People v. LaFontaine

• Decision Date: 06 November 1997
• Citation: 235 A.D.2d 93,664 N.Y.S.2d 587
• Parties: , 1997 N.Y. Slip Op. 9137, 1997 N.Y. Slip Op. 9138 The PEOPLE of the State of New York, Respondent, v. Sixto LaFONTAINE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 587

664 N.Y.S.2d 587

235 A.D.2d 93, 1997 N.Y. Slip Op. 9137,

1997 N.Y. Slip Op. 9138

The PEOPLE of the State of New York, Respondent, v. Sixto LaFONTAINE, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Nov. 6, 1997.

Anita Khashu, of counsel (Claudia S. Trupp, on the brief, Daniel L. Greenberg, attorney), for defendant-appellant.

Patrick E. Cox, of counsel (Nancy Strohmeyer, on the brief, Robert M. Morgenthau, attorney), for respondent.

Before MURPHY, P.J., and SULLIVAN, WALLACH, TOM, and MAZZARELLI, JJ.

MAZZARELLI, Justice.

At issue on this appeal is whether the defendant's extraterritorial arrest in New York, by New Jersey detectives armed with arrest warrants issued by both State and Federal courts in New Jersey, was lawful. We must also decide whether a violation of this State's statutes conferring the power to arrest on certain classes of persons requires the remedy of suppression for any evidence obtained during an arrest in violation of those statutes. Because we answer the first question affirmatively, and the second negatively, we affirm both the hearing court's denial of suppression and the judgment of conviction.

The facts are uncomplicated. The record shows that at the time of the arrest, the defendant and one Miguel Ortiz were charged in New Jersey with the felony crimes of conspiracy to commit murder and aggravated assault. A New Jersey court had issued arrest warrants for them. New Jersey officers had also obtained a Federal warrant, from the New Jersey Federal district court, for the Federal crime of flight to avoid prosecution.

On November 18, 1992, four New Jersey officers from the Paterson, New Jersey Police Department went to the area of Manhattan covered by the 34th police precinct to execute the arrest warrants. After unsuccessfully searching for both defendants with the assistance of the New York City Police Department, the New Jersey officers continued their surveillance by themselves. Based on an informant's tip regarding defendant's whereabouts, they went to 600 West 163rd Street, apartment 34. Two officers stood at the door to the third floor apartment, one officer stood at the hallway window and one officer positioned himself on the second floor fire escape. The two officers knocked on the door and when asked who was there, responded "police." They heard "shuffling" noises inside, and then heard the officers stationed at the window and fire escape each yell "halt." Defendant, shirtless, was climbing out of the window and onto the fire escape. He was apprehended by the officer one flight below. Hearing a child crying inside the apartment from which defendant had fled, the officers escorted defendant back through the window into apartment 34 and observed plastic bags of cocaine in plain view on the refrigerator. The New Jersey officers turned the narcotics over to the 34th precinct, and defendant was ultimately indicted by a New York County Grand Jury for the crime of criminal possession of a controlled substance in the third degree.

Defendant moved to suppress the narcotics on the grounds that the New Jersey officers, not in close pursuit, were without authority to make arrests or execute warrants in New York. After the parties briefed the issue, the court denied the motion to suppress in a written opinion. It held that although the New Jersey officers could make an arrest in New York as private persons, they did not do so here because they had invoked their official authority in coercing defendant from his home and arresting him. The court also ruled that the New Jersey warrant had no effect outside that State's borders and was therefore invalid. However, the court determined that the Federal arrest warrant validated the arrest, since such warrants may be executed anywhere in the United States, and could be executed by a Federal marshal or any other officer authorized by law.

Generally, police officers have no power, including the authority to arrest, outside their geographical jurisdiction (see, People v. Lahr, 147 Ill.2d 379, 168 Ill.Dec. 139, 589 N.E.2d 539 [Sup.Ct.Ill.1992]; State v. Stevens, 26 Conn.App. 805, 603 A.2d 1203, affd. 224 Conn. 730, 620 A.2d 789 [App.Ct.Conn.1992]; 6A CJS Arrest § 53; 5 Am.Jur.2d Arrest § 69). Similarly, an arrest warrant issued in one State may not be executed in another because it has no validity outside the borders of the issuing State (People v. Hamilton, 666 P.2d 152 [Sup.Ct.Col.1983]; 6A CJS Arrest § 53; 5 Am.Jur.2d Arrest § 36). Thus, the New Jersey State warrant could not be executed in New York. ¹

