
    The People of the State of New York, Respondent, v Juan Castillo, Appellant.
    Argued October 16,1992;
    decided December 22,1992
    
      POINTS OF COUNSEL
    
      Susan Hofkin Salomon, New York City, and Philip L. Weinstein for appellant.
    The complete denial to the defense of access to the search warrant affidavit and oral application, and its subsequent exclusion from hearings on the warrant, all premised on the "informant’s privilege,” denied appellant the "opportunity for full and fair litigation” of any issues concerning the propriety of the search, and thereby violated his rights to the effective assistance of counsel and due process. (People v Seychel, 136 Misc 2d 310; People v Darden, 34 NY2d 177; United States v Nixon, 418 US 683; Waller v Georgia, 467 US 39; United States v Wade, 388 US 218; United States ex rel. Thomas v O’Leary, 856 F2d 1011; United States v Raddatz, 447 US 667; Kimmelman v Morrison, 477 US 365; Stone v Powell, 428 US 465; Alderman v United States, 394 US 165.)
    
      Robert M. Morgenthau, District Attorney of New York County, New York City (Nikki Kowalski and Mark Dwyer of counsel), for respondent.
    In order to protect the safety of the confidential informant who provided the probable cause for a warrant to search defendant’s apartment, the court below properly issued a protective order denying defendant discovery of the search warrant application and conducted a hearing ex parte and in camera on defendant’s claim that the warrant was tainted by a prior illegal entry. (People v Taylor, 65 NY2d 1; People v Petgen, 55 NY2d 529; People v Prescott, 66 NY2d 216, 475 US 1150; People v Darden, 34 NY2d 177; People v Liberatore, 79 NY2d 208; Roviaro v United States, 353 US 53; Stone v Powell, 428 US 465; United States v Williams, 716 F2d 864; People v Chipp, 75 NY2d 327; McCray v Illinois, 386 US 300.)
   OPINION OF THE COURT

Acting Chief Judge Simons.

Defendant has been convicted of criminal possession of a controlled substance in the second degree and criminal possession of a weapon in the fourth degree. The inculpating evidence was discovered after police executed a warrant based upon information supplied by a confidential informant authorizing a search of his apartment.

After his arrest, defendant sought to inspect the warrant and the supporting documents and to have a hearing to challenge the issuing Judge’s determination that probable cause for the search existed. The court denied discovery and, following an in camera suppression hearing, denied the motion to suppress. Defendant was not afforded the opportunity to see the supporting documents or to participate in the hearing because the court found that disclosure of the informant’s identity and/or statements could compromise the safety of the informant or the integrity of future investigations (see, CPL 240.50). The sealed record, which includes the search warrant and supporting affidavits and the oral testimony heard by the issuing Judge and the suppression court, has been supplied to the Appellate Division and to this Court and an examination of it establishes convincingly that there was support for the determination by the courts below that the warrant was issued upon probable cause, that the documents supporting the warrant were not perjurious and that the affidavit and oral testimony could not be effectively redacted for delivery to defendant without destroying the informant’s anonymity.

Defendant does not challenge in this Court the claimed need for confidentiality; he contends only that a suppression procedure conducted without his participation violates his constitutional right to due process of law and the effective assistance of counsel. The sum of his argument is that regardless of the substantiality of the evidence supporting the warrant or the need for confidentiality, disclosure of the information, if not the identity, of the informant is always required. We conclude that under the circumstances presented in this record, the trial court could, and properly did, deny defendant discovery.

I

On April 6, 1988 police officers searched defendant’s apartment at 611 West 177th Street in New York. The search was authorized by a Supreme Court Justice who approved the warrant after examining the police officer and his affidavit in support of the warrant and after taking the sworn testimony of the confidential informant upon which the officer’s affidavit was based. After issuing the warrant, the Justice ordered the record sealed.

