New York rules on detention and arrest often differ from federal practice. This is apparent in basic questions such as what constitutes seizure of a person to the more complex discussion around levels of intrusion allowed in police-citizen encounters. The cases in this chapter will deal with a variety of arrest-related issues.
When is a person under “ARREST”?
Generally speaking, a person is in police custody when a reasonable person would not feel free to leave. The “reasonable person” standard is used in order to make it an objective rather than a subjective standard. So, it’s not what the individual actually felt but rather what most people would have felt in the same situation. There are many areas of confusion and differing interpretations regarding arrest.
The terms “under arrest” and “in custody” often are used interchangeably, and sometimes inappropriately. These concepts have been examined by courts specifically to determine when certain rights apply – for example, to determine when an individual is subject to a seizure sufficient to trigger federal and state constitutional protections. An arrest, after all, is the “seizure” of a person. In federal practice, there must be some physical aspect to the encounter in order to involve Fourth Amendment protections. In California v. Hodari D. 111 S.Ct. 1547 (1991) for example, a defendant who threw away drugs while fleeing from police was not considered “seized” until he was physically tackled by an officer; therefore, the drugs he abandoned while running were not excluded under a Fourth Amendment argument. Since the seizure didn’t happen until after the drugs were tossed, he wasn’t under the protection of the Constitution. By contrast, the New York the Court of Appeals, interpreting the (nearly identical!) NY Constitution search and seizure language in Article I, Section 12, held in People v. Howard 50 NY 2d 583(1980) that mere pursuit of a suspect can trigger protections. There, while fleeing from police, the suspect tossed a case containing a weapon and drugs; the Court of Appeals held that the police overstepped the suspect’s rights by pursuing him, so he was “seized” and his rights kicked in at the commencement of the pursuit; the discarded evidence was suppressed as unlawfully seized. These cases illustrate a different interpretation between state and federal courts as to what can constitute a seizure sufficient to trigger other constitutional rights. It is important to remember that the protection of these constitutional rights is what allows a citizen to object to the evidence at trial; without those rights kicking in, the prosecution is allowed to use the evidence. Summaries of these cases are included at the end of this chapter.
For a time after the Howard case (see above) was decided, there was confusion regarding when a suspect may be lawfully pursued, and many read the Howard case to mean that police needed probable cause in order to initiate pursuit. In People v. Martinez, 80 NY 2d 444 (1992), the Court cleared up this confusion, and announced that the standard for when police are entitled to pursue someone is reasonable suspicion, not probable cause. The Howard court held circumstances in that case were not sufficient to raise reasonable suspicion, so the pursuit was not justified and the property abandoned was not admissible. In Martinez, the circumstances surrounding the situation (suspect loitering around a closed store late at night, high crime area, suspect obtaining instrumentality often used in drug-trade, suspect acting nervous and then ultimate flight) were enough to justify the officers’ pursuit of the fleeing suspect, so the material abandoned by him was legally obtained by the officers. This is similar to the federal standard announced in Illinois v. Wardlow, 527 US 1062 (2000), where the Supreme Court held that the situation will dictate when reasonable suspicion is established to justify pursuit, and a high-crime area with unprovoked flight by the suspect are factors that can be considered to establish reasonable suspicion for an officer to pursue.
In order to meet constitutional requirements under the Fourth Amendment and the corresponding state sections, any arrest, whether it is through a street encounter or based on a warrant, must be based on probable cause. Note: The NY Criminal Procedure Law (CPL) often uses the term “reasonable cause” regarding arrests, which is the same as “probable cause” for arrest purposes.
What IS probable cause? While not specifically defined in statutes, New York courts have defined it as “more probable than not” that a crime is being or as been committed and the suspect is the perpetrator. It MUST be present at the time of the arrest- it cannot be “outcome determinative”. In other words, an arrest without probable cause (and, therefore, an illegal arrest) cannot be corrected because the defendant ultimately had drugs on his person. If the arrest cannot be sustained based on probable cause at the time, it is not valid (and therefore, the drugs would not be available as evidence against the defendant). Probable cause, however, can develop as an encounter progresses, so that an officer may use information he receives during a situation to eventually establish probable cause for an arrest. For example, think of an officer who has stopped a vehicle for speeding, who then approaches the car and sees a bag of what appears to be drugs on the back seat. Probable cause to suspect criminal activity is being developed even as the traffic stop progresses. Still, though, there must be probable case PRIOR to the arrest. See People v. Parriss, 136 AD2d 884 (4th Dept 1988) in which probable cause developed, but not until AFTER the suspect was arrested. Notice in Parriss, even though the suspect was eventually positively identified through bite marks on his hand, confessed and showed the police where he had hidden his disguise, the conviction was reversed because there was no probable cause at the time of the arrest.
