People v. Allen
| Decision Date | 12 January 1990 |
| Parties | The PEOPLE of the State of New York v. William Horton ALLEN and Holly Lorraine Coomber, Defendants. |
| Court | New York County Court |
Dennis F. Bender, Seneca County Dist. Atty., for the People.
Zimmerman & Tyo (Robert W. Zimmerman, Shortsville, of counsel), for defendant Allen.
W. PATRICK FALVEY, Acting Judge.
The Court herein is faced with an issue, unique due to its factual situation.
The defendant, William Allen Horton, and his co-defendant were indicted for two counts of Murder in the Second Degree, both Class A-1 felonies, in violation of sections 125.25(1) and 125.25(3) of the Penal Law; two counts of Robbery in the First Degree, both Class B Violent felonies, in violation of section 160.15(1) and 160.15(2) of the Penal Law; one count of Criminal Use of a Firearm in the First Degree, a Class B Violent Felony, in violation of section 265.09(1) of the Penal Law and Criminal Possession of a Weapon in the Second Degree, a Class C Violent felony, in violation of section 265.03 of the Penal Law all allegedly committed in Seneca County, New York on November 6, 1986.
The Court ordered, after argument of pre-trial motions, hearings to test the presence of probable cause for defendant's arrest, the legality of the search incident thereto, need for suppression of certain evidence obtained from the search and the defendant's compliance with the Agreement on Detainers (CPL section 580.20).
A pre-trial suppression hearing was conducted before me on November 30, 1989. Counsel were each given 10 days in which to file any legal memoranda in support of their respective positions. This decision addresses the issues of the defendant's arrest and the subsequent seizure of physical evidence. The remaining issues concerning CPL sections 30.20 and 580.20 are reserved pending receipt of additional submissions.
The Court herein is presented with a unique situation in that it must determine the validity of an extra-territorial arrest by Georgia authorities for a Georgia murder charge and the use of certain items seized as a result of that arrest as evidence in the trial of this New York indictment.
The prosecutor in Fourth Amendment questions has the burden of going forward with the legitimacy of police action (People v. Malinsky, 15 N.Y.2d 86, 91, 255 N.Y.S.2d 850, 204 N.E.2d 188) but the defendant has the overall burden of suppression. People v. Alberti, 111 A.D.2d 860, 490 N.Y.S.2d 261. Here the People presented three witnesses and the defendant called no witnesses and offered no evidence.
I give full credence to the testimony of the People's witnesses and make the following findings of facts:
The facts are that the defendant and his co-defendant are accused of committing the murder of a female convenience store clerk in Seneca County, New York on November 6, 1986. It is important to note that no felony complaint was ever filed against the defendant in the New York case. Furthermore, no indictment was returned or filed against the defendant for the New York charges until June 30, 1987. A bench warrant was issued for defendant-Allen's arrest by the Seneca County Court simultaneously with the filing of said indictment, and the defendant was not arraigned on the New York charges until July 7, 1989, ten days after his initial return from the State of Georgia on June 27, 1989.
Defendant Allen and the co-defendant were initially arrested, by the Sylvania Police Department in Sylvania, Georgia on November 8, 1986. The arrest resulted from a tele-type alert referred to in Georgia as a "BOLO" ("be on the look out for") dated 11/8/89 emanating earlier from the Glynn County, Georgia police indicating the Jack Boyet, Detective Sergeant of the Glynn County Police, testified that he personally applied under oath to the Magistrate for the defendant's arrest warrant. He indicated the basis of his application was information received from Seneca County authorities together with ballistic matches of the bullets from the victims of the Seneca County, New York and Glynn County, Georgia murders as well as his personal knowledge of the investigation of the Glynn County murder. A warrant for defendant Allen's arrest was issued and the defendants' names were entered into the police computer advising the area that a warrant was in effect.
existence of a warrant for the defendant's arrest for an alleged murder and armed robbery occurring in Glynn County on October 19, 1986. (Exhibit 1). The "BOLO" contained a description of the defendant as well as his female companion, their car and license plate number. However the arresting officer had no knowledge of the source of the information contained therein. Properly authenticated copies of the arrest warrant issued on November 7, 1986 at approximately 11:30 P.M. by Michael Sapp, Magistrate of the Magistrate Court of Glynn County were received into evidence as Exhibit 2. Neither defendant Allen nor his co-defendant were arrested on November 8, 1986 for the New York crimes
Mark Tretheway, Assistant Chief of Police of Sylvania, Georgia testified that based on his conversations with the Glynn County dispatcher and a hard copy of the "BOLO" he alerted his officers to set up a surveillance, at a nearby shopping center, to look for the described defendants travelling in a 1974 Buick Century, beige in color with dark top, bearing Missouri license plate # KJF-454. Tretheway had no personal knowledge of the information on which the arrest warrant was based.
