People v. Wharton

Shapiro, J. (dissenting).

Contending that the County Court *296was in error when it suppressed both the physical evidence taken from the defendant and an oral statement made by him, the People appeal. Contrary to the view of the majority, I believe that the order appealed from should be reversed and the motion denied.

The only testimony heard by the hearing court was that of the two officers who arrested the defendant and the substance of their testimony is correctly set forth in the majority opinion. I would but add that when the defendant left the taxi and scooped up the bag he did not examine its contents and that when he was searched at the precinct, a wrench was found on his person. He said it had fallen from the bag and that he had picked it up. Later that evening, it was learned that the power tools found in the bag and the wrench found on the defendant’s person had been stolen from the premises at 115-05 Parkway Drive, three houses south of the intersection at which the arrest was made.

In suppressing both the power tools and the defendant’s statement the hearing court said: "All right. The Court finds that at the time that the Police witnesses [sic] the physical evidence in this case, they did not know that those items had, in fact, been stolen. They did not discover that these items were stolen until after the defendant had been arrested. The Court finds that the arrest made of the defendant was unlawful since the Police did not have reasonable and probable cause to believe that he was committing or had committed a crime. The application to suppress the physical evidence is, therefore, granted. Since the arrest was unlawful, the statement made by the defendant is tainted by that unlawful arrest, and the Court further suppresses the statement made by the defendant.”

In thus deciding the issue before it, the hearing court placed undue emphasis on the fact that the police did not "know” that the power tools had "been stolen” at the time of the arrest. That is not the test, for a police officer is authorized to make an arrest for a crime not only when he "knows” that it has been committed, but also when he has "reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise” (CPL 140.10, subd 1, par [b]).

In People v Messina (21 AD2d 821) we held that a search and seizure was proper when based upon the reasonable belief of the police that the defendant had committed a burglary and *297that "[t]he mere fact that, at the time of the search and seizure the police did not know about the specific burglary which had actually been committed” was immaterial.

Here the totality of the circumstances surrounding the defendant’s conduct clearly gave the police "reasonable cause to believe” that the defendant had committed a crime and had come to collect the fruits of that crime. An owner of valuable power tools does not ordinarily abandon them. When coupled with the circumstance that it was nearly midnight when the taxicab in which the defendant was a passenger pulled up to almost the exact spot where the tools were and that he ran out of the cab and "scooped” up the bag without examining its contents, and with the knowledge of the police that the bag contained valuable power tools, their conclusion that the defendant already knew what was in the bag and that the tools were in fact the fruits of a theretofore committed crime was certainly a sensible one based not upon a mere "hunch” but upon probable cause.

While by a wild stretch of the imagination one could conjecture an innocent explanation for the defendant’s conduct, the totality of the circumstances here points in the opposite direction and clearly establishes the existence of probable cause which, rationally interpreted, is merely a determination of probabilities (see Brinegar v United States, 338 US 160, 175). As the Court of Appeals said in People v Santiago (13 NY2d 326, 331), "reasonable cause to believe” that a crime has been committed requires only "grounds which would induce an ordinarily prudent and cautious man under the circumstances to believe likewise” or, as we said, the possession of information which would warrant "a man of reasonable caution” to believe that the person arrested had committed a crime (People v Lombardi, 18 AD2d 177, 180, affd 13 NY2d 1014).

Remembering that the requirement for probable cause to make an arrest requires far less proof than is required for a conviction (People v Miner, 42 NY2d 937; People v White, 16 NY2d 270, 273; People v Fields, 50 AD2d 870), it would be "ludicrous to say” that the facts here "are as consistent with the defendant’s innocence as not” (People v Borrero, 26 NY2d 430, 436).

Under the circumstances the order of suppression should be reversed and the defendant’s motion denied.

*298Hopkins, J. P., and O’Connor, J., concur with Mollen, J.; Shapiro, J., dissents and votes to reverse the order and deny the motion, with an opinion, in which Damiani, J., concurs.

Order of the County Court, Nassau County, dated December 8, 1976, affirmed.