DECISION AND ORDERThe People’s motion pursuant to C.P.L.R. §2221 for leave to reargue this court’s oral decision rendered October 23, 2018, is granted. Upon reargument, this court adheres to its prior decision. The defendant’s statements are suppressed pursuant to Dunaway v. New York as the fruit of an unlawful arrest.BACKGROUNDDefendant was arrested on March 9, 2018, on allegations by her sister, the complainant Angela Sambula Bonilla, regarding an altercation between the two women that day. At the defendant’s arraignment, the People provided notice pursuant to C.P.L. §710.30(1)(a) of statements made by the defendant to law enforcement at the time of her arrest.The defendant moved to suppress the statements as involuntarily made, People v. Huntley, 15 N.Y.2d 72 (1965), and the fruit of an unlawful arrest. Dunaway v. New York, 442 U.S. 200 (1979).On October 23, 2018, this court held a Huntley/Dunaway hearing. The People presented one witness, Police Officer Michael Brito. The defense did not present any witnesses. The court found Officer Brito credible and made findings of fact as follows:On March 9, 2018, Officer Brito was on routine patrol, in uniform, with his partner Officer Kowalski and two training officers in a marked police vehicle. At approximately 2:00 a.m., they were notified by police radio that a woman had called 911 and reported that she had just been robbed with a knife at East 161st Street and Melrose Avenue. The officers immediately responded to the location and arrived two minutes later.At the scene, the officers encountered two vehicles parked, one in front of the other, and a woman standing outside the rear vehicle waving her arms at the police as they arrived. The woman waving her arms was the complaining witness, Ms. Bonilla. She stated to Officer Brito that her sister had just robbed her with a knife and had taken her wallet. She pointed at the vehicle parked in front, where there was a woman seated in the driver’s seat. During his conversation with the complainant, Officer Brito observed a minor cut on the complainant’s nose. However, there was no testimony regarding how or when this injury was sustained.Officer Brito approached the front car to speak with the woman in the driver’s seat, who was the defendant. He testified that he first asked her, “Do you have a knife?” She responded that she did not. He asked if she took her sister’s wallet, and the defendant stated “No.” Officer Brito then asked, “Do you mind if I take a look?” The defendant responded “Sure,” and got out of the car and allowed Officer Brito to search her car. As she stepped out of the car, Officer Brito saw a wallet in plain view on the center console.Officer Brito asked the defendant, “Is that your sister’s wallet?” and the defendant responded, “She must have thrown it in there.” The officer then held up the wallet and asked the complainant, “Is this your wallet?” and the complainant answered, “Yes that’s my wallet.” At that point, Officer Brito put the defendant in handcuffs and placed her under arrest for robbery.Officer Brito did not find any knife.At the close of the hearing, this court ruled that Officer Brito’s questions to the defendant were proper investigatory questions reasonably related to the radio run to which he was responding. The defendant’s statements were voluntary and not a product of custodial interrogation. However, this court found that at the point that the officer placed the defendant in handcuffs, he lacked probable cause to make an arrest. Thus, the court suppressed the defendant’s statements on Dunaway grounds.ARGUMENTS OF COUNSELThe People brought the instant motion to reargue on October 31, 2018. The People contend that the court’s determination that Officer Brito lacked probable cause to arrest the defendant was based on a misapplication of law. The People “do not contest the factual findings of the court based on the testimony of Officer Brito at the hearing.” Defense counsel filed a response to the People’s motion to reargue on November 20, 2018.The court has reviewed the motion papers of both parties, the hearing transcript, and the court file, and finds as set forth herein.APPLICABLE LAWBy statute, a motion to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion.” C.P.L.R. §2221(d)(2).Here, a motion to reargue is the proper vehicle for the relief sought by the People, because they rely on the evidence presented on the hearing, and solely seek to challenge the court’s legal determination that that evidence presented did not establish probable cause for the defendant’s arrest. The People’s motion was timely made, and identified specifically as a motion for reargument, thus satisfying the other requirements of the