People v. Jones

• Decision Date: 21 September 1981
• Citation: 443 N.Y.S.2d 298,110 Misc.2d 875
• Parties: The PEOPLE of the State of New York v. Cecil JONES and James Peterson, Defendants.
• Court: New York City Court

Page 298

443 N.Y.S.2d 298

110 Misc.2d 875

The PEOPLE of the State of New York v. Cecil JONES and James Peterson, Defendants.

Criminal Court of the City of New York New York County.

Sept. 21, 1981.

Sterling Johnson, Jr., Sp. Asst. Dist. Atty. by Glenn A. Monk, Asst. Dist. Atty., for plaintiff.

Robert A. Burstein, New York City, for defendant (Jones).

Caesar Cirigliano, New York City, Legal Aid Society by Denise Seidelman, New York City, for defendant (Peterson).

BERNARD J. FRIED, Judge:

The issue in this case is whether it was unlawful to arrest the driver of an automobile on the basis of a false and erroneous computer-generated police alarm that the automobile had been stolen three months earlier, when it had actually been recovered three days after the theft but the alarm had never been cancelled. For the reasons stated below the arrest, under the circumstances of this case, was unlawful and the evidence seized must be suppressed.

According to Police Officer William Corcoran who testified credibly at a suppression hearing, Richard Dorsey reported the theft of his 1978 Oldsmobile on July 15, 1980 to the 108th Precinct in Queens. At that time, the fact of the theft was entered in the police computer causing an "alarm" to be established for the stolen vehicle. Three days later the car was recovered and returned to Dorsey by police officers from the same precinct; however, for reasons that do not appear in the record, there was a failure to correct the information in the computer data bank to show that the automobile had been recovered. In plain language, the "alarm" was not cancelled or rescinded.

Thereafter, on October 16, 1980, at approximately 2:25 a. m., almost three months after the recovery of the stolen vehicle, Police Officer Corcoran and his partner were on radio patrol in the 28th Precinct in Manhattan, driving a marked police vehicle equipped with a mobile field computer. According to Officer Corcoran, by entering a license plate number into this unit, he could determine if there was an "alarm" for a particular automobile, i. e., whether it was reported stolen. Officer Corcoran testified that, in his experience, almost twenty percent of such "alarms" are erroneous. ¹

While on patrol, the officers observed a 1978 Oldsmobile with Illinois license plates stopped in a bus stop at West 125th Street and 7th Avenue. Officer Corcoran entered the license plate number into the field computer and received notification that there was an "alarm" for the vehicle. By this time, however, the car had left the bus stop and the officers proceeded to follow it north on 7th Avenue. While following behind the car, Officer Corcoran radioed the license plate number to the police radio dispatcher and received confirmation of the field computer read out that the Oldsmobile was a stolen vehicle. The officers then put on a flashing red light and pulled the car over. Officer Corcoran approached the driver of the automobile, Gloria Stone, told her to step out of the car, and advised her that she was under arrest for possession of a stolen vehicle. When Ms. Stone responded that the car was not stolen, Officer Corcoran then used his portable radio and again radioed the license number to the dispatcher. He was again told that the 1978 Oldsmobile was a stolen car and that it had been stolen on July 15, 1980. Without any further inquiry, Officer Corcoran and the approximately six other police officers, who had responded to the arrest, informed Ms. Stone's two passengers, the defendants Cecil Jones and James Peterson, that they were also under arrest and ordered them out of the automobile. At no time, to this point, did Officer Corcoran make further inquiry or request to see the vehicle registration.

Thereafter, under circumstances not here relevant, controlled substances were seized from Peterson. ² The three arrestees were taken to the precinct for processing and additional controlled substances were seized from Peterson, as well as from Jones.

At the Precinct, following the search of her two companions, Ms. Stone's pocketbook was searched and she produced the vehicle registration for the 1978 Oldsmobile and gave Officer Corcoran the telephone number of the owner, Richard Dorsey. Corcoran called Dorsey, who came to the precinct about one-half hour later and stated that although his car had been reported stolen to the 108th Precinct on July 15, 1980, it had been recovered and returned to him by that Precinct three days later. After Dorsey provided vehicle identification for the 1978 Oldsmobile to Officer Corcoran, Corcoran personally ascertained that the "alarm" had never been cancelled by the 108th Precinct and "personally cancelled the alarm with the Communications Division and the Alarm Board." Ms. Stone was then released; her two companions, however, were processed on the instant charges.

