Opinion
Argued February 12, 1982
Decided April 7, 1982
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, WILLIAM J. DROHAN, J.
Barry D. Leiwant, William E. Hellerstein and Thomas H. Busch for appellant.
Mario Merola, District Attorney ( Philip Foglia and Peter D. Coddington of counsel), for respondent.
The question presented for our review on this appeal is whether in a criminal proceeding police officers may properly be allowed to testify to the underlying facts and circumstances surrounding appellant's unlawful arrest notwithstanding the suppression of both physical evidence seized from appellant at the time of his arrest and testimony regarding an unlawful showup conducted immediately after the arrest. We hold that they may.
On the morning of March 22, 1978 Thomas Pimentel was working alone at his cousin's grocery store in The Bronx. At approximately 10:30 A.M. appellant entered the store, bought chewing gum and left. A few minutes later appellant reentered the store, still occupied only by Mr. Pimentel, produced a knife and announced a robbery. Appellant removed the contents of the cash register, consisting of money and food stamps, and fled.
At approximately 10:50 A.M. on the same morning, Officers Scanlon and Calise who were parked nearby, observed appellant walking quickly and continually looking over his shoulder. They watched him enter a subway station, emerge from it looking up and down the street, reenter into and reemerge from the station, and finally run from the station to catch a bus. As the officers followed the bus they received a radio alarm informing them that the grocery store near where they first observed appellant had been robbed.
Appellant rode the bus for only two blocks, after which the officers observed him walk for three blocks and enter a construction site. At that point the officers approached him, identified themselves and told him to stop. Appellant put his hand in his pocket, but Officer Calise restrained him before he could remove his hand. Appellant was then arrested and searched, and the officers seized a knife, $69.08 in cash and $11 in food stamps. Appellant was taken back to the grocery store, where Mr. Pimentel identified him as the person who committed the robbery. Both Mr. Pimentel and appellant were then removed to the local precinct.
At the pretrial hearing, the court determined that appellant was arrested without probable cause and granted his motion to suppress the knife, the money and the food stamps seized at the time of arrest. In addition, and for the same reason, the hearing court also suppressed the testimony by Mr. Pimentel regarding his identification of appellant at the showup immediately following the arrest. The court ruled, however, that testimony proving that appellant was arrested could be elicited. The court also permitted Mr. Pimentel to identify appellant at trial, finding that his observation of appellant immediately before and at the time of the robbery established a sufficient source independent of the illegal showup.
This part of the court's ruling is not challenged on this appeal.
At trial the officers testified to the facts described above, except that they did not refer to the seizure of the knife, money or food stamps or to the showup identification of appellant by Mr. Pimentel. Mr. Pimentel testified to the circumstances of the robbery and identified appellant as the perpetrator, but similarly did not discuss the postarrest showup identification. After beginning its deliberations the jury asked the court whether it was entitled to know if the knife or the money was found on the defendant at the time of arrest. The court told the jury that this information could not be disclosed.
Appellant was convicted of robbery in the first degree (Penal Law, § 160.15, subd 3) and criminal possession of a weapon in the fourth degree (Penal Law, § 265.01, subd [2]). We agree with the Appellate Division that the judgment of conviction should be affirmed.
Appellant's primary contention on this appeal is that the officers' testimony concerning events which occurred after they stopped appellant at the construction site was the direct product of an illegal arrest and should have been suppressed in accordance with the exclusionary doctrines espoused by the Supreme Court in Wong Sun v United States ( 371 U.S. 471) and its progeny. Appellant does not challenge the admissibility of testimony regarding the officers' observations up to the point he entered the construction site, nor could he, for it is clear that even though the police lack probable cause, they may unobtrusively observe and follow a suspect as long as the suspect's freedom of movement is not limited by doing so ( People v Howard, 50 N.Y.2d 583, 592). Appellant argues, however, that the officers' testimony that they drew their guns and stopped appellant, that he reached into his pocket and was immediately arrested, and that he was taken to the scene of the crime and thereafter along with Pimentel to the local precinct, should have been excluded. We do not agree that the exclusionary rule should be applied to this testimony.
