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[T] People v. Ventura5/6/2004
107 A.D.2d 196, 486 N.Y.S.2d 118 decided by the Fourth Department March 1, 1985 the opinion written by Presiding Justice Dillon stated 'as this court has observed recently, there is no indication that these tests apply in New York (see People v. Bigelow, 105 A.D.2d 1110 [482 N.Y.S.2d 397])'- -p. 200, 486 N.Y.S.2d 118.
"In People v. Contompasis, 108 A.D.2d 1077, 1078, 485 N.Y.S.2d 644 decided by the Third Department in February 1985 that court stated: 'This court has been reluctant to invoke the more flexible 'totality of the circumstances' test set forth in Illinois v. Gates (462 U.S. 213, 103 S.Ct. 2317) in view of the Court of Appeals reluctance to do so (see People v. Landy, 59 N.Y.2d 369, 375 n. [465 N.Y.S.2d 857, 452 N.E.2d 1185]; People v. Ward, 99 A.D.2d 561, 562 n. [470 N.Y.S.2d 943]; People v. Brown, 95 A.D.2d 569, 572 [469 N.Y.S.2d 159]).'
"In People v. Landy, 59 N.Y.2d 369, 465 N.Y.S.2d 857, 452 N.E.2d 1185 decided by the Court of Appeals June 30, 1983 in an opinion by Judge Simons there was contained a footnote which stated: 'In Illinois v. Gates, 462 U.S. [213, 103 S.Ct. 2317, 76 L.Ed.2d 527] 51 U.S.L.W. 4709, the Supreme Court overruled the Aguilar-Spinelli rule governing hearsay information and adopted a totality of circumstances test. In view of our analysis, we have no occasion to consider the effect of that decision on our State rule set forth in People v. Elwell (50 N.Y.2d 231 [428 N.Y.S.2d 655, 406 N.E.2d 471]).' It is noted that the court in reaching its decision stated and applied the tests determined in Aguilar v. Texas and Spinelli v. U.S. In fact those cases were cited. (see p. 375, 465 N.Y.S.3d 857, 452 N.E.2d 1185).
"More recently, our Court of Appeals has twice addressed the application of the test determined in Illinois v. Gates. In People v. Johnson, 66 N.Y.2d 398, 497 N.Y.S.2d 618, 488 N.E.2d 439 decided November 26, 1985 in an opinion by Judge Simons it was held that as a matter of New York State Constitutional law the decision in Illinois v. Gates did not apply to warrantless arrests. Immediately thereafter in People v. Bigelow, 66 N.Y.2d 417, 425, 497 N.Y.S.2d 630, 488 N.E.2d 451 decided November 26, 1985 the Court of Appeals again in an opinion by Judge Simons reviewed in great depth the provisions of Illinois v. Gates in reference to a case which tested the sufficiency of evidence for the issuance of a search warrant. After stating that there was no reason for the Court of Appeals to adopt the decision of Illinois v. Gates for testing the issuance of a search warrant, the court nonetheless proceeded to test the evidence in the Bigelow case under the totality of circumstances test enumerated in Illinois v. Gates.
"We can only leave for speculation the reasons that prompted Judge Simons and our Court of Appeals to state categorically the no application of the test determined in Illinois v. Gates and then proceed to apply that test to the facts presented in People v. Bigelow. Why the courts of New York are not bound by the decision of Illinois v. Gates or alternatively and more relevantly should not follow it and why the test determined there is not either definitively accepted or rejected, all await explanation."
In this case there may be evidence of overcrowding and substantial proof that a great number of persons with different last names occupied the premises. But, those factors as hereinafter provided are not a basis for probable cause and they do not demonstrate a need for this Court to take the extraordinary step of allowing the entry into a home. While the Founding Fathers could not have contemplated the issuance of warrants for building code violations, if we could ask them today for their thoughts on that subject
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