The People of
the State of New York
against
Gordon Scott, DEFENDANT.
|
975/13
For the People:
Connie Solimeo, Esq.
Kings County District Attorney's Office
350 Jay Street
Brooklyn, NY11201
For the Defendant:
Damien Brown, Esq.
26 Court Street
Suite 2101
Brooklyn, NY 11242
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.
B.
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, [*2]and based on first-hand knowledge. See People v.
Parris, 83 NY2d 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 NY2d 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 NY2d at 421-22;
People v. Petralia, 62 NY2d 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 NY2d 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.
C.
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.
SO ORDERED:
E N T E R:____________________________________MARK DWYER
Justice of the Supreme Court
DATE: June 26, 2014