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IF A DEFENDANT CHALLENGES THE LEGALITY OF HIS ARREST, THE PEOPLE MUST PROVE THE ARREST WAS BASED UPON PROBABLE CAUSE; THE ISSUANCE OF AN I-CARD DEMONSTRATING PROBABLE CAUSE IS NOT, BY ITSELF, ENOUGH; THERE MUST BE TESTIMONY AT THE SUPPRESSION HEARING DEMONSTRATING THE ARREST WAS IN FACT BASED ON THE INFORMATION IN THE I-CARD (SECOND DEPT).

The Second Department, reversing the denial of defendant’s motion to suppress his statements, determined the People did not prove the legality of defendant’s arrest at the suppression hearing. An I-card demonstrating probable cause for defendant’s arrest had been issued by the police two months before the arrest. But no one testified that the arrest was based upon the information in the I-card:

At a suppression hearing, a detective testified that he had generated still images and wanted flyers from a video of the alleged robbery, circulated the still images and wanted flyers throughout the police department, and activated an I-card for the defendant’s arrest, and that the defendant was apprehended by the Queens Warrant Squad nearly two months later. The arresting officers did not testify at the suppression hearing, nor did the detective testify about the circumstances of the arrest. After the hearing, the Supreme Court, among other things, denied that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement officials. The defendant thereafter pleaded guilty to attempted assault in the first degree. The defendant appeals.

When a defendant challenges the admission of statements he or she has made, claiming they are the product of an illegal arrest, the People bear the burden of going forward to establish the legality of the police conduct in the first instance … . Under the fellow officer rule, a police officer can make a lawful arrest even without personal knowledge sufficient to establish probable cause, so long as the officer is acting upon the direction of an officer in possession of information sufficient to constitute probable cause for the arrest … .

Here, the People failed to present evidence sufficient to establish that the arresting officers stopped and arrested the defendant on probable cause allegedly communicated by the I-card … . Contrary to the People’s contention, the issuance of an I-card nearly two months before the defendant’s arrest, standing alone, was insufficient to establish that the officers who stopped and detained the defendant were actually acting upon the direction of an officer in possession of information sufficient to constitute probable cause … . People v Moreno, 2026 NY Slip Op 03004, Second Dept 5-13-26

Practice Point: The existence of an I-card does not, by itself, demonstrate an arrest was based on probable cause. There must be testimony by the arresting officer that the arrest was, in fact, based upon the information in the I-card.

 

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EVEN IF DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES... AFTER A TRAFFIC STOP, THE POLICE HAD PROBABLE CAUSE FOR A WARRANTLESS SEARCH...