Lead Opinion
OPINION OF THE COURT
The principal issue on this appeal is whether the connection between defendant’s illegal arrest and his subsequent lineup identification was sufficiently attenuated as to dissipate the taint, of the wrongful arrest. The Appellate Division determined that it was and, because there is record support for that conclusion, we affirm.
In the early hours of May 16, 2006, a New York City detective responded to a distress call at an apartment building in Manhattan and spoke with the victim and her neighbor about an incident that occurred that morning. According to the victim, a man, whom she later identified as defendant, followed her onto the elevator and demanded money. A struggle ensued. When they reached the fifth floor, the elevator opened and they fell into the hallway. The man rifled through the victim’s wallet and took her cash and credit cards. The victim described the man as six feet tall, in his early to mid-thirties with dark skin and a large build. The neighbor who had witnessed the incident gave the detective a similar description, adding that the perpetrator had a large nose and went by the street name “Izz.”
Several days later, a sergeant was reviewing the robbery report when he recognized the name of a worker at the store that the victim had visited before she was attacked. The employee had told the detective that he saw the man leaving the apartment building 5 to 10 minutes after the incident. The sergeant contacted the store employee, who told him that he knew the man who had committed the crime. The sergeant gave the employee his cell phone number and asked the employee to call him the next time he saw the man.
On May 31, 2006, at approximately 2:00 a.m., while the sergeant was on duty, the store employee called and told him that the man was at the store. When the sergeant arrived with two other officers, the employee told him that the man, who was wearing white pants, had just left. The sergeant located the man—defendant—around a nearby corner, and when asked, the defendant identified himself as “Michael Wright” but was unable to produce identification.
Here, the story takes an unfortunate turn. The sergeant concluded that the defendant was blocking the sidewalk and, because he had no identification, handcuffed the defendant and escorted him to an unmarked police car, with the intention of charging him with disorderly conduct. In later testimony, it was the sergeant’s view that the defendant was not free to go because he had been identified as a person involved in the robbery. As the sergeant and defendant were walking to the police car, the sergeant contacted the store employee, who told the sergeant that he had arrested the right man.
Defendant was transported to the precinct six blocks away. Within 15 minutes of his arrival, the sergeant contacted the detective at his home (at approximately 2:30 a.m.) and learned that the detective had placed a photograph of the suspect in his case folder. The sergeant retrieved the folder from the detective’s desk and found a picture of the defendant. Five hours later,
Following his conviction, defendant appealed. The Appellate Division held the judgment in abeyance and remitted the matter for a Dunaway hearing (Dunaway v New York,
The Appellate Division affirmed, holding, among other things, that although the police lacked probable cause for the arrest, the lineup identification “was based on intervening probable cause,” which sufficiently attenuated the taint of the illegal arrest (
The sergeant’s initial arrest of defendant was without probable cause and therefore illegal. But evidence discovered subsequent to an illegal arrest is not indiscriminately subject to the exclusionary rule (see People v Jones, 2 NY3d 235, 241-242 [2004]). Instead, the People “must have ‘somehow exploited or benefited from [the] illegal conduct’ such that ‘there is a connection between the violation of a constitutional right and the derivative evidence’ obtained by the police” (id. at 242, quoting People v Burr,
Defendant claims that the lineup identification must be suppressed because it was the product of an illegal arrest. In order
Defendant acknowledges that “attenuation of evidence from police misconduct” is generally a mixed question of law and fact that is beyond our review unless there is no record support for the Appellate Division’s determination (People v Williams,
The hearing testimony established that prior to the arrest, the detective had gathered detailed descriptions of the perpetrator from two witnesses, and learned from one witness—who was acquainted with the perpetrator—that he was known by the street name “Izz.” The detective’s investigation further uncovered that “Izz” was the same man known to police as “Michael Wright” and that the physical description on his rap sheet matched the physical descriptions the witnesses gave the detective. The rap sheet also indicated that “Michael Wright” was also known as “Lester Jones.” Finally, even before the illegal arrest, the detective had obtained a photograph of a person he believed to be the perpetrator and placed it in his case folder.
By the time the sergeant effected the illegal arrest, the detective already had in his possession sufficient evidence to establish probable cause for defendant’s arrest.
