People v Keogh

[*1] People v Keogh 2010 NY Slip Op 52303(U) [30 Misc 3d 1205(A)] Decided on December 23, 2010 Supreme Court, Bronx County Aarons, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2010
Supreme Court, Bronx County

People of the State of New York,

against

Frank Keogh, Defendant.



0493/2009



The People were represented by District Attorney Robert Johnson, by Rasheeda Baksh, (718) 838-7270.

The defendant was represented by Justina Olderman of The Bronx Defenders, (718) 838- 7867.

Sharon A. Aarons, J.

The defendant is charged with one count of Attempted Murder in the Second Degree, one count of Assault in the First Degree, two Counts of Assault in the Second Degree, one count of Assault in the Third Degree, and one count of Criminal Possession of a Weapon in the Fourth Degree. On November 16 and 17, 2010, this court conducted a hearing pursuant to Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); and Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). The People called two witnesses, Detective James McSloy ("Det. McSloy"), and Detective Craig Crisfield ("Det. Crisfield") whose testimony the court credits. The defendant did not present any witnesses. In an oral decision on November 10, 2010, the court found that Det. McSloy did not have probable cause to arrest the defendant and suppressed the clothing that was taken from the defendant as fruits of the illegal arrest. The following constitutes the court's finding of fact and conclusions of law.

FINDINGS OF FACTS

Det. McSloy has been employed by the New York City Police Department ("NYPD") for seventeen and one-half years, fourteen of which he has held the title of detective. He has been assigned to Bronx Homicide Task Force for five years. On December 26, 2008, he worked the 4:00 p.m. to 1:00 a.m. tour of duty and was assigned to work with an Assistant District Attorney of Bronx County. Sometime after midnight on December 26, 2008, he received information that someone was stabbed at 271 East 235th Street, Bronx County and that the victim was found in a bar on Katonah Avenue called Joe Mulligan a.k.a. Fireside. [*2]

Det. McSloy responded to the location and was thereafter directed to defendant's basement apartment. The door of the apartment was opened and, without entering the apartment, Det. McSloy was able to observe blood in the entranceway of the apartment. There was also a trail of blood that led from the apartment along 235th Street toward Katonah Avenue, and along Katonah Avenue toward 236th Street.

Det. McSloy left the apartment walked along Katonah Avenue towards 236th Street where he met up with other detectives. He learnt that Det. Crisfield was the assigned detective from the 47th Precinct, but he did not see or speak to him. Det. McSloy and the other detectives exchanged the information they had gathered, that is, that the male who was stabbed was likely to die, he was being transported to the hospital, and that no one had interviewed him as yet. Det. McSloy did not receive any information about a possible suspect.

While speaking to the other Detectives, a male yelled out words to the effect, "hey, Officer." When Det. McSloy turned around the man pointed at the defendant and said, "that's the man responsible for the stabbing." Det. McSloy looked in the direction that the informant pointed and saw the defendant walking on 236th Avenue, at the corner of 236th Avenue and Katonah Avenue. With the intent to arrest the defendant, Det. McSloy began to walk toward the defendant who then turned, changed direction and began to briskly walk along 236th Street away from Katonah Avenue. Det. McSloy ran toward the defendant, and from behind, took the defendant's hands and handcuffed him.Det. McSloy did not observe any blood on the defendant until after the arrest. He also did not recall at the hearing whether the defendant had an injury to his eye. The defendant thereafter transported to the 47th Precinct. Det. McSloy called Det. Crisfield and informed him that he had made an arrest.

After he arrested the defendant, Det. McSloy got the name and address of the informant who pointed out the defendant. At no time did Det. McSloy ascertain from the informant the source of his knowledge that the defendant was responsible for the stabbing. Det. McSloy had no information from any source, other than that informant, that the defendant was responsible for the stabbing.

