Petition — New York v. Wharton

78-1752 (‘ricep |

IN THE

OE Oe AN me ne

Supreme Court of the United States

October Term 1978

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

JONATHAN WHARTON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF THE

STATE OF NEW YORK

Denis Ditton

District Attorney, Nassau County

Attorney for Petitioner

262 Old Country Road

Mineola, New York 11501

(516) 535-4800

Wituiam C, Donnino

Jupira K. Rusrinstern

Assistant District Attorneys

Of Counsel

TABLE OF CONTENTS

PAGE

Preliminary Statement 0... Sree 1

Opinions Below. ......... % im 2

Jurisdiction | 2

Constitutional Provisions Involved 2

Questions Presented eae 3

Statement of the Case | , 3

The Facts ......... 3

The Decisions of the State Court | 6

Reasons for Granting the Writ 3 7

Conclusion _. | bag 12

II

TABLE OF AUTHORITIES

PAGE

Cases:

Brinegar v. United States, 338 U.S. 160 (1949) 0... U1

Mapp v. Ohio, 367 U.S. 643 (1961) «2.00.00... ee. 12

New York v. Earl, 431 U.S. 943 (1977) ........ = ee PS

People v. Borrero, 26 N.Y.2d 430 (1970) 2.000000... 9

People v. Brown, 24 N.Y.2d 421 (1969) 2000000000000... 9

People v. Chenault, 20 N.Y.2d 518 (1967) 0.000000... 12

People v. Lombardi, 18 A.D.2d 177 (2d Dept.), aff’d,

Be is a Ie CE ios os ies a caeenescetss 11

People v. Santiago, 13 N.Y.2d 326 (1964) ................... 11

People v. Wharton, 60 A.D.2d 291 (2d Dept. 1977) .... 6,10

People v. Wharton, 46 N.Y.2d 924 (1979) 200000000000... 7

Ey WS ee CID svi ones vcacinicencenscccavccsinens 12

Wong Sun v. United States, 371 U.S. 471 (1963) ........ 12

Statutes and Constitutional Provisions:

Fourth Amendment to the Constitution of the United

Eppa Rie Cte irra ie PON ee ae ea a ee EN REE a 2

Fourteenth Amendment to the Constitution of the

i BRR E Wot ie oo aM eae SINE 3

Oy RE, POE shictndaaressterentaneasomccddken vues 2

Other Authorities:

Ruffin, Out on a Limb of the Poisonous Tree: The

Tainted Witness, 15 U.C.L.A. L. Rev. 32 (1967-

BE acdc icatartiisstctscke a ete disc ieenereaae 12

"IN THE

Supreme Court of the United States

October Term 1978

No.

Ge

THe Preorie or THE Srate or New York,

Petitioner,

JONATHAN WHARTON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF THE

STATE OF NEW YORK

Preliminary Statement

The District Attorney of Nassau County, on behalf of

the People of the State of New York, seeks certiorari to

review an order of the Court of Appeals of the State of

New York, entered February 22, 1979. That order affirmed,

by a vote of four to two, an order of the Appellate Division

of the Supreme Court of the State of New York, Second

Department, entered December 27, 1977. The order of the

9

“/

Appellate Division affirmed, by a vote of three to two, an

order of the County Court, Nassau County, entered De-

cember 8, 1976, which suppressed evidence.

Opinions Below

At the conclusion of a hearing conducted pursuant to a

motion by defendant, the County Court of Nassau County

suppressed physical evidenee seized from defendant and a

statement made by him. There was no formal, reported

opinion (Appendix A). The opinion of the Appellate Divi-

sion, which affirmed the order of the County Court, is re-

ported at 60 A.D.2d 291 (2d Dept. 1977) (Appendix B).

The opinion of the New York Court of Appeals is reported

at 46 N.Y.2d 924 (1979) (Appendix C).

Jurisdiction

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. §1257(3). The decision of the New York Court of

Appeals is dated February 22, 1979.

Constitutional Provisions Involved

1. The Fourth Amendment to the United States Consti-

tution, which provides:

The right of the People to be secure in their per-

sons, houses, papers and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly describ-

ing the place to be searched, and the person or things

to be seized.

9

vw

2. The Due Process Clause of the Fourteenth Amend-

ment to the United States Constitution, which provides:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

Questions Presented

1. Whether the federal Constitution requires a holding

that, as a matter of law, there is not probable cause to ar-

rest a person whose behavior is inconsistent with any rea-

sonable or plausible explanation except that he was in-

volved in criminal activity?