ARREST WITHOUT PROBABLE CAUSE
As seen in the Parriss case, arrests made without sufficient probable cause will be considered unlawful, but that generally doesn’t “undo” the arrest; rather any evidence (including physical evidence and statements made by the suspect) that result from the unlawful arrest will be suppressed – not available for use at trial. In practice, of course, that may leave the prosecution with insufficient evidence left upon which to pursue the charges. So, therefore, in the Parriss case, the prosecution would have had the ability to re-prosecute the defendant based on evidence they may have obtained independently of the arrest, but the likelihood is that there wasn’t enough evidence sufficient to sustain the high burden of a criminal prosecution.
ARREST WARRANT WITH OR WITHOUT A WARRANT
Arrests in New York can be made either with or without a warrant. A warrant means that officials suspect an individual and plan for the arrest, presenting evidence to show probable cause to a magistrate (judge) for approval in the form of an arrest warrant. An arrest without a warrant occurs when an officer encounters a situation without having planned for a warrant. In either case, probable cause must exist prior to the arrest; in the case of an arrest warrant application, the probable cause is pre-determined by a judge, whereas in a warrantless arrest, the probable cause must be determined by the officer on scene. In that case the officer’s determination of probable cause may be subject to judicial review in the form of a probable cause hearing. If the court finds that there was no probable cause, the arrest is considered unlawful and evidence obtained as a result will be suppressed. It should come as no surprise that the law prefers that an arrest be made with a warrant, so that an impartial authority reviews the probable cause in advance. While an arrest pursuant to a warrant is still subject to review, it is much less likely to be successfully challenged after the fact than a warrantless arrest. For that reason, all other things being equal, it is preferable to arrest with a warrant. However, that is not always possible or preferred by law enforcement.
ARREST WARRANT REQUIREMENTS
The requirements for an arrest warrant are contained in various sections of the NY Criminal Procedure Law, notably Article 120. According to that statute an arrest warrant must contain/be based on the following:
a) the name of the issuing court and signature of the issuing judge
b) the date the warrant is issued
c) the offense charged in the accusatory instrument
d) the defendant’s name or reasonably identifiable description
e) the officer(s) or class of officer to whom the warrant is issued
f) direction that the officer arrest the defendant and bring him to the court
g) probable cause, which is…
h) determined by a neutral and detached magistrate who must receive…
i) evidence under oath or affirmation to establish probable cause
Note that these requirements differ from a search warrant, which is governed by a different section of the CPL (Article 690).
RULES ON INFORMANTS AND PROBABLE CAUSE
Often the decision of whether there is probable cause involves information provided not directly from the applying officer but rather from an informant. This presents the necessity for the issuing judge to determine first whether the informant is a reliable source. A generally accepted test for this determination has developed through two U.S. Supreme Court decisions, Aguilar v. Texas, 378 US 108 (1964) and Spinelli v. US, 393 US 410 (1969). In New York it is the ONLY accepted test for informant reliability. This two prong test consists of:
1. Evidence that the informant is himself reliable; and
2. Evidence that the information is reliable in the present situation.
Generally, the police officer requesting the warrant will provide a history of the officer’s dealings with the informant in order to establish the informant’s particular reliability. The judge could also be presented with information regarding the specific situation, such as a controlled drug transaction, which would provide detail sufficient to establish both prongs of the test. This type of information would be submitted as an affidavit of the requesting officer as to the informant and the events.
The U.S. Supreme Court has recognized other methods to establish informant reliability (for example, the “totality of the circumstances” test which will be discussed in a later chapter) but New York State has retained the Aguilar-Spinelli test as the method to vouch for informant reliability, and has specifically rejected other methods.Aguilar-Spinelli Informant Test Example (adapted from and re-produced with permission of David Pogue, Esq.)
INFORMANT EXAMPLE SITUATION
A private citizen, probably to avoid prosecution himself, agrees to work as an undercover informant to ferret out illegal drugs in a suspected drug house. The police officers on the case have worked with the informant on many occasions in the past and they know him to be reliable. From police and public records the officers are able to determine the owner of the suspected drug house is named Peter White. They obtain a physical description of the suspected drug trafficker. The informant is strip searched, given marked money, and visually monitored as he enters the suspected drug house. Emerging 10 minutes later, the informant is found to possess two bags of suspected drugs and is minus $20 of the marked money. The informant is again strip searched and possesses no additional contraband. The informant reports that the drugs are sold by Peter White, (age 20-24, 185 lbs., 6 feet 1 inch tall, “Born to Lose” tattoo on right shoulder), out of a leather suitcase on the second floor of the drug house. The police officers independently field test the suspected drugs and obtain positive results.
