
    The People of the State of New York, Appellant, v Anthony Petralia, Respondent.
    Argued February 16, 1984;
    decided May 8, 1984
    
      POINTS OF COUNSEL
    
      John J. Santucci, District Attorney (Catherine Lomuscio and Richard G. Denzer of counsel), for appellant.
    The court’s decision to suppress certain evidence was improper. (.People v Berrios, 28 NY2d 361; People v Malinsky, 15 NY2d 86; People v Petro, 54 NY2d 759; People v Delgado, 79 AD2d 976; People v Jones, 80 AD2d 876; People v Green, 87 AD2d 892; People v Lypka, 36 NY2d 210; People v Havelka, 45 NY2d 636; Whiteley v Warden, 401 US 560; People v Horowitz, 21 NY2d 55.)
    
      David Samel and William E. Hellerstein for respondent.
    The court below was correct in deciding that the People failed to come forward with probable cause for respondent’s arrest where the only witnesses at the suppression hearing was a police officer who had relied solely on radio communications from another officer. {People v Havelka, 45 NY2d 636; People v Lypka, 36 NY2d 210; Whiteley v Warden, 401 US 560; People v Horowitz, 21 NY2d 55; People v Landy, 59 NY2d 369; People v Calderon, 88 AD2d 604; People v Green, 87 AD2d 892; People v Delgado, 79 AD2d 976, 53 NY2d 706; People v Ward, 95 AD2d 233; People v Bouton, 50 NY2d 130.)
   OPINION OF THE COURT

Wachtler, J.

The defendant has moved to suppress evidence seized at the time of his arrest for allegedly selling drugs to an undercover police officer who had informed the arresting officer of the sale. After a hearing, at which only the arresting officer testified, the trial court suppressed the evidence on constraint of certain Appellate Division decisions which hold the testimony of the undercover officer essential to establish probable cause under these circumstances. The Appellate Division affirmed, and the People have appealed. The issue is whether the People failed, as a matter of law, to meet their initial burden of showing probable cause for the arrest when they produced the arresting officer who testified that he relied on information from an undercover police officer who reported that he had just purchased drugs from the defendant.

The incident occurred in Queens County on March 2, 1981, and involves a team of New York City police officers specially trained in narcotics. On that date, the team was engaged in a “buy and bust” operation in which an undercover officer buys drugs from street dealers while “back up” officers follow the sellers and arrest them some distance away, after the undercover officer informs them that a sale has been completed and describes or identifies the seller. At approximately 4:30 p.m. that day, one of the backup officers, Detective McCarthy, was contacted on a police radio by the undercover officer who stated that he had just purchased heroin from “a male white, approximately 25, six feet, 150 pounds” wearing a blue jacket and black pants. The undercover officer also informed Detective McCarthy that the seller had entered a black Ford bearing a certain license plate and stated the “stash was in the trunk”.

Detective McCarthy followed the vehicle for approximately six blocks. When the defendant stopped his vehicle, the officer placed him under arrest and searched him and the trunk of the car. In one of the defendant’s pants pockets the officer found four $5 bills and one $10 bill which he identified as “previously reported buy money”. From the trunk of the car the officer recovered a bundle of glassine envelopes containing white powder which proved to be heroin under laboratory analysis. The defendant was indicted for criminal possession and sale of a controlled substance. He moved to suppress the evidence seized at the time of his arrest.

At the hearing the only witness called by the People was the arresting officer, Detective McCarthy, who related the above events and identified the undercover officer by shield number. The defendant did not call any witnesses. The court originally denied the motion to suppress. However, on reargument the court granted the motion and suppressed the evidence on constraint of certain recently decided cases from the Appellate Division, Second Department, because the People had not called the undercover police officer to testify at the hearing. The court noted that “although constrained to follow the Appellate Division decisions” it found difficulty in reconciling the rule with other decisions from this court, and the United States Supreme Court, and observed that the rule would have a “chilling” effect on undercover police activities.

