Thursday, August 2, 2018

Helpful Decision on Seizure Based on Invalid Warrant/Fellow Officer Rule

by Jill Paperno,


In People v. Searight, 2018 NY Slip Op 04466, the Fourth Department considered the admissibility of drug evidence found after defendant's stop.  Apparently, the Syracuse police department relies on the same charge for stopping some drivers as RPD - the failure to signal sufficiently in advance of a turn in violation of VTL 1163.  (There are ways of challenging the stop when the failure to signal in advance is the basis, such as using internet tools to measure and map the location and the distance from where the driver signaled to the intersection - officers do get this wrong.)

In Searight, decided 6/15/18, the defendant had moved for suppression, specifically challenging the hearsay allegations relied upon by arresting officers.  This was noted in the decision and is critical to your motions - when challenging search or seizure on Fourth Amendment grounds (and the New York State Constitutional equivalent, Article I, Section 12, you must challenge the hearsay relied upon by officers in your written motion.  A commonly used paragraph is "Defendant challenges the sufficiency and reliability of any hearsay allegations relied upon by arresting officers, including any information relayed from a police database."  (I just added the "police database" piece which was in the defense motion in Searight..  If it works for them...)
 

At the suppression hearing, two Syracuse police officers testified that they "obtained information through the New York State Police Information Network (NYSPIN) that a warrant had been issued for defendant in the City of Cortland for felony drug charges. One of the officers communicated with the 911 Center to obtain further [*3]  information concerning the warrant. The 911 Center reported to him that the Cortland Police Department had confirmed that there was an active warrant and had requested that defendant be held until an officer of that department could take him into custody. The officers placed defendant under arrest based upon the warrant and transported him to the Criminal Investigation Division (CID). At CID one of the arresting officers asked defendant if he had anything illegal on his person and defendant produced two baggies containing cocaine, resulting in the present charges."
People v Searight, 2018 N.Y. App. Div. LEXIS 4411, *2-3.   

The Court stated:
 

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 arrest, inasmuch as the People failed to meet their burden of showing the legality of the police conduct in arresting defendant in the first instance ( see People v Lopez, 206 AD2d 894, 894 [4th Dept 1994],  lv denied 84 N.Y.2d 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 U.S. 1109, 112 S. Ct. 1210, 117 L. Ed. 2d 448 [1992], quoting People v Lypka, 36 NY2d 210, [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 of 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 defendant'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 N.Y.2d 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, 946 N.Y.S.2d 829 [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 the 911 Center confirmed the existence of an active and valid warrant.That testimony, however, rested "on a pyramid of hearsay, the information having been passed from" the arresting officer to unidentified persons at the 911 Center and the 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 of the arresting officer's reliance upon the communication" (emphasis added)  (People v Lee, 126 AD2d 568, 569,  [2d Dept 1987]; see People v Jennings, 54 NY2d 518,[1981]; People v Lent, 92 AD2d 941, 941,  [2d Dept 1983]). Here, without producing the arrest warrant itself or reliable evidence that the warrant was active and valid, the People did not meet their burden of establishing that defendant's arrest was based on probable cause (see Lopez, 206 AD2d at 894).
People v Searight, 2018 N.Y. App. Div. LEXIS 4411, *3-5 

What's interesting to me is that the defendant apparently did violate the V&T with the turn, and he did not have a license.  But the Fourth Department still suppressed the evidence, stating that the defendant was arrested based on the warrant, and finding the existence of a valid warrant was necessary to support the arrest.  So to the extent you can, if you have a V & T stop, and the police claim a warrant existed that you can challenge, try to get the officers to acknowledge that the arrest was based on the warrant. 

Side note:
 

This is a different situation than that in the Supreme Court case Utah v. Strieff, 136 Supreme Court 2056 (2016) in which the defendant was initially unlawfully detained, and the police located a valid warrant for a minor traffic violation.  The Supreme Court, with a vigorous dissent by Justice Sotomayor, found such an arrest and the seizure of evidence to be lawful.

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