People v. La Fontaine

235 A.D.2d 93, 664 N.Y.S.2d 587, 1997 N.Y. App. Div. LEXIS 11046

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 1997
• Status: Published

Opinions

OPINION OF THE COURT

Mazzarelli, J.

At issue on this appeal is whether the defendant’s extraterritorial arrest in New York, by New Jersey detectives armed with arrest warrants issued by both State and Federal courts in New Jersey, was lawful. We must also decide whether a violation of this State’s statutes conferring the power to arrest on certain classes of persons requires the remedy of suppression for any evidence obtained during an arrest in violation of those statutes. Because we answer the first question affirmatively, and the second negatively, we affirm both the hearing court’s denial of suppression and the judgment of conviction.

The facts are uncomplicated. The record shows that at the time of the arrest, the defendant and one Miguel Ortiz were charged in New Jersey with the felony crimes of conspiracy to commit murder and aggravated assault. A New Jersey court had issued arrest warrants for them. New Jersey officers had also obtained a Federal warrant, from the New Jersey Federal District Court, for the Federal crime of flight to avoid prosecution.

On November 18, 1992, four New Jersey officers from the Paterson, New Jersey, Police Department went to the area of Manhattan covered by the 34th Police Precinct to execute the arrest warrants. After unsuccessfully searching for both defendants with the assistance of the New York City Police Department, the New Jersey officers continued their surveillance by themselves. Based on an informant’s tip regarding defendant’s whereabouts, they went to 600 West 163rd Street, apartment 34. Two officers stood at the door to the third floor apartment, one officer stood at the hallway window and one officer positioned himself on the second floor fire escape. The two officers knocked on the door and when asked who was there, responded "police.” They heard "shuffling” noises inside, and then heard the officers stationed at the window and fire escape each yell "halt.” Defendant, shirtless, was climbing out of the window and onto the fire escape. He was apprehended by the officer one flight below. Hearing a child crying inside the apartment from which defendant had fled, the officers escorted defendant back through the window into apartment 34 and observed plastic bags of cocaine in plain view on the refrigerator. The New Jersey officers turned the narcotics over to the 34th Precinct, and defendant was ultimately indicted by a New York County Grand Jury for the crime of criminal possession of a controlled substance in the third degree.

Defendant moved to suppress the narcotics on the grounds that the New Jersey officers, not in close pursuit, were without authority to make arrests or execute warrants in New York. After the parties briefed the issue, the court denied the motion to suppress in a written opinion. It held that although the New Jersey officers could make an arrest in New York as private persons, they did not do so here because they had invoked their official authority in coercing defendant from his home and arresting him. The court also ruled that the New Jersey warrant had no effect outside that State’s borders and was therefore invalid. However, the court determined that the Federal arrest warrant validated the arrest, since such warrants may be executed anywhere in the United States, and could be executed by a Federal marshal or any other officer authorized by law.

Generally, police officers have no power, including the authority to arrest, outside their geographical jurisdiction (see, People v Lahr, 147 Ill 2d 379, 589 NE2d 539 [Sup Ct Ill 1992]; State v Stevens, 26 Conn App 805, 603 A2d 1203 [App Ct Conn 1992], affd 224 Conn 730, 620 A2d 789; 6A CJS, Arrest, § 53; 5 Am Jur 2d, Arrest, § 69). Similarly, an arrest warrant issued in one State may not be executed in another because it has no validity outside the borders of the issuing State (People v Hamilton, 666 P2d 152 [Sup Ct Colo 1983]; 6A CJS, Arrest, § 53; 5 Am Jur 2d, Arrest, § 36). Thus, the New Jersey State warrant could not be executed in New York.¹

These limitations on the powers of State officers are reflected in our Criminal Procedure Law. Under the CPL, warrantless arrests in New York may be made, in varying circumstances, by police officers (CPL 140.10), peace officers (CPL 140.25) and private citizens (CPL 140.30). Police and peace officers are also empowered to execute a warrant of arrest (CPL 120.60). However, these powers are territorially limited to New York State (see, CPL 140.10 [3]; 120.70 [1]). Police officers from a sister State, such as New Jersey, are not included in the definition of "police officer” (CPL 1.20 [34] [a]-[r]) or "peace officer” (CPL 2.10 [1]-[66]), and are, therefore, generally without statutory authority to arrest or to execute arrest warrants in New York. An exception to this rule is found in CPL 140.55, New York’s version of the Uniform Act on Close Pursuit. This provision generally allows an officer from another State, who is in close pursuit of a suspect, to enter this State and arrest the suspect as if he or she were a New York police officer arresting a person for a crime committed in New York. It is conceded by all parties that this exception is inapplicable to the facts of this case.²

