that the

magistrate be able to conclude, from the face

of the affidavit, both that the affiant's

informant was credible and that his information

was reliable. Respondents respectfully submit

that the affidavit in question provided a more

than ample basis for such a conclusion.

Taking the second prong first, the affidavit

clearly stated that the informant observed the

-~ . PRES EAE BOLE RA LEO CIEE ep pam amore LD RT ONS ENE af —_ tosen

—

FPO AOR UTR LTO

petitioner in possession of narcotics and further

observed the petitioner sell narcotics on various

occasions. Such personal observation on the part

of the informant obviously provides the greatest

assurance that the information is in fact reliable,

and has been previously considered by this Court

to be sufficient. Spinelli v. United States,

supra, 393 U.S. at 415; United States v. Harris,

supra, 403 U.S. at 581. Petitioner's position on

this point is apparently inconsistent: at first

she asserts that the second prong of the Aguilar

test was not met, but then appears to concede

that the "nature of the information given by

the informant was direct knowledge.” Petitioner's

Brief, pp. 13-14. Respondents submit that the

second prong of the Aguilar test was clearly

satisfied.

The first prong of the Aguilar test requires

the affidavit to contain sufficient allegations

to enable the magistrate to conclude that the

informant was credible. The petitioner, in

denying the propriety of the magistrate's

conclusion, focuses upon the failure of the

affidavit to allege that the arrests to which

ee wT ae

im . ‘ aad ee ee

the informant's prior information had led

resulted in convictions. In so doing, the

petitioner completely ignores the informant's

clearly stated declarations against penal

interest. Respondents submit that such

declarations, even standing alone, were a

CAPE ENTS ET OOF A RIT Re ap RES IST susal

sufficient indication of the informant's

reliability, and that the other information -

although unnecessary - simply provided additional

_ indicia of reliability.

In the case at bar, the unnamed informant

stated to the affiant that "he has purchased

narcotics from [the petitioner] on numerous

occassions [sic]." Such declarations against

penal interest have been held by this Court to

be sufficient, in and of themselves, to support

a finding of the informant's credibility. United

States v. Harris, supra, 403 U.S. at 583-84. In

Harris, the informant had stated that he had

purchased illicit whiskey from the defendant for

a period of more than two years. Respondents

submit that the present case is plainly controlled

by United States v. Harris, Supra, and that the

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first prong of the Aguilar test has been thereby

satisfied.

Even on its own terms, the petitioner's

argument that the failure of the affidavit to

allege that the informant's information led to

convictions and not merely arrests made improper

the finding that the informant was credible is

without merit.

In considering such preliminary determina-

tions as probable cause, this Court has

emphasized that "we deal only with probabilities

that ‘are not technical; they are the factual

and practical considerations of everyday life

on which reasonable and prudent men, not legal

technicians, act.'" United States v. Harris,

Supra, 403 U.S. at 582-83, citing Brinegar v.

United States, 338 U.S. 160, 175 (1949).

On such a basis, it seems clear that aver-

ments’ that prior information led only to arrests

would be sufficient. First, a conviction May be

precluded by factors unrelated to the validity

of the informant's information. Second, such an

averment would seem to provide a greater

indication of reliability than would the mere

I As I EP Ht Henge oe

cay “Z = = ee ~ Y we ait gee GOOD SID,

pe ae PEP IPOS BIS SOILED TM ULE ALLE SELENE CCL LIDGE

allegation that the informant had previously

given correct or accurate information; yet such

an allegation has been considered sufficient by

this Court. See Jones v. United States, 362 U.S.

257, 268 n.2 (1960); Draper v. United States,

358 U.S. 307, 309 (1959). Finally, a police

officer would not, as a practical matter,

continually rely on the information from an

\

informant which turned out tovbe false. Yet

here the affiant relied on the informent's

information at least six times.. The lower

federal courts which have considered the

question have rejected the petitioner's

argument. See United States v. Somissiong,

429 F. 2d 834, 835-36 (2d Cir. 1970) ; Albitez

v. Beto, 465 F. 2d 954 (5th Cir. 1972).

In sum, the informant was shown to be

credible and his information reliable.

POINT II

THE INST WARRANT WAS NOT BASED ON

STALE- INFORMATION

The jetitiine: argues that the warrant in

the case at bar\was based on stale information

because the critical conversation between the

affiant and the informant occurred about six

months prior to the affiant's initial heii:

tions, and about Line months prior to the date

the search warrant was issued. The petitioner

further argues aah the instant affidavit was

insufficient on its face, because the date of

that conversation aa omitted therefrom. Respond-

ents respectfully submit that, whatever the

validity of these arguments considered in vacuo,

they are without merit on the facts of this case,

because of the clear evidence from which the

magistrate could reasonably have concluded that

the petitioner's illegal activities continued

unabated until the time the search warrant was

executed. \

This Court first a apna the question of

Staleness over forty years ago, when it was held

that the facts alleged in the affidavit must be

- . ALLS A RD

"so closely related to the time of the issuance of

the warrant as to justify a finding of probable

cause at that time." Sgro v. United States, 287

U.S. 206, 210 (1932). This does not mean, however, |

that information which may be several months old

is totally irrelevant., On the contrary, it will

certainly be at least relevant so lony as it tends

f

to indicate a present probability of illegal

activities when considered in conjunction with

more recent information. This Court has so held.

| United States v. Harris, supra, 403 U.S. at 579 n.*.

