People v. Ward

• Decision Date: 01 August 1983
• Citation: 95 A.D.2d 233,465 N.Y.S.2d 556
• Parties: The PEOPLE, etc., Appellant, v. Marc WARD, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 556

465 N.Y.S.2d 556

95 A.D.2d 233

The PEOPLE, etc., Appellant, v.Marc WARD, Respondent.

Supreme Court, Appellate Division Second Department.

Aug. 1, 1983.

John J. Santucci, Dist. Atty., Kew Gardens (Ann B. Miele, Asst. Dist. Atty., Kew Gardens, of counsel), for appellant.

Patten & GaNun, New York City(Francis G. GaNun, New York City, of counsel), for respondent.

Before MOLLEN, P.J., and GULOTTA, BROWN and BOYERS, JJ.

MOLLEN, Presiding Justice.

On this appeal, the People challenge an order which resulted in the suppression of a weapon found in a stolen car.Criminal Term held that the People failed to sufficiently justify the conduct of the police because the only witness called to testify at the suppression hearing was the arresting officer who acted, not on the basis of first-hand knowledge or personal observations, but upon information provided to him by a radio report received from police headquarters.The court held that, to sustain its burden of establishing probable cause, the prosecution was obligated to have produced at the hearing the officer who had sent the radio report.

To resolve the issues presented, we examine the nature of the relevant guaranties afforded by the Fourth Amendment and the means by which our courts enforce those guaranties.We turn first to a brief review of the pertinent facts.

In the early morning hours of June 11, 1981, the defendant and two companions, Thomas Cullen and Robert Morton, were arrested.The same day, a felony complaint was filed jointly charging them with criminal possession of a weapon in the third degree, criminal possession of stolen property in the second degree, grand larceny in the third degree and unauthorized use of a vehicle.The complaint alleged that the three men had stolen a 1974 Pinto stationwagon which they borrowed from its owner, Evelyn Press, and failed to return at the agreed time, causing her to report the vehicle as stolen.The complaint further alleged that the defendant, Cullen and Morton jointly possessed a loaded firearm which had been found in the car.

Filed together with the complaint was the sworn statement of Evelyn Press who averred that she was the owner of the subject vehicle and that, on the day in question, the accused men did not have permission or authority to take or possess the car.Ms. Press further averred that she had read the felony complaint and that the information alleged to have been furnished by her was true.

On July 10, 1981, Queens County IndictmentNo. 1882-81 was filed.The indictment named the defendant alone and charged him with criminal possession of a weapon in the third degree.¹Thereafter, the defendant moved, inter alia, to suppress the weapon, and a hearing was held.

The People called one witness, Police Officer George McFadden.He testified that, on June 11, 1981, at approximate 6:45 A.M., he and his partner received a radio transmission informing them that a milk truck driver had reported that he was being followed by a vehicle.Some 15 minutes later, they encountered Thomas Rera, an employee of Queens Farms, who told them that a blue Pinto stationwagon had been following him for approximately a half hour and kept, "showing up" at various stops along his route.Observing no such vehicle in the immediate area, the officers decided to follow Rera's milk truck in their marked police car.Some five or ten minutes later, Rera stopped his truck and pointed to a blue Pinto parked at the opposite curb.He leaned out his window and said, "That's the vehicle".

When McFadden's radio car made a U-turn, the Pinto began to move.The officers followed it for some four or five blocks and then saw the vehicle pull over to the curb.They had taken no action to compel the car to stop.When it did, they parked behind it, and McFadden radioed for a plate check.Thomas Cullen, who had been driving the Pinto, exited the vehicle and began approaching the police car.Before he reached it, McFadden received a radio communication informing him that the Pinto had been reported stolen.

The officers immediately requested back-up assistance, and then exited the police car with guns drawn.McFadden placed Cullen under arrest on a stolen vehicle charge.The other officer stood guard over the passengers who remained seated in the car until additional police arrived.They then removed and arrested Robert Morton, the front-seat passenger, and the defendant, who was in the rear seat on the passenger side.A search of the vehicle subsequently revealed a gun wedged in the space on the right side of the front passenger seat.

