DECISION AND ORDER Mr. Austin is charged with, inter alia, Robbery in the Second Degree (Penal Law §160.10[2]). This Court conducted a combined Huntley/Dunaway/Wade hearing, followed by oral arguments. For the reasons that follow, Mr. Williams’ motion is granted in part. I. FINDINGS OF FACTS1 The People’s sole witness was Detective Herve Francois, a nineteen-year-veteran assigned to the 70th Precinct and the Lead Investigator in this case. The Court finds him to be credible. Sometime during the afternoon of November 12, 2015, Det. Francois spoke with fifteen-year-old Alyssa Smith and later Shameka Shackelford at the 70th Precinct. Ms. Smith indicated that she and Ms. Shackelford were headed to pick up the latter’s phone when someone from a group, including “Austin” and “Michael,” called out her name. When the complainants stopped walking, the group approached them. She knew “Austin” because they “grew up in the same building” until about one or two years before the incident date when she moved out (H: 11; 45). She never indicated that she was ever at “Austin’s” home or within his apartment; nor had she ever had a conversation with him; or recalled his school; and she never socialized with him (H: 46). Although she did not provide “Austin’s” last name, she told the Detective that she knew “Austin” and “Michael” on Facebook. She did not explain the manner in which she learned that information. Nonetheless, although Det. Francois had never met Ms. Smith prior to that day, he permitted her to use his NYPD computer. Upon retrieving “Austin’s” Facebook page, she told Det. Francois, “yes, that’s him” (H: 12). Using that page, which Det. Francois printed (People’s Exhibit 1A), she drew a line to Mr. Williams’ picture and wrote, “Austin He punched me in my face and took my bag and my phone” (id.). The Facebook page was under the name “Frost C. London.” She never said that she knew Frost C.’s sister nor did Det. Francois recall Ms. Smith say that she knew the sister’s Facebook account. She drew a circle around two of the three people depicted on the picture taken from the Facebook page — that of Mr. Williams and “Danny DeVito.” As to the latter, she wrote, “punched me in my face and took my friend’s wallet” (id.). She then signed the printed page. Ms. Shackelford separately and subsequently told Det. Francois that she and Ms. Smith were headed to the cell phone store to pick up her phone; that they were approached by a group who called out Ms. Smith’s name; that they stopped; that one of the males punched her in the face but two in total “assaulted” her; and one took her bag (H: 17-18). Utilizing the name “Austin,” and other information gleaned from Facebook, including the first name, date of birth, last name and building address, Det. Francois was able to do an ESP search and a “smart check” in the NYPD database. His Unit no longer uses ESP searches wherein partial information is inputted and the system generates arrest information such as arrest reports or photographs. Nor did he know the reasons for the discontinuation of the use of the ESP system. In this case, he received an arrest report and photographs for Austin Williams (H: 58-60). Det. Francois then completed and activated a “probable cause” I-Card for Mr. Williams “to alert members of the department that if that person comes across any police officer that person must be stopped and brought back to the precinct and alert the lead detective who actually dropped the I card” (H: 18-19; 22; 66-67). He was not present when Det. Kirk of the Warrant Section apprehended Mr. Williams on November 16, 2015. Mr. Williams had been at the precinct for a few hours by the time Det. Francois initially saw him unhandcuffed in the cell next to Det. Francois’ desk sometime after 8:00 that morning (H: 69-70). He had no “personal knowledge of the circumstances of him being brought to the police precinct” (H: 67). He believed that Det. Kirk picked Mr. Williams up when he was “leaving court” but he did not “know in connection with what” (H: 68). Mr. Williams was not free to leave at that time. He did not know whether Det. Kirk had any conversation with Mr. Williams during his transfer from the court to the 70th Precinct or gave him Miranda warnings. Det. Francois did not speak to Mr. Williams during the period when he first saw him and then brought him into the interrogation room and did not remember if anyone else had done so. Neither complainant was present at that time. Prior to the start of the interrogation, Det. Francois introduced himself and told Mr. Williams that he would be speaking with him. At approximately 1: 07 p.m. on November 16, 2015, he conducted a video interrogation of Mr. Williams which is depicted in People’s Exhibit 2. Although Det. Francois could not recall the exact time of day, he confirmed that the interrogation took place in the afternoon. He read all of