People v. Jones

OPINION OF THE COURT

The principal issue on this appeal is whether the connection between defendant’s illegal arrest and his subsequent lineup identification was sufficiently attenuated as to dissipate the taint, of the wrongful arrest. The Appellate Division determined that it was and, because there is record support for that conclusion, we affirm.

In the early hours of May 16, 2006, a New York City detective responded to a distress call at an apartment building in Manhattan and spoke with the victim and her neighbor about an incident that occurred that morning. According to the victim, a man, whom she later identified as defendant, followed her onto the elevator and demanded money. A struggle ensued. When they reached the fifth floor, the elevator opened and they fell into the hallway. The man rifled through the victim’s wallet and took her cash and credit cards. The victim described the man as six feet tall, in his early to mid-thirties with dark skin and a large build. The neighbor who had witnessed the incident gave the detective a similar description, adding that the perpetrator had a large nose and went by the street name “Izz.”

Several days later, a sergeant was reviewing the robbery report when he recognized the name of a worker at the store that the victim had visited before she was attacked. The employee had told the detective that he saw the man leaving the apartment building 5 to 10 minutes after the incident. The sergeant contacted the store employee, who told him that he knew the man who had committed the crime. The sergeant gave the employee his cell phone number and asked the employee to call him the next time he saw the man.

On May 31, 2006, at approximately 2:00 a.m., while the sergeant was on duty, the store employee called and told him that the man was at the store. When the sergeant arrived with two other officers, the employee told him that the man, who was wearing white pants, had just left. The sergeant located the man—defendant—around a nearby corner, and when asked, the defendant identified himself as “Michael Wright” but was unable to produce identification.

Here, the story takes an unfortunate turn. The sergeant concluded that the defendant was blocking the sidewalk and, because he had no identification, handcuffed the defendant and escorted him to an unmarked police car, with the intention of charging him with disorderly conduct. In later testimony, it was the sergeant’s view that the defendant was not free to go because he had been identified as a person involved in the robbery. As the sergeant and defendant were walking to the police car, the sergeant contacted the store employee, who told the sergeant that he had arrested the right man.

Defendant was transported to the precinct six blocks away. Within 15 minutes of his arrival, the sergeant contacted the detective at his home (at approximately 2:30 a.m.) and learned that the detective had placed a photograph of the suspect in his case folder. The sergeant retrieved the folder from the detective’s desk and found a picture of the defendant. Five hours later,

Following his conviction, defendant appealed. The Appellate Division held the judgment in abeyance and remitted the matter for a Dunaway hearing (Dunaway v New York, 442 US 200 [1979]), finding that defendant had made sufficient allegations concerning the propriety of his arrest to warrant such a hearing ( 73 AD3d 662 , 663 [1st Dept 2010]). At the hearing, the detective and sergeant, the only two witnesses called, testified essentially to the facts set forth above. The hearing court credited their testimony and concluded that the sergeant lacked probable cause to stop and arrest defendant on May 31, 2006 for the earlier robbery. The court did, however, find that because the detective had independently gathered sufficient evidence tying defendant to the robbery, the sergeant’s discoveiy of the “fruits” of the detective’s investigation within 30 minutes of defendant’s detention broke the causal connection between the illegal arrest and the lineup identification. The hearing court concluded that the call between the sergeant and the detective constituted an “intervening event” that attenuated the causal connection between the arrest and the lineup identification.

The Appellate Division affirmed, holding, among other things, that although the police lacked probable cause for the arrest, the lineup identification “was based on intervening probable cause,” which sufficiently attenuated the taint of the illegal arrest ( 85 AD3d 612 , 612 [1st Dept 2011]). A Judge of this Court granted defendant leave to appeal ( 19 NY3d 962 [2012]).

