Tuesday, October 23, 2007

Listen to the Police

From Jim Eckert:

At pretrial suppression hearings, the hearing court will often rule that
the arresting officer's opinion whether he arrested the defendant is
irrelevant, since objective facts, not the officer's subjective belief,
controls when an arrest occurs. Also, because the answer is usually
beneficial to the defense, and we can't have that. I always thought it was
relevant, because the officer's intent could be expected to affect how he
dealt with an individual, and therefore valid circumstantial evidence if
nothing else - relevance is a very low threshold.

In any event, a Court of Appeals case issued in a Family Court proceeding
lends support to the relevance of the officer's subjective belief that he had arrested the defendant:

In the Matter of Victor M., A Person Alleged to be a Juvenile Delinquent

Finally, the presentment agency argues before us that Officer Recio's detention of Victor was not an arrest, but only a stop based on a reasonable suspicion that Victor was trespassing or loitering (see People v Hicks, 68 NY2d 234, 238-239 [1986]; People v DeBour, 40 NY2d 210, 223 [1976]). The flaws in this argument are many. Officer Recio testified to an "arrest," not a temporary detention. Temporary detentions are authorized by statute only for felonies and misdemeanors, not violations (CPL 140.50 [1]). A temporary detention justifies only a frisk, not a full-fledged search (DeBour, 40 NY2d at 223). And finally, assuming that transporting a suspect to the station house in handcuffs could ever be found to be only a temporary detention under DeBour and Hicks, even a temporary detention is unlawful if it is not reasonable under the circumstances. Here, nothing in the record shows that it was reasonable for Officer Recio to take Victor to the station house, instead of going with him to his apartment to get his identification.

The court's phrasing ("testified to an 'arrest'"), and use of quotation
marks around the term "arrest", lead one to believe that the Court is
relying on the officer's testimony (i.e. his subjective belief) that he
arrested the juvenile. Since it was an important part of a decision of the
Court of Appeals, one would think it would be fair to argue that whether a police officer believes he arrested the defendant or not meets the test of mere