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August 3, 2005.

ROBERT SPEED, Defendant.

The opinion of the court was delivered by: P. KEVIN CASTEL, District Judge


Defendant Robert Speed was arrested by Nassau County police detectives on January 31, 2002 and charged under N.Y. Penal Law § 140.25(a) with a burglary that occurred on October 11, 2001 at 58 Hunt Drive, Jericho, N.Y. Defendant Speed now challenges the existence of probable cause for his warrantless arrest.

On December 3, 2004, I held an evidentiary hearing on defendant's motion to suppress certain statements that he allegedly made on January 31, 2002 and the early hours of the next morning. Speed argued that the statements were the product of a warrantless and illegal arrest at his home or, alternatively, were the product of a custodial interrogation conducted without a knowing waiver of his rights. After hearing testimony from four witnesses, I set forth my findings of fact and conclusions of law denying defendant's motion. (Tr. 1341-42) I concluded that Speed's burglary arrest did not occur at his home and that no warrant was required for his arrest in a nearby parking lot by Nassau County detectives. I found that Detective Donald J. Bartels reasonably believed that Speed presented a flight risk in light of his prior criminal history, the strength of the evidence against him and the fact that Speed knew or would soon learn that an accomplice had been arrested that morning. I further concluded that certain statements made to his Parole Officers were voluntarily, non-custodial statements for which no advice of rights was required. Post-arrest statements made by Speed on the way to the precinct were spontaneous and not the result of any questioning or interrogation of him. Statements made after he arrived at the precinct were made after he was informed of his rights and signed a written waiver thereof.

  At the December 3 hearing, I ruled that the defendant had not placed probable cause for the arrest at issue in a timely manner in his pre-hearing submissions. I informed defense counsel that I would entertain a subsequent application on that issue. Defendant subsequently moved to suppress the statements as the product of an arrest made without probable cause. I now address this issue.

  The basis for probable cause included facts set forth in a "felony complaint" dated January 31, 2002 and filed in Nassau County District Court charging defendant with a burglary occurring on October 11, 2001 at 10:38 p.m. at 58 Hunt Drive, Jericho, N.Y. It recites the following information, subscribed to by Detective Bartels and Lt. Thomas Sinatra which the government asserts supports a finding of probable cause:
"At the aforesaid time and place Police Officers responded to a burglary in progress and observed two male blacks in the above listed premise. One male black ran from the building and over the rear fence. Officer Loughlin and his canine recovered a ski mask in the vicinity of the rear yard. The other male was arrested and identified as being Darin Riley, who had a mask and assorted jewelry on his person which was identified by the complainant as belonging to her. The mask which had been recovered in the vicinity of the burglary was tested and found to contain DNA material. This DNA material was compared with samples being held in the New York State DNA bank and was found to be consistent with the defendant's. The two defendants were later found to be close associates."
  For the purpose of this motion, defendant Speed does not dispute that a burglary occurred at the time and place alleged in the "felony complaint," nor does he challenge that a ski mask containing his DNA was found somewhere in proximity to 58 Hunt Drive. He argues that in order to establish probable cause for a burglary of a dwelling, he must have been observed inside or departing from the dwelling; he seems also to argue that the mask must have been found within the boundaries of the property on which the dwelling was located.*fn1 Speed argues that the assertions in the "felony complaint" are inadequate and, in any event, contradicted by testimony at the December 3 hearing. Detective Bartels, who was not part of the canine search team that located the ski mask, testified at the hearing on December 3 that a "ski mask was recovered from the scene. . . ." (Tr. 62; see also Tr. 69) On cross-examination, Bartels responded in the affirmative to the question of whether he told Speed that his DNA had been found on a mask at the site of the burglary." (Tr. 99) Defendant argues that the imprecision of the felony complaint and the hearing testimony is significant because his alleged accomplice, Darrin Riley, was also charged with the burglary at 58 Hunt Drive, as well as burglaries at 60 and 64 Hunt Drive, but he, Speed, was not. He also notes that a nighttime photograph of the rear of 58 Hunt Drive does not show the ski mask. He further argues that an evidentiary hearing is necessary because the term "vicinity" is vague and could include a location so distant from 58 Hunt Drive as to undermine the basis for probable cause. No affidavit or other proof is offered that the ski mask was found at a material distance from 58 Hunt Drive or that the phrases "scene", "site" or "in the vicinity of the rear yard" or "the vicinity of the burglary" should be given anything other than their plain meanings.
  I conclude that defendant Speed has not set forth a basis for a further evidentiary hearing on the issue of probable cause. The legal principles are well established and were neatly summarized in United States. v. Cruz, 834 F.2d 47 (2d Cir. 1987), cert. denied, 484 U.S. 1077 (1988):
In order to establish probable cause, it is not necessary to make "a prima facie showing of criminal activity" or to demonstrate that it is more probable than not that a crime has been or is being committed. . . . Rather, probable cause for arrest "exists where `the facts and circumstances within their [the officers'] knowledge and of which they had 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." . . . "[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules." . . . It "`must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.'"
Id. at 50-51 (citations omitted).

  Here, the unchallenged facts amply support a finding of probable cause. On October 11, the police responded to a burglary in progress and observed two black males at 58 Hunt Drive. One of the two, Darrin Riley, was arrested at the scene and had in his possession a "mask" and jewelry later identified as coming from the dwelling. Riley was later found to be a close associate of Speed. The other black male was observed running from the building, i.e. the dwelling at 58 Hunt Drive, and going over a rear fence. A canine unit located a ski mask, which was found to contain defendant's DNA. Whether the ski mask was found in the rear yard, near the rear yard or in the vicinity of 58 Hunt Drive, does not undermine the totality of the facts that gave rise to probable cause for Speed's arrest. Nor does the fact that Riley may have committed other burglaries that same evening undermines the basis for probable cause. It was Speed's, not Riley's, DNA found on the ski mask. I conclude that the unchallenged evidence was sufficient to cause a person of reasonable caution to conclude, based upon the totality of circumstances, that it was likely that Speed was the person who was seen running from a dwelling and going over the fence in the rear yard of 58 Hunt Drive, where a burglary of had just occurred and that he had committed the crime of second degree burglary.

  Separately, defendant argues that the statements at issue at the December 3 hearing should be ruled inadmissible as irrelevant and prejudicial under both Rule 402 and Rule 403. Nothing set forth in the letters of December 23 or June 3 would support that conclusion. While the statements on the day of the arrest may be prejudicial in that they tend to support the government's case, they are not unfairly so. They meet the minimal standards for relevance and, at this pretrial juncture, I see no reason to basis to exclude them under Rule 403. Defendant is free to renew his objection at trial.

  SO ...

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