2. Whether the standard of probable cause adopted by

the New York State Court of Appeals defeats the under-

lying purposes of the exclusionary rule?

STATEMENT OF THE CASE

The Facts

On December 10, 1975, J onathan Wharton was arrested

in Nassau County for possession of stolen property. On

January 26, 1976, he was indicted for burglary in the third

degree, grand larceny in the third degree, and criminal

possession of stolen property in the second degree (Indict-

ment No. 44064).

On December 10, 1976, a pre-trial suppression hearing

was conducted in the County Court, Nassau County. Plain-

+

clothes Officer Gregory Satchwell testified that he and John

Talt, both members of the Nassau County Police Depart-

ment, were on radio motor patrol on the night of December

10, 1975. They were driving on Parkway Drive in Elmont,

New York, at about 11 p.m., when they noticed a blue plas-

tic bag on a grass mall near the Cross Island Parkway,

about ten feet from the intersection of Parkway Drive and

Dutch Broadway.* Upon examination, the officers found

that the bag contained a circular saw, power drills, power

sanders, and other household power tools. The bag was

torn along the bottom.

This area of Parkway Drive was ‘‘a very heavy ULur-

glary area.’’ On the east side of Parkway Drive, there

were homes; on the west side was the mall of the Cross

Island Parkway. Frequently, people parked on Cross Is-

land, burglarized the houses nearby, and returned to their

ears. The officers concluded that the tools they had found

were the proceeds of one such burglary and that, as the

burglar was fleeing, the bag had torn. The officers thus re-

turned to their car and waited to see whether anyone would

return for the bag and tools. They also notified their super-

visor, Sergeant William Buckley (who also testified), that

they had found ‘‘what [they] believed to be burglary pro-

ceeds’’ and they ‘‘requested assistance for a stake-out.’’

At about 11:45 p.m., Sergeant Buckley arrived at the

intersection of Parkway Drive and Dutch Broadway. He

* Parkway Drive and the Cross Island Parkway both run north-

south. They are adjacent and parallel to each other, Cross Island

being to the west of Parkway Drive. Dutch Broadway, an east-west

road, intersects Parkway Drive and passes beneath Cross Island

Parkway.

5)

~

joined Officers Satchwell and Talt in their car and was

being ‘‘fill[ed] in’? when they saw a taxicab driving east-

bound along Dutch Broadway, coming from New York City.

The cab stopped at the intersection and then slowly backed

up onto Parkway Drive. The defcudant, Jonathan Whar-

ton, was the only passenger in the cab. He got out, ‘‘ran

to the bag, scooped it up, ran back to the cab, and got back

in.’’ By this time, Sergeant Buckley had returned to his

own car. As the cab started to drive away, Buckley pulled

his ear alongside and Officers Satchwell and Talt drove

their car up in front of the cab, thereby blocking its exit.

The defendant attempted to get out of the cab. Sergeant

Buckley jumped out of his car, shouting ‘‘Police’’ and

‘*Freeze.’’ Buckley’s shield was displayed and his gun

was drawn ‘‘in a ready position pointing skyward.’’

The defendant complied with Buckley’s order to stop and

turn around, after which Buckley frisked him, handcuffed

him, and told him that he was being arrested for possession

of stolen property.

Officer Satchwell drove Wharton to the Fifth Precinct.

On the way, he informed him of his constitutional rights,

which Wharton said he understood. At the precinct, the

officer searched Wharton and found a wrench in his pocket.

The wrench, which had an octagonal head, was the type used

to remove the blade of a circular saw; it fit the cireular

saw found among the tools in the blue plastic bag. In re-

sponse to the officer’s inquiry, Wharton said he had picked

up the wrench after it had fallen out of the bag. Officer

Satchwell later asked the defendant, ‘‘How did you come

to know that these tools were here?’’ Wharton answered

that he had met a man outside a bar on Jamaica Avenue

6

(Queens County) and the man had asked him to drive to

Nassau County to pick up a parcel. Wharton did not know

the name of either the man or the bar.

Later that evening, it was learned that the power tools

found in the bag had been stolen from the premises at 115-

05 Parkway Drive, three houses south of the intersection

at which the arrest had occurred.