The Appellate Division affirmed in a brief memorandum stating: “The People concede that affirmance is mandated by this court’s prior decisions in People v Delgado (79 AD2d 976) and People v Petro (83 AD2d 566, app dsmd 56 NY2d 782), but urge that this court overrule those decisions. The holding in those cases followed the reasoning set forth by the Court of Appeals in People v Havelka (45 NY2d 636) and People v Lypka (36 NY2d 210), and has been followed by subsequent decisions of this court (see, e.g., People v Calderon, 88 AD2d 604; People v Green, 87 AD2d 892).”

The facts in the cases from this court cited by the Appellate Division (People v Havelka, 45 NY2d 636; People v Lypka, 36 NY2d 210) are substantially different from the facts of this case. It is true that in each of those cases the arresting officer relied on information from another officer, and we held that the testimony of the sending officer was necessary to establish probable cause. However, the key factor in those cases is that the record did not indicate how the sending officer had acquired his information. In neither case did the record show that the sending officer had personal knowledge of the facts he transmitted and, indeed, in Havelka he had relied on a source or series of sources of unknown reliability.

The reason for the rule first announced in Lypka is illustrated by the Supreme Court decision in Whiteley v Warden (401 US 560) which was cited in Lypka. In Whiteley the arresting officer had relied on a radio bulletin that there was a warrant for the defendant’s arrest. The warrant had been obtained by another officer who had relied, in turn, on an “unnamed informant”, but did not provide sufficient facts in the warrant application to “support either the reliability of the informant or the informant’s conclusion that these men were connected with the crime” (Whiteley v Warden, supra, at p 567). The court noted (at p 568) that the arresting officers “were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest”. Thus, in that case, the police had acted as a conduit for an unknown source whose information did not facially constitute probable cause and could not be said to improve in quality merely because it had been relayed from one officer to another.

In the case now before us, the arrest was not based on information from an unknown source of unknown reliability. The evidence submitted to the court by the arresting officer shows that he relied on information from another officer on the narcotics team who had personally witnessed the defendant commit the crime just prior to the radio transmission. This testimony by one of the officers involved in the operation would, if credited, establish probable cause for the arrest and there was no need for the People to also produce the undercover officer to support a finding of probable cause by the court. As the Supreme Court noted in United States v Ventresca (380 US 102, 111): “Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number”. Although that case dealt with a warrant, the same type of analysis is required when a court is called upon at a suppression hearing to determine whether the People have met their burden of coming forward with evidence establishing probable cause for an arrest (People v Dodt, 61 NY2d 408, 415; People v Bouton, 50 NY2d 130, 135).

There may be cases in which the evidence presented at the hearing raises substantial issues relating to the validity of the arrest, the resolution of which could be aided by requiring the People to produce the undercover officer or by making him available to the defendant. But a per se rule requiring that he appear in every instance, as the defendant urges here, is unwarranted and could jeopardize the officer or his usefulness in pending or future investigations. Of course, the undercover officer may have to appear at a trial, if there is one, but there is no need for the People to produce all of their witnesses at a hearing where they only bear the burden of coming forward with evidence showing that there was probable cause for the arrest, and are not obligated to establish guilt beyond a reasonable doubt.

Contrary to the dissent’s contention, our rejection of the per se rule does not mean that the “decision of the police that there was probable cause to arrest and search defendant * * * is thus effectively insulated from challenge by defendant”. The defendant is always free to cross-examine the arresting officer and any other witnesses produced by the prosecution and may, of course, call his own witnesses or testify on his own behalf with respect to his conduct prior to the arrest. This testimony may disclose to the court that probable cause was lacking, in which case the evidence will be suppressed, or may, as noted, present substantial questions concerning the legality of the police conduct in making the arrest which may only be resolved by producing the undercover police officer or making him available to the defendant. Absent such a showing, however, requiring the People to produce the undercover officer is gratuitous and can only serve to expose or compromise the undercover officer, disrupt pending investigations in which he may be involved, or provide the defendant with a means of pressuring the People into accepting a “better” plea in order to avoid these consequences. Thus the flexible rule we have adopted should reasonably accommodate the legitimate interests of the defendant without rendering impractical the “buy and bust” operations which have become an important, if not indispensable, part of police efforts to curtail illegal drug activity.

