People v. La Fontaine

Tom, J. (dissenting).

On this appeal, we are presented with the question whether out-of-State police officers have the authority to enter this jurisdiction, not in hot pursuit and not accompanied by local officers, to arrest defendant for a New Jersey crime pursuant to New Jersey and Federal arrest warrants.

At the suppression hearing, Detective Ronald Humphrey, an officer of the Paterson, New Jersey, Police Department, testified. In August 1992, New Jersey police had obtained from the Paterson Municipal Court a New Jersey warrant for the arrest of defendant and one Miguel Ortiz, both fugitives, who were wanted in New Jersey for a charge of conspiracy to commit murder. In October 1992, New Jersey police obtained a Federal warrant from New Jersey Federal District Court authorizing the arrest of the same individuals for the Federal offense of flight to avoid prosecution.

On November 18, 1992, at approximately 8:00 a.m., New Jersey Detectives Maute, Caudrado, and Humphrey with Sergeant Stell traveled to New York City to execute the New Jersey and Federal warrants. They informed New York police officers at the 34th Precinct that they had information that defendant and Ortiz had been seen in the vicinity of 158th Street between Broadway and Amsterdam Avenue. Four precinct detectives accompanied the New Jersey officers on a search of the area, but the suspects were not found. The New York detectives then departed the scene and were advised by the New Jersey officers that they would continue the search.

At about 10:30 a.m., an informant directed the New Jersey officers to 600 West 163rd Street, apartment 34, a third-floor apartment. At about 12:30 p.m., the New Jersey officers staked out positions in the vicinity of the apartment: Stell remained by a hallway window from which he could observe a window of apartment 34; Caudrado was stationed at the second-floor fire escape below apartment 34; Maute and Humphrey attended to the front door of apartment 34. The two detectives knocked and, upon query from within, responded that they were "police.” Immediately, the officers heard "shuffling” within, which sounded like furniture being moved. Caudrado and Stell, shouting "halt,” saw defendant exiting the window to the fire escape. Defendant, shirtless, was apprehended by Caudrado as Humphrey and Maute arrived. Humphrey at this point heard a child, who turned out to be defendant’s young daughter, crying within the apartment. They all re-entered the apartment through the window to obtain a shirt for defendant and to see whether the child was being attended to.

The officers took defendant to the kitchen, away from the distraught infant. Humphrey informed defendant that he was being placed under arrest on the basis of the Federal "fugitive” warrant. At that time, Humphrey observed a quantity of white powder, which appeared to be cocaine, in glassine bags on top of the refrigerator. Defendant, and the contraband, were turned over to officers in the 34th Precinct. After being read his Miranda warnings, defendant stated that he had purchased the cocaine in New York. Defendant was indicted by a New York Grand Jury for criminal possession of a controlled substance in the third degree arising out of his possession of this cocaine.

Defendant moved to suppress the cocaine, arguing, inter alia, the absence of authorization for the arrest by the New Jersey officers. The hearing court found that the out-of-State officers were not authorized to act either as police officers or as peace officers under the Criminal Procedure Law, absent hot pursuit, and that such did not occur in this case. The hearing court also rejected the People’s claim that, as private citizens, these "officers” were authorized to arrest suspects for known criminal activity. However, the court found the arrest to be lawful. The court concluded that insofar as the officers fit within the category of "some * * * officer authorized by law” under Federal Rules of Criminal Procedure, rule 4 (d) (1) to execute the Federal fugitive warrant, they could execute a Federal warrant nationally, irrespective of State borders. Assuming the validity of the arrest, the court found the cocaine to have been in plain view. The suppression court concluded that the officers had authority to execute the warrant of arrest and denied suppression.

Defendant was convicted, upon his plea of guilty, of attempted criminal possession of a controlled substance in the third degree and was sentenced, as a predicate felon, to a term of three to six years. Defendant is currently on parole from that judgment, but is incarcerated in the State of New Jersey. While I concur with the trial court’s findings that these officers were not authorized to act as police officers under the Criminal Procedure Law, and did not act as private citizens, I would reverse.