These limitations on the powers of state officers are reflected in our Criminal Procedure Law. Under the CPL, warrantless arrests in New York may be made, in varying circumstances, by police officers (CPL 140.10), peace officers (CPL 140.25) and private citizens (CPL 140.30). Police and peace officers are also empowered to execute a warrant of arrest (CPL 120.60). However, these powers are territorially limited to New York State (see, CPL 140.10[3]; 120.70[1] ). Police officers from a sister state, such as New Jersey, are not included in the definition of "police officer" (CPL 1.20[34][a]-[r] ) or "peace officer" (CPL 2.10[1]-[66] ), and are, therefore, generally without statutory authority to arrest or to execute arrest warrants in New York. An exception to this rule is found in CPL 140.55, New York's version of the Uniform Act on Close Pursuit. This provision generally allows an officer from another State, who is in close pursuit of a suspect, to enter this State and arrest the suspect as if he or she were a New York police officer arresting a person for a crime committed in New York. It is conceded by all parties that this exception is inapplicable to the facts of this case. ²

It has long been held, however, that police officers acting outside their jurisdiction retain all their powers as private citizens, including the power to arrest. Traditionally, a police officer may make a lawful citizen's arrest under the same circumstances as a private person (see, People v. Lahr, supra; State v. Stevens, supra; State v. Phoenix, 428 So.2d 262 [Fla.Ct.App.4th Dist.1982], affd. 455 So.2d 1024; see also, United States v. Heliczer, 373 F.2d 241 [2d Cir.1967], cert. denied 388 U.S. 917, 87 S.Ct. 2133, 18 L.Ed.2d 1359; United States v. Viale, 312 F.2d 595 [2d Cir.1963], cert. denied 373 U.S. 903, 83 S.Ct. 1291, 10 L.Ed.2d 199, 5 Am.Jur.2d Arrest §§ 69, 71; Annotation, Validity, in State Criminal Trial, of Arrest Without Warrant by Identified Peace Officer Outside of Jurisdiction, When Not in Fresh Pursuit, 34 A.L.R.4th 328). Thus, courts have consistently upheld arrests made by police officers acting outside their jurisdiction if those arrests could lawfully have been made by a private person (see, People v. Lahr, supra; State v. Stevens, supra; State v. Phoenix, supra; Commonwealth v. Gullick, 386 Mass. 278, 435 N.E.2d 348 [Sup.Jud.Ct. of Mass.1982]; State v. O'Kelly, 211 N.W.2d 589 [Sup.Ct.Iowa 1973], cert. denied 417 U.S. 936, 94 S.Ct. 2652, 41 L.Ed.2d 240).

In this case, the prosecution argues that the arrest was a valid citizen's arrest and relies on CPL 570.34 as authority. That section provides in pertinent part:

The arrest of a person in this state may be lawfully made also by any police officer or a private person, without a warrant, upon reasonable information that the accused stands charged in the courts of another state with a [felony] ...

The "reasonable information" requirement of this section, the prosecution contends, was met by the two arrest warrants authorizing the defendant's arrest for two felonies in New Jersey. They reason that since the New Jersey officers were clearly aware of these charges, this was a valid citizen's arrest. ³

The dissent has adopted the defendant's position that this section of the CPL cannot be relied upon because the New Jersey officers had invoked their power as police officers in effecting the arrest, and, thus, were not acting as private persons. There is some authority for the proposition that police officers acting outside their jurisdiction will lose their status as private persons if they act under the "color of authority" (see, Collins v. State, 143 So.2d 700 [Fla.Ct.App. 2d Dist.1962], cert. denied 148 So.2d 280; Commonwealth v. Troutman, 223 Pa.Super. 509, 302 A.2d 430 [1973] ). However, other courts have held that the arrest is not invalidated unless the officer uses the power of his office to obtain evidence not available to private citizens (see, Phoenix v. State, supra; People v. Lahr, supra).

Any arrest by a law enforcement officer, by definition, involves an assertion of official authority. If the use of any degree of official authority would always negate the officer's private person status, an officer could never make an extraterritorial arrest as a private person. This conclusion is contrary to the long line of cases permitting such arrests. Here, the New Jersey officers merely knocked on the door and identified themselves as police. Defendant then fled the apartment via the fire escape, prompting the officers viewing him from an adjacent window to yell "halt." Defendant was apprehended and returned to the apartment. Other than identifying themselves as police, the New Jersey officers did nothing that could not have been done by any private person. Further, it is uncontested that the evidence of defendant's possession of narcotics was in plain view to anyone inside the apartment. While it is true that the New Jersey officers acted in their law enforcement capacity in obtaining the warrants, and in obtaining the cooperation of the New York City police earlier that day, they gained no evidence solely by virtue of their official status. They simply made a warrantless arrest of a fleeing felon on a fire escape.

The argument that the arrest was still unlawful because private citizens are not authorized to make arrests in a home is not...