People v. Acevedo

• Decision Date: 16 January 1992
• Citation: 179 A.D.2d 465,577 N.Y.S.2d 864
• Parties: PEOPLE of the State of New York, Appellant, v. Roberto ACEVEDO, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 864

577 N.Y.S.2d 864

179 A.D.2d 465

PEOPLE of the State of New York, Appellant, v. Roberto ACEVEDO, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Jan. 16, 1992.

Before ELLERIN, J.P., and WALLACH, KUPFERMAN and ROSS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Carol Berkman, J.), entered December 19, 1990 which granted defendant-respondent's motion to suppress and dismissed the indictment, unanimously reversed, on the law, the motion denied and the indictment reinstated.

Defendant was arrested on April 16, 1990 in a lower Manhattan "buy and bust" operation. At the hearing on the motion to suppress, the arresting officer testified that, at 1:25 p.m., he received a radio message from the undercover officer with whom he was working stating that the undercover officer had a "positive buy" on the corner of Clinton and Rivington Streets and describing two male Hispanics, each of whom were approximately 5'6"' tall, weighed about 145 pounds and had goatees. One was wearing striped pants and a black coat and the other was wearing jeans and a "blue Army coat". One minute later, the arresting officer seized defendant from among approximately 10 people on the corner. Defendant was a male Hispanic, about 5'6"', 145 pounds, with a goatee, and was wearing striped pants and a blue Army coat.

Defendant was immediately handcuffed, and, moments later, the undercover officer drove by and identified him as one of the subjects earlier referred to and also noted that he was wearing the jacket that had been worn by the other subject.

At the outset, we reject the People's argument that defendant was not under arrest at the point when he was handcuffed and that it was, therefore, not necessary to establish that the undercover officer's transmission gave rise to probable cause to arrest. While it is well established that the holding of a person briefly for purposes of identification is not the equivalent of an arrest (People v. Hicks, 68 N.Y.2d 234, 508 N.Y.S.2d 163, 500 N.E.2d 861), in this case the police intrusion on defendant's liberty went far beyond that necessary to detain him for purposes of identification. Although the application of handcuffs is not always dispositive of whether the detention of a suspect on reasonable suspicions has been elevated into a full-blown arrest (People v. Allen, 73 N.Y.2d 378, 540 N.Y.S.2d 971, 538 N.E.2d 323), there is no question that the use of handcuffs is a drastic limitation on the liberty of the detainee and, in the absence of probable cause, may only be resorted to where strongly justified by the circumstances. In this case, the police had no reason to believe that defendant was either armed or dangerous (cf. People v. Allen, supra ). Nor was there any indication on the record that the officers had any difficulty restraining defendant or that he gave them any reason to believe that he intended to flee (cf. People v. Crowley, 156 A.D.2d 135, 548 N.Y.S.2d 181.) In these circumstances, the use of handcuffs clearly elevated the encounter into an arrest.

Defendant having been placed under arrest before he was identified by the undercover officer, the validity of the police conduct is dependent upon whether the arresting officer was in possession of information which would rise to the level of probable cause. Contrary to the hearing court, we conclude that sufficient information to constitute probable cause existed at the time of the arrest. We find, therefore, that the motion to suppress was improperly granted and reverse.

Defendant contends that the description conveyed to the arresting officer was insufficient...