The arrest of defendant by New Jersey detectives at his home pursuant to both the New Jersey and Federal warrants was unlawful. Suppression should have been granted as to the cocaine found in his apartment as well as his statement made at the 34th Precinct.

Historically, under New York law, the power of law enforcement officers to arrest was restricted to the geographical area from which the officer’s authority was derived. To better appreciate the doctrine of territorial jurisdiction for police officers, an analysis of the historical development of the law is instructive. At English common law, arrest warrants were of two types: either Kings Bench warrants, which were kingdom-wide in scope, or, more typically, warrants issued by a Justice of the Peace, which were limited to the county of issuance. In order to address the likelihood that suspects might flee to another county, common law early evolved a method of dovetailing the initial warrant with extraterritorial effect by the procedure of "backing”, by which the Justice of another county affirmatively would endorse the back of the original warrant, giving it original effect in that other county. The authority of a law enforcement official to execute an arrest warrant was limited by the political authority of the Magistrate who issued the warrant, and by the geographic reach of the political unit by which he was employed (4 Gavit, Blackstone, Commentaries on the Laws of England, ch 21, at 871 [1941]; see, e.g., Rex v Weir, 1 Barn & C 288, 107 Eng Rep 108 [1823]; Gladwell v Blake, 1 Comp M & R 636, 149 Eng Rep 1235 [1834]). The doctrine of jurisdictional limitations on arrest warrants imposed by the borders of the authorizing political units was imbedded in the common-law underpinnings of American law. Early American common law adopted the doctrine (see, e.g., Lawson v Buzines, 3 Harr 416 [Del 1842] [constable’s authority to execute arrest warrant limited by city magistrate’s jurisdiction within city limits]; York v Commonwealth, 82 Ky 360 [1884] [although sheriff may, in writing, authorize someone else to execute a warrant, the sheriff, and his designee, are limited to the sheriff’s own county; designee lacked authority to seize defendant in another county, and was liable for inadvertent killing of third party during the arrest]). Similar principles also were recognized in early New York law (Butolph v Blust, 41 How Prac 481, 5 Lans 84 [NY Sup Ct 1871]). The power conferred on local officials to arrest subsequently was defined by legislation in New York, and in other jurisdictions (see, e.g., People v Hamilton, 666 P2d 152 [Colo Sup Ct 1983]). However, in American law, the arrest warrant is, at root, a device to protect an individual from an unreasonable, and hence unconstitutional, seizure of the person (see, Steagald v United States, 451 US 204, 212 [1981]), especially when police seek to invade the privacy of the home (supra; Payton v New York, 445 US 573, 576 [1980]; see also, Note, The Unwarranted Choice: Arrest Warrants and Problems Inherent in the Payton Doctrine, 32 NY L School L Rev 169 [1987] [discussing constitutional distinctions between predicates for arrest warrants and search warrants]).

Since the defendant, a resident of this State, was arrested within the geographic borders of New York, the Criminal Procedure Law and the constitutional and statutory interpretations of New York courts establish the parameters necessarily governing the authority of a court to issue an arrest warrant and a police officer’s power to arrest. In the present case, it is undisputed that no New York court issued or endorsed any arrest warrant. It also is undisputed that no New York police officer executed any arrest warrant. The question then is presented whether the New Jersey "officers” had any authority to effect an arrest in New York.

The warrant of arrest, to be valid in New York, must be addressed to either "police officers” or "peace officers” (CPL 120.10 [3]; 120.60). Those designated officers authorized to execute an arrest warrant are restricted in terms of their geographic and political jurisdiction (CPL 120.50), although the authority to arrest may be delegated by the officer employed by one political unit organized under New York law to an officer of another political unit within the State under appropriate circumstances (CPL 120.60). The authority of a "police officer” in this regard is defined by his or her "geographical area of employment” which, at its outermost boundary, consists of New York State (CPL 1.20 [34-a]).

