People v. Nieto

• Decision Date: 22 July 2002
• Citation: 192 Misc.2d 537,746 N.Y.S.2d 371
• Court: New York Supreme Court
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>ROMULO NIETO, Defendant.

192 Misc.2d 537

746 N.Y.S.2d 371

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

v.ROMULO NIETO, Defendant.

July 22, 2002.

Cesar Gonzalez for defendant.

Robert T. Johnson, District Attorney (William Racolin of counsel), for plaintiff.

OPINION OF THE COURT

CAESAR D. CIRIGLIANO, J.

This is defendant's motion to suppress a series of statements pursuant to Payton v New York (445 US 573) and People v Harris (77 NY2d 434). In order to decide this issue, the court must address two questions: (1) what is the effect in New York of an arrest in New Jersey by New York police that violates New Jersey law, and (2) does the New York State Constitution have extraterritorial effect so that it applies to a New York defendant as he is being apprehended in New Jersey by New York police? The first question has been answered by our highest court: People v Sampson (73 NY2d 908). The second is an issue of first impression in this state although it has been addressed with conflicting results in other jurisdictions.

On August 12, 1989, Lucas Castro was shot and killed and Denicio Castro wounded by the defendant during an altercation. The defendant who had been living in the Bronx with his family fled to New Jersey and changed his name. Some 12 years later, on March 29, 2001, New York City police officers, having located the defendant's apartment in West New York, New Jersey, arrested him in his apartment without a warrant and, without surrendering him to New Jersey officials for extradition proceedings, transported him back to New York. The statements that the defendant seeks to suppress were made to New York City police officers: first, at approximately 8:00 P.M. on March 29, 2001 at a New Jersey police station; then, at 11:20 and 11:40 later that same night at a New York City police station; and, finally, at 3:40 the next morning.

Defendant argues that his arrest in his apartment in New Jersey by New York police officers violated Payton v New York (445 US 573) and that such violation and the failure thereafter of the New York police to surrender him to New Jersey officials for extradition proceedings rendered his subsequent statements subject to suppression under People v Harris (77 NY2d 434).

Pursuant to Payton v New York (445 US 573), absent an exception not applicable here, a defendant cannot be arrested in his home without a warrant. This rule was violated. Without consent, exigency or hot pursuit, the New York police entered the defendant's New Jersey apartment and arrested him. In addition, as out-of-state police officers not in hot pursuit, the New York police had only the arrest authority of private citizens in New Jersey. While not entirely clear, it appears that a citizen in New Jersey can only arrest for offences committed in his presence (compare, NJ Stat Ann § 2A:169-3; O'Brien v Borough of Woodbury Hgts., 679 F Supp 429 [D NJ 1988], with NJ Stat Ann § 2A:155-4), and the crimes for which defendant was arrested had not been committed in the arresting officers' presence. What is clear, however, is that once arrested the defendant should have been turned over to New Jersey officials for extradition proceedings. (NJ Stat Ann § 2A:155-5.) Based on this arrest in violation of Payton and the failure of the New York police to follow New Jersey's extradition statute, defendant argues for suppression of his statements.

Payton, however, requires suppression under the Fourth Amendment only of those statements taken in the defendant's home. (New York v Harris, 495 US 14.) Provided that the arrest was supported by probable cause, voluntary statements made outside the home are admissible under Payton. (Supra.) Here, the defendant's arrest was supported by probable cause and all the statements were taken outside the apartment and after the providing of Miranda warnings. Thus, none of the defendant's statements are subject to suppression under Payton and the Fourth Amendment.

With respect to the New York officers' violation of New Jersey law, the decision is controlled by People v Sampson (73 NY2d 908). In Sampson, the New York Court of Appeals held that where New York police traveled to Vermont and interrogated and arrested and transported the defendant back to New York in violation of Vermont's extradition statute his subsequent statements were not subject to suppression because there had been no constitutional violation. (Accord, State v Bonds, 98 Wash 2d 1, 653 P2d 1024, cert denied 464 US 831; see also, People v Dyla, 142 AD2d 423; but see, Commonwealth v Sadvari, 561 Pa 588, 752 A2d 393 [2000] [failure to follow foreign state extradition statute renders arrest illegal and mandates suppression]; State v Bonds, 98 Wash 2d 1, 22, 653 P2d 1024, 1036 [Utter, J., dissenting: return of defendant to Washington in violation of Oregon's extradition statute violated the Fourth Amendment].) So too here, since the arrest was supported by probable cause, the violation of New Jersey's extradition statute does not require suppression of the statements taken thereafter.^[1]

