
    The People of the State of New York, Respondent, v Wilfredo Rosario, Appellant.
    Argued September 12, 1991;
    decided October 24, 1991
    POINTS OF COUNSEL
    
      Robert S. Dean and Philip L. Weinstein for appellant.
    I. The hearing court’s holding, upheld by the court below, that auxiliary Police Officer Hernandez was a "fellow officer” who could "direct” arresting Officer Belton to arrest appellant, deprived appellant of his right to be free from unreasonable searches and seizures. (Whiteley v Warden, 401 US 560; People v Jennings, 54 NY2d 518; People v Luciani, 120 Misc 2d 826; People v Jackson, 72 Misc 2d 297; United States v Sorrells, 714 F2d 1522; People v Phillips, 120 AD2d 621; People v Brnja, 50 NY2d 366; People v Bigelow, 66 NY2d 417; People v Bell, 63 NY2d 796; People v Rizzo, 40 NY2d 425.) II. Auxiliary Officer Hernandez’s testimony that, after speaking to an unknown citizen informant, he went looking for "the defendant,” the "suspect” who fit the "description,” deprived appellant of his due process right to a fair trial. (People v Lopez, 123 AD2d 399, 69 NY2d 975; People v Melendez, 55 NY2d 445; People v Holt, 67 NY2d 819; People v Hines, 112 AD2d 316; People v Green, 35 NY2d 437.) III. The Wade hearing court’s refusal to allow the defense to call the identifying witness to the stand, on the issue of suggestiveness, denied appellant his Federal constitutional rights to compulsory process and to due process of law. (People v Chipp, 75 NY2d 327.)
    
      Robert M. Morgenthau, District Attorney (Patrick J. Hynes and Norman Barclay of counsel), for respondent.
    I. Defendant’s suppression motion was properly denied. (People v Johnson, 66 NY2d 398; People v Bigelow, 66 NY2d 417; People v Landy, 59 NY2d 369; People v Rodriguez, 52 NY2d 483; People v Lypka, 36 NY2d 210; People v Hicks, 38 NY2d 90; People v Green, 35 NY2d 193; People v Bellinger, 74 NY2d 633; People v Harrison, 57 NY2d 470; People v McRay, 51 NY2d 594.) II. The prosecutor’s examination of Officer Hernandez did not prejudice defendant. (People v Melendez, 55 NY2d 445; People v Lopez, 123 AD2d 399, 69 NY2d 975; People v Gines, 36 NY2d 932; People v Stanard, 32 NY2d 143; People v Casanova, 160 AD2d 394, 76 NY2d 786; People v Silva, 66 AD2d 662; People v Jackson, 70 NY2d 884.) III. Defendant did not have an unqualified right under the Federal Constitution to call Bravo Zayas as a witness at the Wade hearing. (People v Chipp, 75 NY2d 327; Watkins v Sowders, 449 US 341.)
   OPINION OF THE COURT

Alexander, J.

Wilfredo Rosario appeals by leave of a Judge of this Court from an order of the Appellate Division affirming his conviction of the crime of murder in the second degree. His principal contention on this appeal is that the "fellow officer” rule, which entitles a police officer to rely on a communication from another police officer and to act upon it in making an arrest, does not apply to this auxiliary officer because he is not a "police officer” or a "peace officer.”

We disagree and thus affirm the order of the Appellate Division.

I

As found by the courts below, Erick Hernandez, an auxiliary police officer, while on patrol in Upper Manhattan, received a radio run of a description of a suspect involved in a fatal stabbing nine days earlier who was seen in the vicinity. The suspect was described as a 25- to 30-year-old male Hispanic, 5-feet 8-inches to 5-feet 11-inches tall, with a dark complexion, wearing light blue pants and a black shirt, walking south on Broadway from 177th Street. This description had been received at the precinct through an anonymous telephone call and was virtually identical to one provided to the police by an eyewitness at the scene of the crime shortly after the stabbing. It was relayed to the officers on patrol including the auxiliary police officers.

Shortly thereafter, a Hispanic man approached Hernandez and three other auxiliary officers and informed them that he had seen the suspect. Hernandez concluded that the description of the man spotted by the Hispanic man matched that given in the radio run. He then conveyed this information and its source to uniformed police officers in a radio patrol car. The uniformed police and the auxiliary officers canvassed the area in the patrol car but failed to locate the suspect. The auxiliary officers resumed their foot patrol.

