— Appeal by the People from an order of the Supreme Court, Queens County (Pitaro, J.), dated December 10, 1985, which, after a hearing,
Ordered that the order is modified, on the law and the facts, by (1) deleting the provisions thereof which granted (a) that branch of the defendants’ omnibus motion which was to suppress the television seized from under the first-floor staircase in the common hallway of the apartment building where the defendant Cruz resided, (b) that branch of the motion which was to suppress as evidence against the defendant Cruz physical evidence seized from Hero’s apartment and the basement of the building where Hero resided, and (c) that branch of the motion which was to suppress Hero’s statement to the police, and by substituting therefor provisions denying those branches of the motion, and (2) deleting the provision thereof which granted that branch of the motion which was to suppress Cruz’s statements to the police and substituting therefor a provision granting that branch of the motion only to the extent of suppressing Cruz’s statement that he just carried the bags without knowledge of their contents, and otherwise denying that branch of the motion; as so modified, the order is affirmed.
On December 7, 1984, at approximately 1:15 p.m., Officer Ruggio and his partner responded to a radio transmission of a possible burglary at 45-36 40th Street, in Queens. Upon arriving at that location, Ms. Durango, a tenant with an apartment on the second floor, informed the officers that she had called 911 and reported a burglary after hearing a crashing noise coming from the third-floor apartment directly above her apartment. According to Ms. Durango, she observed the defendants Hero and Cruz, whom she knew, descending the staircase from the third floor carrying white plastic shopping bags, soon after hearing noises emanating from the third-floor apartment. She next observed Hero and Cruz cross the street, still carrying the bags, and enter an apartment building in which Hero resided. Subsequently, she saw Cruz return to the third floor and come back downstairs carrying a television set. She did not see Cruz leave her apartment building. Ms. Durango provided the officers with the names and apartment numbers of both defendants. Cruz lived in the first-floor apartment in Ms. Durango’s building. The officers investigated the third-floor apartment and observed that the door had been forced open and the apartment "ransacked”. The officers then proceeded across the street to Hero’s apartment, which was also located on the first floor. The officers knocked on the door
After Bero and Cruz were placed under arrest, the defendants asked why they were being arrested. Upon being told the charge was burglary, Bero told the officers that the apartment previously had been broken into that morning. Cruz said he did not break into an apartment and agreed with Bero that the apartment had already been broken into. Officer Ruggio, without advising the defendants of the Miranda warnings, asked defendants how they came into possession of the property. Cruz replied that he just carried the bags for a friend without knowledge of their contents.
Criminal Term found there was no probable cause to arrest the defendants and there were no exigent circumstances warranting a forcible, warrantless entry into Bero’s apartment. Therefore, the court suppressed the physical evidence seized from Bero’s apartment, the basement of the apartment building where Bero resided and the hallway of the apartment building where Cruz resided as the tainted fruits of unlawful arrests of the defendants and an illegal entry into Bero’s
Although we disagree with the hearing court insofar as it found no probable cause to arrest the defendants, we agree that there were no exigent circumstances justifying the warrantless entry into the apartment of Bero.
Generally, information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest (see, People v Phillips, 120 AD2d 621; People v Tidwell, 122 AD2d 289). "A citizen’s reliability, as differentiated from that of a paid or anonymous informant, is assumed, since he [or she] could be prosecuted if his [or her] report were a fabrication” (People v Inman, 80 AD2d 622). Here, the report of a named citizen (Ms. Durango), combined with the officers’ observations of an apartment containing the telltale signs of a recent burglary, sufficed to provide the officers with probable cause to believe that a burglary had been committed and that the defendants Bero and Cruz were the perpetrators. The fact the evidence that Bero and Cruz were the burglars was circumstantial does not negate a finding of probable cause for their arrest (see, e.g., People v Sanders, 79 AD2d 688). "[A]n arrest need not be supported by information and knowledge which, at the time, excludes all possibility of innocence and points to the defendant’s guilt beyond a reasonable doubt * * * As the very name suggests, probable cause depends upon probabilities, not certainty” (People v Sanders, supra, at 690; People v Ragusa, 112 AD2d 956, 957).
It is well established that probable cause does not, in and of itself, justify a warrantless, nonconsensual intrusion into a defendant’s home (Payton v New York, 445 US 573). However, where exigent circumstances exist, the officer’s failure to procure an arrest warrant is excusable (Payton v New York, supra; People v Mealer, 57 NY2d 214, cert denied 460 US 1024). The People contend that the response to the knock at the defendant Bero’s door justified their conclusion that an immediate entry was essential to prevent the escape of Bero and/or the removal of stolen property. We disagree.
Various factors used by the courts to determine whether exigent circumstances are present include (1) the gravity or violent nature of the offense with which the suspect is to be charged, (2) whether there is reason to believe the suspect is
Furthermore, the exclusionary rule does not, require suppression of the television set found behind the first-floor staircase in the common hallway of the building where Cruz, Ms. Durango and the complainant resided. The officers had a lawful right to be in the common area of the apartment building and had an independent source for discovery of this evidence, i.e., Ms. Durango’s statement that she saw Cruz carry a television downstairs, but not across the street to Bero’s apartment. It is clear that "evidence will not be excluded as 'fruit’ unless the illegality is at least the 'but for’ cause of the discovery of the evidence” (Segura v United States, supra, at 815). The record does not support an inference that the television would not have been discovered but for the illegal entry into Bero’s apartment. Consequently, suppression of the television as to either of the defendants is not justified as it was not the direct or indirect product of unconstitutional conduct.
We next address the issue of whether Bero’s statements should be suppressed as the tainted fruit of an unlawful arrest. The officers had probable cause to arrest Bero based upon information supplied by Ms. Durango and from their own observations of the victim’s apartment, sources wholly unconnected with their illegal entry into Bero’s apartment. Accordingly, the warrantless arrest of Bero, effectuated in a public place and predicated upon probable cause, derived from independent sources, was proper. Thus, suppression of his statements cannot be sustained by application of the fruit of