People v. Quarles

Davis, J. (dissenting).

I respectfully dissent. The record manifestly supports the conclusion that defendant was arrested when Officer Ulgiati handcuffed him (see, People v Allen, 73 NY2d 378, 380 ; People v Acevedo, 179 AD2d 465 , lv denied 79 NY2d 996 ). I disagree, however, that probable cause existed to support the arrest. Because defendant’s arrest was illegal, the items seized from his person should have been suppressed as fruits of the illegal arrest.

Officer Ulgiati testified at the suppression hearing that when she arrived at 224 Wellington Avenue, Officers Chung and Bryant were already present. These officers told her that a blue jacket was found on a garbage can in the rear yard and that 218 Wellington Avenue also had been burglarized. At that time, Officer Ulgiati had received no description of a burglary suspect. Officer Ulgiati testified that as she entered the rear yard of 224 Wellington Avenue, she saw defendant "get up and run”. She directed him to stop, but he jumped over a fence and fled. She chased him but did not apprehend him. She returned to 224 Wellington Avenue to continue her investigation. A few minutes later, she heard someone inside the residence at 224 Wellington Avenue shout "he’s back, he’s back”. Officer Ulgiati looked in the rear yard and saw defendant who was "grabbing the blue parka that [Officer Ulgiati] had seen on the garbage pails and throwing [it] around his shoulder and running out of the yard”. Officer Ulgiati intercepted defendant in the front yard where she apprehended him, put handcuffs on him, "pat-searched him for weapons” *206 and "took him to [her] car”. There, they were met by Officer Bryant who assisted Officer Ulgiati in emptying defendant’s pockets and in conducting a search of his person. The officers seized a remote control device, a yellow rubber glove, a red rag and a box cutter. It is significant that at the time that Officer Ulgiati handcuffed defendant, she did not know that a resident of 224 Wellington Avenue had given Officer Chung a description of the suspect. Moreover, after defendant was handcuffed, Officer Ulgiati did not return him to the crime scene for purposes of identification.

In my view, Officer Ulgiati’s arrest of defendant was not supported by probable cause. The majority’s use of the ubiquitous "totality of the circumstances” test to reach the conclusion that "there was ample probable cause for Officer Ulgiati to arrest defendant” is inappropriate (see, People v Hicks, 68 NY2d 234, 243-244 ; People v Johnson, 66 NY2d 398, 406-407 ). The determination that probable cause exists is of constitutional dimension, and therefore, must rest on articulable facts, credible objective evidence and the rational inferences that flow therefrom (see, People v Hicks, supra, at 243).

I disagree with the majority’s assertion that defendant’s flight, under the circumstances, either sufficed to establish probable cause or constituted evidence suggesting consciousness of guilt (see, People v McRay, 51 NY2d 594, 604 ; People v Howard, 50 NY2d 583 , cert denied 449 US 1023 ).

Further, in my view, the majority’s finding that defendant’s return to the rear yard to retrieve the coat "could be reasonably construed as an attempt to remove incriminating evidence of identification” is based on pure speculation and conjecture and lacks factual support in the record. Officer Ulgiati had no reason to believe either that the coat belonged to a suspect in the burglary or that it in some way constituted "incriminating evidence” on the question of identification.

Additionally, the shout from within 224 Wellington Avenue, "he’s back, he’s back”, heard by Officer Ulgiati, was equivocal with respect to the identification of defendant as the burglary suspect, and thus, that language was insufficient to establish probable cause to support defendant’s arrest. When Officer Ulgiati handcuffed defendant, she had no description of the burglary suspect (cf., People v Brockington, 166 AD2d 881 , lv denied 77 NY2d 836 ; People v Grimsley, 156 AD2d 714, 715 , lv *207 denied 75 NY2d 919 ), and she had no reason to believe either that the person who shouted from within 224 Wellington Avenue referred to the burglary suspect or that defendant was such a suspect. Although Officer Ulgiati may have been justified in temporarily detaining defendant for the purposes of identification (see, People v Hicks, supra), here, however, the level of intrusion upon defendant’s liberty elevated the encounter "into a full-blown arrest” (People v Allen, supra, at 380 ).

The circumstances that subsequent to defendant’s arrest, the owner of 218 Wellington Avenue identified the remote control device found on defendant as having been stolen from his house, an occupant of 224 Wellington Avenue identified defendant as the burglar, and a CD player and VCR belonging to the owner of 218 Wellington Avenue were retrieved by the police, are irrelevant to the determination whether Officer Ulgiati had probable cause to arrest defendant. While "[o]ne can sympathize with [the officer’s] desire to hold defendant until evidence establishing probable cause could be found * * * [there is] no precedent, however, holding that defendant’s rights to be free from unreasonable searches and seizures must yield to such practical considerations” (People v Battaglia, 82 AD2d 389, 396-397 [Hancock, J., dissenting], revd on dissenting opn 56 NY2d 558 ). Thus, I conclude that Officer Ulgiati’s hurried arrest of defendant was not supported by probable cause.

Furthermore, in my view, the trial court, first having exercised its discretion to rule that a prosecution witness was not giving expert testimony, erred by permitting that witness to give expert opinion testimony that the glove print on the stolen VCR was "consistent” with a test print taken from the rubber glove seized from defendant’s person. Finally, I conclude that the error is not subject to a harmless error analysis because the evidence of defendant’s guilt was not overwhelming.

Accordingly, I would reverse the judgment of conviction, grant defendant’s suppression motion and grant a new trial.

Callahan, J. P., Boomer and Green, JJ., concur with Boehm, J.; Davis, J., dissents in a separate opinion.

Judgment affirmed.