When the police executed the warrant, they found eight pounds of cocaine, a loaded machine gun, two handguns and 100 rounds of automatic ammunition underneath the floorboards of defendant’s bedroom closet. In a cabinet in the dining room they found $28,000 in cash, approximately half of which was in denominations of $20 bills or smaller. Defendant was present during the search and was arrested after the officers discovered the contraband. He was subsequently charged with criminal possession of a controlled substance in the first degree, and three counts of criminal possession of a weapon in the fourth degree. He sought suppression of the narcotics and weapons found in his apartment claiming they were seized pursuant to an unlawful search.

In addition to challenging the sufficiency of the warrant application, defendant also claimed that the search was tainted because of a prior police contact. Defense counsel alleged that defendant’s wife told him that two detectives had come to the apartment on April 5, 1988, the day before the search, and entered the living room without seeking permission to do so. Once inside, the officers showed defendant’s wife a picture of a person they claimed had previously lived in the apartment and asked if she knew where he was. She told them that she did not and that the only people then living in the apartment with her were her husband and her daughter. According to Ms. Castillo, some of the police officers went through the apartment without permission.

Defense counsel claimed that this entry into defendant’s apartment was illegal because it was not authorized by a warrant, was not consensual, and was not supported by exigent circumstances. He also maintained that, but for this illegal entry, there would be no evidence providing probable cause for the warrant authorizing the search conducted the following day. Subsequent to the hearing on the warrant, the suppression court conducted an in camera hearing to determine if the conduct of the officers on April 5 tainted the search on April 6. The evidence presented included the facts that the April 5 search was by officers from another agency, the Drug Enforcement Agency, and that it involved a former tenant. The suppression court found that the two searches were unrelated and that the earlier search had not tainted the latter.

After defendant’s suppression motion was denied, he entered a plea of guilty to criminal possession of a controlled substance in the second degree and one count of criminal possession of a weapon in the fourth degree in satisfaction of the indictment.

II

Defendant has a constitutional right to be free from unreasonable searches (US Const 4th Amend; NY Const, art I, § 12). Evidence acquired by unconstitutional means, as determined at a pretrial suppression hearing, must be excluded at trial (see, Murray v United States, 487 US 533, 536; People v Johnson, 66 NY2d 398). The question presented is whether defendant has an absolute right to take part in such a hearing. Its resolution depends upon a sensitive balancing of a defendant’s right to participate in the defense and society’s need to encourage citizens to participate in law enforcement by granting them anonymity when necessary for their protection (see, Roviaro v United States, 353 US 53, 62; People v Darden, 34 NY2d 177, 181-182).

Analysis starts by focusing on the nature of the proceeding for there is a fundamental difference between a trial to adjudicate guilt or innocence and a pretrial hearing to suppress evidence. The due process requirements for a hearing may be less elaborate and demanding than those at the trial proper (United States v Raddatz, 447 US 667, 679; United States v Williams, 716 F2d 864, 865, cert denied sub nom. Taylor v United States, 467 US 1216; People v Scalza, 76 NY2d 604, 609-610). This is so because, as the Supreme Court has observed, at a pretrial hearing,

" 'we are not dealing with the trial of the criminal charge itself. There the need for a truthful verdict outweighs society’s need for the informer privilege.
Here, however, the accused seeks to avoid the truth. The very purpose of a motion to suppress is to escape the inculpatory thrust of evidence in hand, not because its probative force is diluted in the least by the mode of seizure, but rather as a sanction to compel enforcement officers to respect the constitutional security of all of us under the Fourth Amendment * * * If the motion to suppress is denied, defendant will still be judged upon the untarnished truth.’ ” (McCray v Illinois, 386 US 300, 307 [quoting from State v Burnett, 42 NJ 377, 201 A2d 39]; see generally, 1 LaFave, Search and Seizure § 3.3 [g] [2d ed].)