It has long been held, however, that police officers acting outside their jurisdiction retain all their powers as private citizens, including the power to arrest. Traditionally, a police officer may make a lawful citizen’s arrest under the same circumstances as a private person (see, People v Lahr, supra; State v Stevens, supra; State v Phoenix, 428 So 2d 262 [Fla Ct App, 4th Dist 1982], approved and remanded 455 So 2d 1024; see also, United States v Heliczer, 373 F2d 241 [2d Cir 1967], cert denied 388 US 917; United States v Viale, 312 F2d 595 [2d Cir 1963], cert denied 373 US 903; 5 Am Jur 2d, Arrest, §§ 69, 71; Annotation, Validity, in State Criminal Trial, of Arrest Without Warrant by Identified Peace Officer Outside of Jurisdiction, When Not in Fresh Pursuit, 34 ALR4th 328). Thus, courts have consistently upheld arrests made by police officers acting outside their jurisdiction if those arrests could lawfully have been made by a private person (see, People v Lahr, supra; State v Stevens, supra; State v Phoenix, supra; Commonwealth v Gullick, 386 Mass 278, 435 NE2d 348 [Sup Jud Ct of Mass 1982]; State v O’Kelly, 211 NW2d 589 [Sup Ct Iowa 1973], cert denied 417 US 936).

In this case, the prosecution argues that'the arrest was a valid citizen’s arrest and relies on CPL 570.34 as authority. That section provides in pertinent part: "The arrest of a person in this state may be lawfully made also by any police officer or a private person, without a warrant, upon reasonable information that the accused stands charged in the courts of another state with a [felony]”. The "reasonable information” requirement of this section, the prosecution contends, was met by the two arrest warrants authorizing the defendant’s arrest for two felonies in New Jersey. They reason that since the New Jersey officers were clearly aware of these charges, this was a valid citizen’s arrest.³

The dissent has adopted the defendant’s position that this section of the CPL cannot be relied upon because the New Jersey officers had invoked their power as police officers in effecting the arrest, and, thus, were not acting as private persons. There is some authority for the proposition that police officers acting outside their jurisdiction will lose their status as private persons if they act under the "color of authority” (see, Collins v State, 143 So 2d 700 [Fla Ct App, 2d Dist 1962], cert denied 148 So 2d 280; Commonwealth v Troutman, 223 Pa Super 509, 302 A2d 430 [Pa Super Ct, 1973]). However, other courts have held that the arrest is not invalidated unless the officer uses the power of his office to obtain evidence not available to private citizens (see, State v Phoenix, supra; People v Lahr, supra).

Any arrest by a law enforcement officer, by definition, involves an assertion of official authority. If the use of any degree of official authority would always negate the officer’s private person status, an officer could never make an extraterritorial arrest as a private person. This conclusion is contrary to the long line of cases permitting such arrests. Here, the New Jersey officers merely knocked on the door and identified themselves as police. Defendant then fled the apartment via the fire escape, prompting the officers viewing him from an adjacent window to yell "halt.” Defendant was apprehended and returned to the apartment. Other than identifying themselves as police, the New Jersey officers did nothing that could not have been done by any private person. Further, it is uncontested that the evidence of defendant’s possession of narcotics was in plain view to anyone inside the apartment. While it is true that the New Jersey officers acted in their law enforcement capacity in obtaining the warrants, and in obtaining the cooperation of the New York City police earlier that day, they gained no evidence solely by virtue of their official status. They simply made a warrantless arrest of a fleeing felon on a fire escape.

The argument that the arrest was still unlawful because private citizens are not authorized to make arrests in a home is not persuasive either. That contention is premised on the suppression court’s incorrect findings that the police coerced defendant into fleeing onto the fire escape from his apartment, and that this was the "functional equivalent of an arrest inside his apartment” (People v La Fontaine, 159 Misc 2d 751, 763 [Sup Ct, NY County]). These findings are totally unsupported by the hearing evidence and the law. There is nothing to suggest that the defendant knew there were also officers on the fire escape when he elected to flee, nor is there any evidence of any coercive communications by the New Jersey police officers prior to his flight. Their only actions were to identify themselves as "police”.

The cases cited by defendant to support his argument that his flight was precipitated by official coercion are clearly distinguishable {see, United States v Maez, 872 F2d 1444 [10th Cir 1989]; United States v Al-Azzawy, 784 F2d 890 [9th Cir 1986], cert denied 476 US 1144; United States v Morgan, 743 F2d 1158 [6th Cir 1984], cert denied 471 US 1061). In those cases there was clear evidence that the defendants were completely surrounded by several officers, some with guns drawn, and were ordered to come out of their residence. Here, only the presence of the police, and perhaps his guilty conscience, led defendant to flee onto the fire escape. Also, defendant enjoyed only a minimal expectation of privacy in the fire escape outside his window (People v Funches, 222 AD2d 218, affd 89 NY2d 1005). The return of the defendant back into the apartment was necessitated by the fact that he was shirtless (as he had fled without one in the month of November), and the need to assist the defendant’s crying two-year-old daughter, whom he had abandoned, unattended, in the apartment in his haste to escape. The arrest here took place on the fire escape when defendant was initially seized, and was not an arrest inside a residence.

