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ALTHOUGH THE COMPLAINANT IDENTIFIED THE DEFENDANT FROM A PHOTO ARRAY IN A PROCEDURE CONDUCTED BY A POLICE OFFICER, THERE WAS NO PROOF OF THE BASIS FOR DEFENDANT’S ARREST BY ANOTHER OFFICER, THEREFORE DEFENDANT’S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence did not demonstrate that the officer who arrested defendant had probable cause to do so. Therefore defendant’s motion to suppress should have been granted. The People presented evidence that Officer Gorman conducted a photo identification procedure and, after the robbery complainant identified the defendant, Officer Gorman issued an “I-card.” But there was no evidence of the arresting officer’s basis for arrest:

Under the fellow officer rule, “even if an arresting officer lacks personal knowledge sufficient to establish probable cause, the arrest will be lawful if the officer acts upon the direction of or as a result of communication with a superior or [fellow] officer or another police department provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest'” … .The evidence presented by the People did not establish that the officer who actually arrested the defendant had probable cause to do so … . Officer Gorman testified that he issued an I-Card for the defendant, but he also testified that the defendant was arrested “on a different matter.” The People did not present any testimony from the arresting officer as to what information he possessed or how he received that information … . Therefore, contrary to the People’s contention, there was insufficient evidence from which to infer that the police arrested the defendant pursuant to the I-Card or at the direction of Officer Gorman … . Furthermore, the People presented no evidence at the hearing regarding the circumstances of the defendant’s arrest or the charges on which he was arrested, nor do they argue on appeal that there was any source of probable cause for the defendant’s arrest other than the I-Card. People v Hightower, 2019 NY Slip Op 07280, Second Dept 10-9-19

 

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