Within a matter of minutes, Hernandez spotted a person, who matched the description and information given to him, walking north on Broadway. As that person walked in the direction of Hernandez and his fellow auxiliary officers, he looked at them, slowly turned around and began walking in the opposite direction. The auxiliary officers followed and Hernandez flagged down another radio patrol car. Sergeant Belton spoke to one of the auxiliary officers and then to Hernandez from the patrol car. Hernandez pointed to the person they were following, described him and informed the sergeant that he was a murder suspect. Sergeant Belton and her fellow police officer pursued the man in the patrol car and quickly overtook him. With guns drawn, they stopped him, frisked and held him. Backup police officers from the first radio patrol car with whom Hernandez had communicated arrived moments later and confirmed Hernandez’s information. The suspect was taken to the 34th precinct station house, where he was interrogated. He made a statement in which he offered an alibi. Thereafter, he was placed in a lineup and identified as the murderer.

At a combined Mapp, Wade and Huntley hearing, defendant sought to suppress jewelry taken from him, the statement made at the station house and the lineup identification, arguing, inter alia, that the evidence was obtained as the result of an unconstitutional seizure, that the statement was involuntary and that the lineup was unreasonably suggestive. The hearing court denied suppression, finding that auxiliary Officer Hernandez, acting as the "eyes and ears of the police * * * had acquired information and made observations which provided probable cause to believe that the defendant had committed a crime.” The court held that when Hernandez directed Belton to apprehend defendant, Belton was justified in doing so. A jury subsequently convicted defendant of murder in the second degree.

The Appellate Division affirmed, concluding that the hearing court’s determination that defendant’s warrantless arrest was based on probable cause was amply supported by the record (162 AD2d 388).

II

A

Defendant argues that the courts below erred in applying the "fellow officer” rule to auxiliary Officer Hernandez because he was not a "police officer” or a "peace officer” and had no authority to make an arrest. Thus, the argument goes, defendant’s arrest, based solely on a communication from Hernandez to Sergeant Belton, was illegal. Moreover, defendant argues, even if we determine that the "fellow officer” rule was properly applied to auxiliary Officer Hernandez, the arrest nevertheless should be deemed illegal because Hernandez lacked probable cause.

This latter argument is without merit and requires no extended discussion. As there is evidence in the record to support the determination of the courts below that there was probable cause for the arrest, that issue is beyond this Court’s further review (see, People v Chipp, 75 NY2d 327, 339, cert denied — US —, 111 S Ct 99 [1990]; People v McRay, 51 NY2d 594).

However, that Hernandez possessed sufficient information upon which to reasonably believe that defendant had committed the alleged homicide does not alone render the arrest legal. The arrest may be upheld if the "fellow officer” rule was properly applied to Hernandez as an auxiliary police officer, such that Sergeant Belton was justified in relying upon Hernandez’s directive in making the arrest. We conclude that the rule is properly applied under the circumstances of this case.

B

The New York City Auxiliary Police program is the largest in the United States, comprising more than 8,000 men and women. These men and women, whose uniforms are similar to police officers, assist the police in crime deterrence by their uniformed presence, serve as a trained group of citizens in case of a civil defense emergency or natural disaster and promote better relations between the community and the New York City Police Department (People v Luciani, 120 Misc 2d 826, 828-829).

Although auxiliary officers perform foot patrol, traffic and crowd control, cover special events and conduct other nonhazardous jobs that a regular police officer would perform in uniform, their primary function is to observe and report ongoing criminal activity. Indeed, the New York City Police Department, which recruits, trains and supervises auxiliary officers has described these officers as being the "eyes and ears” of the police department (id., at 830).

In keeping with their responsibilities as aides to the police department, auxiliary officers are required to undergo an extensive training program. They must complete a 52-hour course which includes instruction in police science, criminal law, self-defense, first aid, police procedure and crowd psychology (id., at 830).

Defendant argues, as does the dissent, that notwithstanding these qualifications and the training and purpose of auxiliary officers, the "fellow officer” rule should not apply because auxiliary officers are not police officers or peace officers. They are not given the extensive and comprehensive training as are police officers and thus, do not qualify for the presumption of reliability accorded under the "fellow officer” rule and therefore, should not be granted the authority to direct an arrest. We disagree and conclude that the "fellow officer” rule is properly applied here because auxiliary Officer Hernandez possessed sufficient training and ability to make the determination that there was probable cause to support defendant’s arrest. Applying the rule to this case is consistent with the underlying rationale of the "fellow officer” rule and furthers the objective of aiding the police in law enforcement.

