95 A.D.2d 241 | N.Y. App. Div. | 1983
OPINION OF THE COURT
Although the survival of the suppression order at issue on this appeal depends upon other factors as well, a primary issue is whether an officer’s mistaken belief that he lacked probable cause for arrest invalidates an arrest that would otherwise withstand constitutional scrutiny. Contrary to the belief of the officer involved, the instant arrest was supported by probable cause and we hold that his mistaken belief provides no basis for suppression of defendant’s postarrest statements as “poisonous fruit” of an illegal arrest. Not only would suppression based on the
I
The case is another deriving from the death of Steven Zwickert who was robbed and killed on Queens Boulevard in the early morning hours of May 15, 1980, while returning from a high school prom. Defendant has yet to be tried because of the current appeal from the order that suppressed the statements he made when questioned by a New York detective at the Great Lakes Naval Training Station. As adduced at the suppression hearing, the People’s version of the material events is as follows.
During the investigation of the Zwickert homicide, the defendant first came to the attention of Detective Owen Kelly when a suspect, Randolfo Maldonado, mentioned the name “Joe” in a statement. Shortly afterwards, another detective told Kelly that an informant named Wilford Medina had identified defendant as one of the persons present in the assailants’ car on the night of the homicide. On June 4, 1980, the father of yet another suspect, Angel Claudio, informed Kelly that one of the four men in the car on May 15 was “Joe Lopez” who joined the Navy on May 28. After ascertaining from naval intelligence that Lopez was stationed at the Great Lakes Naval Training Station in Illinois, Kelly obtained from the Navy a copy of defendant’s fingerprints and photographs. Informant Medina subsequently told Kelly that a few hours before the Zwickert murder he saw “Buck”, the unapprehended fourth suspect in the case, drive up in a car with defendant in the front passenger seat and Angel Claudio in the rear seat. After Medina declined the invitation to join his friends, defendant reached under the front passenger seat and displayed what appeared to be a .38 caliber pistol wrapped in a rag. Medina knew the defendant from the neighborhood and selected his photograph from a nine-picture photo array.
At this point in the investigation, Kelly called the Great Lakes Naval Training Station to arrange an interview with defendant. Kelly informed the naval intelligence
In his statement, defendant asserted that after Buck picked him up between 5:30 and 6:00 p.m., the occupants of the car decided to kill some time by driving around and having some beer. At approximately 3:00 to 4:00 a.m., defendant, who was driving the car, was told to park it, and Buck and Angel Claudio departed. After a few moments, defendant heard a noise that sounded like a “backfire”. Buck and Angel ran back to the car and said “[l]et [sic] get out of here, something happened”. Defendant saw them place a gun under the seat and heard Buck say that he should have had the gun since “this kid didn’t know how to handle a gun”.
After giving this statement, defendant repeated it for stenographic transcription and signed a typed copy in which he acknowledged that he had been advised of his rights. Although presented with the opportunity to correct any errors in the statement, defendant declined to do so. Defendant was then formally arrested and was transported to New York the following afternoon.
Following his indictment, defendant moved to suppress his statements, alleging that they had not been voluntarily made and that they were tainted by an illegal arrest that had not been effected upon probable cause.
The hearing court granted suppression after concluding that defendant was under arrest when handcuffed by the naval authorities and brought in for questioning. Apparent from the court’s review of the facts and its conclusions of law is reliance on Kelly’s subjective belief that the arrest was not based upon probable cause. The court concluded that the defendant’s statements were involuntarily given, Miranda warnings had not been provided, and the taint of the illegal arrest was not purged.