CPL article 120 does not extend the power to arrest to out-of-State persons who are authorized to act as police officers within the boundaries of their own States. The evidence in the case at bar does not substantiate any claim that the New Jersey officers were deputized or acted in some agency relationship with New York police officers as a means of evading the clear fact that under the Criminal Procedure Law, out-of-State police officers are neither "police officers” nor "peace officers” for purposes of exercising lawful authority in this State (see, CPL 1.20 [34]; 2.10). Rather, for purposes of New York law, these officers ceased being officers of the law at the New York border, absent some precise exceptions not present herein.¹ Hence, as the majority concedes, absent other pertinent statutory authority, the New Jersey warrant could not be executed lawfully in New York by the New Jersey officers.

The People cannot evade the restrictions imposed by the Criminal Procedure Law by relying upon the existence of the Federal fugitive warrant. When a State police officer makes an arrest of a suspect for a Federal crime, in the absence of an applicable Federal statute "the legality of that arrest is to be determined by the law of the state in which the arrest takes place” (United States v Taylor, 797 F2d 1563, 1564 [11th Cir 1986]). In this case, "the New York statute provides the standard by which this arrest [executed in New York for a Federal crime] must stand or fall” (United States v Di Re, 332 US 581, 591 [1948] [warrantless arrest]; see, United States v Watson, 423 US 411, 420-421, n 8 [1976]; see, United States v Bowdach, 561 F2d 1160, 1168 [5th Cir 1977] [Florida arrest by Florida police on Federal warrant; same rule, regardless whether arrest was executed pursuant to a warrant or was warrantless]). Although New York police, acting pursuant to New York law permitting execution of a Federal fugitive warrant, could have made a valid arrest, otherwise assuming the propriety of their conduct (cf., United States v Bowdach, supra), insofar as the New Jersey officers, acting without New York authority, could not lawfully execute a warrant in New York absent enabling legislation, the arrest remains unlawful. Neither Bowdach (supra [Florida arrest by Florida officers on Federal warrant]) nor United States v Polito (583 F2d 48 [New York arrest of Federal parolee by New York officials]), relied on by the People, supports a contrary conclusion. Although Federal Rules of Criminal Procedure, rule 4 (d) (1) authorizes execution of a Federal warrant by a Federal Marshal or some other "officer authorized by law”, for reasons explained above, these New Jersey "officers” were not authorized by New York law to execute any warrant. 18 USC § 3041 specifically authorizes arrests of Federal offenders by officials of States "where the offender may be found,” i.e., New York. Since Federal law does not expressly authorize the New Jersey officers in this case to execute the Federal warrant in New York, the analysis necessarily returns to the law of the State where the arrest is conducted—New York—which, for reasons stated, invalidates the subject arrest. Because the officers lacked statutory authority to arrest the defendant under the circumstances of this case, the arrest cannot serve as the constitutional predicate for seizure of the contraband, whether in plain view or not. Since the arrest on the fire escape, for the New Jersey offenses, was unauthorized, the consequential entry of the home, and the seizure of contraband, which is the basis for the separate New York offense, also was invalid. The indictment must be dismissed.

There is authority for a warrantless arrest of a fugitive from another State without preliminary criminal court process (CPL 570.34), subject to prompt subsequent local criminal court ratification of the arrest. However, in terms of the actual status of these "officers”, as well as the circumstances of the arrest, the seizure of defendant’s person here was unlawful. The exercise of the authority to conduct a warrantless arrest is limited to "private person[s]”—in which capacity these officers did not act—and "police officer[s]”—in which capacity these officers also did not act under New York law. Furthermore, this was not a mere encounter on the street or in another public place.

