| People v Searight |
| 2018 NY Slip Op 04466 [162 AD3d 1633] |
| June 15, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Bruce Searight, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Elizabeth Riker of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Kaitlyn M. Guptill of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered September 21, 2015. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a controlled substance in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,the plea is vacated, that part of the omnibus motion seeking suppression of statements andtangible property is granted, the indictment is dismissed, and the matter is remitted to SupremeCourt, Onondaga County, for proceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of twocounts of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1], [12]), defendant contends that Supreme Court erred in denying thatpart of his omnibus motion seeking suppression of evidence seized as the result of his allegedlyillegal arrest. In his omnibus motion defendant anticipated that the People would claim that hisstop, detention and ultimately his arrest were "based upon some bulletin or electroniccommunication received by the arresting officer," and he "specifically challenge[d] the reliabilityof any such communication to the arresting officer, including anything conveyed from a policedata base." Defendant requested "a hearing on the issue of probable cause to stop or arrest, aswell as the reliability and sufficiency of any radio transmission or other direction to investigate[him] or his vehicle."
At the suppression hearing, the People called two Syracuse police officers who testifiedconcerning their stop of the vehicle driven by defendant based upon two traffic infractions, i.e.,operating a motor vehicle without a license (Vehicle and Traffic Law § 509 [1]) andfailing to signal his intention to turn the requisite distance before turning right at an intersection(§ 1163 [b]). After the stop, the officers obtained information through the NewYork State Police Information Network (NYSPIN) that a warrant had been issued for defendantin the City of Cortland for felony drug charges. One of the officers communicated with the 911Center to obtain further information concerning the warrant. The 911 Center reported to him thatthe Cortland Police Department had confirmed that there was an active warrant and hadrequested 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 theCriminal Investigation Division (CID). At CID one of the arresting officers asked defendant if hehad anything illegal on his person and defendant produced two baggies containing cocaine,resulting in the present charges.
We agree with defendant that the court erred in refusing to suppress defendant's statementsand tangible property, including the cocaine, seized as the result of his arrest, inasmuch as thePeople failed to meet their burden of showing the legality of the police conduct in arrestingdefendant in the first instance (see People v Lopez, 206 AD2d 894, 894 [4th Dept [*2]1994], lv denied 84 NY2d 937 [1994]). "Under the 'fellowofficer' rule, '[a] police officer is entitled to act on the strength of a radio bulletin or a telephoneor 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, theagency or officer transmitting the information presumptively possesses the requisite probablecause to arrest (see id.). However, where, as here, defendant challenges the reliability ofthe information transmitted to the arresting officers, "the presumption of probable causedisappears and it becomes incumbent upon the People to establish that the officer or agencyimparting 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 reliabilityof the information justifying his arrest (see Rosario, 78 NY2d at 588; People vYnoa, 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 warrantitself prior to the conclusion of the hearing (see Lopez, 206 AD2d at 894; People v McLoyd, 35 Misc 3d822, 828 [Sup Ct, NY County 2012]). Instead, the People relied upon the officer's testimonyconcerning his communications with an unidentified person or persons at the 911 Center and hisassumptions 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 passedfrom" the arresting officer to unidentified persons at the 911 Center and the Cortland PoliceDepartment and back to the officer (People v Havelka, 45 NY2d 636, 641 [1978]). "Inmaking an arrest, a police officer may rely upon information communicated to him by anotherpolice officer that an individual is the subject named in a warrant and should be taken intocustody in the execution of the warrant . . . However, if the warrant turns out to beinvalid or vacated . . . [,] or nonexistent . . . , any evidence seized as aresult of the arrest will be suppressed notwithstanding the reasonableness of the arresting officer'sreliance 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 reliable evidence thatthe warrant was active and valid, the People did not meet their burden of establishing thatdefendant'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 omnibusmotion seeking to suppress his statements and tangible property obtained as the result of hisillegal 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 crimescharged, the indictment must be dismissed (see id.). Present—Whalen, P.J.,Centra, Peradotto, Troutman and Winslow, JJ.