Det. Crisfield has been employed by the NYPD for fourteen and one-half years and has been a detective for five years. On December 26, 2008, he was assigned to the 47th Detective Squad where he worked the 4:00 p.m. to 1:00 a.m. tour of duty. He was assigned the investigation of the stabbing that occurred at 271 East 235th Street. He first responded to the Fireside Bar at about 11:30 p.m. on December 26, 2008, and then to the defendant's apartment at 235th Street. He learnt from the landlord that the name of the resident of the apartment was Frank Keogh. During the course of the investigation at the scene, Det. Crisfield learnt, either from a radio transmission or from an officer at the scene, that while in the ambulance, the victim gave the name of Frank. Det. Crisfield, however, did not know whether the victim specifically said that Frank was the person who stabbed him.

Det. Crisfield was told by other officers at the scene that Patrick Hayes ("Hayes"), who was present at the scene and covered with blood, had information about the stabbing. Not knowing whether Hayes was a witness or suspect, Det. Crisfield had him transported to the 47th Precinct. Det. Crisfield later interviewed Hayes at the 47th Precinct who told him that they were in Frank Keogh's apartment when Frank and the victim had a dispute and started to fight. Both the victim and Frank had a knife. Hayes told Det. Crisfield that they had been at the drinking all day, first at the Fireside [*3]bar and then at the defendant's apartment. Hayes in fact appeared intoxicated. Hayes was photographed and released.

Det. Crisfield learnt of the defendant's arrest while he was at the 47th Precinct interviewing Hayes. At some point during his interview of Hayes, Det. Crisfield obtained a photograph of the defendant which Hayes confirmed to be the Frank Keogh he had been with earlier. Det. Crisfield was not sure if Hayes positively identified the defendant before or after he learnt that the defendant had been arrested.

The defendant was brought into the detective squad at the 47th Precinct where Det. Crisfield tried to interview him without reading him his Miranda rights. The defendant told him he had the wrong person and that he, the defendant, had been the victim of a robbery. The People did not give notice of the statement and were not seeking to use it. Crisfield observed that the defendant's clothes had blood on them so he took the defendant's pants, shirt and sneakers and vouchered them as evidence. Det. Crisfield did not recall the time that the defendant's clothes was taken or whether it was before or after Hayes made the identification. He recalled that the defendant did not consent to him taking his clothes.

CONCLUSIONS OF LAW

At a suppression hearing, the defendant has the ultimate burden of proving the illegality of the police conduct, however, the People have the initial burden of going forward with evidence of the legality of the police conduct.See People v. Baldwin, 25 NY2d 66, 70, 250 N.E.2d 62, 302 N.Y.S.2d 571 (1969), People v. Berrios, 28 NY2d 361, 367, 270 N.E.2d 709, 321 N.Y.S.2d 884 (1971).

In determining whether a police officer's interference with a citizen's freedom of

movement is reasonable, the court must weigh whether the officer's action was both justified at its inception and reasonably related in scope to the circumstances. People v. Williams II, 98 NY2d 93, 98, 772 N.E.2d 1150, 745 N.Y.S.2d 792, (2002); People v. De Bour, 40 NY2d 210, 215, 352 N.E.2d 562, 386 N.Y.S.2d 375 (1976). The action by the police is analyzed by the level of information the police had at the time of the intrusion, as set forth in De Bour.

The Court of Appeals in De Bour set forth four levels of permissible intrusion by the police into an individual's freedom of movement. Under the second level of intrusion, a police officer may interfere with a citizen's freedom, but short of a seizure, to gain explanatory information under the common-law right of inquiry when the officer has a founded suspicion that criminality is afoot. Id. 40 NY2d at 223 . Under the third level of intrusion, a police officer is authorized in De Bour, and pursuant to CPL §140.50(1), to forcible stop and temporarily detain an individual person when he "reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor." Id. Reasonable suspicion is a "quantum of knowledge to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand. To justify such an intrusion, the police officer must indicate specific and articulable facts, which along with any logical deductions, reasonably prompted that intrusion." People v. Cantor, 36 NY2d 106, 112-113, 365 N.Y.S.2d 509, 113, 324 N.E.2d 872 (1975). [*4]

The fourth and highest level of intrusion set forth in De Bour permits the police to arrest and take a person into custody when he has probable cause to believe that the person has committed a crime or an offence in his presence. De Bour, 40 NY2d at 223, CPL §140.10.