II
Pertinent to the determination of the illegal arrest issue are the circumstances of the Navy’s production of defendant for his interview with Kelly. Since the Fourth Amendment applies to actions of naval authorities and other governmental employees who have statutory authority to arrest (US Code, tit 10, § 809) or who perform law enforcement or security functions (see People v Scott D., 34 NY2d 483; Bell v State, 519 P2d 804 [Alaska]; Dyas v Superior Ct. of Los Angeles County, 11 Cal 3d 628), the hearing court properly found that defendant was arrested when naval intelligence agents took him into custody, escorted him to the interview room in handcuffs and placed him in Kelly’s presence (see People v Brnja, 50 NY2d 366, 372; People v Gordon, 87 AD2d 636). Consequently, unless it can be established that there was probable cause for defendant’s arrest by the Navy at that time, his subsequent statements must be suppressed as the “poisonous
The poisonous fruit issue rests in turn on the Navy’s authority to arrest defendant on the basis of its communications with Detective Kelly. Under the fellow officer rule, an arresting officer acts with probable cause when he arrests either at the direction of another law enforcement officer who has probable cause or, in the absence of such direction, on the basis of information transmitted from the other officer which itself or together with information already known to the arresting officer establishes probable cause (Whiteley v Warden, 401 US 560; People v Brnja, 50 NY2d 366, 373, n 4, supra; People v Lypka, 36 NY2d 210; People v Horowitz, 21 NY2d 55). In recognition of the realities of modern-day law enforcement, the Supreme Court has stressed that law enforcement officers called upon to assist other officers are reasonably entitled to assume that the officers who requested the assistance possessed the requisite information to support the requested action (Whiteley v Warden, supra, p 568; see 1 LaFave, Search & Seizure, § 3.5[b]). Therefore, it is unnecessary that the receiving officer possess the requisite information if the action is taken upon the direction of a brother officer who does possess information sufficient to justify the action (People v Horowitz, supra, p 60). In this respect, the law does not distinguish between intrastate and interstate police communications and pickup directives as a predicate for police action (People v Lypka, supra, p 213).
Directives or requests for action by officer to officer usually occur in the context of formal arrests (see, e.g., People v Horowitz, 21 NY2d 55, supra; People v Loewel, 50 AD2d 483, 491), but sometimes are made in connection with warrantless searches (see, e.g., People v Hadley, 67 AD2d 259, 263), investigative stops (see, e.g., Commonwealth v Gullick, 386 Mass 278; State v Hill, 3 Ohio App 3d 10), or, as here, with bringing in a suspect for questioning (State v Whitehead, 42 NC App 506, app dsmd 298 NC 572; Dotsey v State, 630 SW2d 343 [Tex]), an action that constitutes a seizure akin to arrest. In any event, the receiving officer is entitled to assume that the sending officer pos
Here, it is evident that Kelly’s request for assistance contemplated a custodial interrogation. Not only did he inform the naval intelligence agents that defendant had been identified as a perpetrator in a Queens homicide but he also emphasized his desire to interview the defendant alone and that a formal arrest might occur after the interview. While Kelly did not instruct the naval authorities to seize and handcuff the defendant, his request sought an intrusion of similar magnitude — a custodial interrogation which would also require probable cause as a predicate (see Dunaway v New York, 442 US 200). Under the fellow officer rule the naval officers were reasonably entitled to assume that the officer issuing the request for the detention of a suspect acted upon probable cause (see State v Whitehead, supra). The crucial question then is whether Detective Kelly possessed knowledge sufficient to establish probable cause for an arrest. Since it is obvious that Criminal Term’s conclusions were based in part on Kelly’s belief that he lacked such probable cause at the time he requested defendant’s production for interview, we must determine whether the subjective evaluation of the arresting (or interrogating) officer must prevail over objective judicial determination of the facts in existence and known to the officer.
