Connie Solimeo, Esq., Kings County District Attorney's Office, Brooklyn, for the People. Damien Brown, Esq., Brooklyn, for Defendant.
Connie Solimeo, Esq., Kings County District Attorney's Office, Brooklyn, for the People.
Damien Brown, Esq., Brooklyn, for Defendant.
MARK R. DWYER, J.
Defendant stands charged with Promoting Prostitution in the Third Degree and related offenses. He moves on Fourth Amendment grounds to suppress a scarf and a cellphone taken from him on the occasion of his arrest. For the reasons that follow, the motion is denied.A.
In the early morning hours of January 30, 2013, Detective Frank Rizzo and a team of “vice” investigators sought to make street prostitution arrests in the area of Broadway and Chauncey Street in Bushwick. Rizzo, who had been a party to vice investigations for ten years, was designated in advance to be the official “arresting officer” for the arrests that the team would make during their tour. While Rizzo and the rest of the team waited nearby, an undercover officer approached the intersection of Broadway and Chauncey to see whether he could locate individuals engaged in prostitution. A “ghost” officer followed him. Both officers wore Kel transmitters, but the back-up team could not pick up Kel transmissions at the time.
At about 2:40 a.m., the ghost officer made a point-to-point radio transmission which Rizzo did receive. The ghost reported that an agreement about a sexual transaction had been made between the undercover officer and another individual. That person was described as black man wearing a dark winter jacket and a checkered scarf. The backup team moved in and arrested defendant, who matched the description. As noted, the checkered scarf and a cellphone were seized at arrest.
Defendant moved to suppress the scarf and the cellphone, and this court held a hearing on that motion on June 12, 2014. The People's only witness was Detective Rizzo, who recounted the facts stated above. This court fully credits Rizzo's testimony. Based on that testimony, the People now argue that the arrest and the seizure of defendant's property were justified by probable cause. In particular, the People cite the ghost officer's report to Rizzo that defendant and the undercover officer had made an arrangement concerning a sexual encounter.
A police officer can make an arrest based on the report of another that the defendant committed a crime if that other person's information is both reliable, and based on first-hand knowledge. See People v. Parris, 83 N.Y.2d 342 (1994). Under the long-established “fellow officer rule,” when the report is made by a police officer, his or her information is presumed to be reliable. As a result, in the usual case the People need show only that the reporting police officer's information was based on first-hand knowledge, or on a hearsay report from another reliable person with first-hand knowledge. People v. Ketcham, 93 N.Y.2d 416, 419–21 (1999).
The reporting officer's basis of knowledge need not be established by his or her own direct testimony at a suppression hearing. It may instead be established circumstantially. In particular, the People may satisfy their burden of going forward as to the reporter's basis of knowledge by presenting the testimony of an arresting officer that he relied on a report of an undercover or ghost officer who was assigned to be a participant in a criminal transaction. People v. Ketcham, 93 N.Y.2d at 421–22;People v. Petralia, 62 N.Y.2d 47, 51–52 (1984).
Ketcham is nearly on all fours with this case. In Ketcham the People's hearing witness was a back-up officer who heard a radio report from a ghost officer that a “positive buy” had been made. The report went on to describe the individual involved. The trial court inferred from the circumstances that the ghost had first-hand knowledge that the undercover with whom he was working had just purchased narcotics. The Court of Appeals concurred, stating:
here the suppression court could draw an inference, from the evidence presented, as to how [the ghost] received his information. It was entirely reasonable for the suppression court to infer from [the arresting officer's] testimony that the ghost officer's information was obtained from first-hand observation and a signal or communication from the primary undercover indicating that a drug transaction had been completed.
People v. Ketcham, 93 N.Y.2d at 421.
If Ketcham 's reasoning can be applied here, I will conclude that the ghost in this case had first-hand knowledge sufficient to indicate that defendant had committed a crime, and could properly be arrested.
As noted, Ketcham is “almost” on all fours with this case. But Ketcham was a drug case; this is one charging defendant with the promotion of prostitution. It remains to be considered whether the different nature of the crimes charged affects the probable cause calculus. This court concludes that the difference in the crimes is without significance.A street narcotics transaction will involve a furtive exchange of cash for one or more small packages of narcotics. A ghost officer may or may not see the narcotics but can deduce that an exchange has taken place when the primary undercover touches hands with someone to whom he has spoken. The undercover may also communicate to the ghost that a transaction has occurred, either by radio or by means of a “coded” physical movement. The critical consideration is that the undercover is a man with a mission: the only reason why the officer is present is to buy drugs. And the ghost is present only to watch and protect the undercover, and communicate to the back-up team when it should move in.
The negotiation of a sex transaction is not precisely the same; the undercover and the “pimp” will not necessarily engage in a physical exchange-although money may pass between them. But that difference is ultimately inconsequential. The undercover here too is a man on a mission, and will signal his ghost that a crime has occurred only when the mission has successfully been accomplished.
In this case, the ghost's transmission to Detective Rizzo may have been based on a signal from the undercover. Or, perhaps, the ghost could receive Kel transmissions that the more distant back-up officers could not. Either way, the only reasonable conclusion is that he himself had, or the undercover transmitted, first-hand information that defendant had committed a crime.
* * *I conclude, based on the credible testimony of Detective Rizzo, that he had probable cause to arrest defendant and relieve him of his scarf and cellphone. Defendant's motion to suppress is denied.