People v. Johnson

• Decision Date: 26 November 1985
• Citation: 66 N.Y.2d 398,497 N.Y.S.2d 618
• Parties: , 488 N.E.2d 439, 54 USLW 2307 The PEOPLE of the State of New York, Respondent, v. Melvin JOHNSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 618

497 N.Y.S.2d 618

66 N.Y.2d 398, 488 N.E.2d 439, 54 USLW 2307

The PEOPLE of the State of New York, Respondent, v. Melvin JOHNSON, Appellant.

Court of Appeals of New York.

Nov. 26, 1985.

Faith O'Neal and William E. Hellerstein, New York City, for appellant.

Mario Merola, Dist. Atty. (Anastasios Sarikas and Jeremy Gutman, New York City, of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Judge.

Defendant has been convicted by a jury of felony murder and related crimes arising from the slaying of a storeowner during a robbery. The evidence against defendant included two inculpating postarrest statements he made which he contends were improperly received in evidence because he was arrested without probable cause and the statements were products of that unlawful arrest. The arrest was unlawful, defendant contends, because the police acted solely upon hearsay information given them by a suspect named Bolivar Abreu whose information did not satisfy the reliability requirement of the Aguilar-Spinelli rule (see, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637). The People assert the information was reliable because it contained admissions by Abreu against his penal interest, it was corroborated by independent investigation by the police and, failing these, because the hearsay supplied probable cause under the "totality of the circumstances" standards of Illinois v. Gates (462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527; see also, Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721). We find no basis for reliability under the Aguilar-Spinelli rules and we decline to apply Illinois v. Gates to warrantless arrests. Inasmuch as there was no attenuation of the unlawful police conduct, the judgment must be reversed and defendant's statements suppressed.

On March 3, 1982, Raymundo Alcantara was shot and killed during the attempted robbery of his grocery store in The Bronx. Shortly thereafter, Joseph Di Prospro told officers questioning him on an unrelated charge that Bolivar Abreu was the shooter in the Alcantara homicide. This information was passed along to Detective Ernest Wieting who questioned Abreu. At first Abreu denied any knowledge of the Alcantara homicide but he subsequently implicated Di Prospro and defendant by describing a conversation he witnessed between them during which they discussed the crime. Abreu also stated that he and others traded a rifle for a .38 caliber revolver (presumably the revolver used in the crime) two months earlier and he identified other robberies committed by defendant and Di Prospro. ¹ After obtaining this statement, Detective Wieting arrested defendant and Di Prospro. At the time of the arrest, defendant had not been identified through a photo array or a lineup, and no other individuals had implicated him. The arrest was based solely on Abreu's statement.

After defendant was read his Miranda rights, he agreed to talk to the police, at first giving them various exculpating versions of his activities, but eventually confessing to the crime. He stated that during the robbery Di Prospro had pulled out a gun, that a struggle resulted when the proprietor grabbed for it and that during the struggle Di Prospro fired the gun at the proprietor. He repeated the confession in a later video tape statement.

Defendant moved to suppress his statements but the suppression court found probable cause for defendant's arrest and denied his motion. The Appellate Division affirmed, without opinion. The legal issue before us is the minimum factual showing necessary to support a finding of probable cause (see, People v. Bigelow, 66 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451 [decided herewith]; People v. McRay, 51 N.Y.2d 594, 601, 435 N.Y.S.2d 679, 416 N.E.2d 1015; cf. People v. Wharton, 46 N.Y.2d 924, 925, 415 N.Y.S.2d 204, 388 N.E.2d 341, cert. denied 444 U.S. 880, 100 S.Ct. 169, 62 L.Ed.2d 110).

A police officer may arrest a person without a warrant when he has probable cause to believe that such person has committed a crime. ² Probable cause may be supplied, in whole or part, through hearsay information (see, People v. Landy, 59 N.Y.2d 369, 375, 465 N.Y.S.2d 857, 452 N.E.2d 1185; People v. Rodriguez, 52 N.Y.2d 483, 488-489, 438 N.Y.S.2d 754, 420 N.E.2d 946; People v. Hanlon, 36 N.Y.2d 549, 556, 369 N.Y.S.2d 677, 300 N.E.2d 631), but before probable cause based on hearsay is found it must appear, in the language of the Aguilar-Spinelli rules, that the informant has some basis of knowledge for the information he transmitted to the police and that the information is reliable (People v. Landy, supra, 59 N.Y.2d at p. 375, 465 N.Y.S.2d 857, 452 N.E.2d 1185; People v. Rodriguez, supra, 52 N.Y.2d at pp. 488-489, 438 N.Y.S.2d 754, 420 N.E.2d 946; People v. Hanlon, supra, 36 N.Y.2d at p. 558, 369 N.Y.S.2d 677, 330 N.E.2d 631; cf. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, supra ). The basis of the informant's knowledge must be demonstrated because the information related by an informant, even a reliable one, is of little probative value if he does not have knowledge of the events he describes (People v. Rodriguez, supra, 52 N.Y.2d at p. 491, 438 N.Y.S.2d 754, 420 N.E.2d 946). Conversely, no matter how solid his basis of knowledge, the information will not support a finding of probable cause unless it is reliable. Since police officers may not arrest a person on mere suspicion or rumor, they likewise may not arrest a suspect on the basis of an informant's tip, perhaps born of suspicion or rumor or intentional fabrication. Abreu's statement was based upon personal knowledge and thus on this appeal we are concerned solely with his reliability.

