People v. West

with a white powder. The defendant was placed under arrest and later indicted for criminal possession of a controlled substance in violation of subdivision 1 of section 220.09 of the Penal Law. He subsequently was convicted after a trial and was sentenced to an indeterminate term, the maximum of which was 15 and the minimum IVi years. On appeal the defendant contends that there was insufficient probable cause to justify the warrantless search and seizure and that the court erred in refusing to order disclosure of the informant’s identity since this failure violated defendant’s right to due process, including the right to have evidence that was essential for a fair trial. In resolving whether or not the warrantless search was valid, two questions are presented. Was there probable cause to search the car and were there exigent circumstances which eliminated the necessity of a search warrant? Addressing ourselves to the question on probable cause, it is well established that hearsay information from a confidential informant may provide probable cause to search, if the informant is in fact reliable and if the underlying circumstances as to how the informant came by his information demonstrate sufficient probability to allow the search in question (see Spinelli v United States, 393 US 410 ; Aguilar v Texas, 378 US 108 ; People v Wirchansky, 41 NY2d 130 ; People v Brown, 40 NY2d 183 ). The reliability of the informant was established by a showing that the informant had previously furnished information which led to the arrest and conviction of another (People v Brown, supra). The second requirement, the "basis of knowledge test” as it is oft-times called, was, in our view, also satisfied here. We reach that conclusion because the information provided was given in detail so that it could not be considered mere rumor (Spinelli v United States, supra) and because it was clear that the informant was speaking from firsthand knowledge. Also, there was police verification of the reliability of some of the information furnished (People v Hendricks, 25 NY2d 129 ). Accordingly, probable cause was established and we need not consider the observations of Detective Sutton as he approached the taxicab and do not use them to affirm the existence of probable cause. Having established probable cause, the next question is whether exigent circumstances justified the failure to obtain a search warrant. It must be remembered that the police had not been informed of the defendant’s merchandising practices, that a quantity of narcotics of substantial monetary value may be carried in small and readily disposable containers, that time was of the essence and haste to search was required to preclude destruction or disposal of the contraband. Such being the case, we conclude the warrantless search and seizure was reasonable (People v Singleteary, 35 NY2d 528 ), because the requisite exigent circumstances were here present along with probable cause, thus permitting the judgment of the police to serve as "sufficient authorization for a search” (Chambers v Maroney, 399 US 42 ; People v Chestnut, 43 AD2d 260 , affd 36 NY2d 971 ; People v La Belle, 37 AD2d 135 ). Defendant next claims that the court erred in its refusal to reveal the identity of the informant to the defense. Such a disclosure at suppression hearings is a matter left to the sound but reviewable discretion of the hearing court (People v Huggins, 36 NY2d 827 ). At an in camera hearing held pursuant to the method enunciated in People v Darden ( 34 NY2d 177 , mot for rearg den 34 NY2d 995 ), several witnesses by their testimony emphatically established that the informant was not imaginary but real and that the information communicated to the police was not a fabrication. Also clearly shown was that the informant’s life would be endangered by identification. Under these circumstances, the inability of the People to locate and produce the informant should not, at this stage, dictate a finding favorable

to the defendant because the in camera proceedings protected his rights and identity and probable cause were established (cf. People v Little, 49 AD2d 775 ). The final question presented is whether the defendant’s due process rights were denied by the trial court’s refusal to disclose the identity of the informant at the time of trial. Although the Darden rule for suppression hearings is inapplicable when the identity of the informant is relevant to the determination of defendant’s guilt or innocence, the issue of disclosure at trial is also discretionary with the Trial Judge (People v Goggins, 34 NY2d 163 , cert den 419 US 1012 ). As the court in People v Goggins (supra) further made clear, the crucial factor in making this determination as to disclosure is the relevance of the informant’s testimony to the guilt or innocence of the accused who "must show a basis in fact to establish that his demand does not have an improper motive and is not merely an angling in desperation for possible weaknesses in the prosecution’s investigation” (People v Goggins, supra, p 169). This the defendant has failed to do in this instance, and the refusal to disclose the informant’s identity was therefore proper. Judgment affirmed. Greenblott, J. P., Kane, Mahoney, Main and Herlihy, JJ., concur.