The Decisions of the State Courts

Immediately after the close of the testimony, the hear-

ing court ruled that the defendant had been illegally ar-

rested. It found tuat, at the time of arrest, the police did

not ‘‘know’’ that the power tools in the bag had, ‘‘in fact,

been stolen.’’ On that conceded fact, the court concluded

that the law required a holding that the officers had no

reasonable cause to believe that the defendant was com-

mitting or had committed a crime and that, accordingly, the

arrest was unlawful. Thus, the hearing court granted de-

fendant’s motions to suppress both the physical evidence

which had been seized and the statement which it found to

have been tainted by the arrest (Appendix A).

Upon appeal by the People, the Appellate Division of

the Supreme Court of the State of New York affirmed the

County Court’s order. The majority opinion stated that

‘the facts articulated by the police officers consisted of

nothing more than a number of innocent facts and observa-

tions which, while somewhat unusual if taken in the aggre-

gate, hardly constituted reasonable cause to believe that

the defendant had commtited a erime.’’ People v. Whar-

ton, 60 A.D.2d 291, 295 (2d Dept. 1977) (Appendix B).

7

Upon further appeal by the People, a majority of the

New York State Court of Appeals affirmed the order of the

Appellate Division. The Court of Appeals ruled that ‘‘rea-

sonable minds [could] differ as to the inferences’’ to be

drawn from the record and that, under such circumstances,

the Court was without power to review an affirmed finding

of fact. People v. Wharton, 46 N.Y.2d 924, 925 (1979)

(Appendix C). The dissenting judges stated that, ‘‘[w]hile

by a wild stretch of the imagination one could conjure up

an innocent explanation for the defendant’s conduct, the

totality of the circumstances here points in the opposite

direction and clearly establishes the existence of probable

eause.’’ People v. Wharton, supra at 926 (Appendix C).

REASONS FOR GRANTING THE WRIT

Ordinarily, the question of whether a simple set of facts

is sufficient to establish probable cause would not be an

appropriate issue for review by this Court and, ordinarily,

the People of the State of New York would not petition for

review of such an issue. However, the instant case demon-

strates the extent to which the meaning of ‘‘probable

cause’’ is being distorted as well as the extent to which

the rationale for the exclusionary rule is being undermined.

It is important that this Court, which establishes national

standards, prevent this redefinition of probable cause, both

because of the great number of cases it will affect in New

York State and because of the confusing impact it will

foreseeably have on police conduct here. Of course, peti-

tioner is well aware that this Court ‘‘cannot * * *

plenary consideration to every erroneous holding

New York v. Earl, 431 U.S. 948, 949 (1977) (Berger, C.J.,

give

* & 99

8

dissenting from a denial of certiorari). However, here,

where ‘‘the departure from prior law is * * * clear’’ and

‘‘the issue is * * *

squarely presented,’’ the case may, per-

haps, ‘‘be easily resolved in a summary fashion * * *.’’ Id.

Thus, petitioner submits that the instant case is appropri-

ate for review.

As noted, the facts here were not complex. Two police

officers found a seemingly abandoned blue plastic bag.

Upon examination, they saw that the bag was torn along

the bottom and that it contained several household power

tools.* Even aside from the officers’ knowledge that this

was ‘‘a very heavy burglary area,’’ the only reasonable

conclusion they could have reached was that these tools

were the proceeds of a burglary. Common experience

* A photograph of the tools was introduced into evidence (exh. 1) :

9

would suggest that owners of power tools simply do not

abandon them on the side of the road. Cf. People v. Bor-

rero, 26 N.Y.2d 430, 436 (1970) (‘‘common experience

would suggest’’ that a car owner would not break his car

window to gain entry, even if he had locked himself out).

Moreover, the apparent abandonment of valuable prop-

erty in this particular location was consistent with the

familiar modus operandi of burglars in the area, i.c., they

would park on the highway, burglarize adjoining homes,

and return, with the stolen property, to their cars. Thus,

the officers’ expertise concerning criminal patterns of be-

havior peculiar to this neighborhood furthered their ecom-

mon sense conclusion that these tools were the proceeds of a

crime and that the fleeing burglar had abandoned them

when the bag had begun to tear.

The defendant’s actions supplied additional cause for

the reasonable belief that the tools were stolen and that he

was aware of that fact. Compare People v. Brown, 24 N.Y.