In addition to the New York officers' violation of New Jersey law, the defendant moves for suppression of the statements under People v Harris (77 NY2d 434, supra). In Harris, the defendant was arrested in his home in violation of Payton and then made statements in and out of his home. The United States Supreme Court held that the Fourth Amendment required suppression of only the statements made in the home. Once the defendant had been removed therefrom, Payton no longer applied. (New York v Harris, 495 US 14 [1990].) Upon remand to our Court of Appeals, however, that tribunal held that due to the interplay between our "unique" right to counsel rules and this state's search and seizure jurisprudence, such an interpretation was insufficient. (People v Harris, 77 NY2d 434, 439-440, supra.) The Court of Appeals therefore deviated from the Supreme Court's interpretation and announced a different rule under article I, § 12 of the New York Constitution: that where there has been a Payton violation, statements taken even outside the home will be suppressed unless sufficiently attenuated from that wrong. (Supra at 440-441.) It is this rule that the defendant seeks to invoke.^[2]

Whether this court should suppress evidence based on a violation of New York constitutional law occurring in another state is a question of first impression in this jurisdiction.^[3] The issue has arisen in other jurisdictions, however, with conflicting results. In general, the cases have organized themselves around the principle that the determining factor is not only whether forum law has been violated in the situs state but whether it has been violated by forum police or others acting as agents of the forum state.

Thus, in Echols v State (484 So 2d 568 [Fla 1985]) where Indiana police taped a conversation between an informant and the defendant in a manner legal under the laws of Indiana but illegal under the laws of Florida, the Florida Supreme Court refused to suppress the statements. The court, without explicitly addressing the question of whether Florida's laws applied in Indiana, reasoned that since the primary purpose of suppression is to deter illegal police activity and the police activity there was legally performed by Indiana police under Indiana law suppression was unwarranted.

Similarly, in People v Blair (25 Cal 3d 640, 602 P2d 731 [1979]), where federal officials seized telephone records in accordance with Pennsylvania law, the California Supreme Court denied suppression despite the fact that the seizure would have violated the California Constitution if it had occurred in California. The court, without addressing the question of whether the California Constitution applied to the defendant in Pennsylvania, identified two possible reasons for suppression: deterrence of illegal police activity and preservation of judicial integrity. Based on the fact that the conduct was legal where performed under federal and Pennsylvania law, the court held that neither reason for suppression would be furthered. Blair was then followed by Pooley v State (705 P2d 1293 [Alaska 1985]) in which the Supreme Court of Alaska adopted the reasoning of the California Supreme Court in Blair. (Accord, People v Barrow, 133 Ill 2d 226, 549 NE2d 240 [1989]; State v Mollica, 114 NJ 329, 554 A2d 1315 [1989]; People v Phillips, 41 Cal 3d 29, 711 P2d 423 [1985]; State v Rivers, 420 So 2d 1128 [La 1982].)

At about this time, however, fact patterns began to arise in which the forum police (or the situs police acting on behalf of the forum police) obtained evidence by means that while legal under situs law was illegal under forum law. Deterrence and judicial integrity therefore became real factors in the equation—but only if forum law applied in the situs state.^[4] Necessarily, the courts began wrestling with the question of the extraterritorial application of their laws and constitutions. (See, e.g., State v Bridges, 83 Haw 187, 925 P2d 357 [1996]; State v Davis, 313 Or 246, 252 n 4, 834 P2d 1008, 1011 n 4 [1992].)

Thus, in People v Mattson (37 Cal 3d 85, 688 P2d 887 [1984]) the Supreme Court of California suppressed statements made by the defendant to California police in Nevada that while legal under Nevada law would have violated the California version of the Fifth Amendment if made in California. In doing so, the Mattson court relied on federal case law to the effect that federal officials are bound by the United States Constitution even when they act outside the boundaries of the United States.

Shortly thereafter, the United States Supreme Court was confronted squarely with the issue of the extraterritorial application of the Fourth Amendment. Earlier, in Reid v Covert (354 US 1) they had held that the Fifth and Sixth Amendments applied to United States citizens abroad. Based thereon, the Ninth Circuit held federal law enforcement officials bound by the Fourth Amendment when they seized property owned by a Mexican...