In the present case, the arresting officers clearly did not effect the arrests of defendant in the capacity of private citizens. On this point, I would sharply dispute the majority’s conclusion as well as its reading of the facts. Moreover, the majority contends that other than identifying themselves as police, these "officers” did nothing that private citizens could not do. This construction, though, misses the point: private citizens cannot hold themselves out to be police officers in order to assume the authority conferred by that status {see, Penal Law § 190.26). The New Jersey officers, having acted under the cloak of their authority as police officers, could not, for purposes of evading the restrictions of the Fourth Amendment, retroactively be shorn of their uniform, figuratively speaking. There is no credible evidence to show that these officers, in putatively executing arrest warrants, acted, or even perceived themselves to be acting, as private citizens effecting a warrantless citizen’s arrest {see, CPL 140.30, 140.35, 140.40). The evidence clearly supports the conclusion that the New Jersey officers invoked the power of police authority in executing the arrest of defendant pursuant to a New Jersey and a Federal warrant and that defendant submitted to their authority as police officers.

Further, even if the "officers” acted as private persons, the statutory authority to conduct a warrantless arrest of a fugitive under CPL 570.34 does not confer upon private persons the additional right to enter or to demand to enter private premises to make the arrest and to seize contraband. The facts also leave little doubt that, had defendant answered the door rather than fled through the window, the "officers” would have entered the home to effect the arrest. Nor was defendant merely seized on the street; he was flushed out of his home by officers acting under color of authority. Although defendant’s privacy interest in the fire escape outside his window was limited, the fact of such an interest, coupled with the police action that prompted the flight, elevates this case above a mere street encounter with private citizens. Moreover, a private citizen has no authority to enter private premises, without permission, and seize contraband whether or not it is in open view. To allow "police officers” lacking valid arrest authority to adopt the expedient of private citizenship, while acting under the color of police authority, to effect an otherwise invalid arrest on behalf of New Jersey in real measure vitiates the constitutional bar against unreasonable seizures. Such a constitutional end run begs the question of why out-of-State agents, possessing questionable credentials, would bother submitting to New York law. The potential for abuse is manifest.

The majority characterizes the warrantless arrest as a mere statutory error, invoking no constitutional violation and for that reason excusable. With this conclusion, I also respectfully disagree. In the first instance, an arrest is " 'quintessentially a seizure’ [citation omitted]”, necessarily triggering Fourth Amendment requirements (Payton v New York, supra, at 585; United States v Watson, 423 US 411, 427, supra [Powell, J., concurring] ["duly authorized law enforcement officer” may make warrantless arrest in "public place” even in the absence of exigency]). The absence of authority to seize a person as a component of State action is no mere procedural oversight. Although the manner in which a warrant is executed is governed by statute, the power to seize that person is circumscribed by constitutional limitations.² Similarly, statutes may itemize the instances when a warrant may be dispensed with, but the codification of such exceptions necessarily is grounded in constitutional precepts.³ From the conclusion that these officers acted under color of authority, and not credibly as mere private citizens, it necessarily follows that they required a constitutional predicate to seize defendant in the manner in which he was seized. While the statutes upon which the majority relies do impose procedural requirements in connection with arrests, and also provide exceptions thereto, these statutes, as with all criminal statutes, follow from the underlying constitutional authority of a State to effect an arrest. Whether or not a procedural irregularity may be excused does not answer the question whether the officers, ab initio, could exercise the power of arrest on behalf of the State of New Jersey. If they could not, then defendant and the evidence both were unlawfully seized.

The majority’s reliance on particular case law, which stands for the proposition that mere statutory errors do not necessarily invoke the exclusionary rule, illustrates the sharp distinction between our respective positions regarding the power of these officers to arrest the defendant. They also are factually distinguishable. People v Sampson (73 NY2d 908) involved New York officers going to Vermont to question a Vermont resident who was a suspect in a New York homicide. The decision specifically states that the officers had no intention of making an arrest at that time and entry into the home was on consent. By happenstance, during the interview (there was no issue raised concerning the propriety of the questioning), defendant started blurting out a confession. The officers had no obligation not to hear the self-inculpation, so that there was no valid reason to suppress the statement. Defendant raised no constitutional claim in connection with the power of the New York officers to make the arrest but argued only that suppression was warranted by reason that the New York police failed to follow Vermont statutory guidelines in arraigning him. In Sampson, the statutory error arose from the officers’ subsequent transport of defendant to New York without remanding him to the custody of Vermont authorities for arraignment. Thus, the relevant inquiry was not whether the arrest was valid, as in the case at bar, but whether the New York custody and subsequent prosecution became invalidated by a failure of the officers to take further steps under Vermont law.