the six questions to apprise Mr. Williams of his Miranda warnings. Prior to bringing Mr. Williams into the interrogation room, Det. Francois did not question, threaten or make any promises to him. Nor did he see any other officer threaten or make any promises to Mr. Williams or question him. After the interrogation, Mr. Williams asked Det. Francois to use the bathroom. The Video Statement After being advised of his Miranda warnings, Mr. Williams agrees to speak with Det. Francois. He indicated that he had gone to court that day regarding an old case and while he was over by his Mother and niece, the Warrant Squad told him that Det. Francois just wanted to talk to him. He confirmed his name; that he did not want anything to eat or water; and that he did not need to use the bathroom. Det. Francois told him that he would be questioned about a robbery of two young girls on November 12, 2015 at the corner of St. Paul’s and Church Avenue, wherein one was punched and robbed of her cell phone, while the other was punched and her bag and money were taken from her; and that they had identified him as one of the subjects. Mr. Williams denied that he had robbed anyone. He maintained that he had dropped off his girlfriend at the train and met with his friends at East 18th Street and Church Avenue; that he started to walk to his Mom; that his friends were trying to speak to the girls, but he refrained from doing so since his girlfriend would not approve; that he stayed in front while his friends were on either side of the girls behind him; that one of the girls knew him through her boyfriend, “Brandon,” but he did not know her personally; that it was “impossible” that he had punched her and he did not “lay a finger on” or talk with them. He did not see anyone hit them and in fact heard them laughing, which made him turn around. At one point, one of the girls started yelling and said, “don’t touch me.” Det. Francois explained that he would hate to charge him with something; that Mr. Williams just came from court and the Judge would be advised about this case; and that while he could not decide for the court, it would be helpful for Mr. Williams to explain himself. Mr. Williams stated that there were about seven to eight people there; denied that he was wearing a blue sweater; and maintained that he was wearing the very sweater he had on that day. He named two of the people who were there with him. Both the prosecution and the defense agree that the next portion of the tape concerns an unrelated matter. Mr. Williams asked for and was given a bottle of water. Thereafter, pursuant to his request, Mr. Williams made a phone call to his Grandmother and ascertained from Det. Francois that he would be brought down to court that day with respect to Robbery, Gang Assault and Reckless Endangerment charges. Det. Francois agreed to call his Grandmother to let her know when he was brought to court. Mr.Williams confirmed that he did not need to use the bathroom nor required any food and took the bottle of water with him. The interrogation ended at about 1:40 p.m. Post-Interrogation Det. Francois did not remember Mr. Williams saying that he was with his Mom and Grandmother and that the officers had indicated that Det. Francois just wanted to speak with him; nor did he follow up on this issue with the apprehending officers. Following the interrogation, Det. Francois did ask Det. Kirk what precisely he had told Mr. Williams was the reason for his arrest but he could not recall his response (H: 73-74). Following Mr. Williams’ arrest, Det. Francois called Ms. Smith and told her “that the subject has been arrested and to expect a phone call from the DA’s office who is going to question her about the incident and [he] also conducted a post arrest ID procedure” (H: 32-33; 74). Specifically, on November 16th, he went to her house and showed her an arrest photograph of Mr. Williams, which contained his NYSID and arrest numbers with an “Arrest Date” of September 22, 2015 (H: 75; People’s Exhibit 1B). He did not ascertain whether that arrest previously had been dismissed or the file sealed but asserts that he would not have had access to a sealed case (H: 63-64). Ms. Smith told him that the person depicted in the photograph was one of the people who had robbed her, and, on the photograph, she wrote, “This is the guy who took my bag, stole my phone, and punched me in my face” (People’s Exhibit 1B). Det. Francois did not utilize any information from that September arrest with respect to the issuance of the I-card (H: 78-79). Although he could not remember precisely when, he recalled that he subsequently showed an identical photograph to Ms. Shackelford (People’s Exhibit 1C) while at the precinct, which she signed and wrote “punched me in the face and took my wallet and popped my bag” (id.). As with Ms. Smith, Det. Francois told Ms. Shackelford that