The issue before this court is under what circumstances an informant's tip may be relied upon by police officers to justify a warrantless arrest of a citizen. Both the Federal and New York State Constitutions require the police to have probable cause to make an arrest. U.S. Const. amend. IV; NY Const. article 1, § 12. Once the legality of the arrest is challenged, the People must demonstrate at the suppression hearing that the officer possessed the requisite probable cause to make the arrest. People v. Lypka, 36 NY2d 210, 214, 326 N.E.2d 294, 366 N.Y.S.2d 622 (1975); People v. Ramirez-Portoreal, 88 NY2d 99, 113, 666 N.E.2d 207, 643 N.Y.S.2d 502 (1996). The standard for probable cause is the same as for a warrant, that is, it must be based on " reasonably trustworthy information [of facts and circumstances] sufficient in themselves to warrant a man of reasonable caution in the belief" that an offense has been committed [internal citation omitted]." People v. Elwell, 50 NY2d 231, 237, 406 N.E.2d 471, N.Y.S.2d 655 (1980)

Probable cause may be based on hearsay information provided that the hearsay evidence meets the two-prong test established in Aguilar-Spinnelli. Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509; 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584; 21 L. Ed. 2d 637 (1969); People v. Ketcham, 93 NY2d 416, 420, 712 N.E.2d 1238, 690 N.Y.S.2d 874 (1999). To sustain their burden at a suppression hearing, the People must demonstrate the reliability of the informant, and the basis of the informant's knowledge, that is, the informant is generally trustworthy and the information was obtained in a reliable way. Ketcham, 93 NY2d 420.

The first prong of the Aguilar-Spinnelli test is satisfied when the informant is an identified citizen, as an identified citizen informant is presumptively reliable. See People v. Hetrick, 80 NY2d 344, 604 N.E.2d 732, 590 N.Y.S.2d 183 (1992). The second prong of the Aguilar-Spinnelli test is satisfied when the People demonstrate that the informant's knowledge was based on criminal activity of which he has personal knowledge. People v. Rodriguez, 52 NY2d 483, 491, 420 N.E.2d 946, 438 N.Y.S.2d 754 (1981). Otherwise, "the liberty of the subject of the tip could often be placed in jeopardy on the strength of mere rumor and suspicion." Id.

Where the informant has not clearly stated the source of his information, the basis of knowledge may be established by the police observation of facts suggestive of criminal activity, prior to the arrest, which corroborates the information received from the informant. Id.; Elwell, 50 NY2d at 241("a warrantless search or arrest will be sustained only when the police observe conduct suggestive of, or directly involving, the criminal activity about which an informant who did not indicate the basis for his knowledge has given information to the police, or when the information furnished about the criminal activity is so detailed as to make clear that it must have been based on personal observation of that activity.").

Here, while the People met the first prong of the test, they have not met their burden on the second prong as they have not established that the informant had a basis of knowledge of the information he passed onto the police. Det. McSloy did not make any inquiry of the witness as to his basis of knowledge regarding the defendant being responsible for the stabbing. Det. McSloy arrested the defendant and had him transported to the 47th Precinct based on the sole act of the witness pointing to the defendant and stating that he was the person responsible for the stabbing. [*5]

The People also failed to establish that Det. McSloy made any personal observation of activity suggestive of criminality by the defendant to corroborate the informant's statement that he was responsible for the stabbing. Det. McSloy approached the defendant from behind and immediately placed him under arrest. He did not see the blood on the defendant's clothes until after the arrest. He was unable to even recall if the defendant had any injury to his eye. "Where a police encounter is not justified in its inception, it cannot be validated by a subsequently acquired suspicion." Williams II, 98 NY2d at 98.

Notwithstanding Det. McSloy's failure to make personal observation of any behavior by the defendant indicative of criminal activity or corroboration of the informant's statement, he could have relied on his fellow officer's observation of or knowledge about the defendant's criminal behavior or participation in the stabbing incident. Under the fellow officer rule, a police officer who does not have personal knowledge sufficient to establish probable cause can make a lawful arrest as long as he is acting on communication from a fellow officer who had information sufficient to constitute probable cause for the arrest. Ketcham, 93 NY2d at 419. No other officer on the street with Det. McSloy or otherwise conveyed to him that they had reasonable suspicion to stop and detain or probable cause to arrest the defendant at the time Det. McSloy arrested him. Therefore, the fellow officer rule does not apply to the facts herein.