2d 421, 423-24 (1969). It was December and sometime near

midnight as Wharton’s taxicab drove along Dutch Broad-

way. The cab stopped at the intersection and backed into

Parkway Drive. Wharton then jumped out, ran directly

to the bag, ‘‘scvoped it up,’’ and ran back to the taxi. While

it might be conceivable that a person in a private auto-

mobile might stop to investigate a bag which was aban-

doned on the highway, it hardly comports with ‘‘common

experience’’ for a passenger in a taxicab, traveling in a

residential area near midnight, to instruct the driver to

stop, back up onto a side road, and wait, while he satisfies

his curiosity about a plastic bag on the street. More impor-

10

tantly, Wharton did not demonstrate any curiousity about

the contents of the bag. He did not look inside the bag to

see what it held, as the officers had done, and as one would

expect an innocent, inquisitive passerby to do. Instead,

he simply ran to the heavy bag and carried it with him as

he ran back to his taxi.

Finally, Wharton did not merely grab the bag. Rather,

he **seooped it up,’’ thus demonstrating that he was aware

that the bag was heavy and suggesting that he knew that

the bag was torn along the bottom. The only reasonable

explanation of Wharton’s conduct is that he had no eu-

riosity about the bag’s contents and no need to look inside

it because he knew what it contained.

In the face of such overwhelming reasonableness for

the officers’ belief that the contents of the bag were stolen

and that the defendant had knowledge of its contents and

was, thus, the thief or receiver, the Appellate Division ruled

that there was no ‘‘ probable cause to arrest.’’ It found that

this case merely presented ‘‘a number of innocent facts and

observations’? which were ‘‘somewhat unusual if taken

in the aggregate’? but for which ‘‘[t]here might very well

have been a logical and innocent explanation.’’ People v.

Wharton, 60 A.D.2d 291, 295 (2d Dept. 1977) (Appendix B).

However, neither the Appellate Division nor the Court of

Appeals, which affirmed the Appellate Division’s order,

has suggested what this ‘‘innocent explanation’? might have

been. There appears to be no explanation which is both

innocent and reasonable.

For instance, one could speculate that Wharton simply

chose to leave his own valuable power tools in a bag on the

11

side of the road and then to pick them up, via taxicab, in

the middle of the night; or, perhaps, someone else had left

his own tools there and had asked Wharton to fetch them

at midnight; or, then again, Wharton could have been a

man who compulsively collected blue plastic bags aban-

doned near the Cross Island Parkway ‘i hese hypotheses

are not inconceivable, but they are hardly reasonable.

Thus, they could not have vitiated the existence of probable

cause. As stated by the dissenting Judges in both the Ap-

pellate Division and the Court of Appeals, while one may,

‘‘by a wild stretch of the imagination,’’ find innocent ex-

planations for the defendant’s conduct, ‘‘the totality of

the circumstances here points in the opposite direction and

clearly establishes the existence of probable cause’’ (Ap-

pendices B, C).

This Court has ruled that reasonable cause to believe

that a crime has been committed is an issue which turns on

probabilities. Brinegar v. United States, 358 U.S. 160, 175

(1949). It is said to be established by ‘‘grounds which

would induce an ordinarily prudent and cautious man un-

der the circumstances to believe likewise’? [People v. San-

tiago, 13 N.Y.2d 326, 331 (1964)] or information sufficient

to warrant ‘‘a man of reasonable caution’’ to so believe

[People v. Lombardi, 18 A.D.2d 177, 180 (2d Dept.), aff'd,

13 N.Y.2d 1014 (1963)]. The existence of implausible,

albeit innocent, explanations should not vitiate the legality

of an arrest based on such grounds. Nonetheless, the in-

stant arrest has been ruled unlawful. The meaning of

‘‘probable cause’? has thus been so distorted as to defy

reasonable application by police officers.

A concomitant issue which arises when ‘‘probable

cause’? becomes a vague and nebulous concept is the pro-

12

priety of applying the exclusionary rule. That rule was

purportedly designed ‘‘to deter—to compel respect for the

constitutional guaranty in the only effectively available

way—by removing the incentive to disregard it.’’ Mapp v.

Ohio. 367 U.S. 648, 656 (1961); accord, Terry v. Ohio, 392

U.S. 1, 12-13 (1968) ; People v. Chenault, 20 N.Y.2d 518, 521

(1967). Thus, when there is no causal link between illegal

police conduct and evidence which is subsequently obtained,

the deterrent value of the rule ceases to exist. See Wong

Sun v. United States, 371 U.S. 471, 487-88 (1963); Ruffin,

Out on a Limb of the Poisonous Tree: The Tainted Wit-

ness, 10 U.C.L.A. L. Rev. 32, 78 (1967-1968). Similarly, when

it becomes impossible for police officers to know or apply

coherent standards for legal arrests, there can be no de-

terrent value to or cogent reason for exclusion. In other

words, by its redefinition of probable cause, the Court of

Appeals has undermined and defeated the rationale for

the exclusionary rule.