The ability to limit disclosure during trial must be fairly circumscribed where the identity of the informer or the contents of the informer’s communication is relevant and helpful to the defense (see, Roviaro v United States, 353 US 53, 60-61, supra; People v Goggins, 34 NY2d 163, 168-169, cert denied 419 US 1012). Indeed, many of the cases cited by the dissent stand for the unquestioned importance of defendant’s right to participate in his trial. They do not address the requirements for pretrial hearings, however, where the considerations are substantially different. The exclusionary rule is not aimed at safeguarding the truth-seeking process nor is its underlying purpose to redress any injury to the defendant’s privacy. It is a judicially created remedy intended as a means of discouraging police misconduct (see, Stone v Powell, 428 US 465, 486). Accordingly, defendant’s interest in availing himself of the exclusionary rule may, in exceptional circumstances, be subordinated to safety precautions necessary to encourage citizens to participate in law enforcement.

Recognition of this principle is implicit in our holdings that a suppression court can deny disclosure of the identity of an informant (see, People v Darden, 34 NY2d 177, 181, supra; People v Castro, 29 NY2d 324, 326; People v Coffey, 12 NY2d 443, 452-453, cert denied 376 US 916; accord, McCray v Illinois, 386 US 300, 312-313, supra; cf., People v Malinsky, 15 NY2d 86), or deny a defendant’s motion to compel an undercover police officer to testify at a suppression hearing (People v Petralia, 62 NY2d 47, 52-53, cert denied 469 US 852). Indeed, we have even circumscribed a defendant’s participation in pretrial hearings by limiting the right to compel an identified victim to testify at the hearing (see, People v Chipp, 75 NY2d 327, 336-339, cert denied 498 US 833). To be sure, the limitations on disclosure in those cases were only partial, but they establish that a defendant’s interests may be conditioned when necessary to protect those of society.

Moreover, People v Darden (34 NY2d 177, supra) endorsed the principle that when necessary the court may undertake the responsibility of protecting the defendant’s interests by authorizing the suppression court to examine the confidential informant in camera. In order to protect the confidentiality of the informant, we sanctioned a procedure whereby a significant aspect of the inquiry on the motion to suppress is conducted by the court on the defendant’s behalf, without the defendant’s direct participation (see, People v Darden, 34 NY2d, at 181, supra).

Thus, the Darden decision rejects the fundamental premise underlying defendant’s argument, that only through the advocacy of "single-minded counsel for the accused” (citing People v Rosario, 9 NY2d 286, 290, cert denied 368 US 866) can a defendant’s interests at a suppression hearing be adequately protected and that legal issues like probable cause can be determined only on the basis of a record fully available to the defendant. We have already decided that a hearing court may, when necessary to protect a confidential informant, undertake inquiry relevant to the issue of probable cause on the condition that it discharge its duties "with recognition of the special need for protection of the interests of the absent defendant” (People v Darden, 34 NY2d, at 181, supra).

We recently reaffirmed the continued viability of these principles in People v Liberatore (79 NY2d 208). There, the People, to protect the identity of a confidential informant, did not disclose to the defendant a sealed statement by the informant which was part of an application for an eavesdropping warrant. The defendant maintained that this omission violated the statute requiring disclosure of eavesdropping applications to the defense within 10 days of arraignment, and thus required suppression of the eavesdropping evidence. Despite our long tradition of strictly enforcing the technical requirements of the eavesdropping statute (see, e.g., People v Schulz, 67 NY2d 144, 148-149), we refused to order suppression solely on the basis of this omission. In doing so, we stated that even if the information from the informant had contributed to the probable cause for the eavesdropping warrant, it need not necessarily be disclosed to the defendant if there were "other compelling reasons for nondisclosure” (see, People v Liberatore, 79 NY2d, at 216, supra).

This case differs from Darden in two respects. First, here, unlike in Darden, none of the purported factual predicates for probable cause was revealed to defendant. Thus, the hearing court’s assumption of the burden of questioning the search on defendant’s behalf differed in degree, if not in nature, from that sanctioned in Darden. That circumstance is not fatal, however: several intermediate appellate courts have approved ex parte, in camera review of search warrant applications and affidavits, upholding similar orders denying disclosure to defendant (see, People v Rodriguez, 182 AD2d 439; People v Peterson, 159 AD2d 983, lv denied 76 NY2d 794; People v Diaz, 147 AD2d 912, lv denied 73 NY2d 1014; People v Delgado, 134 AD2d 951, Iv denied 71 NY2d 895; see also, United States v Williams, 716 F2d 864, supra). Under the unusual circumstances regarding confidentiality in this case, such procedure was appropriate.