It can hardly be disputed the search warrant

LATERAL Se TENA RE OEM LI

could properly have issued had it been sought

shortly after that conversation between the affiant

NCR METS

and the informant. How much of a delay in making

oth ard

the application would have been permissible -

that is, how long after that conversation a

magistrate could properly have found present

AY OP MPDERUY LP RA PEO REE

(FAAS

probable cause relying solely thereon - is debat-

~

able. Respondents submit that the distinction

drawn by the lower federal courts between allega-

tions which indicate a continuing offense and

those which indicate merely an isolated incident,

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OLE LETS? PON POLLO ATG of MM RD Ss Shon hh mere Bete GT DALIT SER APTS ED ee RR A secre meer cas enter rerepnmcg tll

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insofar as permissible delay is concerned, is

eminently reasonable, and plainly heeds the

injunction of this Court to interpret affidavits

for search warrants in a "commonsense and

realistic fashion." United States v. Ventresca,

380 U.S. 102, 108 (1965). Compare Bastida v.

Henderson, 487 F. 2d 860, 864 (5th Cir. 1973);

United States v. Johnson, 461 F. 2d 285, 287

(10th Cir. 1972); and United States v. Harris,

482 F. 2d 1115, 1119 (3d Cir. 1973), with United

States v. Neal, 500 F. 2d 305, 309 (10th Cir.

1974); and Durham v. United States, 403 F. 2d

190, 194-95 (9th Cir. 1968), vacated on other

grounds, 401 U.S. 481 (1971).

The information from the informant leads

clearly to the conclusion of a continuing

violation. But, the petitioner will argue, the

date of that conversation was omitted from the

affidavit, and a narcotics Operation such as the

one conducted by the petitioner could hardly be

presumed to continue indefinitely.

With that, Respondents will agree. We will

not argue to this Court that the petitioner's

MEPS PIODAMEPLEL E SSIN MEAT roma

TREE EDTA ON PLN PLETE

. REL RADA ATRIAL RDO LORE ils A RIP HS BOR AINE OCIA IP ASOD MUGEN IN Na ss

narcotics operation could reasonably be thought

to continue indefinitely, or even for six or nine

months. We would respectfully concede that the

warrant would have been invalid had it been based

solely on a nine-month-old conversation. However,

Respondents would submit that, on the facts of

this case, the failure to include the date of that

conversation in the affidavit was not fatal, and

that the petitioner's narcotics operation was

shown to have continued up until the date of the

warrant's issuance, by virtue of the affiant's

observations. |

The question of whether a warrant is invalid-

ated by the omission from the supporting affidavit

of the date of the conversation between the affiant

and the informant is one that has divided the

lower federal courts. Some hold it invalidates

the warrant. See Rosencranz v. United States, 356

F. 2d 310, 315-17 (lst Cir. 1966); United States v.

Boyd, 422 F. 2d 791, 793 (6th Cir. 1970). Others

_ hold that it does not. See Rider v. United States,

355 F. 2d 192, 193 (Sth Cir. 1966); United States

v. Unger, 469 F. 2d 1283, 1287-88 (7th Cir. 1972);

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United States v. Conti, 361 F. 2d 153, 156 (2d

Cir. 1966), vacated on other grounds, 390 U.S. 204

(1968). We submit that this question need not be

reached in the case at bar because, regardless of

the date of that conversation, the affiant's own E

observations indicated a present probability of

illegal activity.

On various dates, the affiant observed

persons known to him to be drug addicts enter the

petitioner's premises and exit after a short time.

These observations are entirely consistent with

the notion that these persons went to the premises

for the purpose of purchasing narcotics and, having ©

completed their transactions, left inmediately.

Respondents respectfully submit that it was there-

fore proper for a magistrate, concerned only with

a balancing of probabilities, to conclude that

the petitioner's continuing illegal operation was

still being conducted, and that there was - at

that time - a reasonable basis for a search. Cf.

United States v. Harris, supra, 403 U.S. at 579 n.*.

The petitioner's effort to impeach the

affiant's statements in this regard is, at this

22

point, unavailing. The hearing court, who had

the opportunity to observe the demeanor, and

evaluate the credibility of the affiant, fully

credited his statements. It would be inappropriate |

for this Court to now determine otherwise.

|

CONCLUSION

FOR THE AFOREMENTIONED REASONS, THE

PETITION FOR WRIT OF CERTIORART SHOULD BE

:

Dated: Brooklyn, New York

March, 1975

Respectfully submitted

EUGENE GOLD

District Attorney

Kings County

MARTIN I. SAPERSTEIN

ALAN D. RUBINSTEIN

Assistant District Attorneys

of Counsel