Conclusion

The petition for certiorari should be granted.

Respectfully submitted,

Denis Ditton

District Attorney, Nassau County

Attorney for Petitioner

WituaM CC. Donnino

JupirH K. Rusinstern

Assistant District Attorneys

Of Counsel

October, 1978 term

APPENDICES

la

APPENDIX A

COUNTY COURT—NASSAU COUNTY

Present:

Hon. AtpHonso M. La Pera, County Judge

Indictment #+4406+4

$<

PEOPLE OF THE State or New York

agaist

JONATHAN P. WuarTon,

Defendant.

eS A i

Hon. Dents Ditton

District Attorney

Nassau County

Mineola, New York

James J. McDonoucH

Attorney for Defendant

Attorney in Charge

Legal Aid Society of Nassau County

Criminal Division

400 County Seat Drive

Mineola, N.Y. 11501

A Hearing was held immediately prior to trial to sup-

press the physical evidence seized by the police.

2a

Appendix A

After completion of the Hearing, the Court’s Findings

of Fact, Conclusions of Law and the Court’s Oral Decision

was rendered from the Bench and read into the record.

Upon the foregoing, it is

Orperep, that the defendant’s motion is granted.

E\NTER

Hon. Atpnonso La Pera

J.C.C.

GRANTED

Dated: December 8, 1976.

Harotp W. McConne.u

Clerk

3a

APPENDIX B

Majority Opinion of the Appellate Division

Tue Prope or tHe Stare or New York, Appellant, v.

JonatHan Wuarton, Respondent.

Second Department, December 27, 1977

Motten, J.

We find that the police officers did not have reasonable

cause to believe that the defendant had committed a crime

when they frisked, handeuffed and arrested him. Con-

sequently, we affirm.

The sole testimony adduced in the course of the hearing

was that of the two police officers who arrested the defend-

ant. They testified, in substance, that while driving on

Parkway Drive, Elmont, they noticed a blue plastic bag on

a grass mall near the Cross Island Parkway. Upon exam-

ination, they found that the bag contained power tools.

They believed the tools to be the product of a burglary and

therefore, over the radio, requested help from their super-

visor for a stakeout. They testified that while keeping the

bag under surveillance a taxicab drove up to the intersee-

tion and then slowly backed up onto Parkway Drive. The

defendant left the taxi, ‘‘ran to the bag, scooped it up, ran

back to the cab and got back in’’. The officers pulled their

cars alongside the taxi and jumped out of their cars, shout-

ing ‘‘Police’’ and ‘‘Freeze’’. The defendant was frisked,

handcuffed and told that he was under arrest for possession

of stolen property.

ta

Appendix B

The two officers further testified that when they had

first observed the bag it was lying on the grass mall about

10 feet from the curb at an intersection; that the area was

well illuminated; that the bag was not hidden behind any

trees, it was out in the open; that when they first examined

the bag they observed that it contained a number of power

tools and that the bottom of the bag was ripped; and that

it appeared as though the bottom of the bag had started to

fall out. The police also testified that they did not know |

that the tools had been stolen when they arrested the de-

fendant, but that the area was known as a ‘‘heavy burglary

area.’’ ‘ ;

The requirement that probable cause must be present

before a person can be arrested is guaranteed by the Con-

stitution through the Fourth and Fourteenth Amendments.

Probable cause is equivalent to ‘reasonable cause to believe

that such person has committed such crime’’. It is thus set

forth as a standard for making an arrest without a warrant

in CPL 140.10 (subd 1, par [b]).

In People v. Valentine (17 NY2d 128, 132), the court

stated that the standard of probable cause, as it applies to

police, is that which would be probable cause to ‘‘a reason-

able, cautious and prudent police officer’’. Although prob-

able cause requires less proof than is required for a con-

viction, it does mean more than mere suspicion. It is well

settled that behavior which is susceptible of innocent as

well as culpable interpretation does not constitute probable

cause (People v. De Bour, 40 NY2d 219).