It may well be, as is the view of some members of our court, that the testimony of the police officers in this instance was not the product or the exploitive consequence of any search or seizure falling within the proscriptive scope of the Fourth Amendment, but rather that the testimony was of observations made prior and with respect to the arrest (later determined to have been made without probable cause). On this analysis it is said that the proscription of the Fourth Amendment, and thus the constraint of its associated exclusionary rule, were irrelevant and that the hearing court accordingly properly differentiated between testimony as to certain events which occurred (the facts of the police surveillance and the arrest of defendant) — which was admitted — and evidence obtained as a result of that arrest (the knife, the money and the food stamps seized at the time and the identification testimony of Mr. Pimentel elicited as a consequence of the arrest) — which was suppressed.
But those members of the court who believe that the testimony of Officers Scanlon and Calise falls within the broad ambit of Fourth Amendment proscription, nevertheless hold the view that the concomitant exclusionary rule should not be invoked in this instance to preclude admission of their testimony. Their position may be expressed as follows. The exclusionary rule was originated to effectuate the Fourth Amendment's guarantee that all citizens "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". The rule prohibits the use of evidence obtained in violation of an accused's Fourth Amendment rights in a criminal proceeding against him ( Mapp v Ohio, 367 U.S. 643) and this prohibition applies to any tainted fruits, whether tangible or verbal, of illegally seized evidence ( Wong Sun v United States, 371 U.S. 471, supra).
The underlying purpose of the exclusionary rule is not to redress the injury to the accused's privacy for that privacy once invaded, may never be restored. Rather, the rule's primary objective is to deter future unlawful police conduct and thereby effectuate the Fourth Amendment's proscription against unreasonable searches and seizures ( Linkletter v Walker, 381 U.S. 618; Elkins v United States, 364 U.S. 206). "In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generated through its deterrent effect, rather than a personal constitutional right of the party aggrieved" ( United States v Calandra, 414 U.S. 338, 348).
The Supreme Court, however, has readily acknowledged that the exclusionary rule has never been interpreted to preclude the "use of illegally seized evidence in all proceedings or against all persons" ( United States v Calandra, supra, at p 348; see, also, United States v Ceccolini, 435 U.S. 268, 275; Stone v Powell, 428 U.S. 465, 486). Noting that in some cases the societal costs of applying the exclusionary rule are too substantial when compared to limited benefits derived from it, both this court and the Supreme Court have held that the application of the rule must be restricted to those areas where its remedial objectives are most "efficaciously served" and not merely "tenuously demonstrable" ( United States v Calandra, supra, at p 348; People v McGrath, 46 N.Y.2d 12, 21). It is clear that the exclusionary rule has never been considered a fundamental right of constitutional dimensions requiring automatic application whenever the Fourth Amendment has been violated. Rather, it has always been incumbent upon the courts to balance the societal cost of losing reliable and competent evidence against the probable effectuation and enhancement of Fourth Amendment principles, for as our court unanimously found, the application of the exclusionary rule is dependent "upon a balancing of its probable deterrent effect against its detrimental impact upon the truth-finding process" ( People v McGrath, supra, at p 21).
The members of the court who consider the officers' testimony regarding the underlying facts of the unlawful arrest to be within the proscription of the Fourth Amendment would also conclude that the testimony was properly received in evidence. The suppression of the knife, money, food stamps and postarrest showup identification transformed an arguably strong case into a weak one in which only the in-court identification by Pimentel could link appellant to the crime. The police were thus sufficiently penalized for conducting the unlawful arrest through the dissipation of an otherwise solid case against the defendant.
Analysis of the probative impact of the officers' testimony from the jury's point of view clearly demonstrates the limited deterrent value of any additional suppression. The mere fact that appellant was arrested is in no way indicative of guilt, and that revelation to the jury would not suggest that incriminating evidence was seized from him or that he was identified by the victim shortly thereafter. Certainly it would only be logical for a jury to assume that a criminal defendant would not be on trial had he not been arrested.
An illegal arrest, without more, has never been envisioned as a bar to prosecution or as a defense to a valid conviction ( United States v Crews, 445 U.S. 463, 474). The defendant, for instance, cannot suppress his presence at trial for the reason that his arrest was illegal. Similarly, in the view of these members of the court, the circumstances surrounding an illegal arrest should not be considered as suppressible fruit.
In Crews the court states: "Insofar as respondent challenges his own presence at trial, he cannot claim immunity from prosecution simply because his appearance in court was precipitated by an unlawful arrest * * * The exclusionary principle of Wong Sun and Silverthorne Lumber Co. delimits what proof the Government may offer against the accused at trial, closing the courtroom door to evidence secured by official lawlessness. Respondent is not himself a suppressible `fruit' and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct."