Ill
How a police officer’s state of mind affects the validity of a search or seizure has become a principal focus of recent debate centering on whether a “good-faith” exception to the exclusionary rule should be established (see, e.g., The Exclusionary Rule Revisited: Good Faith in Fourth
The two major justifications for the exclusionary rule are the imperative of judicial integrity and deterrence of future unlawful conduct of police officers (United States v Peltier, 422 US 531; Elkins v United States, 364 US 206). Where a police officer objectively possesses enough information to establish probable cause but simply does not realize it when the arrest is made, there is no improper
Furthermore, to permit the officer’s legal opinion concerning the existence or nonexistence of probable cause to control the constitutionality of an arrest contravenes a basic principle of current Fourth Amendment jurisprudence, for the courts rather than the police must determine probable cause (see Coolidge v New Hampshire, 403 US 443; Johnson v United States, 333 US 10, 14; Burkoff, Bad Faith Searches, 57 NYU L Rev 70, 95). Just as the policeman is not the ultimate judge of the sufficiency of the facts and circumstances then known to him, he ought not be the judge of their insufficiency (United States v Rowell, 612 F2d 1176, 1179). Not only does the subjective approach place a premium on dissemblance, but the difficulty of administering a standard which turns upon motivation would approach futility and would produce a fruitless allocation of judicial resources (United States v Arra, 630
The leading case on the subject is Scott v United States (436 US 128), which decided whether an officer’s improper motives affected the constitutionality of an otherwise constitutional search. Scott argued that FBI agents had not complied with the mandate to minimize their telephone interceptions by listening solely to calls colorably connected with criminal activity (see US Code, tit 18, § 2518, subd [5]). Writing for the court’s majority, Justice Rehnquist adopted the Government’s position that the existence of a constitutional violation must turn on “an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time” and that subjective intent alone did not make otherwise lawful conduct illegal (Scott v United States, supra, p 136). The Scott court thus determined that whether the agents violated the Fourth Amendment must be determined by using “a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved” (p 138).
The Scott view has been indorsed under the Constitutions of several of our sister States (see, e.g., State v Vaughn, 12 Ariz App 442; Thomas v State, 395 So 2d 280 [Fla]; Cuevas v State, 151 Ga App 605; Grimes v State, 412 NE2d 75 [Ind]; State v Heitman, 589 SW2d 249 [Mo]; State v Peck, 305 NC 734), but New York’s Court of Appeals has not directly addressed whether an otherwise proper arrest is undermined by the arresting officer’s erroneous subjective belief that probable cause was lacking. In some earlier contexts, however, the Court of Appeals has expressed a preference for an objective standard. Thus, an arrest based upon a warrant retained in a criminal justice system computer was held invalid because the warrant had in fact become inapplicable, notwithstanding the People’s claim that the arresting officer acted in good faith (see People v Jennings, 54 NY2d 518). According to the Jennings court (p 523), “[a]n assessment of probable cause turns on what was reasonably and objectively in the mind of law enforcement authorities. It does not turn on such subjective considerations as the absence of malice against a suspect, the
We do not view People v Harrison (83 AD2d 965, affd 57 NY2d 470) as bearing on the question before us, even though the Harrison dissenter in this court argued that in deciding that suppression was required, the majority was relying on the officer’s mistaken belief that he had no probable cause for arrest. But on further appeal the Court of Appeals — by footnote reference — concluded that mistaken belief was not a factor in the Appellate Division determination because the officer in question had never observed the hanging license plate that might have provided probable cause (57 NY2d, at p 473, n 1).
Our conclusion is obvious — the twin policy considerations underlying the exclusionary rule, deterrence and judicial integrity, are not served if law enforcement officials are deprived of relevant evidence when an objective assessment of the factsjustifi.es the actions taken. Furthermore, the legality of an arrest must be independently determined by the courts upon the actual facts and circumstances known to the officer (Scott v United States, 436 US 128, supra).
IV
Having concluded that his subjective belief as to the existence of probable cause is not dispositive, we must still decide whether Kelly actually possessed probable cause to believe that the defendant had committed a crime. In that connection, the crucial issue is whether Kelly was entitled to rely on his informant’s tip. In Illinois v Gates (462 US _, 51 USLW 4709, supra), the Supreme Court abandoned the long-standing “two-pronged test” enunciated in Aguilar v Texas (378 US 108) and substituted a “totality of the circumstances” analysis which includes consideration of the Aguilar prongs of “veracity” and “basis of knowledge” as part of a totality but not as the sole and separate tests. Thus, in determining the reliability of a tip, a deficiency in
V
The final issues concern the voluntariness of the defendant’s statements and the timeliness of the Miranda warnings he received.