He was soon advised that the defendant was cited at the shopping center. Since the "BOLO" indicated the defendant might be armed and dangerous, as he kept a .38 revolver under the driver's seat, the police wanted to surveil the defendant until he got into a less populated area before attempting to apprehend him.
Tretheway was advised that the defendant was on the move. A series of radio broadcasts coordinating the moving surveillance of the defendants ensued. Shortly thereafter, Chief Tretheway was advised that Detective Sergeant Snow had followed the defendant and the defendant's vehicle had stopped.
Tretheway first observed that the defendant and car fit the "BOLO" description when he arrived at the scene of the stopped vehicles. The defendant's car was parked on the curb and Detective Snow was behind it. He saw the defendant driver hunching forward behind the steering wheel. He then observed the defendant, after three commands to do so, exit the car in a crouched position and go to the ground. The defendant was very passive and made no extra movements. All officers at the scene had their weapons drawn. Tretheway assisted in placing the defendant under arrest, and advised him in his patrol vehicle, that he had a warrant for the defendant's arrest from Glynn County, Georgia.
Tretheway observed nothing nor did he search the defendant or his vehicle.
Prior to the defendant's apprehension, Detective Snow of the Sylvania, Georgia Police Department received a call from Assistant Chief Tretheway advising him of the "BOLO" and requesting his assistance in the surveillance.
As Detective Snow proceeded to his surveillance position he observed the subject vehicle. As he passed by in his unmarked car, the defendant, who was driving, looked directly at Snow and Snow looked at the defendant. At that moment Snow observed the defendant leaning forward and to the left in the car making gestures to the floor. He also observed a female passenger in the right front passenger's seat. The officer positioned himself in back of the defendant's vehicle and followed it.
The proof is that defendant was not breaking any vehicle and traffic law nor did he try to outrun the officer. However, as Snow followed, the defendant's vehicle Detective Snow, either alone or in conjunction with other officers, commanded the defendant to exit the vehicle. Although the female exited almost immediately, the defendant did so only after the third command or approximately twenty to thirty seconds after first being told to exit. He observed the defendant exit in a crouched like position, left foot first following with his right arm, and then he dropped to the ground near the open driver's door.
turned abruptly on to a side street and then stopped on its own. Detective Snow stopped behind and took a defensive position behind his open driver's door. He again observed the defendant leaning forward in the front left seat
Detective Snow approached defendant Allen who was face down on the pavement. As he approached to assist Chief Tretheway in handcuffing the defendant, Snow viewed the front compartment of the defendant's vehicle through the open door. It was at that time he observed a brown wooden handle of a pistol protruding from the left floor board located partially underneath the driver's left front bench seat.
After the defendant and the female passenger were taken into custody and secured, Detective Snow, with the assistance of Officer Evans, secured a .38 caliber Llama pistol.
Detective Snow also testified that there was no search of the defendant or his vehicle by any officers of the Sylvania Police Department.
After taking custody of the weapon and vehicle, Snow directed that the vehicle be towed to a secured police area. He followed the tow vehicle to insure same.
At approximately 3:30 P.M. that same day, Detective Jack Boyet of Glynn County took custody of the weapon and vehicle. He then conducted an inventory search of the vehicle at the Sylvania County Police Department. He testified that the search took approximately 2 1/2 hours.
Detective Boyet testified as to his department's policy of taking an inventory of any valuables found in a vehicle when impounded. He stated that an itemized list is only made of jewelry, money and other types of valuables but not all things found. No list was made in this case. However photos were taken before and during the...
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People v. Allen
...for the police to stop defendant's vehicle and arrest him was provided by the teletype alert received by the Georgia police. 146 Misc.2d 701, 550 N.Y.S.2d 997. It indicated that there was a warrant for defendant's arrest for murder and armed robbery and gave a description of defendant, his ......