Under the "fellow officer” rule, "[a] police officer is entitled to act on the strength of a radio bulletin or a telephone or teletype alert from a fellow officer or department and to assume its reliability.” (People v Lypka, 36 NY2d 210, 213.) Officers making arrests based on the transmitted information are justified in doing so because the officer or department furnishing that information presumptively possesses the requisite probable cause which justifies the warrantless arrest. However, where a defendant challenges an arresting officer’s warrantless action, the presumption of probable cause disappears and it becomes incumbent upon the People to establish that the officer or agency imparting the information, in fact possessed the probable cause to act (see, People v Lypka, supra, at 214; see also, Whiteley v Warden, 401 US 560, 568; People v Jennings, 54 NY2d 518, 522; People v Havelka, 45 NY2d 636, 641; People v Horowitz, 21 NY2d 55, 60; see generally, 2 LaFave, Search and Seizure § 3.5 [2d ed]). If the People meet their burden of proof, then the warrantless action may be deemed reasonable and lawful. Thus, an arresting officer is deemed to act with probable cause when making an arrest at the direction of another law enforcement officer who has the requisite probable cause (see, People v Lopez, 95 AD2d 241; see also, People v Horowitz, supra, at 60).

The "fellow officer” rule has been employed in a variety of circumstances and through the use of various modes of communication including telephone, teletype and computer. The rule has been applied whether the communication was between superior or fellow officers within the same department, different agencies or agencies at different levels within a State and between officials in different States as well as between Federal and State or local authorities (2 LaFave, Search and Seizure § 3.5 [b], at 9). The pertinent inquiry in all situations has been directed to the nature and reliability of the informatian possessed by the person or agency transmitting the information. Unless that officer or agency is shown to have possessed probable cause, the warrantless arrest based upon that transmission may not stand.

We recognize that the training of auxiliary officers is not as extensive as that required of police officers. However, the training they receive and the purposes they serve in aiding law enforcement provide sound policy reasons for applying the "fellow officer” rule to auxiliary officers and militate against denying the police the benefit of their aide and assistance as the dissent would. Especially is this so in circumstances as revealed by this record. Indeed, application of the rule here serves the purpose of better enabling law enforcement to do its job but does not unduly jeopardize or impact on the rights of citizens.

This record contains undisturbed findings, amply supported, that auxiliary Officer Hernandez had sufficient information upon which to reasonably believe that defendant had committed the homicide. Thus, he had probable cause to direct defendant’s arrest.

A different result is not required because auxiliary Officer Hernandez is considered a peace officer only under limited circumstances (see, CPL 2.10 [26]; L 1951, ch 784, § 105), and therefore has no power to arrest beyond that of a private citizen. In People v Lypka (36 NY2d 210, supra), lack of authority to conduct a warrantless arrest did not deter this Court from determining that the "fellow officer” rule applied to out-of-State law enforcement officers. Similarly, under the facts of this case, Hernandez’s lack of authority to make a warrantless arrest should not stand as a bar to applying the "fellow officer” rule to him. We have considered defendant’s remaining arguments and conclude that they are without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Titone, J.

(dissenting). The auxiliary police force of the City of New York is an adjunct to the police department, and its members may properly act as the "eyes and ears” of that department (see, Public Information Fact Sheet, Auxiliary Forces Section, Police Department of City of New York, quoted in People v Luciani, 120 Misc 2d 826, 830). By holding that auxiliary officers fall within the scope of the "fellow officer rule,” however, the majority has, in effect, conferred on these volunteers the authority to process, evaluate and even draw legal conclusions based on the information they derive from their senses, thereby constituting the auxiliary force, in a sense, the "brain” as well as the eyes and ears of the police department. Since I am not persuaded that these auxiliary officers have either the qualifications or the training to make the complex assessments that go into determining the existence of probable cause, I would rule that police officers may not make arrests based solely on the assertion of an auxiliary officer that probable cause to arrest is present.