At the point that Det. McSloy approached and arrested the defendant he only had the common-law right of inquiry as the informant was still unidentified, People v. Moore, 6 NY3d 496, 500, 847 N.E.2d 1141, 814 N.Y.S.2d 567, (2006)("the anonymous tip triggered only the police officers' common-law right of inquiry. This right authorized the police to ask questions of defendantand to follow defendant while attempting to engage himbut not to seize him in order to do so."), and he did not observe any activity suggestive of criminality. "To elevate the right of inquiry to the right to forcibly stop and detain, the police must obtain additional information or make additional observations of suspicious conduct sufficient to provide reasonable suspicion of criminal behavior." Id. Furthermore, the fact that the defendant appeared to walk away from area where Det. McSloy and his fellow officers had gathered did not elevate the level intrusion to reasonable suspicion or probable cause to arrest. "That defendant began walking away from the scene when the police arrived does not render the gunpoint stop permissible." Id. The information Det. McSloy received from the then unidentified citizen merited investigation, but not an immediate arrest. Id. at 501.

Finding that the arrest was illegal, the court now addresses defendant's clothes which Det. Crisfield removed from the defendant and vouchered as evidence. The exclusionary rule generally bars the use of physical evidence obtained as a direct result of illegal police activity. People v. Boodle, 47 NY2d 398, 402, 391 N.E.2d 1329, 418 N.Y.S.2d 352(1979), cert. denied, 444 U.S. 969, 100 S. Ct. 461, 62 L. Ed. 2d 383 (1979). Evidence obtained by illegal police activity may be used against a defendant at trial under the independent source, inevitable discovery and attenuation exceptions to the exclusionary rule. See People v. Gethers, 86 NY2d 159, 162, 654 N.E.2d 102, 630 N.Y.S.2d 281 (1995). None of the exceptions to the exclusionary rule apply to this case.

The clothes is not admissible under the independent source exception as the defendant's clothes was gained as a direct result of the illegal arrest . See People v. Burr, 70 NY2d 354, 361, 514 N.E.2d 1363, 520 N.Y.S.2d 739 (1987)

, cert denied, 485 U.S. 989, 108 S. Ct. 1294, 99 L. Ed. 2d 505 (1988). The inevitable discovery exception does not apply as where the evidence sought to be suppressed is the primary evidence [*6]obtained from the illegal police conduct. See People v. Stith, 69 NY2d 313, 318, 506 N.E.2d 911, 514 N.Y.S.2d 201 (1987). There was no attenuation between the arrest and the seizure of the defendant's clothes. People v. Packer, 49 AD3d 184, 851 N.Y.S.2d 40, (1st Dept. 2008), aff'd, 10 NY3d 915, 892 N.E.2d 385, 862 N.Y.S.2d 321, (2008). When considering whether the attenuation doctrine applies, the court looks at "the temporal proximity of the arrest and the confession, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct." See People v. Bradford, 15 NY3d 329, 333 (2010) After the illegal arrest, the defendant was brought directly to the 47th Precinct where his clothes were removed. The taint of the illegal arrest had not dissipated, nor had the illegal arrest been interrupted by an intervening event. See Stith, 69 NY2d at317. Det. Crisfield was not sure if Hayes identified the defendant before or after his clothes were removed. While Det. McSloy may have been overzealous when he arrested the defendant without probable cause, the court finds the arrest to be unlawful, but does not find it to be flagrant or official misconduct. The defendant's clothes were directly obtained as a result of the illegal arrest and must therefore be suppressed as fruits of the illegal arrest.

Accordingly, defendant's motion to suppress the clothes taken from the defendant is granted.

The foregoing constitutes the Decision and Order of the court.

Dated:December 23, 2010

_____________________________

SHARON A. M. AARONS, J.S.C.