Defendant, nonetheless, argues that the disorderly conduct charge was a “mere pretext” and that “there is no record support for any conclusion but that the police obtained the lineup identification ‘by exploitation’ of [defendant’s] illegal arrest.” The sergeant plainly admitted at the hearing that, in addition to the disorderly conduct charge—for which he could not issue a summons because defendant lacked identification—he took defendant into custody because he also believed defendant to be the perpetrator of the earlier robbery. The Appellate Division concluded that the sergeant possessed some information connecting defendant to the robbery and acted in good faith on that information, but that it fell short of probable cause (see e.g. Bradford,
We also conclude that the Appellate Division correctly held that the trial court properly exercised its discretion by allowing the store employee to testify concerning threats made to him by third parties both before and during trial relative to his testimony. There was sufficient circumstantial evidence to connect those threats to defendant, and the court charged the jury that it needed to determine first whether the threats had, in fact, occurred, and, if so, then whether the threats demonstrated consciousness of guilt on defendant’s part.
Defendant’s remaining contentions are either unpreserved or without merit. Accordingly, the order of the Appellate Division should be affirmed.
Notes
. The dissent believes that the detective was obligated to verify that the nickname “Izz,” which he obtained from his colleague at the Manhattan Gang Unit, was reliable (dissenting op at 458). However, a police officer is entitled to rely on a name given him by a fellow officer as part of his investigation (see People v Ketcham,
. Given our holding in this regard, we need not reach defendant’s argument concerning the “fellow officer” rule.
Dissenting Opinion
I find no record support for the Appellate Division’s finding of attenuation. Rather, the rec
As the majority correctly notes, in applying the attenuation doctrine, courts must consider the “temporal proximity” between the arrest and the discovery of the challenged evidence, “the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct” (Brown v Illinois,
There is no support for the determination that the telephone call between Sergeant Miller and Detective Sucic broke the causal chain between the illegal arrest and the lineup, and provided the intervening circumstances necessary for a finding of attenuation. The illegal arrest was the very event that facilitated the arresting officer’s acquisition of information tying Mr. Jones to the robbery. It was the illegal arrest that directly prompted Miller to call Sucic. The illegal arrest also allowed Miller to make the comparison between the photograph
Furthermore, Detective Sucic did not possess sufficient evidence to establish probable cause to arrest defendant at the time Miller took defendant into custody, or at the time Miller called Sucic. Sucic only had a vague description of the perpetrator, as being a large, six-foot tall black male, in his thirties, with a big nose. And although Sucic knew the possible street name of the perpetrator, “Izz,” Sucic had no reliable way of knowing that the Gang Unit gave him the correct person matching the nickname “Izz.” In fact, Detective Sucic was told that Michael Wright, or Lester Jones, was only “a possible name” corresponding to “Izz.” Because Sucic never followed up his investigation by showing the photograph to either of the eyewitnesses, he could not know whether there were other people named “Izz” or whether the person with the nickname “Izz” was the person that the neighbor saw committing the robbery. Sucic’s next step, in the normal course of his police investigation, would be to show the photograph to the eyewitness who told him the robber’s street name was “Izz,” question Mr. Jones, or show his photo to the complainant, not to arrest Mr. Jones.
Moreover, there was no evidence that Sucic communicated any information to Miller that would have established probable cause. Miller initially took defendant into custody based on the identification of an employee of a store close to the robbery scene. But that store employee merely saw defendant enter and exit the building around the time of the robbery; he did not see the actual robbery taking place. Then, the only information Sucic communicated to Miller was that he had a photograph of a suspect in his file. Two people with less than probable cause talking on the phone about their respective suspicions does not create probable cause. Indeed, that conversation was itself a part of Miller’s investigation and by definition the opposite of attenuation.
Perhaps most troubling, the majority rests its affirmance on the Appellate Division’s conclusion that Sergeant Miller acted in “good faith” in making the pretextual arrest (see majority op
Judges Graffeo, Read and Smith concur with Judge Pigott; Chief Judge Lippman dissents in an opinion in which Judge Rivera concurs; Judge Abdus-Salaam taking no part.
Order affirmed.
“The right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing . . . the persons . . . to be seized” (US Const Amend IV).