Queens Court Must Review Search Warrant Against Convicted Drug Dealer, Court of Appeals Rules

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On January 6, 2009, Derek Chisolm was convicted in Queens County Supreme Court on charges of illegally possessing two guns and some weed.

Over the next four and a half years, his legal team appealed the conviction, arguing that a magistrate should not have granted the the search warrant that led to Chisolm's arrest. But over those four and a half years, the State Supreme Court and its Appellate Division rejected those claims, ruling that the NYPD had sufficient probable cause and that a review of the warrant's basis was not necessary.

Late last month, though, the New York State Court of Appeals granted Chisolm a minor victory. The six-to-one decision sent the case back down the judicial rungs, ordering the Supreme Court to review the merits of the warrant by considering additional evidence that it had previously ignored.

The main issue involves the confidential informant who provided an officer with the information the department needed to request a search warrant for Chisolm's home. The informant told officer that he (or she) had bought cocaine from Chisolm, confirming police suspicions that he was a drug dealer. The search warrant, the Court of Appeals notes, "was based on the affidavit of a police officer, her testimony, and the oral deposition of a confidential informant who was brought before the issuing magistrate."

Before the trial, Chisolm's lawyer filed a motion denying the merits of the warrant. But the Supreme Court denied the motion "based on the warrant papers alone and without
reviewing the transcript of the confidential informant's testimony," a decision later affirmed by the Appellate Division.

This is where the lower courts dropped the ball, according to the state's highest court. The 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," the six-judge majority agreed. "The search warrant and supporting affidavit do not by themselves establish probable cause in this case."

The court ruled that the Supreme Court should not have affirmed the warrant's legitimacy without first reviewing the transcript of the informant's testimony. The majority stated that the officer's affadavit did not show whether the informant had provided credible information in the past, nor whether the informant was under oath while providing the information to the officer, nor whether the police independently corroborated the informant's statement. The court also touched upon the notion that information from confidential informants who admit to wrongdoing-- like buying drugs-- should be viewed with particular skepticism because of the common police practice of trading leniency for information.

Judge Robert Smith, the sole dissenter, believed that his colleagues were overly skeptical, and perhaps even pedantic, in their analysis of the informant's statement.

"Some common sense is in order in deciding when to infer that an informant's statements have been shown to be reliable," he wrote. "Of course, the confession is self-serving in that the informant, almost invariably, expects leniency in exchange for the information he supplies. But he cannot get the leniency by supplying false information."

That determination is now back in the Queens Supreme Court's hands. If, after reviewing the informant's testimony, the judge still thinks there was enough probable cause for the warrant, then that's that. But if the transcript changes the court's mind, and a judge decides that there was not sufficient probable cause for the warrant, then the conviction would be vacated.






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