When the courts talk about the informant's reliability, they are usually talking about his "track record", his past performance as a supplier of information (see, People v. Rodriguez, 52 N.Y.2d 483, 438 N.Y.S.2d 754, 420 N.E.2d 946, supra ). But other obvious forms of verification would be an oath (see, People v. Wheatma 29 N.Y.2d 337, 345-346, 327 N.Y.S.2d 643, 277 N.E.2d 662, cert. denied sub nom. Marcus v. New York, 409 U.S. 1027, 93 S.Ct. 460, 34 L.Ed.2d 321, reh. denied 409 U.S. 1119, 93 S.Ct. 898, 34 L.Ed.2d 703) or an admission against penal interest which serves the function of an oath (see, People v. Comforto, 62 N.Y.2d 725, 476 N.Y.S.2d 815, 465 N.E.2d 354; United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723). The informant's veracity may also be established by other means showing the reliability of the information itself (see, People v. Comforto, supra, 62 N.Y.2d at p. 727, 476 N.Y.S.2d 815, 465 N.E.2d 354; see generally, Roe, Illinois v. Gates: Restructuring Hearsay Analysis in Probable Cause Determinations, 35 Syracuse L.Rev. 1067, 1078-1086 [1984] ). In the present case, the record does not contain anything to substantiate Abreu's past performance as an informant and his statement was not given under oath. The People urge, however, that reliability was established either by the admissions against penal interest found in his statement (see, People v. Comforto, supra; People v. Wheatman, supra ), or by police investigation which corroborated the details of his statement (see, People v. Elwell, 50 N.Y.2d 231, 237, 428 N.Y.S.2d 655, 406 N.E.2d 471; People v. Alaimo, 34 N.Y.2d 187, 356 N.Y.S.2d 591, 313 N.E.2d 55).

Statements against penal interest are admissible at trial as exceptions to the hearsay rule because the declarant's interest against being criminally implicated gives reasonable assurance of the reliability of his statement (see, People v. Maerling, 46 N.Y.2d 289, 295-298, 413 N.Y.S.2d 316, 385 N.E.2d 1245; People v. Brown, 26 N.Y.2d 88, 308 N.Y.S.2d 825, 257 N.E.2d 16; People v. Egan, 78 A.D.2d 34, 36-37, 434 N.Y.S.2d 55). This general assurance of reliability also has been deemed sufficient when assessing hearsay information necessary to support probable cause determinations (see, People v. Comforto, supra; United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723, supra; see generally, 1 LaFave, Search and Seizure § 3.3[c] ). Such admissions are not guarantees of truthfulness and they should be accepted only after careful consideration of all the relevant circumstances of the case indicates that there exists a basis for finding reliability. Nevertheless, admissions against penal interest have been held sufficient to support a finding of probable cause even though the informant has little to lose and much to gain by supplying information to the police in which he incriminates himself (see, People v. Comforto, supra; People v. Rodriguez, 52 N.Y.2d 483, 490, 438 N.Y.S.2d 754, 420 N.E.2d 946, supra ), or though his admissions incriminate him of criminal conduct less serious than the crime under investigation (see, People v. Comforto, supra; United States v. Harris, supra ). They are accepted because the informant's identity is known to the police and they may use his statement admitting criminal conduct against him if his information is false (see, 1 LaFave, Search and Seizure § 3.3[c], at 525-534). The inculpating admissions thus serve the same purpose as a false statement under oath by placing the informant in jeopardy if he attempts to deceive or mislead the police.

In this case the People contend that Abreu's statement contains admissions of criminal possession of a weapon in the fourth degree (Penal Law § 265.01[1] ) and criminal facilitation in the fourth degree (Penal Law § 115.00[1] ). Manifestly, Abreu did not admit possession of the revolver in his statement and, to support their position, the People claim that trial evidence of possession incriminated him. That is not sufficient, however, because the trial evidence was not known to Detective Wieting at the time of defendant's arrest and thus it could not provide him with any assurance at that time that Abreu was...