Vasserman v. Warden
Vasserman v. Warden
Opinion of the Court
OPINION
Petitioner, now confined at the Auburn Correctional Facility, Auburn, New York, pursuant to a judgment of conviction entered in the New York State Supreme Court upon his plea of guilty to criminal possession of a dangerous drug in the third degree, seeks his release upon a federal writ of habeas corpus. He grounds his application upon a claim of violation of his federally protected constitutional rights centering about the alleged invalidity of a search warrant and the subsequent search of
Petitioner’s first claim is that no probable cause existed for the warrant for the search of his apartment. The facts indicate otherwise. The affidavit of a detective in support of the warrant was based essentially upon information received by the police from a confidential informant. The information received from the informant was based upon his direct personal observation of narcotics in defendant’s apartment on the day before the warrant was issued. The detective further swore that the informant was reliable and had previously given information which resulted in three arrests, one of which was followed by a successful prosecution and two of which were still pending. The names of the three arrested individuals were given to the judge who issued the warrant. The detective also swore that three days before the warrant issued he personally had observed a known seller of narcotic drugs entering and leaving the petitioner’s apartment building.
As our Court of Appeals recently stated:
“Though fine judgments are often required to determine whether an affidavit states facts sufficient to show probable cause for issuance of a search warrant, the basic standard for the decision is well-settled. When an affidavit relies on an informant’s tip to establish probable cause, the affidavit must, first, set forth ‘some of the underlying circumstances’ forming the basis of the informant’s conclusion that there is illegal activity or evidence thereof on the premises, and, second, it must state facts which give some assurance that the informant is a credible person.”3
The instant affidavit passes both prongs of the Aguilar-Spinelli test. The basis of the informant’s tip was personal and recent observation, a circumstance which demonstrated a substantial ground for believing that the tip was truthful.
Petitioner’s further challenge to the sufficiency of the warrant, based upon his uncorroborated assertion that the detective who signed the supporting affidavit perjured himself at the hearing on the motion to suppress (and presumably in his affidavit as well), flies in the face of the state court’s finding after a full hearing that “the officer’s truthfulness has in no wise been impaired
Petitioner’s remaining claims also are without substance. The prosecution’s introduction at the suppression hearing of a carbon copy of the original warrant, which was lost, plainly presents no constitutional claim, and the Presiding Judge at the suppression hearing explicitly stated in his ruling that in assessing probable cause he did not consider evidence of police observations that had not been presented to the judge who issued the warrant.
The petition is dismissed.
. The guilty plea did not foreclose his right to appeal from the adverse ruling on his suppress motion, N.Y.Crim.Proc.Law § 710.20(1), 710.-70(2), and does not bar his right to seek habeas corpus relief in this court. Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975).
. 37 A.D.2d 801, 324 N.Y.S.2d 747 (1st Dep’t 1971).
. United States v. Karathanos, 531 F.2d 26, 2d Cir. 1976, citing Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
. Cf. United States v. Harris, 403 U.S. 573, 579, 91 S.Ct. 2075, 2079, 29 L.Ed.2d 723, 731 (1971); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Canestri, 518 F.2d 269, 272 (2d Cir. 1975).
. Cf. United States v. Sultan, 463 F.2d 1066, 1068-69 (2d Cir. 1972); United States v. Dunnings, 425 F.2d 836, 839 (2d Cir. 1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412 (1970).
. Cf. United States ex rel. White v. Fay, 349 F.2d 413 (2d Cir. 1965); United States ex rel. Marinaccio v. Fay, 336 F.2d 272 (2d Cir. 1964); United States ex rel. Homchak v. People, 323 F.2d 449 (2d Cir. 1963), cert. denied, 376 U.S. 919, 84 S.Ct. 677, 11 L.Ed.2d 615 (1964). See also 28 U.S.C. § 2254(d).
Reference
- Full Case Name
- Joseph VASSERMAN v. WARDEN, AUBURN STATE PRISON and Warden, Federal House of Detention
- Status
- Published