Wednesday, August 23, 2006

AD4: No cocaine, no arrest

People v Ortiz, 2006 NY Slip Op 05409 [available here]

The police stopped the vehicle driven by Mr. Ortiz after listening in on some phone calls where a sale of cocaine between Ortiz and a police informant was discussed. But despite this bit of intelligence, a search of Mr. Ortiz and his car turned up no cocaine. Undeterred, the police (there were five officers on the scene at this point) placed Mr. Ortiz in the back of a police cruiser and continued to question him. After some "accusatory" questioning, Mr. Ortiz consented to a search of his home (where cocaine was later found) and signed a statement admitting to possessing cocaine. The trial court refused to suppress the cocaine and the statement, and the Fourth Department reversed. From the AD4's opinion:

The record establishes that the police lacked probable cause for the roadside arrest inasmuch as the search of defendant's person and vehicle did not result in the recovery of any illegal substances or any other basis upon with to arrest defendant. [...] Indeed, we note that the People do not contend on appeal that the police had probable cause for a roadside arrest but, rather, they contend that the police arrested defendant only after drugs were found at his home following his consent to that search and defendant had signed a statement in which he admitted that he sold drugs. "The fact that the police were ultimately successful does not justify defendant's arrest. The police are not at liberty to arrest and hold a suspect while they search for evidence sufficient to justify their action."

(People v Ortiz, __ AD3d at __.)

A particularly nice aspect of this decision is that the Fourth Department found the defendant subject to a "roadside arrest" (i.e. in custody for purposes of triggering a full-blown probable cause analysis) when the defendant was placed in the back of the police cruiser at the scene. Notably, the Court went out of its way to note the defendant was not handcuffed and that he was "asked" (and not ordered) to "sit in the police vehicle." (Id. at __.) Nevertheless, the Court found defendant to be under de facto arrest at this point, and not subject to the amorphous, supposedly less onerous "investigatory detention" (justifiable on the less stringent showing of "reasonable suspicion"). Pegging the precise moment of de facto arrest is critical in this type of case, because only after a de facto arrest is shown is the probable cause requirement triggered. That the Fourth Department found a "roadside arrest" occurred even absent handcuffing or the use of coercion to get defendant into the police vehicle is encouraging.