On voluntariness, Criminal Term concluded that the People failed to prove that the defendant’s statements were voluntarily given since the defendant “merely submitted to the authority of the Navy and then that of the detective”. This conclusion is not supported by the record. In evaluating the “totality of the circumstances” (see Clewis v Texas, 386 US 707, 708; Fikes v Alabama, 352 US 191, 197; People v Anderson, 42 NY2d 35, 38), we are satisfied that defen
What remains is whether defendant received Miranda warnings prior to interrogation. In its determination, Criminal Term stated that “the People have failed to show that defendant knowingly, intelligently and voluntarily waived his Fifth Amendment rights” and that “the defendant was apprehended and subjected to in-custody interrogation without proper warnings or a purging of the primary taint of the illegal arrest. See Brown v Illinois, 422 U.S. 590”. Although Criminal Term emphasized the illegality of the arrest and the involuntary nature of the statements, its brief reference to Miranda warnings resolved the disputed factual question as to whether they were timely given (Janowitz Bros. Venture v 25-30 120th St. Queens Corp., 75 AD2d 203, 210). Unfortunately, that portion of the determination was unaccompanied by any explanation as to why the court believed defendant’s version of the Miranda warning facts as opposed to Detective Kelly’s. The People now argue that Criminal Term’s conclusion was against the weight of the evidence, considering defendant’s twice-made concession during direct testimony that he had received timely Miranda warnings, his signed statement acknowledging receipt of the warnings, his unexplained retraction of his earlier Miranda testimony on cross-examination, and the absence of any reason to discredit Kelly’s testimony.
In reviewing a factual determination based largely upon an assessment of credibility, the determination of the trier of facts is ordinarily accorded great weight (Amend v Hurley, 293 NY 587, 594; People v Samuels, 68 AD2d 663, affd 50 NY2d 1035; People v Atlas, 183 App Div 595, 600). However, this rule of deference must give way when the appellate court determines that the fact findings under review are against the weight of the evidence (People v
Although we recognize the advantage possessed by the hearing court which saw and heard the witnesses, in light of the peculiarities of this case we cannot agree with its conclusion that timely Miranda warnings were not given (see Lynch v Repetti, 94 AD2d 790; Matter of Department of Social Servs. v Hector S., 81 AD2d 915). To begin with, defendant’s moving papers never even raised a Miranda issue but relied instead on claims of coercion and submission to authority. At the hearing, Kelly testified that at the outset of the interview he informed defendant of his rights. That testimony was clearly and unequivocally corroborated by defendant who twice stated on direct examination that he had waived his rights prior to making any statement. Upon cross-examination, he initially confirmed his prior testimony concerning the waiver but suddenly contradicted those admissions by stating that he had not been given his rights until after he had given his first statement. Not only had the Miranda issue been unraised until this point in the hearing, but neither the hearing court nor the defendant has articulated any reasonable basis for discrediting the testimony of Detective Kelly who had been
Accordingly, the order granting suppression of defendant’s statements should be reversed and the defendant’s motion to suppress denied in its entirety.
Damiani, J. P., Mangano and Gibbons, JJ., concur.
Order of the Supreme Court, Queens County, dated March 26, 1981, reversed, on the law and the facts, defendant’s motion to suppress denied in its entirety and matter remitted to Criminal Term for further proceedings.
Indeed, the Court of Appeals recently reapplied the Aguilar test and declared it had no occasion to consider the effect of Illinois v Gates (462 US _, 51 USLW 4709) on the State rule (People v Landy, 59 NY2d 369).