Under what has become known as the "fellow officer rule,” a police officer with no firsthand knowledge of the criminality is entitled to make an arrest or take some other action restrictive of a citizen’s liberty where the action is prompted by a report or alert from another police officer (see, United States v Ventresca, 380 US 102). In such instances, the reporting individual’s status as a police officer is deemed a sufficient ground for presuming the underlying reliability of the information conveyed (see, United States v Ventresca, supra; People v Petralia, 62 NY2d 47; People v Lypka, 36 NY2d 210, 213; cf., People v Hicks, 38 NY2d 90 [citizen informant]). This rule is applicable even when the fellow officer’s report conveys only conclusions, such as the conclusion that a particular individual should be arrested, rather than the specific facts from which the conclusions were drawn (see, Whiteley v Warden, 401 US 560; People v Lypka, supra). In such instances, the arrest will be upheld if it is shown at a subsequent Mapp hearing that the information underlying the report was sufficient to constitute probable cause (Whiteley v Warden, supra; People v Havelka, 45 NY2d 636; People v Lypka, supra). The rule is premised on the entirely reasonable judgment that, where a "fellow officer” is concerned, the arresting officer is "entitled to assume” the accuracy of the conclusion that probable cause exists (Whiteley v Warden, supra, at 568; see, People v Lypka, supra, at 213). Whether the same assumption is reasonable when the "fellow officer” is not a professional police officer at all, but rather is a volunteer member of an auxiliary police force, is the question we must determine here.

The majority is satisfied that, despite the differences in training that auxiliary officers and police officers receive, there are "sound policy reasons for applying the 'fellow officer’ rule” to the former (majority opn, at 589). In my view, however, the Court’s acceptance of the "fellow officer” rule in this context accords far too much weight to the goal of "enabling] law enforcement to do its job” and not enough to the countervailing goal of protecting citizens from unfounded or unwarranted intrusions.

Determining whether a given set of observed behaviors and circumstances constitutes probable cause to arrest is a difficult and complex task that has occasionally strained the reasoning powers of even our most learned jurists. Yet, the necessities of law enforcement dictate that we daily entrust that determination to police officers, who have little formal legal training. The societal choice to permit police officers to make street arrests based on their own observations and the accompanying inferences, subject to subsequent judicial oversight, represents a fair compromise between the goal of minimizing erroneous arrests on the one hand and "society’s interest in preventing crime and apprehending criminals” on the other (People v Elwell, 50 NY2d 231, 241).

The compromise is a fair one, in part because the special training and experience that police officers receive, coupled with the exacting requirements for appointment to the position, provide some measure of assurance that most well-trained officers are able to distinguish between facts that rise to the level of probable cause and those which do not, with only a small margin for error. We have often relied, for example, on the special training and experience of police officers in determining the existence of probable cause (see, e.g., People v McRay, 51 NY2d 594, 601; People v Alexander, 37 NY2d 202, 203-204; see also, United States v Ventresca, supra; see generally, 1 LaFave, Search and Seizure § 3.2 [c] [2d ed]). While this factor is most often invoked to tip the balance in favor of probable cause (e.g., People v McRay, supra), it "cuts both ways” and may militate against a probable cause finding when a person with an experienced officer’s "special skills * * * should have recognized that no criminal conduct was involved” (1 LaFave, op. cit., at 571-572). There is simply no basis for inferring that the "special skills” possessed by police officers that enable them to make a fair probable cause assessment in light of the known facts are also possessed by auxiliary police officers.

First, the qualifications needed to become a police officer are far more rigorous than those required of would-be auxiliary officers. Civil Service Law § 58 requires, in most instances, that newly appointed police officers be "not less than twenty nor more than twenty-nine years of age,” "of good moral character”, a holder of a high school diploma or its equivalent, and, in larger municipalities, eligible for appointment from a "list established according to merit and fitness.” Further, police officers must have certain physical attributes, including adequate vision and hearing, which attributes have a direct bearing on their ability to observe and assess unfolding events (Civil Service Law § 58 [1] [c]; 9 NYCRR 6000.3 [d], [e]). In contrast, the only stated requirements for auxiliary officers in New York City are that they be between 17 and 60 years old, "able to read and write English” and "in good health” (Police Department of City of New York, Commanding Officer, Auxiliary Police Section, APS No. 1083 [Sept. 27, 1991]). Those qualifications are hardly sufficient to instill confidence in the ability of auxiliary police to make the fine distinctions involved in making probable cause determinations.