statute. C.P.L.R. §§2221(d)(1), (3).The People’s motion to reargue is granted. The court will now consider the merits of the People’s motion.At a suppression hearing, the People have the initial burden of establishing the legality of the police conduct at issue. People v. Wise, 46 N.Y.2d 321, 329 (1978) (“That the People bear the burden of going forward to justify police activity, such as an arrest or a custodial interrogation, once it is challenged by defendant is too basic to dispute”); People v. Baldwin, 25 N.Y.2d 66, 70 (1969).In this case, the evidence put forward by the People in the form of Officer Brito’s testimony failed to establish that he had probable cause to arrest the defendant.Probable cause exists where the facts and circumstances known to the arresting officer based on “‘reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” Draper v. United States, 358 U.S. 307, 313 (1959) (quoting Carroll v. United States, 267 U.S. 132, 161 (1925)); People v. Oden, 36 N.Y.2d 382, 383 (1975). This well-known standard, articulated 140 years ago by the United States Supreme Court, see Stacey v. Emery, 97 U.S. 642, 645 (1878), is the same for a warrantless arrest by an officer or for the issuance of a search warrant by a magistrate. People v. Elwell, 50 N.Y.2d 231, 236 (1980); Whitely v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 566 (1971). It requires less than that necessary for conviction at trial, People v. Bigelow, 66 N.Y.2d 417, 423 (1985), but more than just suspicion. Oden, 36 N.Y.2d at 384-85. “The legal conclusion is to be made after considering all of the facts and circumstances together.” Bigelow, 66 N.Y.2d at 423.The crux of the People’s argument is the supposition that a claim by an identified citizen-informant that a crime has been committed, and an identification of the defendant as the person who committed it, is unqualifiedly, per se sufficient for probable cause to arrest.The Court of Appeals has addressed the precise question raised by the People’s argument. In Smith v. County of Nassau, the Court of Appeals held that an alleged victim’s identification was not alone sufficient to establish probable cause to arrest as a matter of law; rather, all the circumstances known to the officer at the time of the arrest must be taken into account. The Court in Smith pointed to the circumstances that called into doubt the reliability of the identification in that case, thus rendering unreasonable the officer’s reliance on the identification as the sole basis for the arrest. Smith v. County of Nassau, 34 N.Y.2d 18, 24-25 (1974).There is ample case law recognizing that information provided by an identified individual accusing another of a specific crime can be sufficient to provide probable cause for an arrest. See, e.g., People v. Sanders, 79 A.D.2d 688, 689-90 (2d Dept. 1980) (“as a general rule, information provided by an identified citizen accusing another individual of the commission of a specific crime is sufficient to provide the police with probable cause to arrest”). Notably, many of these cases are chiefly concerned with the critical distinction between an identified citizen-informant or victim-witness and a paid, confidential, or anonymous informant, and emphasize that police may presume the reliability of the former but not the latter. See, e.g., People v. Crespo, 70 A.D.2d 661, 661 (2d Dept. 1978) (“Unlike a paid or anonymous informant, an eyewitness-victim of a crime can provide probable cause for the arrest of his assailant despite the fact that his reliability has not been previously established or his information corroborated”); People v. Hicks, 38 N.Y.2d 90, 93-94 (1975); People v. Moore, 32 N.Y.2d 67, 71 (1973); People v. Hyter, 61 A.D.2d 990, 991 (2d Dept. 1978) (“It was error for Criminal Term to apply the same standards which should be applied to paid or anonymous informants, to ordinary citizens who had given their names to the police and who had just witnessed — and indeed were the victims of — a crime”).However, these cases also recognize that this presumption that information furnished by a citizen-informant or alleged victim is reliable may in some circumstances be outweighed by other factors. See, e.g., Crespo, 70 A.D.2d at 661 (noting that courts “have held that probable cause is established where the victim of an offense communicates to the arresting officer information affording credible ground for believing that the offense was committed, unequivocally identifies the accused as the perpetrator, and materially impeaching circumstances are lacking“) (emphasis added).Police officers have an independent obligation to assess the information they receive, and conduct further investigation as