In People v. De Bour (supra, pp. 222-223), Judge

Wacut.er, writing for the majority, stated: ‘‘In evaluat-

Da

Appendix B

ing the police action we must consider whether or not it

was justified in its inception and whether or not it was

reasonably related in scope to the cireumstanees which

rendered its initiation permissible (People v. Cantor, 36

NY2d 106, 111). We bear in mind that any inquiry into

the propriety of police conduct must weigh the interference

it entails against the precipitating and attending condi-

tions. By this approach various intensities of police action

are justifiable asthe precipitating and attendant factors in-

crease in weight and competence. The minimal intrusion

of approaching to request information is permissible when

there is some objective credible reason for that interfer-

ence not necessarily indicative of criminality * * *. The

next degree, the common-law right to inquire, is activated

by a founded suspicion that criminal activity is afoot and

permits a somewhat greater intrusion in that a policeman

is entitled to interfere with a citizen to the extent necessary

to gam explanatory information, but short of a forcible

seizure (People v. Cantor, 36 NY2d, at p. 114, supra; Peo-

ple v. Rosemond, 26 NY2d 101; People v. Rivera, 14 NY2d

441, 446, and authorities cited therein). Where a_ police

officer entertains a reasonable suspicion that a particular

person has committed, is committing or is about to commit

a felony or misdemeanor, the CPL authorizes a forcible

stop and detention of that person (CPL 140.50, subd 1; see

Terry v. Ohio, 392 US 1; People v. Cantor, supra). A corol-

lary of the statutory right to temporarily detain for ques-

tioning is the authority to frisk if the officer reasonably

suspects that he is in danger of physical injury by virtue

of the detainee being armed (CPL 140.50, subd 3). Finally

6a

Appendia B

a police officer may arrest and take imto custody a person

when he has probable cause to believe that person has com-

mitted a crime, or offense m his presence (CPL 140.10).

This synopsis represents the gradation of permissible po-

lice authority with respect to encounters with citizens im

public places and directly correlates the degree of objec-

tively credible belief with the permissible scope of mter-

ference.’’ (Kmphasis supplied.)

Applying this test to the facets herein, we find that the

arresting officer, based upon his own testimony, did not

have, at any time prior to his arrest of the defendant, rea-

sonable cause to believe that the defendant had committed

a crime. For all he knew the defendant may have been

engaged in perfectly lawful activity. It should be further

noted that, at the time of arrest, the police officers were

unaware that a burglary had been committed. (That fact

alone would not require suppression if probable cause to

arrest had existed.) The fact that the police officer’s hunch

regarding the defendant turned out to be correct cannot

serve to establish the necessary probable cause (People vy.

De Bour, 40 NY2d 210, 216, supra; People v. Scott D., 34

NY2d 483, 490).

The testimony of the police officers as to the reasons for

arresting the defendant was devojd of articulable facts in-

dicating that they had reasonable cause to believe that he

had committed a crime. On the contrary, the facts articu-

lated by the police officers consisted of nothing more than a

number of innocent facts and observations which, while

somewhat unusual if taken in the aggregate, hardly con-

7a

Appendix B

stituted reasonable cause to believe that the defendant had

committed a crime.

There was no immediate urgency for the police officers

to have summarily arrested the defendant. There is no

indication that there was any volatile situation or danger

to themselves. They could have stopped the defendant and

the cab driver, detained them, and subjected them both to

reasonable inquiry (see CPL 140.50, subd 1). There might

very well have been a logical and innocent explanation for

the defendant’s actions. While it might be argued that

the defendant’s behavior was equivocal, ‘‘[{t|he behavior,

at most ‘equivocal and suspicious’, was not supplemented

by any additional behavior raising ‘the level of inference

from suspicion to probable cause’ ’’ (People v. Brown, 24

NY2d 421, 423; People v. Corrado, 22 NY2d 308). If de-

fendant had failed to provide a reasonable or logical re-

sponse to questioning by the officers, then further appro-

priate action by the officers would have been justified.

In People v. Messina (21 AD2d 821), cited in the dis-

sent, the facts were entirely different from those in the

instant case and that case has no application here.

To seize, frisk, handcuff and arrest an individual on the

basis of the bare circumstances herein, including the ab-

sence of knowledge of the police officers as to the commis-

sion of any crime, without affording him an opportunity to

explain his conduct, is to deprive him of his constitutional

right against unreasonable seizure and arrest. To such a

result we cannot subscribe.

