People v. Lopez

• Decision Date: 01 August 1983
• Citation: 465 N.Y.S.2d 998,95 A.D.2d 241
• Parties: The PEOPLE, etc., Appellant, v. Joseph John LOPEZ, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 998

465 N.Y.S.2d 998

95 A.D.2d 241

The PEOPLE, etc., Appellant, v. Joseph John LOPEZ, Respondent.

Supreme Court, Appellate Division,

Second Judicial Department.

Aug. 1, 1983.

John J. Santucci, Dist. Atty., Kew Gardens (Barbara H.D. Goldberg, Richmond Hill, of counsel), for appellant.

Before DAMIANI, J.P., and LAZER, MANGANO and GIBBONS, JJ.

LAZER, Justice.

Although the survival of the suppression order at issue on this appeal depends upon other factors as well, a primary issue is whether an officer's mistaken belief that he lacked probable cause for arrest invalidates an arrest that would otherwise withstand constitutional scrutiny. Contrary to the belief of the officer involved, the instant arrest was supported by probable cause and we hold that his mistaken belief provides no basis for suppression of defendant's postarrest statements as "poisonous fruit" of an illegal arrest. Not only would suppression based on the officer's belief fail to serve the deterrent purpose of the rule in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 but judicial evaluation of police action must be based on objective criteria and not an officer's subjective view of his right to make an arrest.

I

The case is another deriving from the death of Steven Zwickert who was robbed and killed on Queens Boulevard in the early morning hours of May 15, 1980, while returning from a high school prom. Defendant has yet to be tried because of the current appeal from the order that suppressed the statements he made when questioned by a New York detective at the Great Lakes Naval Training Station. As adduced at the suppression hearing, the People's version of the material events is as follows.

During the investigation of the Zwickert homicide, the defendant first came to the attention of Detective Owen Kelly when a suspect, Randolfo Maldonado, mentioned the name "Joe" in a statement. Shortly afterward, another detective told Kelly that an informant named Wilford Medina had identified defendant as one of the persons present in the assailants' car on the night of the homicide. On June 4, 1980, the father of yet another suspect, Angel Claudio, informed Kelly that one of the four men in the car on May 15th was "Joe Lopez" who joined the Navy on May 28. After ascertaining from naval intelligence that Lopez was stationed at the Great Lakes Naval Training Station in Illinois, Kelly obtained from the Navy a copy of defendant's fingerprints and photographs. Informant Medina subsequently told Kelly that a few hours before the Zwickert murder he saw "Buck", the unapprehended fourth suspect in the case, drive up in a car with defendant in the front passenger seat and Angel Claudio in the rear seat. After Medina declined the invitation to join his friends, defendant reached under the front passenger seat and displayed what appeared to be a .38 caliber pistol wrapped in a rag. Medina knew the defendant from the neighborhood and selected his photograph from a nine-picture photo array.

At this point in the investigation, Kelly called the Great Lakes Naval Training Station to arrange an interview with defendant. Kelly informed the naval intelligence agent to whom he spoke that defendant was a suspect in a homicide investigation and had been identified as one of the perpetrators. The agent agreed not only to furnish a room in which Kelly could interview defendant but that the Navy would refrain from informing him of the investigation. Although, at this point, the detective was not of the belief that he had probable cause to make an arrest, upon Kelly's arrival at Great Lakes on July 14, 1980, defendant was brought to the interview room in handcuffs. After Kelly directed removal of the cuffs and told defendant to be seated, he informed him that he was investigating the Rego Park murder of Steven Zwickert, that he was not to say anything until he had been advised of his rights and that the police had reason to believe that he was present when Zwickert was killed. Kelly then advised defendant of his Miranda rights and in response was told that defendant understood his rights and that he was willing to speak without an attorney.

In his statement, defendant asserted that after Buck picked him up between 5:30 and 6:00 P.M., the occupants of the car decided to kill some time by driving around and having some beer. At approximately 3:00 to 4:00 A.M., defendant, who was driving the car, was told to park it, and Buck and Angel Claudio departed. After a few moments, defendant heard a noise that sounded like a "backfire". Buck and Angel ran back to the car and said "[l]et [sic ] get out of here, something happened". Defendant saw them place a gun under the seat and heard Buck say that he should have had the gun since "this kid didn't know how to handle a gun".

After giving this statement, defendant repeated it for stenographic transcription and signed a typed copy in which he acknowledged that he had been advised of his rights. Although presented with the opportunity to correct any errors in the statement, defendant declined to do so. Defendant was then formally arrested and was transported to New York the following afternoon.