The other difference is that Darden involved a warrantless search, whereas here the search was conducted pursuant to a warrant issued by a Judge who had personally examined the informant. This simplified the suppression court’s review because a presumption of validity attached to the warrant given that a Magistrate had already reviewed the purported basis for the search and determined it to be valid (see, People v Hanlon, 36 NY2d 549, 558-559) and the suppression court had before it a record consisting of the written application and the transcript of the informant’s sworn oral testimony offered in support of the application. Thus, it was not necessary to develop a factual record of the basis for the search. The court was left with the relatively uncomplicated task of deciding whether, based on the warrant application and supporting affidavit along with the informant’s oral testimony, the issuing Judge reasonably could have concluded that probable cause existed (see, People v Hendricks, 25 NY2d 129, 138; People v Rainey, 14 NY2d 35, 38-39). This is precisely the type of inquiry which can be resolved accurately on an ex parte, in camera basis (cf., Alderman v United States, 394 US 165, 182-183 [factual issues too complex to rely wholly on in camera judgment of trial court]).

Although a defendant who does not have access to the information purporting to establish probable cause will be unable to suggest reasons why probable cause was lacking, this fact does not deprive the defendant of due process or the effective assistance of counsel. The importance of a defendant’s input is limited in a suppression hearing because an appellate court does not reevaluate the accuracy of the underlying information; it does "no more than insure that there was a substantial basis for the magistrate’s conclusion that probable cause existed” (see, People v Johnson, 66 NY2d 398, 405, supra).

Concededly, when a court resolves this question without the defendant’s participation it must be particularly diligent and consider all possible challenges that might be raised on the defendant’s behalf, but we authorized the procedure in Darden and defendant offers no persuasive reason why, in the extraordinary cases in which safeguards are required, the court cannot be expected to do a competent job of performing such a straightforward, purely legal task particularly within the ambit of its expertise.

Ill

An examination of the record establishes that the court diligently protected defendant’s rights in the case before us. In determining whether to disclose the informer’s identity or statements, it followed the four-step procedure set forth in People v Seychel (136 Misc 2d 310). In the first step the court reviewed the search warrant to determine whether it alleged probable cause in this case by application of the AguilarSpinelli test (see, People v Griminger, 71 NY2d 635), or whether it was perjurious on its face. If the supporting affidavit had appeared perjurious on its face, the court would have conducted an in camera hearing to determine if the affidavit contained perjury and if it did, would have given the People the choice of turning over the affidavit for a hearing or discontinuing the prosecution (see, Franks v Delaware, 438 US 154; People v Alfinito, 16 NY2d 181). Finding neither, the court next proceeded to conduct an in camera, ex parte inquiry of the informant and examined the People’s exhibits to determine whether the informant’s life and/or future investigations would be jeopardized by disclosure. Confidentiality was deemed necessary, and the court then proceeded to try and redact portions of the affidavit to conceal the informant’s identity while giving the defendant a description of the information resulting in his arrest. It found this impossible and therefore ordered the People to produce the informant for a Darden-type inquiry in which it could evaluate credibility (see, People v Darden, 34 NY2d 177, supra). The court made a similar inquiry concerning the April 5 entry into the apartment and found the search of April 6 untainted by the prior police activity on April 5.

Based upon these hearings, the suppression court denied defendant’s motion for discovery and granted the People’s request for a protective order prohibiting disclosure. We conclude it properly exercised its discretion when it did so.