8a

Appendix B

SuHaprro, J. (dissenting). Contending that the County

(‘ourt was in error when it suppressed both. the physical

evidence taken from the defendant and an oral statement

made by him, the People appeal. Contrary to the view of

the majority, I believe that the order appealed from should

be reversed and the motion denied.

The only testimony heard by the hearing court was that

of the two officers who arrested the defendant and the sub-

stance of their testimony is correctly set forth in the major-

ity opinion. I would but add that when the defendant left

the taxi and scooped up the bag he did not examine its con-

tents and that when he was searched at the preeinet, a

wrench was found on his person. He said it had fallen from

the bag and that he had picked it up. Later that evening,

it was learned that the power tools found in the bag and

the wrench found om the defendant’s person had ‘been stolen

from the premises at 115-05 Parkway Drive, three houses

south of the intersection at which the arrest was made.

In suppressing both the power tools and the defendant’s

statement the hearing court said: ‘‘All right. The Court

finds that at the time that the Police witnesses [sic] the

physical evidence in this case, they did not know that those

items had, in fact, been stolen. They did not discover that

these items were stolen until after the defendant had been

arrested. The Court finds that the arrest made of the de-

fendant was unlawful since the Police did not have reason-

able and probable cause to believe that he was committing

or had committed a crime. The application to suppress the

physical evidence is, therefore, granted. Since the arrest

was unlawful, the statement made by the defendant is

9a

Appendix B

tainted by that unlawful arrest, and the Court further sup-

presses the statement made by the defendant.’

In thus deciding the issue before it, the hearing court

placed undue emphasis on the fact that the police did not

‘‘know”’’ that the power tools had ‘‘been stolen”? at the time

of the arrest. That is not the test, for a police officer is au

thorized to make an arrest for a crime not only when he

‘“‘knows”’ that it has been committed, but also when he has

‘‘reasonable cause to believe that such person has com-

mitted such crime, whether in his presence or otherwise”’

(CPL 140.10, subd 1, par [b]).

In People v. Messina (21 AD2d 821) we hold that a

search and seizure was proper when based upon the reason.

able belief of the police that the defendant had committed

a burglary and that ‘‘[t]he mere fact that, at the time of

the search and seizure the police did not know about the

specifie burglary which had actually been committed’? was

immaterial.

Here the totality of the cireumstances surrounding the

defendant’s conduct clearly gave the police ‘‘reasonable

cause to believe”’ that the defendant had committed a crime

and had come to collect the fruits of that crime. An owner

of valuable power tools does not ordinarily abandon them.

When coupled with the circumstance that it was nearly

midnight when the taxicab in which the defendant was a

passenger pulled up to almost the exact spot where the tools

were and that he ran out of the cab and ‘‘scooped’’ up the

bag without examining its contents, and with the knowledge

of the police that the bag contained valuable power tools,

their conclusion that the defendant already knew what was

in the bag and that the tools were in fact the fruits of a

10a

Appendix B

theretofore committed crime was certainly a sensible one

based not upon a mere ‘‘hunech’’ but upon probable cause.

While by a wild stretch of the imagination one could

conjecture an innocent explanation for the defendant’s con-

duct, the totality of the circumstances here points in the op-

posite direction and clearly establishes the existence of

probable cause which, rationally interpreted, is merely a

determination of probabilities (see Brinegar v. United

States, 338 US 160, 175). As the Court of Appeals said in

People v. Santiago (13 NY2d 326, 331), ‘‘reasonable cause

to believe’’ that a crime has been committed requires only

‘‘orounds which would induce an ordinarily prudent and

cautious man under the circumstances to believe likewise’’

or, as we said, the possession of information which would

warrant ‘‘a man of reasonable caution”’ to believe that the

person arrested had committed a crime (People v. Lom-

bardi, 18 AD2d 177, 180, affd 138 NY2d 1014).

Remembering that the requirement for probable cause

to make an arrest requires far less proof than is required

for a conviction (People v. Miner, 42 NY2d 937; People v.

White, 16 NY2d 270, 273; People v. Fields, 50 AD2d 870),

it would be ‘‘ludicrous to say’’ that the facts here ‘‘are as

consistent with the defendant’s innocence as not’’ (People

v. Borrero, 26 NY2d 4380, 436).

Under the cireumstances the order of suppression

should be reversed and the defendant’s motion denied.

Hopkins, J.P., and O’Connor, J., concur with Motuen,

J.; Suapteo, J., dissents and votes to reverse the order and

deny the motion, with an opinion, in which Damiani, J.,

concurs.

