Opinion
30327C/2007.
Decided December 2, 2008.
Defendant is charged with Operating a Motor Vehicle While Under the Influence of Alcohol pursuant to VTL Section 1192(3). Defendant filed a pretrial motion to suppress evidence, and pursuant to the Decision and Order of the Honorable Lawrence H. Bernstein dated September 24, 2007 and the stipulations of the parties, a Huntley/Dunaway/Ingle hearing was conducted before me on September 19, 2008. See Hearing Minutes at pp. 4-5.
Defendant claims that the People failed to meet their burden of going forward as to the Dunaway/Ingle portion of the hearing, and defendant's statement must therefore be suppressed as the product of an unlawful arrest. See Defendant's Memorandum of Law ("Def. Mem.") at p. 2. The People claim that they have met their burden of production pursuant to the "fellow officer" rule in arresting defendant. See People's Memorandum of Law ("Peo. Mem.") at p. 3. For the reasons set forth below, the Court is constrained to grant defendant's motion.
The People called two witnesses: Officer Eva Pena ("Pena") and Lieutenant Brian Gill ("Gill"). The Court finds them credible and credits the bulk of their testimony.
.
FINDINGS OF FACT
Pena has been a member of the New York City Police Department for over three years and is currently assigned to the 42nd Precinct. Id. at pp. 6-7. She has made more than forty arrests in her career. Id.
On May 13, 2007, at approximately 4:32 a.m., Pena was on patrol in a marked police car with her partner, Officer Sosa, when they were directed to go to Fulton Avenue and East 166th Street in Bronx County to assist another police officer. Id. at pp. 7-9. Upon arriving, Pena saw a large group of people being separated by the police, and approximately five police cars. She also saw the defendant in handcuffs; he had already been questioned by the police, and his driver's license had been taken from him. Id. at pp. 8-12, 41-49, 58. Her partner, Officer Sosa, then spoke with a police supervisor on the scene. Id. at pp. 13-15, 24. As a result, Officer Sosa told Pena that the defendant had been in a car accident, was intoxicated, and that they had to take the defendant to the 45th Precinct for a breathalyzer test. Id. at pp. 12-15. At the 45th Precinct, Pena was told by the desk sergeant that the breathalyzer test would not be given there, and that the officers should take defendant to the 28th Precinct in Manhattan. Id. at pp. 16, 49-50.
On the way to the 28th Precinct, the defendant asked why they were going to a different precinct, and then stated that he knew that he had been drinking, but that he had not done anything wrong. Id. at pp. 19-22, 57. This statement was made not less than 90 minutes after Pena and Officer Sosa arrived at the scene, and was not the result of police questioning. Id. at pp. 42-52. The defendant was apparently never read his Miranda rights. Id. at 42. At the 28th Precinct, defendant was not offered the opportunity to take a breathalyzer test. Id. at p. 51.
It may be that defendant did not take a breathalyzer test at the 28th Precinct because he suffered injuries while in police custody there. When Pena initially arrived at the scene, defendant did not have any facial injuries. See Hearing Minutes at p. 26. After he was arrested, however, at approximately 6:00 a.m., defendant had to be taken to Harlem Hospital for medical treatment for facial injuries. Id. at pp. 26-28. The injuries apparently occurred when Pena left defendant with Officer Sosa and other officers so she could do a warrant check on defendant. Id. at pp. 27-30. Officer Sosa's employment at the New York City Police Department has since been terminated, but Pena did not know why. Id. at pp. 23-26. Officer Sosa was the arresting officer in this case. Id. at p. 23. The People stipulated that they would not use evidence that defendant refused to take the breathalyzer test at trial. Id. at 4-5.
While transporting the defendant, Pena observed that he had great difficulty walking, and that Officer Sosa had to help him walk. Id. at pp. 16-18. She also observed defendant to have watery eyes and to slur his speech, although she did not testify as to whether defendant smelled of alcoholic beverages. Id. at pp. 17-19. Based on these observations, including defendant's statement, Pena concluded that the defendant was intoxicated. Id. at p. 20.
Lt. Gill has been a member of the New York City Police Department for over fifteen years and is currently assigned to the Intelligence Division. Id. at p. 60. He has personally made approximately 90 arrests and has participated in over 1,000 more. Id. at p. 63.
At 4:30 a.m. on May 13, 2007, Gill was assigned to the 44th Precinct and riding in an unmarked police car with his partner, Lieutenant Cortwright, in the vicinity of East 166th Street and Fulton Avenue. Id. at pp. 60, 64-68. Gill heard loud noises nearby that sounded like a fight or windows breaking. Id. When the lieutenant arrived on the scene, Gill saw an Infiniti SUV pulling away, and a number of people, including a man with a baseball bat. It looked like there had been a fight. Id. Gill got out of the car, and made the man drop the baseball bat. Gill also saw the driver's door of the SUV open, and defendant exited the vehicle. Id. The windows of the SUV were smashed, and there was glass in the car. Id. at pp. 68-69. Gill thought the defendant might be a potential complainant. Id. at pp. 70-73. Gill got the situation under control, but never spoke to defendant. Id. Gill saw Officer Sosa arrive at the scene, but Gill did not recall speaking to him. Id. There were other police supervisors present. Id.