At the conclusion of the hearing, Criminal Term granted the defendant's motion to suppress.The court found that the information received from the milk truck driver was sufficient to permit the officers to "make an inquiry of the driver and passengers as to what they were doing and if they were following the truck."Nevertheless, the court held:

"The testimony of Officer McFadden that he received information from Central that the car was stolen could have established the necessary probable cause to arrest but at the suppression hearing the challenged police conduct can be sustained only by proof that the sender of the information did in fact send it.Bare reliance on an unsubstantiated hearsay communication from the sending Officer, Central or Police Communication Unit will not suffice for probable cause to arrest.To sustain their burden at the suppression hearing the People must demonstrate that the sender possessed the requisite probable cause to act * * * It was incumbent on the People to produce the sender of the information at the suppression hearing * * *

"The testimony at the suppression hearing was insufficient to justify the arrest as the police did not have probable cause to do so.As the arrest was not valid the later search and seizure must fall as fruit of the invalid arrest."

We now reverse.

Since the officers took no action to compel the Pinto to stop, the only question before us is whether, at the suppression hearing, the People sufficiently established that the police had probable cause to arrest the defendant and his companions for possession of a stolen car.

In People v. Lypka, 36 N.Y.2d 210, 213-214, 366 N.Y.S.2d 622, 326 N.E.2d 294, our Court of Appeals wrote:

"A police officer is entitled to act on the strength of a radio bulletin or a telephone or teletype alert from a fellow officer or department and to assume its reliability * * * It follows that where the bulletin or alert, prima facie, furnishes probable cause, a reasonable search is permissible.In such circumstances the sender's knowledge is imputed to the receiver and, when the receiver acts, he presumptively possesses the requisite probable cause to search.

* * *

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"But where on a motion to suppress, a challenge to the receiver's action is made, the presumption of probable cause that originally cloaked that action disappears from the case * * * At that point, bare reliance on an unsubstantiated hearsay communication from the instigating officer or department will not suffice for probable cause.Ultimately, to sustain their burden at the suppression hearing * * *, the People must demonstrate that the sender or sending agency itself possessed the requisite probable cause to act."(See, also, People v. Landy, 59 N.Y.2d 369, 465 N.Y.S.2d 857, 452 N.E.2d 1185[1983].)

This rule grows out of a recognition that the Fourth Amendment's guaranty against unreasonable governmental action may not be circumvented by the simple expedient of demonstrating nothing more than that the challenged police conduct was prompted by information received by one officer from another officer (seeWhiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306).The rationale underlying the rule, however, is sometimes misunderstood.

In general, a police officer may act upon a report of criminal activity made to him by an identified and disinterested citizen (seePeople v. Hicks, 38 N.Y.2d 90, 94, 378 N.Y.S.2d 660, 341 N.E.2d 227;People v. Moore, 32 N.Y.2d 67, 71, 343 N.Y.S.2d 107, 295 N.E.2d 780, cert. den.414 U.S. 1011, 94 S.Ct. 376, 38 L.Ed.2d 249;People v. Inman, 80 A.D.2d 622, 436 N.Y.S.2d 63;People v. Crespo, 70 A.D.2d 661, 417 N.Y.S.2d 19;People v. Hyter, 61 A.D.2d 990, 402 N.Y.S.2d 602;see, also, United States v. Bell, 457 F.2d 1231[5th Cir.1972];United States v. Wilson, 479 F.2d 936[7th Cir.1973];United States v. McCoy, 478 F.2d 176[10th Cir.1973], cert. den.414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62).In such circumstances, when the conduct is later challenged at a suppression hearing, the People need call only the officer, and he may recount the statements which were made to him by the citizen prompting his actions.Such testimony is perfectly admissible and may not be excluded as hearsay.

"In New York, hearsay is admissible at a pretrial suppression hearing to prove a material fact (seeCPL 710.60, subd 4).And, in any event, an officer's testimony as to an accusation made to him is not truly hearsay.Although the truth of a citizen's accusation often becomes the central issue at a criminal trial, the same is not true at a pretrial suppression hearing.There, the issue is generally limited to whether the nature of the accusation, and the circumstantial indications of its reliability, were sufficient to justify the ensuing police conduct * * * Hence, at a suppression hearing, a police officer's testimony as to an accusation made to him is not offered as evidence of the truth of the charge but only of the fact that it was made.Such testimony is not hearsay."(People v. Sanders, 79 A.D.2d 688, 689-690, 433 N.Y.S.2d 854.)

The only issue at a suppression hearing in such circumstances is whether the information provided by the citizen carried sufficient indicia of reliability to permit the officer to reasonably...