People v Washington

[*1] People v Washington 2006 NY Slip Op 51787(U) [13 Misc 3d 1212(A)] Decided on July 27, 2006 Supreme Court, Bronx County Fisch, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 27, 2006
Supreme Court, Bronx County

The People of the State of New York

against

Thomas Washington, Michael Johnson, Defendants.



63907C-2004

Joseph Fisch, J.

Defendants, indicted for Criminal Sale of a Controlled Substance in the Third Degree and related charges, move to suppress physical evidence, identification testimony and challenge the validity of their arrest. Based upon the testimony adduced at the pre-trial Mapp-Wade-Dunaway hearing, the motion to suppress is denied.

FINDINGS OF FACT

The People called one witness, Sergeant Susan Downing-Kohn, whom the Court finds credible and reliable. The defense called no witnesses.

On December 7, 2004, Sergeants Downing-Kohn, Chris Clark and Detectives Echiaverria, Driscoll, Ivan Murrow and Marcus Gonzalez, assigned to Bronx Narcotics were working in connection with a narcotics investigation. At approximately 4:00 p.m., in the course of such operation, while in the vicinity of 1702 Davidson Avenue, Bronx, New York, Downing-Kohn received a radio transmission from Detective Echiaverria, who stated that two male blacks, one wearing a black jacket, black pants, black sweat shirt and black hat, the other wearing a black jacket, red shirt, blue jeans and glasses, were involved in a narcotics sale and they were walking on Davidson Avenue from 176th Street toward 174th Street.Echiaverria did not provide the specific actions of each male in the radio transmission. Downing-Kohn had worked with Echiaverria on several occasions, recognized his voice and understood "narcotics sale" to mean the individuals had been involved in the sale of drugs.

Upon receipt of the radio transmission, Downing-Kohn and the field team proceeded down 174th Street to Davidson Avenue where she observed two male blacks walking together, both of whom fit the description given by Echiaverria. One male later identified [*2]as the defendant, Thomas Washington, was wearing a black jacket, black sweat shirt, black pants and black hat. The other male later identified as the defendant, Michael Johnson, was wearing a black jacket, red shirt, blue jeans and glasses. They briefly detained the defendants until Echiaverria, whose voice Downing-Kohn recognized, made a positive identification of both defendants over the radio. The defendants were then placed under arrest and searched. The officers recovered $62 U.S. currency and a marijuana cigarette on defendant Johnson and $98 U.S. currency on defendant Washington.

CONCLUSIONS OF LAW

At the very least, a police officer has reasonable suspicion to detain two individuals pending a confirmatory identification by a fellow officer, when the individuals are the only persons fitting the description transmitted by the officer, are in the location described and there exists a close spatial and temporal proximity between the transaction and the detention. People v. Rojas, 281 AD2d 346 (1999).

The Court must determine if the radio transmissions received by Downin-Kohn were sufficient to establish probable cause to arrest. Downing-Kohn consistently testified throughout the hearing that Echiaverria made several radio transmissions in which he indicated he observed two males involved in what was described as a "narcotics sale" and a "narcotics transaction." Downing-Kohn did not provide any additional information regarding the specific actions attributable to each defendant. Under cross- examination, when questioned as to the specific actions of each defendant as provided in the transmission, Downing-Kohn testified as follows:

Q. "So is it fair to say you can't recall what Detective Echiaverria had told you each one of these defendants was doing?"

A. "Yes, I don't know - - yeah." (H:26)[FN1]

Q. " But did he indicate what the two alleged sellers were doing?"

A. " No." (H: 36)

Q. " So he never indicated to you what role each of these individuals supposedly played?"

A. "No he didn't." (H:47)

Based upon the cross-examination, defense argued that the radio transmission relied upon by the People to establish probable cause was insufficient because it lacked specific detail as to the criminal conduct of each defendant. However, the People's burden of establishing probable cause to arrest the defendants is different from the higher burden of proof beyond a reasonable doubt to establish accessorial liability at trial.

A radio transmission which is general in nature and does not specify the specific actions of a defendant has been found sufficient to establish probable cause by the New York Court of Appeals. In People v. Washington, the Court of Appeals held "the statement that [*3]a positive observation' has been made adequately communicated the nature of the conduct observed, where the arresting officer testified that the phrase was commonly used among police officers to indicate an exchange of drugs for money, and that she understood it to mean that the observing officer had personally witnessed such an exchange at the time."87 NY2d 945, 946 (1996) . The term "drug transaction" when used by a police officer who has observed a sale of narcotics, coupled with a description and location of the persons involved, provides a sufficient probable cause predicate for an arrest. People v. Genyard, 276 AD2d 299, (2000).

An officer is permitted to assume that a radio transmission from a fellow officer is reliable and to then take appropriate action based upon that transmission. People v. Lypka, 36 NY2d 210, (1975). Under the fellow officer rule, an officer is deemed to act with probable cause when acting at the direction of another law enforcement officer who has the requisite probable cause. People v. Maldonado, 86 NY2d 631, 635, (1995), People v. Rosario, 78 NY 583, 588-589, (1991), People v. Petralia, 62 NY2d 47, 51-52, (1984), cert.denied 469 U.S. 852 (1984).

In the instant case, not only did Downing-Kohn possess a reasonable suspicion to detain the defendants, but, indeed, probable cause to arrest them. The observation of a "narcotics sale" by Detective Echiaverria which was communicated to Downing-Kohn, established probable cause to stop and arrest the defendants. In fact, the transmission of a "narcotics sale" is more specific than a transmission of a "positive observation," which the Court of Appeals has held supports a finding of probable cause.

Although Downing-Kohn possessed the requisite probable cause to effectuate the arrest, she did not do so until the identity of the defendants was confirmed by Detective Echiaverria. The detective's observation and confirmatory identification of the defendants constituted a "viewing by a trained [undercover] narcotics officer occurring at a place and time sufficiently connected and contemporaneous to the drug sale as to constitute the ordinary and proper completion of an integral police procedure." People v. Wharton, 74 NY 921, 922-923, see, People v. Browne, 234 AD2d 712, 713, lv. denied 89 NY2d 940.

As the police possessed probable cause to arrest the defendants, the physical evidence retrieved from their person, i.e. $62 US currency and a marijuana cigarette from defendant Washington, and $98 US currency from defendant Johnson, were recovered pursuant to a search incident to a lawful arrest. See People v. Lane, 10 NY2d 347 (1961), People v Brown, 24 NY2d 421, (1969).

Accordingly, defendants' motions to suppress physical evidence and identification testimony is DENIED.

The foregoing shall constitute the decision and order of the Court.

Dated:



Honorable Joseph Fisch [*4] Footnotes

Footnote 1:* Page references are to the Hearing transcript.