IV

Our conclusion that a defendant’s opportunity to participate in suppression proceedings must yield in some cases to the need for confidentiality is not intended to suggest that courts may routinely grant the People’s application to seal the record. The procedures sanctioned here are reserved for those cases in which the reliability of the evidence of probable cause and the necessity for confidentiality are clearly demonstrated. In this case, however, both the issuing Judge and the suppression court questioned the police officer affiant and the informant under oath and concluded that there was probable cause for the search, that the police officer’s affidavit was truthful and that there was an overriding need for confidentiality. Addressing the additional allegations of fact contained in defense counsel’s affidavit in support of the motion to suppress, the court found, after sufficient inquiry and on sufficient evidence, that there was no taint. We conclude, therefore, as did a unanimous Appellate Division, that there is support in the record for the suppression court’s findings and that under the circumstances the procedures it followed did not offend due process.

Accordingly, the order of the Appellate Division should be affirmed.

Hancock, Jr., J.

(dissenting). In his appeal, defendant raises fundamental constitutional questions as to whether he may be totally deprived of his right to challenge the validity of a search warrant which he claims the police obtained illegally following an unlawful entry and warrantless search of his residence and for which the police allegedly lacked probable cause. Defendant sought an adversarial hearing before the suppression court in which he could attack the warrant because it was the product of the illegal police entry and search and also because the warrant application and the informational basis were deficient.

The critical question is whether the suppression court could properly deny him all information concerning the basis for the warrant, exclude him and his lawyer from all participation in or knowledge of the secret in-chambers proceedings between the court and the prosecutor, and render only an ex parte determination on the validity of the warrant instead of a decision on the merits after an adversarial adjudication. The majority of this Court holds that in view of alleged danger to the informant these extraordinary measures were warranted and not violative of defendant’s constitutional rights. I disagree.

Depriving a defendant of any participation in or knowledge of a suppression hearing where the issues involve both probable cause and invalidity because of police misconduct is without precedent and, I believe, conflicts with fundamental tenets of fairness and due process of law inherent in our Federal and State Constitutions (see, US Const 4th, 6th, 14th Amends; NY Const, art I, §§ 6, 12; Nardone v United States, 308 US 338, 341). Secret proceedings of this nature in which significant questions materially affecting guilt are decided in the absence and without the knowledge of the defendant or his counsel are repugnant to the concepts "of fair play which have 'evolved through centuries of Anglo-American constitutional history’, particularly as applied to the relationship 'between the individual and the government’ ” (People v Millan, 69 NY2d 514, 519-520 [quoting Anti-Fascist Comm, v McGrath, 341 US 123, 162 (Frankfurter, J., concurring)]). I, therefore, dissent.

I.

In this case, the guilt or innocence of defendant depends entirely on the validity of the warrant the police obtained to search his apartment residence. Defendant claims that on April 5, 1988 — the day before the police obtained the search warrant — three detectives entered the apartment without permission and interrogated his wife at length about defendant and the prior occupant of the apartment. While two of the detectives held his wife in one room, the third detective searched the entire premises. The police subsequently obtained and executed a search warrant for the apartment and defendant was indicted.

Defendant thereafter moved to suppress the evidence and for a disclosure of the warrant application and supporting material. Based on its confidential inspection of these documents and of the minutes of the proceedings before the issuing Magistrate, Supreme Court prohibited defendant from having access to or knowledge of the application and of any related information. Although Supreme Court — after review of the warrant application — acknowledged that defendant’s suppression motion presented a material issue as to the possible taint from an illegal entry, it concluded that that issue, as well as the adequacy of the basis for the warrant, should be determined privately in chambers.

In an in camera and ex parte proceeding, the court, in the presence of the prosecutor, “interviewed” police witnesses and the confidential informant. The court excluded defendant and his counsel from the hearing and barred them from any participation in or knowledge of the proceedings. Thus, defendant was denied his right to confront the witnesses against him, to cross-examine and to adduce affirmative evidence. Moreover, the court refused defense counsel’s request that counsel be permitted to submit questions for the court to ask in his absence (see, People v Darden, 34 NY2d 177, 181, supra) and ordered that defendant and his counsel be prohibited from having any access to the record of the proceedings or to any information or report pertaining thereto. At the close of the hearing, the court concluded, with no explanation of its factual conclusions, that there was an adequate basis for the warrant and that it had not been tainted by police misconduct.