he had arrested Mr. Williams (H: 75-77). I. CONCLUSIONS OF LAW A. Dunaway Mr. Williams urges that given the People’s failure to call the apprehending officer and the “unclear” nature of the circumstances of his apprehension, there was no probable cause to arrest him. Relying on the fellow officer rule and People v. Ketcham, 93 NY2d 416 (1999), the People maintain that with the issuance of the I-card after Ms. Smith identified Mr. Williams from the Facebook page, which had several other individuals on it, and specified his role during the robbery, coupled with the fact that they grew up in the same building, there was probable cause for the arrest of Mr. Williams. This Court disagrees. Although a defendant carries the ultimate burden, “the People bear the burden of going forward to establish the legality of police conduct in the first instance” (People v. Clermont, 133 AD3d 612, 613 [2d Dept 2015], lv denied 27 NY3d 1149 [2016], citing People v. Hernandez, 40 AD3d 777, 778 [2d Dept 2007]; People v. Whitehurst, 25 NY2d 389, 391 [1969]). “In evaluating police conduct, the court must determine whether the actions taken were justified at every stage of the encounter” (People v. Lawson, 163 AD3d 996, 998 [2d Dept], lv denied 32 NY3d 1005 [2018]). “A forcible stop and seizure by the police requires reasonable suspicion of criminal activity” (id.). “Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment. This is true whether a person submits to the authority of the badge or whether he succumbs to force” (People v. Cantor, 36 NY2d 106, 111 [1975], citing Terry v. Ohio, 392 US 1 [1968]). To justify a seizure based on reasonable suspicion, “the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice” (id. at 113, citing Wong Sun v. United States, 371 US 471, 479 [1963]). In determining whether an officer acquired reasonable suspicion prior to seizing an individual, the Court must evaluate the totality of the circumstances (People v. Loper, 115 AD3d 875, 879 [2d Dept 2014]). In reviewing the totality of the circumstances, the Court must consider only the facts adduced on the record at the hearing (People v. Gonzalez, 55 NY2d 720 [1981], cert. denied 456 US 1010 [1982]). “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 or another police agency in possession of information sufficient to constitute probable cause for the arrest…Information received from another police officer is presumptively reliable…. Where, however, an arrest is challenged by a motion to suppress, the prosecution bears the burden of establishing that the officer imparting the information had probable cause to act” (People v. Ketcham, 93 NY2d at 419, [internal citations omitted]). The People correctly urge that they may establish probable cause by relying on circumstantial evidence (People v. Mims, 88 NY2d 99, 114 [1996]). In that regard, the existence of a description of the perpetrator coupled with circumstantial evidence may demonstrate probable cause, which does not require proof beyond a reasonable doubt (People v. Rodriguez, 84 AD3d 500 [1st Dept], lv denied 17 NY3d 861 [2011][probable cause where defendant matched the description of one of three suspects and there was "strong circumstantial evidence linking defendant to one of the other suspects…"]; People v. Ketterman, 56 AD3d 323 [1st Dept 2008], lv denied 12 NY3d 784 [2009][probable cause where "[i]n investigating the nighttime burglary of an office, the police were aware that there was no forced entry, that the office was accessible by punching a code on a keypad, that defendant knew this code, that defendant had been recently discharged from a job that had included cleaning that particular office, that he had been seen in the building’s lobby at 11 p.m. on the night of the burglary, and that he was on parole”]). In relying on the Fellow Officer Rule, however, the People must demonstrate not only that Det. Francois had information to constitute probable cause, but that the officer who then detained Mr. Williams, namely Det. Kirk, actually received such information. In that regard, People v. Powell, 101 AD3d 756 (2d Dept 2012), app withdrawn 20 NY3d 1064 (2013) is instructive. There, the Second Department held: Here, the People did not present evidence to establish that the officers who stopped and detained the defendant and his codefendant actually received any information from another officer who may have possessed probable cause. Although the People demonstrated that certain officers who interviewed an eyewitness had sufficient information to constitute probable cause the People presented no evidence that those officers communicated that information to the arresting officers prior to the stop and detention of the defendant. The People also did not present any testimony from the arresting officers as to what information they possessed or how they received it before they detained the