CONCLUSIONS OF LAW
As to the Ingle/Dunaway portion of the hearing, the People had the burden of going forward with credible evidence tending to show that the police acted lawfully, and the defendant had the burden of proving by a preponderance of the evidence that the police acted illegally. See People v. DiStefano, 38 NY2d 640, 652 (1976); People v. Perez, 149 AD2d 344, 345 (1st Dept. 1989). For the Huntley portion of the hearing, the People had the burden of proving beyond a reasonable doubt that defendant's statements were voluntary. People v. Huntley, 15 NY2d 72, 78 (1965). For the reasons set forth below, the Court holds that the People have not met their burden of going forward with evidence tending to show there was probable cause to arrest defendant.
Generally speaking, a police officer may arrest an individual without a warrant if the officer has "reasonable cause to believe that such person has committed [a] crime . . ." CPL § 140.10(1)(b). Under the "fellow officer rule," even if the "arresting officer lacks personal knowledge sufficient to establish probable cause, the arrest is lawful if the officer acts upon the direction of or as a result of communication with a superior or [fellow] officer or another police department provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest." People v. Ramirez-Portoreal, 88 NY2d 99, 113 (1996) (internal quotations and citations omitted; brackets in original). If the legality of the arrest is challenged by defendant in a motion to suppress, then "it becomes incumbent upon the People to establish that the officer or agency imparting the information, in fact possessed the probable cause to act." Id. (quotations and citations omitted). The People must then "come forward with evidence establishing probable cause to arrest." Id. at 113-14. This is typically done by establishing:
. . . probable cause for a warrantless arrest with hearsay information that satisfies Aguilar-Spinelli. To meet that two-part test, the prosecution must demonstrate the reliability of the hearsay informant and the basis of the informant's knowledge. In other words, there must be evidence that the informant is generally trustworthy and the information imparted was obtained in a reliable way — that it constitutes more than unsubstantiated rumor, unfounded accusation or conclusory characterization. An unsubstantiated hearsay communication — even when transmitted by a fellow officer — will not satisfy the People's burden.
People v. Ketcham, 93 NY2d 416, 420 (1999) (italics in original; citations omitted; emphasis added).
The People have not satisfied their burden of going forward. At the outset, the People's reliance on the "fellow officer" rule is misplaced. In the typical arrest involving the "fellow officer" rule, the arresting officer apprehends the suspect in reliance upon information provided by a fellow officer. Here, by contrast, the Court concludes that defendant had already been arrested by the time Pena arrived on the scene. Indeed, when Pena arrived, defendant was in handcuffs, his driver's license had been taken from him by the police, and he had already been questioned by unknown police officers. Further, an unknown police supervisor had already determined (and so directed Pena's partner, Officer Sosa) that defendant was to be taken to the 45th Precinct for a breathalyzer test. See Hearing Minutes at pp. 8-12, 41-49, 58. Plainly, the evidence leaves the Court with no choice but to conclude that defendant already had been arrested by the time Pena arrived. See People v. Hicks, 68 NY2d 234, 240 (1986); People v. Robinson, 282 AD2d 75, 79-82 (1st Dept. 2001).
Thus, the Court is left to speculate as to who placed defendant in custody and what observations justified that police action. In this regard, the Court is mindful that "[s]ummary statements that the police had arrived at a conclusion that sufficient cause existed will not do." People v. Bouton, 50 NY2d 130, 135 (1980). If there is no "showing at the hearing that the officer who apprehended the suspect[]. . . . had probable cause to do so," then the People have not met their burden of going forward, and the Court must suppress. People v. Rojas, 163 AD2d 1, 2 (1st Dept. 1990); see also, People v. Gonzalez, 80 NY2d 883, 885 (1992) (holding People failed to establish the legality of police conduct where there was "no basis for attributing reliability to the hearsay information related by [the testifying officer] or for assuming its truth" because the testifying officer did not participate in defendant's arrest and questioning). Without an appropriate predicate establishing probable cause, the fellow-officer rule cannot be used to justify a defendant's arrest.
That predicate is wholly lacking here. The Court has not been told the identity of the informant, cannot determine his or her reliability, and is left to guess at the basis of the informant's knowledge. The only police officer who testified about the defendant's conduct prior to the arrest was Gill. Gill, however, did not testify that he had observed defendant to be engaging in any criminal activity. Indeed, Gill testified that he had thought that defendant might be the victim of a crime, rather than its perpetrator. Standing alone, Gill's testimony obviously does not supply the Court with the necessary factual information through which it might have been able to conclude that defendant was legally arrested. As noted above, the Court must be given facts, not mere conclusions, to determine whether there was probable cause to arrest defendant. People v. Bouton, 50 NY2d 130, 135 (1980); People v. Rojas, 163 AD2d 1, 2 (1st Dept. 1990); People v. Gonzalez, 80 NY2d 883, 885 (1992).
Finally, the Court concludes that the statement flowed from the illegal arrest and must be suppressed. See People v. Milaski, 62 NY2d 147 (1984). The People have not met their burden of demonstrating that "the statements were not acquired by exploitation of the arrest but by means sufficiently distinguishable from it to be purged of illegality" such as an "intervening event [that] broke the causal connection between defendant's arrest and the making of the statements." People v. Johnson, 66 NY2d 398, 407 (1985). In this regard, defendant's statement was made within 90 minutes of the arrest, thus demonstrating a close "temporal proximity of the arrest and the underlying confession." Johnson, 66 NY2d at 407 (suppressing confession made not less than 90 minute after illegal arrest). Accordingly, defendant's statement is suppressed.
The foregoing constitutes the Decision and Order of the Court.