II.

Contrary to what seems to be the premise of the majority’s decision, the principal issue in this case does not involve the propriety of excluding defendant from a hearing pertaining only to the adequacy of the application for the warrant. That determination (see, infra, part III) involves such questions as whether the application was facially consistent, whether the information supplied by the informant was false and whether its inclusion in the police affidavit amounted to perjury or reckless disregard for the truth (see, 1 LaFave and Israel, Criminal Procedure § 3.4, at 224; People v Velez, 147 Misc 2d 865, 868-871).

The suppression court was faced with a second and entirely different factual issue relating to defendant’s attack on the warrant as the product of police misconduct — the classic "fruit of the poisonous tree” determination. Here, the questions did not involve the adequacy of the application but: (1) whether the police had violated defendant’s right to be free from unlawful searches and seizures by entering his home on April 5, 1988 without permission and conducting a search of it without a warrant; and, (2) if so, whether any information secured in the illegal search was in some way transmitted to or used by the police who applied for and obtained the warrant the next day — i.e., " 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint’ ” (Wong Sun v United States, 371 US 471, 488 [quoting Maguire, Evidence of Guilt, at 221]; see also, People v Stith, 69 NY2d 313, 318).

These questions pertain to alleged police misconduct which, if established, would amount to an obvious invasion of defendant’s expectation of privacy and a violation of his constitutional rights of far greater magnitude than that involved in the limited issue of the existence of probable cause for the warrant. At a hearing on police misconduct, defense counsel, had he been permitted to attend, could logically have inquired of the police and of other witnesses including defendant’s wife, if she had been called, about the permission of the police to enter the apartment; what they said to defendant’s wife and what she said to them; where the police went and where defendant’s wife and child were in the apartment after the police entered; whether, as defendant claims, two of the officers detained his wife in one room while a third police officer searched the entire apartment; what, if any, contraband the police discovered in the apartment and where they discovered it; and what, if any, information concerning any such contraband was transmitted to the police who subsequently applied for the search warrant.

To hold, as the majority does, that the police may be charged with a violation of a citizen’s constitutional rights of this gravity and yet not be made to answer for it in a contested hearing defeats the deterrent purpose of the exclusionary rule (see, People v Stith, supra, at 317). Shrouding allegations of police misconduct in secrecy and relying wholly on the police and prosecutor’s account of the facts subvert the application of the exclusionary rule because then prosecutors have the unfair advantage of presenting an unrebutted and untested version of the disputed police actions. As we have noted, "if the People are permitted to use the [improperly] seized evidence, the exclusionary rule’s purpose is completely frustrated, a premium is placed on the illegal police action and a positive incentive is provided to others to engage in similar lawless acts in the future” (People v Bigelow, 66 NY2d 417, 427).

That the traditional concepts of a fair trial and due process are deeply rooted in the adversarial system of resolving factual questions is beyond question. In the words of Justice Frankfurter "[o]urs is the accusatorial as opposed to the inquisitorial system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber” (Watts v Indiana, 338 US 49, 54; see generally, Neef and Nagel, The Adversary Nature of the American Legal System from a Historical Perspective, 20 NY L Forum 123,123-126).