defendant and his codefendant” (id. at 758). In this case, there is no question that by the time Det. Francois issued the I-card, there was probable cause for Mr. Williams’ arrest based upon Ms. Smith’s statement regarding his role in the robbery; her unilateral retrieval of his photograph from Facebook; and her designation of his photograph in People’s Exhibit 1A, wherein she drew a line to Mr. Williams and wrote, “Austin He punched me in my face and took my bag and my phone” (People’s Exhibit 1A). Contrary to the People’s suggestion, however, it is not enough to simply issue an I-Card. It was their burden to show that Det. Kirk indeed was aware of, or saw, or read that I-card that gave rise to the probable cause for Mr. Williams’ arrest. Det. Francois confirmed that he never spoke with Det. Kirk either prior to or during Mr. Williams’ apprehension. Indeed, the most that Det. Francois could confirm was that after his interrogation of Mr. Williams, he did have a conversation with Det. Kirk about the reason that Det. Kirk told Mr. Williams was the basis for his seizure, but he could not remember the substance of the conversation. Under the circumstances, it cannot be said that, absent pure speculation, the People have met their burden of establishing in the first instance, the legality of the seizure in this case. The Exclusionary Rule “provides that evidence which is obtained as a result of illegal police activity may not be used against a defendant at his criminal trial. It must be remembered, however, that the exclusionary rule, when applied, exacts a heavy price by encroaching upon the public interest in prosecuting persons accused of criminal activity and having their guilt or innocence determined on the basis of all the evidence which exposes the truth…(citations omitted). Consequently, courts have long held that only evidence which ‘has been come at by exploitation of that illegality’ should be suppressed” (People v. Arnau, 58 NY2d 27, 32 [1982], quoting (Wong Sun v. United States, supra at 488). Thus, “the defendant challenging the admission of the evidence has the burden of showing that the seizure of the evidence was causally related to the illegal police conduct” (id.). “There can be little doubt that the proper method of resolving Fourth Amendment issues…is to examine each phase of the police officers’ activities as analytically separate events and then decide whether the police acted illegally during any of those phases. If such illegality is found to have occurred, it must then be determined whether or not the evidence seized was come at by exploitation of the illegal police activity” (People v. Arnau, supra at 36). Here, there is no question that the video statement which occurred after Mr. Williams was seized and brought to the 70th Precinct flowed directly from the illegal seizure in this case. Notably, there was minimal testimony establishing what precisely happened to Mr. Williams from the time he was arrested until he was interrogated by Det. Francois. Accordingly, Mr. Williams’ motion to suppress his video statement is granted. For similar reasons, the identification made from the single photo displayed to each complainant on separate dates is suppressed as the fruit of Mr. Williams’ illegal arrest. Notably, as to Ms. Shackelford, her identification alternatively would be suppressed, in any event, as unduly suggestive based on the absence of any testimony regarding her identification of or familiarity with Mr. Williams prior to his arrest; the improper statements Det. Francois made when he advised her that he had arrested Mr. Williams; and then the display of an unredacted single photo, at the precinct, of Mr. Williams, with his NYSID and arrest numbers, combined with his September arrest date (see People v. Jackson, 118 AD2d 655 [2d Dept 1986]; People v. Lambert, 44 AD3d 688 [2d Dept 2007], lv denied 11 NY3d 855 [2008]; People v. Leonard, 66 AD2d 805 [2d Dept 1978]). Accordingly, an Independent Source hearing is ordered as to Ms. Shackelford. As to Ms. Smith, her pre-arrest identification from the Facebook page should not be suppressed as it preceded the illegal seizure in this case. This identification also established that her subsequent post-arrest identification from the single photo, although suppressed as flowing from Mr. Williams’ illegal arrest, was confirmatory in nature. Accordingly, Mr. Williams is not entitled to an Independent Source hearing as to Ms. Smith (People v. Kemp, 255 AD2d 397 [2d Dept 1998]; app withdrawn 93 NY2d 854 [1999]). CONCLUSION Based upon the foregoing, Mr.Williams’ motion is granted to the extent of suppressing his statement and the two post-arrest identifications made by the complainants; and an Independent Source hearing is ordered as to Ms. Shackelford. This constitutes the Decision and Order of the Court. Dated: September 18, 2019 Brooklyn, New York
