()

A 1999 Court of Appeals precedent upholding a “ghost” police officer’s report that a drug crime had occurred is equally applicable in a prostitution case, a judge in Brooklyn has found.

Acting Supreme Court Justice Mark Dwyer (See Profile) said in People v. Scott, 975/13, that the nature of the crime charged does not affect the probable cause determination under the precedent case, People v. Ketcham, 92 NY2d 416.

In Ketcham, a backup officer heard a radio report from a “ghost” police officer—one assigned to keep an eye on an undercover officer and alert a backup team when it is time to move in—that a drug transaction had occurred. The Court of Appeals said the suppression court properly drew an inference that the ghost had first-hand knowledge to justify the arrest.

Dwyer said Scott, a prostitution case, was almost parallel with Ketcham, the major difference being whether the crimes required a different analysis. He found the difference “without significance.”

In the Scott matter, vice squad officers were attempting to clamp down on street prostitution in the vicinity of Broadway and Chauncey in Bushwick.

One officer was designated the “arresting officer.” He stood by while an undercover officer, trailed by a “ghost,” attempted to locate individuals engaged in prostitution. The arresting officer received a radio transmission from the ghost that the undercover officer and a suspect had agreed to a sexual transaction. Then the backup team moved in and arrested the defendant, who matched the description of the suspect.

Defense attorney Damien Brown of Brooklyn moved to suppress a scarf and cellphone that were seized from the suspect, arguing that Ketcham did not apply. But Dwyer disagreed.

He said the “critical consideration,” whether it is a drug case or a prostitution case, is that the undercover officer is a “man on a mission” whose only reason for being on the scene is to facilitate a criminal transaction.

“A street narcotics transaction will involve a furtive exchange of cash for one or more small packages of narcotics,” Dwyer wrote. “The negotiation of a sex transaction is not precisely the same; the undercover and the ‘pimp’ will not necessarily engage in a physical exchange—although money may pass between them. But that difference is ultimately inconsequential. The undercover here too is a man on a mission, and will signal his ghost that a crime has occurred only when the mission has successfully been accomplished.”

In Scott, Dwyer said, the only reasonable conclusion is that the arresting officer received first-hand information from either the ghost or the undercover officer before making the arrest.

“I conclude based on the credible testimony of [the arresting detective], that he had probable cause to arrest defendant and relieve him of his scarf and cellphone,” Dwyer wrote.

Assistant District Attorney Connie Solimeo argued for the prosecution.