Order of the County Court, Nassau County, dated De-

cember 8, 1976, affirmed.

lla

Appendix C

THe Prope or THE State or New York, Appellant, v.

JonaTHAN Wuarton, Respondent.

Argued January 5, 1979; decided February 22, 1979

MEMORANDUM.

The order of the Appellate Division should be affirmed.

On this appeal, the People urge us to reverse a finding

of Nassau County Court, affirmed by the Appellate Divi-

sion, that the police lacked probable cause to arrest defend-

ant Jonathan Wharton. A probable cause determination,

involving mixed questions of law and fact (People v. Oden,

36 NY2d 382, 384), is beyond the review powers of this

court in those instances when conflicting inferences may be

drawn from the record (see, e.g., People v. Morales, 42

NY2d 129, 134-1385; People v. Rizzo, 40 NY2d 425, 430;

People v. Oden, supra). Where, as here, reasonable minds

may differ as to the inferences and thus as to whether the

. arrest was justified, we may not interfere with the affirmed

findings of that court possessing authority to resolve the

issues of fact.

GaBRIELLI, J. (dissenting). It is recognized, of course,

that a probable cause determination is one involving mixed

questions of law and fact and, insofar as the determination

is factual in nature, it is beyond the review powers of this

court. Where, however, the facts and circumstances are

undisputed, there is no problem as to credibility, and only

one inference can reasonably be drawn therefrom, then the

question of whether there is probable cause is purely one

of law (People v. Morales, 42 NY2d 129, 134-135, cert den

434 US 1018; People v. Rizzo, 40 NY2d 425, 430; People v.

12a

Appendix C

Oden, 36 NY2d 382, 384). In the ease before us, the evi-

dence presented on the hearing impels but one legal con-

clusion—that there was probable cause for the arrest. I

must therefore dissent.

Our inquiry begins with a recognition of the standard

applicable to these determinations. The evidence required

to establish probable cause to arrest is not required to be

such as to establish proof beyond a reasonable doubt or

warrant a conviction (People v. Miner, 42 NY2d 937, 938).

Instead, if the observations or information are sufficient to

move a reasonable person to conclude that a crime is being

attempted or committed, probable cause exists (People v.

White, 16 NY2d 270, 273, cert den 386 US 1008; People v.

Santiago, 86 Mise 2d 785, 788).

Here, the arrest occurred in an area known for its high

incidence of burglaries (see, e.g., People v. Hunter, 30

NY2d 774, 776); and the police found a torn plastic bag

containing a large number of power tools, lying, apparently

abandoned, along the highway. It appears further that

burglars regularly parked along this road while breaking

into nearby homes and, suspecting that the tools may have

been abandoned when the thief’s plastic bag broke during

his flight, the police parked to observe the tools. Their sus-

picions were confirmed when shortly before midnight, a

taxicab backed onto the highway, stopping beside the tools

and the defendant ran directly to the bag, scooping it up

without even examining its contents, and then ran back to

his taxi. Certainly, in the face of the highly unlikely event

that some innocent person carelessly abandoned these valu-

able tools, the observations of the police and their informa-

l3a

Appendix C

tion concerning the habits of burglars in the area were suf-

ficient factors to move a reasonable person to suspect that

a crime was being attempted or committed. (See CPL

140.50.) Based upon this suspicion, the police were entitled

to stop the defendant and demand from him an explanation

of his conduct. To accomplish this task, the police were

justified in stopping the taxicab which had pulled away im-

mediately upon the defendant’s re-entry with the plastic

bag. When the vehicle came to a halt, the police observed

the defendant attempt to exit the vehicle. It was'at this

point that the officers emerged from their ears with guns

drawn and shouted freeze. Under the circumstances, evine-

ing as they did the possibility that the defendant was at-

tempting to flee, the predicate for the police conduct crossed

the line from reasonable suspicion to probable cause, jus-

tifying the defendant’s seizure and arrest. While by a

wild stretch of the imagniation one could conjure up an

innocent explanation for the defendant’s conduct, the total-

ity of the circumstances here points in the opposite diree-

tion and clearly establishes the existence of probable cause.

Chief Judge Cooke and Judges Jones, WacntTier and

FucusserG concur; Judge Gasrie..i dissents and votes to

reverse in an opinion in which Judge Jasen concurs.

Order affirmed in a memorandum.