People v. SearightPeople v. Searight
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of two counts of criminal possession of a controlled substance in the third degree (
At the suppression hearing, the Pеople called two Syracuse police officers who testified concerning their stop of the vehicle driven by defendant based upon two traffic infractions, i.e., operating a motor vehicle without a license (
We agree with defendant that the court erred in refusing to suppress defendant‘s statements and tangible property, including the cocaine, seized as the result of his arrеst, inasmuch as the People failed to meet their burden of showing the legality of the police conduct in arresting dеfendant in the first instance (see People v Lopez, 206 AD2d 894, 894 [4th Dept 1994], lv denied 84 NY2d 937 [1994]). “Under the fellow officer’ rule, [a] police officer is entitled to act on the strength of a radio bulletin or a telephone or teletype alert from a fellow officer or department and to assume its reliability’ ” (People v Rosario, 78 NY2d 583, 588 [1991], cert denied 502 US 1109 [1992], quoting People v Lypka, 36 NY2d 210, 213 [1975]). Under those circumstances, the agency or officer transmitting the information presumptively possesses the requisite probable cause to arrest (see id.). However, where, as here, defendant challenges the reliability оf the information transmitted to the arresting officers, “the presumption of probable cause disappears and 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.; see Lypka, 36 NY2d at 214).
The People failed to meet that burden. Despite dеfendant‘s explicit challenge to the reliability of the information justifying his arrest (see Rosario, 78 NY2d at 588; People v Ynoa, 223 AD2d 975, 977 [3d Dept 1996], lv denied 87 NY2d 1027 [1996]; cf. People v Fenner, 61 NY2d 971, 973 [1984]), the People did not produce the arrest warrant itself prior to the conclusion of the hearing (see Lopez, 206 AD2d at 894; People v McLoyd, 35 Misc 3d 822, 828 [Sup Ct, NY County 2012]). Instead, the People relied upon the officer‘s testimony concerning his communications with an unidentified person or persons at the 911 Center and his assumptions about how thе 911 Center confirmed the existence of an active and valid warrant. That testimony, however, rested “on a pyramid оf hearsay, the information having been passed from” the arresting officer to unidentified persons at the 911 Center and thе Cortland Police Department and back to the officer (People v Havelka, 45 NY2d 636, 641 [1978]). “In making an arrest, a police officer may rely upon information communicated to him by another police officer that an individual is the subject named in a warrant and should be taken into custody in the execution of the warrant . . . However, if the warrant turns out to be invalid or vacated . . . [,] or nonexistent . . . , any evidence seized as a result of the arrest will be suppressed notwithstanding the reasonableness оf the arresting officer‘s reliance upon the communication” (People v Lee, 126 AD2d 568, 569 [2d Dept 1987]; see People v Jennings, 54 NY2d 518, 520 [1981]; People v Lent, 92 AD2d 941, 941 [2d Dept 1983]). Here, without producing the arrest warrant itself or rеliable evidence that the warrant was active and valid, the People did not meet their burden of establishing that defеndant‘s arrest was based on probable cause (see Lopez, 206 AD2d at 894).
We therefore conclude that the court should have granted that part of defendant‘s omnibus motion seeking to suppress his statements and tangible property obtained as the result of his illegal arrest, and defendant‘s guilty plea must be vacated (see People v Stock, 57 AD3d 1424, 1425 [4th Dept 2008]). Because our determination results in the suppression of all evidence supporting the crimes charged, the indictment must be dismissed (see id.).
Entered: June 15, 2018
Mark W. Bennett
Clerk of the Court