Even were one to accept the conclusion that the officers’ authority to act as private persons was negated by their act of identifying themselves as police, and therefore that the arrest cannot be a valid citizen’s arrest, suppression would still not be warranted. The Court of Appeals has held that violations of statutory requirements in criminal prosecutions will result in the sanction of suppression of evidence only where a constitutionally protected right is implicated (see, Matter of Charles Q. v Constantine, 85 NY2d 571, 574-575; People v Patterson, 78 NY2d 711, 716-717). No such constitutionally protected right is implicated here. Defendant’s claim that his arrest by an officer acting outside his jurisdiction was unlawful involves no fundamental constitutional considerations. The criminal statutes that confer the power to arrest, while related to search and seizure issues in a general sense, do not create a constitutionally derived right. There is no constitutional right to be arrested by a particular law enforcement officer.

While the Court of Appeals has not hesitated to approve the sanction of suppression in circumstances where statutory violations truly implicate the lawfulness of the search or seizure (see, People v Taylor, 73 NY2d 683 [failure to record or summarize examination in application for search warrant in violation of CPL 690.40 (1) required suppression because fundamental Fourth Amendment rights were implicated]; see also, People v Gallina, 66 NY2d 52; People v Moselle, 57 NY2d 97), it also has denied suppression in circumstances similar to those here. In People v Sampson (73 NY2d 908) and People v Walls (35 NY2d 419, cert denied sub nom. Junco v New York, 421 US 951), the Court refused to suppress evidence obtained by New York police officers after arrests of subjects in other States, notwithstanding the officers’ violation of those States’ fresh pursuit statutes. In each case, the Court found that absent evidence that the officers willfully disregarded the sister State’s statutory requirements, such nonconstitutional violations did not require suppression.⁴

At worst, the New Jersey officers violated procedural statutes that confer the power to arrest and execute warrants on a specific class of persons. Given the existence of the State and Federal warrants authorizing defendant’s arrest, there is no viable claim that the defendant’s arrest lacked probable cause. Therefore, the Fourth Amendment’s protection against unreasonable searches and seizures, and the exclusionary rule remedy, are simply not applicable (see, State v Mangum, 30 NC App 311, 226 SE2d 852 [Ct App, NC 1976] [arrest by officer outside his territorial jurisdiction was a technical violation that does not require suppression since it was not an unreasonable search under the Fourth Amendment]; see also, People v Hamilton, 666 P2d 152, supra; United States v Walden, 490 F2d 372, cert denied 416 US 983; Annotation, 34 ALR4th 328, 334; US Const 4th Amend).⁵ As the only violation here was statutory and not constitutional, the remedy of suppression is not mandated. Defendant’s conviction is affirmed.

Accordingly, the judgment of the Supreme Court, New York County (Frederic Berman, J.), rendered December 10, 1993, convicting defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, should be affirmed.

1 . I also agree with the suppression court and the dissent that the New Jersey officers could not execute the Federal arrest warrant in New York. Federal Rules of Criminal Procedure, rule 4 (d) (1) provides for the execution of a Federal warrant by a "[Federal] marshal or by some other officer authorized by law.” However, there is no Federal statute permitting State officers to execute a Federal warrant outside their own jurisdiction (see, People v Floyd, 56 Misc 2d 373, affd 33 AD2d 795, revd on other grounds 26 NY2d 558), and New York law does not permit it.

2 . New Jersey is also a signatory to the Act (NJ Stat Annot § 2A: 155-1— 2A: 155-7).

3 . The prosecution also contends that the words "police officer” in CPL 570.34 should be read to include New Jersey police officers, and therefore this statute authorized them to arrest defendant in their capacity as police officers as well as private citizens. This interpretation is rejected since, as noted above, the term "police officer” is specifically defined in the CPL, and does not include sister State officers.

Additionally, although this section authorizes a warrantless citizen’s arrest, the fact that the New Jersey officers had two arrest warrants from other jurisdictions should not render this section inapplicable. Assuming the statute’s other requirements have been met, it is not appropriate to penalize the officers for obtaining judicial process.

4 . In People v Sampson (supra), the Court noted that defendant raised no constitutional argument regarding the authority of New York police officers to act outside their jurisdiction. Notwithstanding this statement, we perceive no viable constitutional challenge to the New Jersey officers’ actions in this case.

5 . That is not to say that the exclusionary rule is always inapplicable to actions by police officers acting outside their jurisdiction. Such officers are still State actors for purposes of the exclusionary rule (State v Stevens, supra; State v Phoenix, supra; 6A CJS, Arrest, § 12, at 20-21; Bassiouni, Citizen’s Arrest, at 33-34 [1977]).