People v. Greene

— Appeal by defendant from a judgment of the County Court, Dutchess County (Aldrich, J.), rendered December 3, 1981, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence. This appeal brings up for review the denial, after a hearing, of that branch of defendant’s motion which sought suppression of a television set, a parka, and a translator which was seized during his arrest.

Judgment reversed, on the law and the facts, that branch of defendant’s motion noted above granted, and new trial ordered.

On March 10, 1981, at around 12:10 p.m., State Trooper Thomas Fazio received a telephone call from a woman who stated that she felt uneasy because she observed a car whose driver appeared to be lost drive into her housing development. She told him that the passenger of the car was a black man and that the driver probably was black. She also gave the license number to Trooper Fazio.

Fazio entered the license number in the Department of Motor Vehicles computer, which indicated that the car was a 1974, two-door brown Oldsmobile sedan. He then radioed Trooper John Sweeney to look out for the brown Oldsmobile.

At approximately 12:20 p.m., Fazio received a report that a woman called to inform him that a black man had knocked on the rear door of her home. When her husband answered the door, the man stuttered and stammered and then asked for directions to a neighboring town. After her husband gave the directions to the man, he hurried back to a gold or light brown car which had backed into their driveway. Her husband had noted the car’s license number. Fazio believed that the two calls were related. He told Sweeney about the second call and also dispatched Trooper Martin Camhi to assist in locating the vehicle.

At approximately 12:45 p.m., Sweeney noticed a brown car driven by a black male with a passenger in the front seat. He could not see the license number. Sweeney followed the car for awhile. The driver began to drive approximately 70 miles per hour. When the car stopped for a stop sign, Sweeney was able to read the license number. It corresponded to that given to him by Fazio.

Sweeney then contacted Camhi and they agreed that Sweeney would attempt to stop the car at the intersection of Route 9D and Interstate 84. When the car reached this point, Sweeney pulled it over.

Sweeney approached the car and asked the driver, Louis Jackson, for his license, registration, and insurance card. Jackson was unable to produce those documents and stated that the car belonged to defendant (the passenger) or his sister. Sweeney noticed a television set on the rear seat of the car, a parka in the hatchback, and something which looked like a calculator (the translator) on the front seat. Sweeney asked Jackson whom the television set belonged to. Jackson stated that it belonged to defendant. Camhi arrived on the scene at this point. Defendant told Camhi that the television set belonged to him.

Sweeney then asked defendant who the television set belonged to and defendant stated that the set had always been in the car. Sweeney thereupon arrested defendant for burglary although the police at that time had no knowledge of any burglary having been committed. Sweeney took defendant to the police station, while Camhi had Jackson retrace the route he and defendant had taken. Around 10 minutes after defendant was arrested, they arrived at a house which had obviously been burglarized.

The owner of the house subsequently identified the television set.

Defendant argues that he was subjected to an unlawful arrest because the information received in the two telephone calls did not meet the standard of probable cause to arrest, and that the two statements regarding ownership of the television set made by defendant after the police stopped the car did not raise the level of information so as to provide probable cause to arrest. Defendant contends, therefore, that the evidence seized from the vehicle should have been suppressed.

The hearing court erred in denying defendant’s motion to suppress the television set, the parka and the translator. Although the initial stop of the vehicle was lawful as the car was speeding (see People v Ingle, 36 NY2d 413), the arrest of defendant and seizure of the afore-mentioned property were not based upon probable cause (see People v Cook, 85 AD2d 672; People v Richie, 77 AD2d 667). Accordingly, the fruits of the unconstitutional conduct must be suppressed (Wong Sun v United States, 371 US 471; People v Cook, supra; People v Richie, supra). Mollen, P. J., Gibbons and Rubin, JJ., concur.