Whichever analysis be adopted — that the testimony of the police officers does not come within the scope of the Fourth Amendment, or that in any event the exclusionary rule should not be applied in the circumstances of this case — we conclude that the testimony of Officers Scanlon and Calise was properly received in evidence.
Contrary to the assertion of the dissenters and the contention of appellant it is far from clear that the officers' testimony required the jury to infer that appellant had been searched and that the search produced the knife and money described by Pimentel in his testimony. Appellant claims that the testimony that he was arrested near the crime scene shortly after the robbery occurred necessarily implied that if he were the robber he had no opportunity to dispose of the money or knife, and, concomitantly, that it would be unlikely that appellant would have been arrested at that point unless the police seized incriminating evidence from him.
These assertions constitute nothing more than utter speculation, for it would appear to us that the opposite inference could just as easily be drawn from the testimony: the People's failure to introduce any damning physical evidence at trial, despite appellant's arrest in close temporal and spacial proximity to the crime and crime scene, could have carried the implication that since appellant had no opportunity to dispose of either the weapon or the money he therefore could not possibly have been the perpetrator. Moreover, the jury's question whether appellant had possession of the knife and money at the time of arrest is not indicative of what inference was actually drawn by the jury, for the identical question could have arisen in their minds whether or not evidence of the arrest had been presented. As noted above, it is logical enough to assume appellant was arrested from the mere fact that he was in court being criminally prosecuted.
Finally, appellant's claim that the testimony that he was taken immediately to the grocery store and, along with Pimentel, to the precinct suggested an identification by the victim immediately after the incident is similarly too speculative to warrant serious consideration. An equally plausible inference would be that since no postarrest identification testimony was presented no positive identification occurred, requiring further opportunity for consideration at the precinct.
Had defendant been concerned as to possible inferences which the jury might draw from the officers' testimony his remedy was to request appropriate countermanding instructions. If, in a particular case, the available inferences were so compelling as to foreclose the possibility of their eradication by any such instructions the testimony should then have been excluded. We conclude, however, the available inferences in this instance were not of such character.
For the reasons stated, the order of the Appellate Division should be affirmed.
I too would uphold the defendant's conviction for all the fruits of the unlawful arrest — the knife, the money, the food stamps and the postarrest showup identification — were suppressed ( People v Mendez, 28 N.Y.2d 94, cert den 404 U.S. 911; People v Graham, 39 N.Y.2d 775; cf. United States v Crews, 445 U.S. 463, 474).
As to the prejudicial inferences which the dissenter would draw from the testimonial excerpts he quotes, I respectfully venture the view that these reflect the rationalizations of a studied judicial hindsight rather than the realism of the transitory and more literal impression a lay jury would gather. A good gauge is that defendant himself found no need either to object or to seek corrective action.
But I cannot subscribe to such vague and overgeneralized declarations as, for instance, the one that, in applying the exclusionary rule, courts are to weigh "the societal cost of losing reliable and competent evidence" against "the probable effectuation and enhancement of Fourth Amendment principles" (p 425). Nor do I subscribe to the court's related discussion of this subject. Effective enforcement of our Constitutions, Federal and State, would soon be undermined if subjected to the vagaries of such a case-by-case balancing act.
A more overriding consideration is the rule's role in vindicating the integrity of our government in general and of the judicial process in particular. It is long recognized that, lacking this "imperative of judicial integrity" ( Elkins v United States, 364 U.S. 206, 222), "`[i]f the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself'" ( Mapp v Ohio, 367 U.S. 643, 659, quoting Justice BRANDEIS' fundamental declaration in Olmstead v United States, 277 U.S. 438, 485).
That these observations are not only conceptual but pragmatic is borne out by the fact that empirical studies thus far have failed to support the hypothesis that the detection or prosecution of crime will be advanced in any meaningful degree by emasculating the exclusionary rule (see Geller, Enforcing the Fourth Amendment: The Exclusionary Rule and Its Alternatives, 1975 Washington U LQ 621; Critique, On the Limitations of Empirical Evaluations of the Exclusionary Rule: A Critique of the Spiotto Research and United States v Calandra, 69 NW U L Rev 740; also cited in Geller, Is the Evidence in on the Exclusionary Rule?, 67 J ABA 1642 [Dec., 1981]). It follows that unnecessary or cavalier disregard of the high principle at stake is hardly in order.
It therefore is of even more than passing significance that two of the five Judges who joined in the court's opinion, including myself, believe, that "the proscription of the Fourth Amendment, and thus the constraint of its associated exclusionary rule" is a matter entirely "irrelevant" to the decision of this case (p 424).