In People v Patterson (78 NY2d 711) the statutory irregularity arose from the use of a photograph that should have been returned to the defendant after a prior prosecution for a different offense, when that prior prosecution terminated in the defendant’s favor (see, CPL 160.50). That photo was used subsequently in a photo array, and upon its selection by the victim, defendant was arrested. While the defendant did argue that his constitutional rights were implicated, in that the in-court identification was tainted by use of a photo that should not have been used as the preliminary identification tool, the Court of Appeals found no constitutional violation: the sealing requirement was purely statutory. Defendant did not otherwise demonstrate constitutional error in the identification procedure: there was no suggestiveness in the procedure, and the photo was not originally taken in an improper manner. No "fundamental right” was at stake. Hence, for the "technical violation” of CPL 160.50, suppression was not warranted. Matter of Charles Q. v Constantine (85 NY2d 571) followed from Patterson. Charles Q. was a CPLR article 78 proceeding commenced by a fired State Trooper who had been acquitted of related charges after a criminal trial. The motion court erroneously authorized the unsealing of the petitioner’s criminal record, a violation of CPL 160.50. However, this statutory error, which was not relevant to a seizure of the petitioner, did not require suppression in the article 78 proceeding.

Manifestly, these rulings do not resolve the conflicting interests of the New York resident to be free from an unauthorized seizure, and of a State to conduct an extraterritorial arrest. The critical factor in the present case remains: there was no authority for these persons to conduct the arrest in New York, ab initio. Since the powers of this State were not invoked in effecting the arrest, which is a jurisdictional impediment, the arrest of defendant and the subsequent seizure of the contraband were invalid.

The dissenter in Patterson (Titone, J.), finding a "gross violation of law” {supra, at 722), would have suppressed, noting that, otherwise, there would be no adequate remedy for the violation. So, too, albeit under more compelling circumstances, in the present case: what remedy would there be for unauthorized arrests by agents of another State if suppression is not warranted?

Sullivan and Wallach, JJ., concur with Mazzarelli, J.; Murphy, P. J., and Tom, J., dissent in a separate opinion by Tom, J. Judgment, Supreme Court, New York County, rendered on or about December 10, 1993, affirmed.

1 . E.g., CPL 140.55 (2) provides that any out-of-State police officer who enters New York in "close pursuit” of a suspect connected with criminal activity shall have the same authority to arrest such person as police officers of this State. However, the New Jersey warrant herein was issued in August 1992, the Federal warrant was obtained in October 1992 and the arrest of defendant occurred in New York City the following month, on November 18, 1992, so that, manifestly, the officers were not in hot pursuit of defendant.

2 . (Payton v New York, supra). The majority would have to agree that, if this warrantless arrest had occurred, in the first instance, inside the home, it would have been presumptively unconstitutional (Payton v New York, supra, at 586-587). Even though the defendant’s exit waived Payton protections (compare, People v Levan, 62 NY2d 139), this does not exempt arrest authority from the constitutional requirement of reasonableness.

3 . Parenthetically, there was no exigency in this case: the officers were directed to defendant’s residence, there was a significant lapse of time between the New Jersey events and the arrest and there is no indication that defendant was aware that they had located him (cf., People v Mealer, 57 NY2d 214, cert denied 460 US 1024; cf., People v Gordon, 110 AD2d 778 [2d Dept 1985]; cf., United States v Campbell, 581 F2d 22 [2d Cir 1978]). Exigency refers to "those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest * * * for which probable cause exists, unless they act swiftly” {supra, at 25).