The following day the same informant is again strip searched, given more marked money, and again monitored as he re-enters the suspected drug house. Emerging a short time later he possesses 2 more bags of suspected drugs and is again minus $20 of marked money. He again reports that the sale occurred out of a brown leather suitcase in the north bedroom on the second floor. He again gives the same detailed description of Peter, including the type of clothes he is wearing. This description of Peter also matches the description of Peter White previously obtained from police files.
Armed with the above information the police officers in charge of the investigation apply for an arrest warrant for Peter White, and a search warrant for the second floor bedroom to seize marijuana.
Aguilar-Spinelli Informant Test Example (adapted from and re-produced with permission of David Pogue, Esq.)
The affidavit requesting the warrant would have to show the magistrate that the information contained in it was accurate and established probable cause. In order to show the information was accurate, the police must meet the two-prong test of Aguilar-Spinelli mentioned previously.
In the example set out above, the police would be able to show the magistrate that:
1) The informant was reliable. First, they can report that they had worked with the informant previously and had historically obtained accurate information from him and, secondly, they could described a situation in which the police monitored the informant as the situation occurred (a “controlled buy”) by searching him before and immediately after the drug purchase, by testing the drugs that were purchased the first day and through the descriptions of the suspect by the informant which matched police records.
2) The information in the present case is reliable. The magistrate must ascertain that the information is based on first-hand knowledge and he/she is “relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli, at p. 416. Again, the police would use the controlled buy aspect of the above situation to demonstrate that the informant is basing his information on the things he saw, heard and did during his time in the drug house.
There are many variations of how to meet the requirements of the Aguilar-Spinelli test, and the ultimate determination of whether the police have established probable cause lies with the magistrate who must review the application (although even that process may be subject to appeal). Obviously an “anonymous source” will present difficulty establishing probable cause without additional independent information since the informant’s credibility cannot be established.
NON-WARRANT ARRESTS AND NY’S SPECIAL LEVELS OF INTRUSION
There are four levels of intrusion established to govern police-citizen encounters that are NOT made pursuant to an arrest warrant, and two of those levels are unique to New York. In New York, the four levels of police intrusion are established by the Court of Appeals in People v. DeBour, 40 NY2d 210. Those are:
Level 1 – Request for Information
Level 2 – Common Law Right of Inquiry
Level 3 – Stop and Frisk
Level 4 – Arrest
The idea behind the “level” system is that the amount of intrusion permissible starts with as little as possible and increases based on what is being observed in the situation. It is not necessary for an officer to progress through each level in every situation; particular events may demand the officer go immediately to the most intrusive level and arrest a suspect. Conversely, an officer may never be justified in going past a Level 1 Right of Inquiry, depending on what he or she discovers from that. The four escalations are discussed below.
LEVEL 1 – REQUEST FOR INFORMATION (RFI)
This is the least intrusive level of the DeBour scale. In this level, an officer is allowed to request information from a citizen as long as there is an objective, credible reason for making the request. It is not necessary that there is any suspicion of criminality in order to justify the request; for example, an officer could be asking if the person had seen a lost child or witnessed some occurrence. Once the officer does have an objective reason for approaching a person with questions, and the person agrees to answer, the officer can ask only informational questions (who are you, what are you doing, etc.) but the person does not need to answer. The person is free to walk away without answering anything if he or she wishes. If the officer has no further information, the encounter must end there.
LEVEL TWO- COMMON LAW RIGHT OF INQUIRY
According to the DeBour sliding scale, an officer is permitted a greater amount of intrusion if he or she has a “founded suspicion that criminal activity” is occurring or has occurred; the officer is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure. (citation omitted) At this level, a police officer can approach a suspect, can stop him (without using physical force), can ask more specific questions, can request permission to search his possessions, and can briefly detain the individual to ascertain his identity and purpose for being in the area. If the individual answers questions satisfactorily, the officer cannot continue questioning or forcibly detain him. The individual is free to walk away after answering the officer’s questions.
LEVEL THREE – STOP AND FRISK
If a police officer has 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(1). A corollary of the statutory right to temporarily detain for questioning 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. People v Cantor, 36 NY2d 106 (1975).
The ability for police to stop and frisk a person developed officially through the case Terry v. Ohio, 392 US 1 (1968). In that case, an experienced patrol officer watched as three men walked repeatedly back and forth in front of a closed jewelry store. The officer testified that he suspected the men were planning to break into the closed store and commit larceny. After watching the men for several minutes, the officer approached them and asked about their identities and what they were doing there. After receiving an unsatisfactory reply from defendant Terry, and knowing that often weapons are involved in store break-ins, the officer patted down Terry’s outer clothes, and felt something he described as hard and metallic in a pocket. The officer then reached into Terry’s clothes and found a gun. Terry was arrested for firearm possession.