Analysis of the lawfulness of the police conduct begins with People v. Lypka, 36 N.Y.2d 210, 366 N.Y.S.2d 622, 326 N.E.2d 294 (1975), where the Court of Appeals held that law enforcement authorities may properly rely on and act upon a police radio bulletin, and that where such bulletin establishes probable cause, then an arrest and subsequent search is authorized. Such police conduct is countenanced because "the sender's knowledge is imputed to the receiver and, when the receiver acts, he presumptively possesses the requisite probable cause" (Id. at 213, 366 N.Y.S.2d 622, 326 N.E.2d 294). However, not only must the bulletin on its face establish probable cause, but the sender must have possessed probable cause at the time the bulletin was dispatched since, as the Supreme Court held in Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306 (1971), "an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest". Ordinarily, then, when the radio bulletin is challenged, the People are required to call the fellow officer (sender) to prove that he possessed sufficient information to justify the arresting (receiving) officer's action. People v. Havelka, 45 N.Y.2d 636, 641, 412 N.Y.S.2d 345, 384 N.E.2d 1269 (1978). This was not done in the instant case; however there is no dispute that the automobile was recovered three days after it had been stolen and the recovery was approximately three months prior to Officer Corcoran's reliance on the police alarm. Thus, this defect, if any, is not fatal, cf. People v. Jenkins, 47 N.Y.2d 722, 417 N.Y.S.2d 57, 390 N.E.2d 775 (1979), and it is necessary to consider whether the arrests were valid.

Amazingly, in this computer age, there are no reported decisions in this state concerning the Fourth Amendment consequences of an erroneous computer generated police alarm for a stolen automobile. Close, however, is People v. Lemmons, 49 A.D.2d 639, 370 N.Y.S.2d 243 (3d Dept. 1975), affd. on other grounds, 40 N.Y.2d 505, 387 N.Y.S.2d 97, 354 N.E.2d 836 (1976), where an automobile which defendant was driving was stopped by State Troopers for a speeding violation. When stopped, Lemmons produced a Michigan driver's license and a New York registration form. Following standard procedures, the officers radioed the police dispatcher for a computer check of the documents and were advised that Lemmons was wanted in Michigan on a fugitive warrant resulting from a weapons violation. Based on this computer generated information, Lemmons was arrested as a fugitive from justice and removed from the vehicle. Thereafter, when the Officer returned to Lemmons' car to determine the identities of the three passengers, he observed, in plain view, the handle of a .45 caliber automatic pistol. A subsequent search uncovered additional weapons and all three passengers were placed under arrest. It was only after these events, that it was ascertained that the Michigan fugitive warrant against Lemmons had been dismissed a few days before the traffic stop, and that apparently the computer entry had never been corrected, rescinded or cancelled. On these facts the Appellate Division, relying on Lypka and Whiteley v. Warden, held that the arrest of Lemmons, on the basis of the erroneous computer generated information that there was an outstanding fugitive warrant, was invalid. The court did, however, sustain the seizure of the weapons under the "plain view" doctrine. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The Appellate Division decision in Lemmons, although strikingly relevant, is not dispositive since the Court of Appeals in affirming the conviction relied on the "plain view" doctrine and in a footnote stated that "light of our resolution of the issue, we do not decide whether Lemmons' arrest was, in fact, valid." (40 N.Y.2d supra at 508 n. 3, 387 N.Y.S.2d 97, 354 N.E.2d 836). ³ The Court then cited to Lypka, supra and People v. La Pene, 40 N.Y.2d 210, 223-24, 386 N.Y.S.2d 375, 352 N.E.2d 562, where an anonymous telephone tip, absent additional circumstances, did not justify a stop and frisk. This not altogether clear reference to Lypka and La Pene, may suggest that the Lemmons erroneous police bulletin, being more reliable than the La Pene police bulletin which was based on an anonymous phone call, was sufficient to authorize limited police action, although not an actual arrest.

The only other pertinent New York decision is People v. Lent, 105 Misc.2d 831, 433 N.Y.S.2d 538 (West.Cty.Sup.Ct., 1980), which dealt with the arrest of a defendant based on a telephone report that there was in existence an arrest warrant when, in fact, the warrant had been vacated earlier in the day. Referring to Lypka, and pointing out that the delay in making notification that the warrant had been vacated was "relatively brief-being only a part of one day" (Id. at p. 539), the court held that there was probable cause to arrest on the basis of the teletype, and "mere fact that unknown to the warrant had...