circumstances call for it. “[T]he failure to make further inquiry when a reasonable person would have done so” may negate probable cause, even if sufficient facts to give rise to probable cause may otherwise exist. Colon v. City of New York, 60 N.Y.2d 78, 82 (1983); Carlton v. Nassau Co. Police Dept., 306 A.D.2d 365, 366 (2d Dept. 2003) (affidavit from alleged crime victim insufficient to establish probable cause where circumstances called into doubt whether a crime had actually been committed); see also Gonzalez v. City of New York, 56 Misc.3d 1215(A) *5 (Sup. Ct., Bronx Co., 2017). “In any investigation the police are likely to encounter discrepancies,” People v. Roberson, 299 A.D.2d 300, 300 (1st Dept. 2002), and not all such discrepancies will be so significant as to negate probable cause. People v. Williams, 160 A.D.3d 576 (1st Dept. 2018) (under all the circumstances, conflicting accounts “were insufficient to negate probable cause”).The question at a suppression hearing is “whether the nature of the accusation, and the circumstantial indications of its reliability, were sufficient to justify the ensuing police conduct.” Sanders, 79 A.D.2d at 689-90. The legal determination of probable cause requires a fact-specific inquiry unique to every case. Notably, if the rule urged by the People were correct, no such inquiry would be required.Here, Officer Brito was presented with the complainant accusing her sister of a knifepoint robbery. Yet upon his arrival at the scene, within two minutes of the complainant’s 911 call, there was no knife anywhere and both women were apparently calmly waiting for the police to arrive.The absence of a knife is just one of several reasons to question the veracity of the complainant’s allegations here. The presence of a knife could have provided some corroboration that a crime had even been committed. See People v. Pacifico, 95 A.D. 215 (1st Dept. 1983) (probable cause established where police responding to a 911 call about a man with a gun in a parked car encountered a car matching the description provided by the caller, a man at the scene yelling “He’s got a gun,” and saw a gun in the car through the window).The odd behavior of both the complainant and her sister was also strangely inconsistent with the violent crime that she was claiming had just occurred. This is another significant factor. See People v. Dunnell, 63 A.D.3d 535 (1st Dept. 2009) (finding probable cause, notwithstanding defendant’s claim to be the actual victim, because complainant’s behavior was more consistent with a crime victim than a perpetrator); see also Carlton, 306 A.D.2d at 366 (extreme inconsistency between alleged perpetrator’s behavior and purported victim’s allegations contributed to the need for further investigation before probable cause could be established).Nothing about the defendant’s behavior here was consistent with consciousness of guilt. According to Officer Brito’s testimony, the defendant was calmly sitting in the driver’s seat of her parked car, with her sister’s wallet in plain view next to her. She apparently made no effort to conceal the presence of the wallet, and did not deny that it belonged to her sister. She gave the officer consent to search her car without hesitation or equivocation. Indeed, when the officer asked for permission to search, her response was a casual “Sure.” She even helpfully got out of the car to make it easier for him to search.Moreover, the sibling relationship between the parties should have alerted the officer to the likelihood that the situation may be more complicated than if the complainant were accusing a stranger. Knowing their relationship, and especially given the behavior of the defendant that was so obviously at odds with the complainant’s allegations, it was unreasonable for the officer to simply take the allegations at face value as the basis for the arrest. The presence of the complainant’s wallet in the defendant’s car was not by itself sufficient to outweigh the other factors that called into doubt the complainant’s allegations. The minor cut on the complainant’s nose is neither here nor there, as there was no evidence presented at the hearing that linked this injury to the defendant in any way.If there had been some further investigation, probable cause may have developed. But it was incumbent upon the officer to investigate further before making an arrest. Here, the totality of the circumstances did not rise to the level needed to make an arrest at the moment that Officer Brito did so.The People’s motion to reargue is granted. Upon reargument, the relief sought by the People is denied.This constitutes the decision and order of the Court.Dated: February 4, 2019Bronx, New York