The U.S. Supreme Court recognized that, although the officer did not have full probable cause to make an arrest, his testimony that he had “reasonable suspicion” that criminal activity was about to occur AND his legitimate concern for his own safety justified his “stop and frisk” of Terry and the other defendants.
In another departure from federal rules, pat down searches in New York are limited to a search for weapons only, and once an officer ascertains that no weapons are present, he must stop the pat down. This prevents an officer from continuing to search or examine or retrieve objects encountered during a pat down that may be contraband (drugs) but that are not weapons. People v. Diaz, 81 NY 2d 106 (1993). In limiting searches in this way, the New York Court of Appeals declined to extend a “plain touch” exception to pat down searches, as was recognized by the US Supreme Court in the same year, in the case Minnesota v. Dickerson, 113 S. Ct. 2130 (1993). In that case, the Court considered the plain touch exception to be similar to plain view; if the officer could feel contraband during the pat down, even though it was not a weapon, it could be seized and used as evidence. In any of these cases, the testimony of the officer and possibly the defendant is critical in determining the exact order of events and depth of search performed. For example, in the Dickerson case, while the Supreme Court recognized the plain touch exception, the majority held that the officer in that case overstepped that exception since they found that he had to manipulate the object to ascertain that it was drugs. This manipulation destroyed the “plain” part of the plain touch exception.
LEVEL FOUR – ARREST
When an officer has probable cause (sometimes referred to as “reasonable cause” by the NY statutes and cases) that the person has committed a crime or offense, he/she is authorized to arrest that person.
Stop and Frisk and Arrest have been codified in New York; see CPL §140.50. The first two levels, Request for Information and Common Law Inquiry, are creations of relevant case law. Since the first two levels are specific to New York, those requirements govern even when an officer can ask for consent to search. See the comparison between NY and federal practice in the cases People v. Holman and People v. Saunders, 79 NY2d 181, (1992), and Florida v. Bostick, 501 US 429 (1991) and US v. Drayton, 536 US 194 (2002), set out at the end of this chapter.
Summary of Levels of Police Intrusion
|Level of Police Intrusion||Amount of Evidence or Information Needed||Inquiry or Intrusion Allowed||Legal Authority|
Request for Information (RFI)(NY only)
|Objective, credible reason, not necessarily indication of criminality||Questions limited to information gathering; non-threatening. Usually brief encounter without intimidation.||People v. DeBour;
See also People v. Saunders
Common Law Right of Inquiry(NY only)
|Founded suspicion that criminal activity is afoot||More pointed questions; person approached would reasonably believe he is under suspicion||People v. DeBour;
See also People v. Hollman
Stop and Frisk
|Reasonable suspicion of person involved in criminal activity||Forcible stop and temporary detention, along with pat down or “frisk” for weapons (NY)||Terry v. Ohio;
CPL Article 140
NY, US Constitution
|Probable cause||Person under arrest, or seized||US, NY Constitutions
CPL Article 140
SPECIAL RULES FOR ARREST IN A HOME
Recognizing both that a person’s home is a “castle” and that there is a greater expectation of privacy there, the Supreme Court has held that the police must have an arrest warrant in order to arrest a person in his or her own home, or as a guest in the home of another. These pronouncements came in Payton v. New York, 445 US 573 (1980) and Minnesota v. Olson, 495 US 91 (1990). The court has carved out limited exceptions to this requirement through subsequent cases, and those exceptions include:
1. Hot Pursuit
2. Exigent or Emergency Circumstances, including fleeing felon
3. Consensual entry into the home
For another example of the NY Court of Appeals deviating from a US Supreme Court decision see the cases New York v. Harris, 495 US 14 (1990) and People v. Harris, 77 NY2d 434 (1991) in which the courts came to different conclusions on the treatment of statements made after an illegal arrest.
DEADLY PHYSICAL FORCE
In Tennessee v. Garner, 471 US 1 (1986), the US Supreme Court looked at the authority for police to use deadly force against an unarmed fleeing felon. This was authorized by Tennessee state law (as well as by many other states). The Court ruled that the officer shooting of an unarmed suspected burglar (who turned out to be 15 years old) was not justified under the circumstances in which the suspect was fleeing from police (he was shot as he was trying to scale a fence). The Court held that the statute giving that authority was unconstitutional because it could result in a violation of the 4th Amendment restriction against unlawful seizure – in other words, the suspect was unlawfully seized.
New York has a similar statute in Penal Law Article 35 which allows the use of deadly physical force by police to arrest a person who is reasonably believed to have committed certain crimes. See PL Section 35.30. However, Tennessee v. Garner would seem to limit that authority to specific times when “circumstances” would warrant the use of deadly physical force, including the felon’s possession of a weapon. Remember that when the US Supreme Court rules on the fundamental rights of an individual, states may not offer less protection of those rights.