Sunday, February 15, 2009

Police Lacked Authority to Detain a Suspect While Conducting a Photo Array Elsewhere

In People v Ryan (__ NY3d __, 2009 NY Slip Op 01068 [2/12/09]) the Court of Appeals resolved a tension that has existed in the law between two lines of decisions from the Court of Appeals as to the authority of the police to detain a suspect while investigating a crime.

Although it is clear that police may not forcibly seize a person without probable cause (to support an arrest) or reasonable suspicion (to support a forcible stop); the fruits of an unlawful seizure must be suppressed. ( People v DeBour , 40 NY2d 210, 223 [1976]; People v Hollman , 79 NY2d [1992]), it has been unclear how that general rule is to be applied when the police wish to determine if they can develop evidence regarding a suspect.

Two decisions -- People v Battaglia (56 NY2d 558 [1982], reversing on dissent of Hancock, Jr., J. at 82 AD2d 389) and People v Hicks (68 NY2d 234 [1986]) - - have appeared to be in conflict.

In Battaglia, police detained the defendant for a very brief time, while they went to the nearby site of an activated burglar alarm to see whether there had been a burglary, a means of investigation that did not require detention of defendant, who had been handcuffed, patted down and placed in a police car. This Court reversed on the dissenting opinion below, which noted that although the officer had reasonable suspicion to believe defendant committed a burglary, and that while "[o]ne can sympathize with [the officer's] desire to hold defendant until evidence establishing probable cause could be found," such practical considerations do not override the right to be free from unreasonable searches and seizures (People v Battaglia, 82 AD2d at 396 [ Hancock, Jr., J ., dissenting ], rev'd on dissent 56 NY2d 558). In Hicks, the brief detention of defendant, who was not handcuffed and was told of the limited purpose of his detention - - namely, that he was being taken to the crime scene for a showup identification procedure less than a minute away - - and that he would be released if not identified, was found lawful under the circumstances of that case, as "police pursued a minimally intrusive means of investigation likely to confirm or dispel suspicion quickly, during which time it was necessary to detain the defendant" (Hicks, 68 NY2d at 242 [citation omitted]).

In Ryan the Court considered whether a suspect's 13 minute detention in a police car without probable cause can be justified under Hicks, when the purpose of the detention was to allow the suspect to remain in police custody while a police in another location conducted a photo array with a with a witness to the crime. The Court distinguished Hicks and held that the 13 minutes detention was unlawful:

Hicks allowed a brief investigatory detention so that victims of a recent robbery could participate in a showup (see id. at 237). There, the efficacy of the prompt showup procedure depended on the defendant's and witnesses' simultaneous presence (see id. at 242). But no similar special law enforcement need justifying defendant's detention was shown here. Proper administration of the photo array did not require defendant's presence and, in fact, the police officer did not even know that the non-victim witness had become available to view the photo array when defendant's detention began. Nor were there any other exigencies that might have permitted holding defendant while the photo array was conducted...Thus, the only permissible inference that can be drawn is that this detention was undertaken simply to make it convenient for the police to arrest defendant if a positive identification subsequently occurred (see People v Robinson, 282 AD2d 75, 81 [1st Dept 2001] ["What the police did here, as a practical matter, was to place defendant under arrest in order to obtain sufficient evidence to arrest him"]).

Thus, the Court has limited the application of Hicks to show up identifications and not off site photo arrays.

No comments:

Post a Comment