The issue here is whether, in lieu of a decision by the suppression court after a contested hearing on the legality of the police conduct, defendant must be content with what amounts to no more than a paternalistic assurance by the court that it has reviewed the facts in chambers and has decided that, although the defendant may believe otherwise, the police "didn’t violate his rights, after all”. The suggestion that a defendant must place his faith entirely in the judgment and perception of a fact finder who, in defendant’s absence, will hear only the prosecution’s side of the police misconduct charge is inimical to any accepted notion of adversarial due process. Given the variations, contrasts and contradictions in testimony inherent in a disputed issue of police misconduct, one can hardly think that, with input only from the prosecution, any Judge — no matter how conscientious — could effectively safeguard the defendant’s fundamental rights as a substitute for "the unique, indispensable presence of at least the 'single-minded counsel for the accused’ ” (People v Darby, 75 NY2d 449, 454 [quoting People v Rosario, 9 NY2d 286, 290]). Nor is the severity of the rights deprivation lessened because two appellate courts, on their review of the in camera proceedings, have pronounced that "there was support for the determination” (majority opn, at 580) of the hearing court on probable cause and "sufficient evidence, that there was no taint” (majority opn, at 587). No amount of appellate review of the proceedings and of the suppression court’s determination can change the record or erase the critical flaw — that the determination concerning defendant’s rights was made on presentation of only one side of the issue, at a hearing from which defendant was excluded, and on information which was kept secret from him. The law does not permit it.

In Alderman v United States (394 US 165), the Supreme Court rejected the Government’s claim that defendants’ challenge to their convictions as tainted by illegal police wiretapping could be conducted ex parte and in camera, stating:

"The United States concedes that when an illegal search has come to light, it has the ultimate burden of persuasion to show that its evidence is untainted * * * With this task ahead of them, and if the hearings are to be more than a formality and petitioners not left entirely to reliance on government testimony, there should be turned over to them the records of those overheard conversations which the Government was not entitled to use in building its case against them * * *
"It may be that the prospect of disclosure will compel the Government to dismiss some prosecutions in deference to national security or third-party interests. But this is a choice the Government concededly faces with respect to material which it has obtained illegally and which it admits, or which a judge would find, is arguably relevant to the evidence offered against the defendant” (id., at 183-184 [emphasis added]).

It is true, of course, that defendants have sometimes been excluded from warrant proceedings when the narrow issues raised pertain to adequacy of the application or probable cause (see, e.g., People v Darden, 34 NY2d 177, supra; People v Goggins, 34 NY2d 163; People v Seychel, 136 Mise 2d 310). The majority, however, assumes, without discussion, that these Darden/Seychel procedures are properly applicable to challenges based on police misconduct and taint (see, majority opn, at 586). But Darden/Seychel procedures are permissible only to address probable cause and Alfinito/Franks challenges. Indeed, the Seychel court recognized that in Goggins and Darden our Court "stressed that such [ ] procedure[s] [are] appropriate only for a probable cause determination” (People v Seychel, supra, at 312). As this Court stated in People v Malinsky (15 NY2d 86):

"The importance of the privilege [of nondisclosure] to successful criminal investigation is self-evident but this does not mean it may be successfully invoked in every case. Of necessity, its 'applicability* is limited by 'fundamental requirements of fairness’ * * * and, accordingly, the privilege may not be availed of, this court wrote in People v.
Coffey * * * when its assertion would seriously prejudice the defense 'by making a fair hearing impossible’ ” (id., at 92).

No one can deny that pretrial suppression hearings may determine the outcome of the prosecution or that full participation and adequate representation by counsel may be as essential to a proper defense then as during the trial itself (see, e.g., United States v Wade, 388 US 218, 225; Powell v Alabama, 287 US 45; United States v Clarke, 475 F2d 240, 245 [2d Cir 1973]; 4 LaFave, Search and Seizure § 11.2 [d], at 245-247 [2d ed]). A hearing to suppress in a drug possession case— where guilt usually depends entirely on the admissibility of the evidence seized — is often the most critical stage in the entire proceeding. While considerations of safety may justify nondisclosure of the informant’s identity and other information in probable cause determinations, as in Darden and Seychel, these considerations do not apply where the issue is whether the police have obtained the evidence in advance of the warrant in outright violation of defendant’s constitutional rights.

III.

If there had been no claim that the warrant was the product of the illegal police conduct on April 5, the suppression court would have had before it only questions relating to the facial adequacy of the warrant application or to issues of the type raised in People v Alfinito (16 NY2d 181) and Franks v Delaware (438 US 154). Had that been the case, I would still dissent.

