People v. Parris , 136 A.D.2d 882 ( 1988 )

Judgment reversed on the law, motion to suppress granted and indictment dismissed. Memorandum: On December 21, 1983 at approximately 2:00 a.m. Clarietta Nowden returned home after visiting a friend. She backed her automobile into her garage and as she got out of the automobile she was attacked by an armed assailant. A scuffle ensued during which Ms. Nowden was able to wrest the gun from the assailant but not before he struck her on the head with it. She screamed and, when he covered her mouth with his left hand, she bit his left index finger and a piece of the skin tissue became lodged in her lower teeth. The assailant fled the scene. He wore a gray wool cap which covered his face except for his eyes and she was unable to identify him. The victim gave a general physical description of her assailant as being a black male of medium build, 5 feet, 7 inches tall, and wearing a short-length tan trench coat.

An investigating officer found a man’s wallet lying in snow in the victim’s driveway approximately 15 to 20 feet from the garage where the attack occurred. The wallet contained a Social Security card and a credit card, each bearing the name of defendant. Defendant was married to the victim’s sister and resided across the street from the victim’s residence. The police went to defendant’s home and was informed by his wife that she did not know his whereabouts and that he had not been home all evening. As the officers were leaving defendant’s home, they encountered two men walking up the driveway towards them. One officer inquired of defendant if he was Ulysses Parris and he acknowledged that he was; defendant was not wearing clothing which matched the clothing that the victim said her assailant wore. The officer then told defendant that he wanted to speak with him; defendant responded that he wanted to talk to his wife and proceeded towards the door to his residence. Defendant was arrested and was taken to a hospital where the victim was being treated. The victim viewed defendant who was seated in a police car, but she was unable to identify him as her assailant. She suggested that the police officer examine defendant’s left hand since she had bitten her assailant on the left hand. Defendant displayed his left hand and the officer observed that a large piece of skin was missing from defendant’s index finger. Defendant was then transported to the Public Safety Building where he waived his Miranda rights and gave the police inculpatory statements. He also aided the police in making diagrams which disclosed the location of clothing that he had discarded.

Defendant made a pretrial motion seeking to suppress his oral and written statements, the showup identification, the observations of the apparent bite wound, the diagram he drew, and the items of clothing discovered with the aid of that diagram, on the ground that the evidence was fruit of an illegal arrest. The hearing court denied the motion, finding that the police had probable cause to arrest defendant, and that the statements, identification and clothing were thus not fruits of an illegal arrest. We disagree. In our view the court erred in denying defendant’s motion to suppress since his arrest was without probable cause.

"Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent man in believing that the offense has been committed” (People v Oden, 36 NY2d 382, 384), and that the person arrested is the perpetrator (People v Carrasquillo, 54 NY2d 248, 254). The existence of probable cause "must necessarily turn on the facts in each individual case” (People v Green, 35 NY2d 193, 195). The bases to establish the existence of probable cause must not only be reasonable, but it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator (People v Carrasquillo, supra, at 254; see also, People v De Bour, 40 NY2d 210, 216).

Since we conclude that the initial seizure of the defendant was unlawful, the fruits of that unconstitutional seizure must be suppressed (People v Cantor, 36 NY2d 106, 114; see, Wong Sun v United States, 371 US 471). Contrary to the view of the dissenters, the derivative incriminating evidence which was obtained after defendant’s arrest was not the product of a source unrelated to defendant’s arrest, but was a direct result of the illegal arrest; nor was the illegal conduct attenuated "by a significant intervening event which justified the conclusion that that evidence was not the product of that illegal activity (see Wong Sun v United States, supra)” (People v Rogers, 52 NY2d 527, 533; see also, People v Henley, 53 NY2d 403).

The invasion of defendant’s rights to be free from unreasonable searches and seizures cannot be justified, as suggested by the dissenters, by resort to the rule of inevitable discovery. It is not necessary to decide whether the evidence sought to be suppressed is primary or secondary, for it is clear that the tainted evidence was the direct result of the initial police misconduct in arresting defendant without probable cause. The inevitable discovery rule may not be used to save from suppression "evidence illegally obtained during or as the immediate consequence of the challenged police conduct” (People v Stith, 69 NY2d 313, 318). Absent the illegal arrest of defendant on his own premises and his transportation to another place, the derivative incriminating evidence would not have been revealed (see, Dunaway v New York, 442 US 200; People v Hicks, 68 NY2d 234, 239).

Finally, aside from the probable cause issue, the contentions urged by the dissenters were not addressed by the suppression court or argued by the parties in our court.

All concur, except Callahan and Lawton, JJ., who dissent and vote to affirm in the following memorandum.