Following his indictment, defendant moved to suppress his statements, alleging that they had not been voluntarily made and that they were tainted by an illegal arrest that had not been effected upon probable cause.

During the ensuing hearing, and after Kelly had related the events already described, defendant testified that on the day he was interviewed by Kelly he was taken into custody by two naval intelligence officers who frisked and handcuffed him and then escorted him to the interview room where a civilian ordered the handcuffs removed. On direct examination, defendant twice asserted that he had agreed to give Kelly a statement and that Kelly had read him his rights before he made any statement. When cross-examined, defendant first repeated that he had received his rights before making any statement but then abruptly stated that he had not received his rights until after his initial oral statement.

The hearing court granted suppression after concluding that defendant was under arrest when handcuffed by the naval authorities and brought in for questioning. Apparent from the court's review of the facts and its conclusions of law is reliance on Kelly's subjective belief that the arrest was not based upon probable cause. The court concluded that the defendant's statements were involuntarily given, Miranda warnings had not been provided, and the taint of the illegal arrest was not purged.

II

Pertinent to the determination of the illegal arrest issue are the circumstances of the Navy's production of defendant for his interview with Kelly. Since the Fourth Amendment applies to actions of naval authorities and other governmental employees who have statutory authority to arrest (U.S.Code, tit. 10, § 809) or who perform law enforcement or security functions (see People v. Scott D., 34 N.Y.2d 483, 358 N.Y.S.2d 403, 315 N.E.2d 466; Bell v. State, 519 P.2d 804 [Alaska]; Dyas v. Superior Court of Los Angeles County, 11 Cal.3d 628, 114 Cal.Rptr. 114, 522 P.2d 674), the hearing court properly found that defendant was arrested when naval intelligence agents took him into custody, escorted him to the interview room in handcuffs and placed him in Kelly's presence (see People v. Brnja, 50 N.Y.2d 366, 372, 429 N.Y.S.2d 173, 406 N.E.2d 1066; People v. Gordon, 87 A.D.2d 636, 448 N.Y.S.2d 217). Consequently, unless it can be established that there was probable cause for defendant's arrest by the Navy at that time, his subsequent statements must be suppressed as the "poisonous fruit" of an illegal arrest (see Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; People v. Gordon, supra ).

The poisonous fruit issue rests in turn on the Navy's authority to arrest defendant on the basis of its communications with Detective Kelly. Under the fellow officer rule, an arresting officer acts with probable cause when he arrests either at the direction of another law enforcement officer who has probable cause or, in the absence of such direction, on the basis of information transmitted from the other officer which itself or together with information already known to the arresting officer establishes probable cause (Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306; People v. Brnja, 50 N.Y.2d 366, 373, n. 4, 429 N.Y.S.2d 173, 406 N.E.2d 1066, supra; People v. Lypka, 36 N.Y.2d 210, 366 N.Y.S.2d 622, 326 N.E.2d 294; People v. Horowitz, 21 N.Y.2d 55, 286 N.Y.S.2d 473, 233 N.E.2d 453). In recognition of the realities of modern-day law enforcement, the Supreme Court has stressed that law enforcement officers called upon to assist other officers are reasonably entitled to assume that the officers who requested the assistance possessed the requisite information to support the requested action (Whiteley v. Warden, supra, 401 U.S. p. 568, 91 S.Ct. p. 1037; see 1 LaFave, Search and Seizure, § 3.5[b] ). Therefore, it is unnecessary that the receiving officer possess the requisite information if the action is taken upon the direction of a brother officer who does possess information sufficient to justify the action (People v. Horowitz, supra, 21 N.Y.2d p. 60, 286 N.Y.S.2d 473, 233 N.E.2d 453). In this respect, the law does not distinguish between intrastate and interstate police communications and pickup directives as a predicate for police action (People v. Lypka, supra, 36 N.Y.2d p. 213, 366 N.Y.S.2d 622, 326 N.E.2d 294).

Directives or requests for action by officer to officer usually occur in the context of formal arrests (see, e.g., People v. Horowitz, 21 N.Y.2d 55, 286 N.Y.S.2d 473, 233 N.E.2d 453, supra; People v. Loewel, 50 A.D.2d 483, 491, 378 N.Y.S.2d 521), but sometimes are made in connection with warrantless searches (see, e.g., People v. Hadley, 67 A.D.2d 259, 263, 415 N.Y.S.2d 719), investigative stops (see, e.g., ...