No authority is cited for excluding the defendant and his counsel from any participation in or knowledge of the proceedings and depriving them of any access to the warrant affidavit or information pertaining to its contents. (See, supra, at 588, n 1.) To mount an Alfinito/Franks challenge, a defendant must point specifically to the portions of the warrant affidavit claimed to be false and meet the burden of proving that the challenged statements are false and that their inclusion in the affidavit constituted perjury or reckless disregard for the truth (see, People v Velez, 147 Misc 2d 865, 870-871, supra; 1 LaFave and Israel, Criminal Procedure § 3.4, at 224). The People have not suggested, nor has anyone, how the defendant here could have questioned the facial validity of the warrant application for consistency or staleness or have singled out specific parts of it and proven them to be false if he could not see the application. Indeed, we reasoned in Malinsky (supra) that:

”[W]here disclosure is demanded by the requirements of a fair trial — where, in other words, to refuse disclosure would completely deprive the defense of the opportunity of showing that there was in truth no reliable informer or, if there was, that his communication to the police was different from that testified to and that, for either of these reasons, the police did not have probable cause to make the arrest — the prosecution must either disclose or run the risk of having the arrest and search held illegal” (id., at 94).

As the court in People v Velez (supra) aptly observed:

"There is no escaping from the clear statement of People v McCall (17 NY2d 152, 159): 'A refusal to permit a defendant to examine the facts upon which his privacy has been broken into amounts to saying that any search warrant * * * is all right if a Judge has seen fit to sign it.’ This is particularly true with respect to an Alfinito/Franks issue, as to which the defense must make specific, factual allegations to merit a hearing on possible affiant perjury. Obvious inconsistencies apparent on the face of the affidavit rarely, if ever, occur. Defense counsel must know the alleged facts so that they may be discussed with, and perhaps contradicted by, the client or other defense witnesses.
"Accordingly, the defense is entitled to at least a 'report’, a la Darden (supra), of what the informant said to provide the basis for the search warrant” (id., at 870-871).

Nothing in People v Darden (supra), People v Seychel (supra) or in any other case sanctions a procedure under which a defendant has been prevented from making any challenge to the issuance of the warrant because the court denied all access to the information necessary for the challenge. As with his thwarted efforts to attack the warrant before the suppression court as resulting from police misconduct, defendant was told "not to worry”, for the court, in its wisdom, in a closed session with the prosecutor, would see to it that his rights were fully protected. I respectfully submit that under our judicial process and our State and Federal Constitutions, the defendant was entitled to more, much more.

Judges Titone, Bellacosa and Smith concur with Acting Chief Judge Simons; Judge Hancock, Jr., dissents and votes to reverse in a separate opinion in which Judge Kaye concurs.

Order affirmed. 
      
      . The majority’s holding today is unprecedented. None of the cases cited by the majority involve the question of whether defendant may be excluded from and deprived of all information pertaining to warrant review proceedings addressing police misconduct and possible taint (see, majority opn, at 583 [citing, e.g., People v Darden, 34 NY2d 177; People v Castro, 29 NY2d 324]). Indeed, none of the cases listed involve the complete exclusion of defendant from any type of warrant review proceeding and the deprivation of all information pertaining to those proceedings (see, id.).
      
     
      
      . Indeed, the People concede that after the in camera review of the warrant application, the court ruled that "there was a valid and material dispute between the parties as to whether the police had entered defendant’s apartment the day before the search warrant was executed and whether that entry, if it was illegal, had tainted the subsequent search conducted pursuant to the warrant”.
     
      
      . No case cited by the majority supports the proposition that "an in camera hearing to determine if the [supporting] affidavit contained perjury” (majority opn, at 586) should be undertaken only when the affidavit "appear[s] perjurious on its face” (id. [emphasis added]). It seems evident that the determination on the issues of falsity and whether the police officer has committed perjury or made statements in reckless disregard of the truth will require demonstration of facts outside the affidavit. Indeed, as the Velez court points out, inconsistencies on the face of the affidavit rarely occur (see, People v Velez, supra [quoted infra, at 594]).
     