A similar concern may be raised with regard to the training auxiliary officers receive, a factor on which the majority places great weight. In New York City, auxiliary officers are exposed to a 54-hour training course (id.). Packed into that 54-hour period are, undoubtedly, lessons in crowd psychology, traffic control, first aid, dealing with emergencies, basic police procedures, community relations and the rules and regulations governing auxiliaries’ conduct. With so much to learn in such a short time, it is difficult to imagine how these auxiliaries can also acquire a working knowledge of probable cause — a subject that perplexes full-time law students as well as trained practitioners and Judges.

In contrast to the minimal orientation that auxiliary officers receive, the Legislature has mandated that regularly appointed police officers be exposed to an exacting training program (see, General Municipal Law § 209-q), consisting of no less than 445 hours of coursework and covering such topics as the administration of justice and "basic law” (9 NYCRR 6020.3 [a]). In fact, in New York City, the training school for new police recruits currently provides approximately 794 hours of training in a wide variety of areas, including police science and law (Police Department of City of New York, Commanding Officer of Police Academy, Memorandum re: Police Officer Training, DCTr No. 667-91 [Sept. 30, 1991]). The "law” curriculum is designed to provide student officers "with a working knowledge of criminal and procedural law” through the use of workshops, films and even a "moot court” demonstration (id.).

Finally, it cannot be said that the regular duties of auxiliary officers bring them into contact with situations in which a working knowledge of probable cause principles can readily be developed. Originally conceived in the early 1950’s as part of the State’s civil defense program, the auxiliary force has evolved into a body of citizens whose functions include deterring crime by their uniformed presence, promoting better police relations with the community, aiding the police in traffic control, keeping order at special events and performing clerical and other nonhazardous work that would otherwise require the attention of a regularly appointed police officer (People v Luciani, supra, at 828-829). Significantly, auxiliary police officers have no powers to effect arrests beyond those afforded private citizens (CPL 2.10 [26]), and, consequently, they are rarely, if ever, called upon to make probable cause determinations on their own. Moreover, because they do not make arrests, they have no experience in having their judgment tested in the crucible of Mapp hearings, which are another source of on-the-job training for regularly appointed police officers. It is their lack of experience in effecting arrests and appearing in court to defend their conduct that also distinguishes auxiliary officers from out-of-State police officers, as to whom the "fellow officer” rule unquestionably applies (see, People v Lypka, 36 NY2d 210, supra), notwithstanding the latter’s lack of authority to effect arrests in New York (see, majority opn, at 589).

In sum, while auxiliary police officers have many valuable contributions to make in the area of law enforcement, they are simply not sufficiently qualified, experienced or trained to make accurate and reliable judgments about the existence of probable cause. Consequently, the basic assurances that underlie the rule developed in Whiteley v Warden (supra) and People v Lypka (supra), permitting police officers to arrest on the basis of another officer’s probable cause determination, are lacking. Nor are sufficient assurances provided by the availability of postarrest Mapp hearings at which the auxiliary officer’s probable cause conclusion can be tested. As one commentator has observed, relying on after-the-fact judicial review is extremely risky because such reliance could "encourage the general practice of [police officers] making arrests upon unsupported directives [by others],” a practice that "is undesirable because some of these arrests will inevitably be made without anyone having probable cause” (2 LaFave, op. cit., § 3.5 [b], at 5). While that risk may be an acceptable one when the "fellow officer” is a police officer whose training and experience minimizes the danger of inaccuracy (see, id.), the same cannot be said when the "fellow officer” is an auxiliary officer with only the barest of qualifications, experience and training.

In the latter instance, the fairest and most sensible balance between the needs of law enforcement and the rights of individual citizens is best achieved by recognizing auxiliary officers as reliable bearers of specific information indicative of criminality (see, United States v Ventresca, supra), while reserving for police officers the duty to determine, based on experience and training, whether the observed information rises to the level of probable cause. Since the majority’s decision here blurs that important distinction and, in the process, fails to accord sufficient significance to the differences between auxiliary and regularly appointed police officers, I respectfully dissent.

Chief Judge Wachtler and Judges Simons, Kaye, Hancock, Jr., and Bellacosa concur with Judge Alexander; Judge Titone dissents and votes to reverse in a separate opinion.

Order affirmed. 
      
       The People agreed not to use the statement in connection with their direct case but reserved the right to use it on cross-examination should the defendant testify.
     