The sergeant’s initial arrest of defendant was without probable cause and therefore illegal. But evidence discovered subsequent to an illegal arrest is not indiscriminately subject to the exclusionary rule (see People v Jones, 2 NY3d 235 , 241-242 [2004]). Instead, the People “must have ‘somehow exploited or benefited from [the] illegal conduct’ such that ‘there is a connection between the violation of a constitutional right and the derivative evidence’ obtained by the police” (id. at 242, quoting People v Burr, 70 NY2d 354 , 362 [1987], cert denied 485 US 989 [1988]).

Defendant claims that the lineup identification must be suppressed because it was the product of an illegal arrest. In order

As the majority correctly notes, in applying the attenuation doctrine, courts must consider the “temporal proximity” between the arrest and the discovery of the challenged evidence, “the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct” (Brown v Illinois, 422 US 590 , 603-604 [1975] [citation omitted]; People v Bradford, 15 NY3d 329 , 333 [2010]). But the majority glosses over the actual application of this doctrine: “intervening circumstances” typically include either release from custody or some action taken by a court (see Johnson v Louisiana, 406 US 356 , 365 [1972] [intervening circumstances found where, “(p)rior to the lineup, at which (defendant) was represented by counsel, he was brought before a . . . magistrate to advise him of his rights and set bail”]; People v Wilson, 57 NY2d 786 , 787-788 [1982] [intervening circumstances found because release followed by voluntary participation in lineup]; People v Pleasant, 54 NY2d 972 , 974 [1981], cert denied 455 US 924 [1982] [intervening circumstances found because issuance of warrant followed illegal seizure, but preceded lineup]; People v Poventud, 300 AD2d 223 , 223 [1st Dept 2002] [intervening circumstances where lineup was held two weeks after illegal arrest]). Here, there was no warrant issued, no judge involved, and defendant remained in custody from the time of his arrest until he was required to participate in the lineup, which occurred mere hours after he was placed in a holding cell. Moreover, the official misconduct was particularly flagrant: defendant was arrested on pretextual charges of disorderly conduct for blocking a sidewalk, in the wee hours of the morning, when there were no pedestrians around to be blocked.

There is no support for the determination that the telephone call between Sergeant Miller and Detective Sucic broke the causal chain between the illegal arrest and the lineup, and provided the intervening circumstances necessary for a finding of attenuation. The illegal arrest was the very event that facilitated the arresting officer’s acquisition of information tying Mr. Jones to the robbery. It was the illegal arrest that directly prompted Miller to call Sucic. The illegal arrest also allowed Miller to make the comparison between the photograph

Furthermore, Detective Sucic did not possess sufficient evidence to establish probable cause to arrest defendant at the time Miller took defendant into custody, or at the time Miller called Sucic. Sucic only had a vague description of the perpetrator, as being a large, six-foot tall black male, in his thirties, with a big nose. And although Sucic knew the possible street name of the perpetrator, “Izz,” Sucic had no reliable way of knowing that the Gang Unit gave him the correct person matching the nickname “Izz.” In fact, Detective Sucic was told that Michael Wright, or Lester Jones, was only “a possible name” corresponding to “Izz.” Because Sucic never followed up his investigation by showing the photograph to either of the eyewitnesses, he could not know whether there were other people named “Izz” or whether the person with the nickname “Izz” was the person that the neighbor saw committing the robbery. Sucic’s next step, in the normal course of his police investigation, would be to show the photograph to the eyewitness who told him the robber’s street name was “Izz,” question Mr. Jones, or show his photo to the complainant, not to arrest Mr. Jones.

Moreover, there was no evidence that Sucic communicated any information to Miller that would have established probable cause. Miller initially took defendant into custody based on the identification of an employee of a store close to the robbery scene. But that store employee merely saw defendant enter and exit the building around the time of the robbery; he did not see the actual robbery taking place. Then, the only information Sucic communicated to Miller was that he had a photograph of a suspect in his file. Two people with less than probable cause talking on the phone about their respective suspicions does not create probable cause. Indeed, that conversation was itself a part of Miller’s investigation and by definition the opposite of attenuation.

Perhaps most troubling, the majority rests its affirmance on the Appellate Division’s conclusion that Sergeant Miller acted in “good faith” in making the pretextual arrest (see majority op