The issue in this case is not whether "underlying facts and circumstances" surrounding an unlawful arrest may be received in evidence at trial. The issue is whether a prosecutor may be permitted to defeat a pretrial ruling in which a knife, the proceeds of a robbery and a showup identification have been suppressed by adducing testimony that could have served no other purpose and raised no other reasonable inference than that the defendant possessed a weapon when apprehended and, shortly after his apprehension, was positively identified by the victim of the crime.
Turning first to the suppression of physical evidence, I have no doubt that Officers Scanlon and Calise were barred by the suppression court's ruling from testifying that a knife was found in defendant's pants pocket. Yet the majority sanctions testimony from each officer that defendant reached into his pants pocket immediately after the plainclothes officers identified themselves as police and that, in response to defendant's motion, each drew his gun. On direct examination, the officers testified as follows:
"[Scanlon]: We drove into the construction site, stopped the car behind [defendant] to his right as he was walking along, then we told him to hold up a second.
"Q. What did you do when you got out of your car?
"A. As I stopped the car and I told that to him, I noticed that he had his hand in his right pocket.
"Q. What did you do?
"A. I drew my revolver.
"Q. What did you do then?
"A. When he turned, he had his hand in his pocket.
* * *
"[Calise]: I drew my gun as we exited the car, had our shield out, identified ourselves as being police, at which time the defendant put his hand in his pocket and I grabbed his arm.
"Q. Was he placed under arrest?
"A. Yes, he was."
The above-quoted testimony suggested to the jury that defendant possessed a weapon when apprehended by the police officers just as clearly as if the knife actually seized from defendant had been introduced into evidence, as the jury's question all too pointedly establishes.
Similarly, the testimony of Officer Calise totally emasculated the court's pretrial ruling suppressing Mr. Pimentel's showup identification of defendant. Officer Calise testified:
"Q. Did there come a time that after you placed [defendant] under arrest that you went back to 213 East Kings Bridge Road, the bodega?
"A. Yes.
"Q. Did you meet Mr. Pimentel? Did you eventually meet Mr. Pimentel?
"A. Yes.
"Q. Did you see him at the bodega either inside or out front?
"A. Yes.
"Q. About what time was it when you got over to the bodega and met Mr. Pimentel?
"A. Approximately about five minutes after eleven.
"Q. So it took you about five minutes to get back to the bodega?
"A. That's correct.
"Q. From [the] construction site?
"A. Yes.
"Q. And then did there come a time that you went to the precinct right after you were at the bodega?
"A. Yes.
"Q. And was the defendant brought to the precinct?
"A. Yes, he was.
"Q. Was Mr. Pimentel at the precinct?
"A. Yes, he was."
The majority's suggestion that it is "speculative" to conclude from Officer Calise's testimony that defendant had been identified by Mr. Pimentel is, to say the least, farfetched. What other reasonable inference could be drawn in this uncomplicated robbery case? Only the victim witnessed the crime. Only 10 minutes later two police officers apprehended the suspect at a nearby location. Within five minutes thereafter they returned the suspect to the bodega. When the victim was confronted with that suspect, either the right man or the wrong man had been apprehended. The jurors, who cannot be presumed, absent Officer Calise's testimony, to have the sophistication the majority attributes to them concerning pretrial identifications, could draw only one inference from that scenario. If the wrong man, why would he not be released? If the right man, why would he not be taken to the precinct and booked?
In short, there can be no serious issue concerning the reach of the exclusionary rule to the facts of this case. The majority's contrary ruling brings to mind Judge CARDOZO'S statement, made in another context in Beatty v Guggenheim Exploration Co. ( 225 N.Y. 380, 388): "What is excluded by one act, is restored by another. You may put it out by the door; it is back through the window." To permit evidence put out through the exclusionary rule's door to come back in through the window of the Trial Judge's erroneous rulings is to make a mockery of the Fourth Amendment. Effectuation of its mandate requires deterrence not only of improper police conduct but of improper, even if not malicious, prosecutorial tactics as well.
The order of the Appellate Division should be reversed and a new trial ordered.
Judges JASEN, GABRIELLI and JONES concur with Judge WACHTLER; Judge FUCHSBERG concurs in a separate opinion; Judge MEYER dissents and votes to reverse in an opinion in which Chief Judge COOKE concurs.
Order affirmed.