FELLOW OFFICER RULE – New York Appellate Digest

The Second Department determined the hearsay testimony of a police officer (Schmidt) who learned of the reason for the stop of defendant’s vehicle from another officer (Olivieri) was admissible in the suppression hearing. Supreme Court had suppressed the evidence stemming from the stop because the officer who made the stop (Olivieri) had died and could not therefore be “confronted” at the hearing:

Pursuant to statute, “hearsay evidence is admissible to establish any material fact” at a pretrial suppression hearing (CPL 710.60[4]…). Thus, “[a] police witness at a suppression hearing may establish probable cause by personal knowledge, as well as by information supplied by fellow officers” … . Where the knowledge of the imparting officer is based on his or her first-hand observations, the People are not required to produce that officer at the suppression hearing … .

Here, Schmidt’s testimony established that the stop of the defendant’s vehicle was lawful, based upon the first-hand observations of Olivieri, which were imparted to Schmidt … . Probable cause for the defendant’s arrest also was established through Olivieri’s observations, as imparted to Schmidt, together with Schmidt’s own personal observations … .

Contrary to the Supreme Court’s conclusion, the decision of the United States Supreme Court in Crawford v Washington (541 US 36) does not require a different result. In Crawford, the Supreme Court considered whether particular evidence admitted at trial violated the defendant’s right to confrontation under the Sixth Amendment of the United States Constitution (see id. at 38…), and did not address the admission of hearsay evidence in pretrial suppression hearings … . People v Mitchell, 2015 NY Slip Op 00786, 2nd Dept 1-28-15

The Second Department determined defendant’s motion to suppress was properly denied. The defendant’s arrest was based upon a transmission to the arresting officers but the prosecution did not introduce any evidence of the identity of the transmitting officer. The court offered an in-depth explanation of the “fellow officer” rule:

“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 or as a result of communication with’ a fellow officer . . . in possession of information sufficient to constitute probable cause for the arrest” … . Probable cause exists when “an officer has knowledge of facts and circumstances sufficient to support a reasonable belief that an offense has been or is being committed” … . At a suppression hearing, the prosecution has the burden of establishing that the officer who transmitted the information had probable cause … .

The fellow officer rule is a “straightforward application” of the two-pronged Aguilar-Spinelli test … , which New York courts use to assess whether hearsay information is sufficient to establish probable cause for a warrantless arrest or the issuance of a warrant … . The Aguilar-Spinelli test first requires the suppression court to assess whether the information on which the police have acted is reliable … . The second part of the Aguilar-Spinelli test evaluates whether the informant had an adequate “basis of knowledge” for the information supplied… . Under the fellow officer rule, “[i]nformation received from another police officer is presumptively reliable” … . The People still, however, must satisfy the second prong of the Aguilar-Spinelli test: how the transmitting officer acquired that information.

Here, under the fellow officer rule, the arresting officers were entitled to presume that the information they received from an undercover officer was reliable. Moreover, under the circumstances of this buy and bust operation, it is clear that the transmitting officer, whether it was the ghost undercover officer or the primary undercover officer, had an adequate basis of knowledge for the information transmitted, either from direct participation in the transaction or observation of it. Contrary to the defendant’s contention, the undercover officer who made the transmission was not required to delineate the defendant’s exact role in the transaction in order to establish probable cause for his arrest … . People v Oglesby, 2014 NY Slip Op 06845, 2nd Dept 10-8-14

Tag Archive for: FELLOW OFFICER RULE

Suppression Should Not Have Been Granted Because the Officer Who Made the Vehicle Stop Had Died/Hearsay Evidence from a Police Officer Who Arrived at the Scene After the Stop and Spoke to the Deceased Officer Was Admissible at the Suppression Hearing

Legal Underpinning of the “Fellow Officer” Rule Explained

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.