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It is fair and wise, where there is insufficient evidence to establish probable cause apart from testimony of arresting officer as to communications received from informer, when the issue of identity of informer is raised at the suppression hearing, for the suppression judge to conduct in camera inquiry. The prosecution should be required to make the informer available for interrogation before the judge. The prosecutor may be present but not defendant or his counsel. Opportunity should be afforded counsel for defendant to submit in writing any questions which he may desire the judge to put to informer. The judge should take testimony and make summary report as to the existence of the informer and as to the communications made by the informer to the police to which the police testify. That report should be made available to defendant and to the People, and the transcript of testimony should be sealed to be available to the appellate courts if the occasion arises. At all stages of the procedure every reasonable precaution should be taken to assure that anonymity of the informer is protected to the maximum degree possible.
Defendant was arrested at an airport based on information supplied by an informant. The police immediately took an attache case that defendant had been carrying. The police searched defendant and his attache case and recovered a substantial quantity of heroin from the attache case. The trial court sustained the district attorney’s refusal to disclose the name of the informant. Following denial of the motion to suppress, defendant pleaded guilty to criminal possession of a dangerous drug in the third-degree. Defendant sought review of an order from the Appellate Division of the Supreme Court in the Fourth Judicial Department (New York), affirming the judgment from the trial court refusing to require the people to disclose the identity of an informant who furnished the information which provided the basis for defendant's arrest and upholding the legality of a warrantless search of an attache case defendant was carrying when he was arrested.
On appeal, the court affirmed the order from the appellate court that had affirmed the judgment from the trial court. The court sustained the search of defendant's attache case because it was incidental to an arrest. The attache case was within defendant's reach and if not seized, could have exposed the arresting officers to risk of serious injury as well as the risk of destruction of incriminating evidence. The court further affirmed the order upholding the refusal to disclose the identity of the informant. The court found that it was fair and wise to allow the suppression judge to conduct an in-camera inquiry into the disclosure of the informant.