People v. Waterman

• Decision Date: 04 January 1984
• Parties: The PEOPLE of the State of New York v. Edward WATERMAN, Defendant.
• Court: New York City Court

Page 968

471 N.Y.S.2d 968

122 Misc.2d 489

The PEOPLE of the State of New York v. Edward WATERMAN, Defendant.

Criminal Court of the City of New York New York County, Jury Part I.

Jan. 4, 1984.

Robert M. Morgenthau, Dist. Atty., New York County, New York City (Jonathan D. Siegel, New York City, of counsel), for the People.

Legal Aid Society, New York City (David J. Patterson, New York City, of counsel), for defendant.

IRVING LANG, Judge:

Where evidence is seized as a result of information supplied by a police undercover agent can the prosecution prevail on a motion to suppress without testimony from the undercover agent at the suppression hearing?

THE FACTS

On February 7, 1983 the defendant was taken in custody after the arresting officer received a radio transmission from a police undercover officer that a male black, 5'5"'-5'7"' tall wearing a blue coat, bluejeans and brown work shoes had sold him two glassine envelopes of heroin at a particular location. The defendant, who matched the description, was arrested at the "buy" location within minutes of the transmission. A search of the defendant incident to the arrest revealed 58 glassine envelopes of cocaine and 7 hypodermic instruments. The undercover agent subsequently drove by and indicated that the defendant was not the seller. The actual seller (David Watts) was apprehended two blocks from the location of the sale. The undercover agent did not testify at the suppression hearing.

THE CONTENTIONS

Having challenged the underlying basis for the arrest, the defendant contends that the People cannot establish probable cause for the arrest and search merely by the reliance of the arresting officer on the radio transmission.

To support his thesis the defendant cites a number of cases in the Appellate Division, Second Department, all of which hold that where an arrest and seizure is made solely on the basis of information supplied by an undercover officer a motion to suppress must be granted if the officer fails to testify at a suppression hearing. (People v. Delgado, 79 A.D.2d 976, 434 N.Y.S.2d "On a motion to suppress, challenged police conduct can be sustained only by proof that the sender of ... information resulting in the arrest possessed the requisite knowledge ... As such, it was incumbent on the People herein to produce, at the suppression hearing, the undercover ... who has relayed the information to the arresting officer ...." (Delgado, supra, 79 A.D.2d p. 976, 434 N.Y.S.2d 454.)

454; People v. Petro, 83 A.D.2d 566, 441 N.Y.S.2d 11; People v. Green, 87 A.D.2d 892, 449 N.Y.S.2d 524; People v. Calderon, 88 A.D.2d 604, 449 N.Y.S.2d 763.)

In postulating this rule, the Second Department relies on two Court of Appeals cases relating to police transmissions, People v. Lypka, 36 N.Y.2d 210, 366 N.Y.S.2d 622, 326 N.E.2d 294 and People v. Havelka, 45 N.Y.2d 636, 412 N.Y.S.2d 345, 384 N.E.2d 1269).

In my opinion the Appellate Division has misconstrued the holding in these two cases.

LYPKA AND HAVELKA

In Lypka, the Court of Appeals discussed the problem of probable cause to arrest based on inter-police communications. In that case a police officer in Seneca County, New York, received a telephone call from a detective in Pennsylvania to the effect that defendants were believed en route to Seneca County with a large number of designated weapons in specified stolen vehicles. The Pennsylvania detective did not disclose the source of his information. A few hours later the vehicles were spotted in Seneca County and a search revealed contraband, weapons and stolen property.

Challenging the seizure, the defendants claimed that the New York arresting officers had no probable cause to arrest or search.

Thus the Court of Appeals had to deal with police bulletins which are usually "unsubstantiated hearsay." On the one hand it is self-evident that in a highly mobile, crime-ridden society the police must act quickly on communications from other officers to prevent crime and apprehend criminals. On the other hand, insufficient information to justify an arrest or search, lacking in probable cause, should not be legitimatized because it is filtered through a police radio, telephone or teletype.

In resolving this dilemma the Court of Appeals enunciated a compromise. The Court held that a police officer is entitled to act on the strength of a communication from a fellow officer or department and to assume its reliability (Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306; People v. Horowitz, 21 N.Y.2d 55, 286 N.Y.S.2d 473, 233 N.E.2d 453). In such a situation the sender's knowledge is imputed to the receiver who "... presumptively possesses the requisite probable cause to search." (Lypka, 36 N.Y.2d p. 213, 366 N.Y.S.2d 622, 326 N.E.2d 294 [emphasis supplied].)

This presumption, however, only establishes preliminary or what might be termed temporary probable cause. Where a challenge to the receiver's action is made, the presumption of probable cause disappears and "... the People must demonstrate that the sender or sending agency itself, possessed the requisite probable cause to act." (Lypka, p. 214, 366 N.Y.S.2d 622, 326 N.E.2d 294 [emphasis supplied].)

To the same effect is People v. Havelka, supra. A patrolman of the Portchester Police Department spoke on the phone to a desk sergeant who informed the patrolman that he had received a call from the Depot Tavern warning of a possible gun battle in the vicinity of the tavern, involving the Tribe Motorcycle Club. The patrolman and other officers staked out the location. Some vehicles carrying about seven men arrived at the scene. These men were met by ten others who exited the clubhouse. The entire group began walking toward the tavern. Although no suspicious activity was observed, "suspects" were frisked. The defendant was in possession of a gun and a blackjack. One other person had a The Court of Appeals held that the testimony of the patrolman was insufficient to justify the search. The Court held that "... it was ... incumbent on the People to produce the sending officer, Sergeant Arlotta, at the suppression hearing." (45 N.Y.2d P. 641, 412 N.Y.S.2d 345, 384 N.E.2d 1269.) Further analysis shows however, that even producing the desk sergeant would not have been sufficient, for the information communicated to the police was built on a "pyramid of hearsay." The desk sergeant received the information from the tavern owner who in turn received it from the bartender and it was unclear whether the bartender had seen any Tribe member with a weapon.

blackjack. None of the others had weapons.

Hence, although the Court in Lypka and Havelka referred to the necessity of calling "the sending officer" at the hearing it obviously meant that the sending officer or agency was required to establish legal justification for the arrest and/or search. Whether the "sending officer" personally had the requisite probable cause would generally depend on whether he had direct access to the original informant.

What the Court of Appeals decided in Lypka and Havelka was that the hearing judge must be able to determine probable cause under traditional constitutional standards. That is, did the information supplied by the primary source, the original informant, justify the police action? In order to do this the hearing court must be able to evaluate the reliability of the primary source of the information. That standard has traditionally been that information supplied by an informant can justify an arrest where the court is satisfied that the informant is reliable and has a basis of knowledge. (Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.) Basis of knowledge is simply the determination of how the informant is aware of what he is imparting, usually by personal observation. Reliability or "veracity" is manifest by such factors as whether the informant had given accurate information in the past, or is a responsible citizen. (See People v. Hicks, 38 N.Y.2d 90, 378 N.Y.S.2d 660, 341 N.E.2d 227.) ¹

Once the reliability and basis of knowledge of the informant has been established, it is usually not necessary to call him at the suppression hearing. The public policy behind this is obvious. To encourage people to come forth with evidence of crime, to prevent reprisal, and to protect sources are all persuasive reasons for maintaining anonymity. All that is usually required is that the person to whom the informant...