Accordingly, the order of the Appellate Division should be reversed, the motion to suppress denied, and the case remitted to the Supreme Court, Queens County, for further proceedings on the indictment.

Kaye, J.

(dissenting). Where, as here, an accused challenges a warrantless search and seizure conducted by one police officer based upon accusations received from another police source, “to sustain their burden at the suppression hearing * * * the People must demonstrate that the sender or sending agency itself possessed the requisite probable cause to act.” (People v Lypka, 36 NY2d 210, 214; People v Havelka, 45 NY2d 636.) In now holding that the People have met their burden without producing the accusing officer to testify as to the basis for his accusation, the majority reasons that the seemingly clear command of Lypka and Havelka is inapplicable because “the key factor in those cases is that the record did not indicate how the sending officer had acquired his information” whereas here the arresting officer’s testimony purportedly showed that the accusing officer “had personally witnessed the defendant commit the crime.”

While the majority would examine the sending officer’s accusations in terms of veracity, reliability and basis of knowledge, as if information had been received from a private informant (see People v Elwell, 50 NY2d 231), the rule in Lypka and Havelka does not rest on concern for the veracity, reliability or knowledgeability of police officers as informants. The rule is based upon entirely different considerations, namely the right of an accused under the Fourth Amendment of the United States Constitution and section 12 of article I of the New York Constitution to put government accusers — as opposed to private accusers — to their proof on the issue of probable cause to arrest or to search. Because the result today disregards this fundamental distinction and represents an unwarranted departure from our prior decisions, I respectfully dissent.

The only basis in the record for the majority’s conclusion that the undercover officer personally observed defendant commit a crime is the testimony of the arresting officer that the undercover officer told him the defendant committed a crime. The arresting officer, while technically subject to cross-examination by defendant, was without personal knowledge of the relevant facts. He admitted that he did not personally observe any sale of drugs or “stash” in the trunk of defendant’s automobile, and received no information other than the cursory accusatory radio communication from the undercover officer, who, the arresting officer testified, “didn’t tell me anything about his observations.” Although there was no claim that he was unavailable, the undercover officer, on whose accusations the lawfulness of defendant’s warrantless arrest and the search of his person, as well as the warrantless search of the trunk of defendant’s automobile, must depend, was not produced and did not testify. The People produced no other witness at the hearing. When defense counsel attempted to introduce the undercover officer’s report, both as to the “buy” and as to the search, the People objected on the ground that it could not be used to impeach because “[t]his is written as to what someone else saw and heard”, and the court sustained this objection. The decision of the police that there was probable cause to arrest and search defendant and also to search the trunk of defendant’s automobile is thus effectively insulated from challenge by defendant.

Such insulation of the government’s decision to arrest and search is prohibited by the Federal and State Constitutions. Unlike those of a private informant, the accusations of a government officer are subject to constitutional proscriptions (People v Gleeson, 36 NY2d 462, 465) and “an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.” (Whiteley v Warden, 401 US 560, 568.) Where the accuser is a police officer, and not a private informant, the soundness of his accusation implicates the accused’s constitutional rights, for if the accuser is in error, the accused has been the subject of improper governmental conduct, regardless of the good faith of the arresting officer. (People v Ward, 95 AD2d 233, 239.) If in a particular case it is necessary to preserve the anonymity of an undercover officer — a claim which was not in any event made by the People in the present case — then measures can be taken to conceal the officer’s identity while testifying, without loss of an accused’s constitutional rights.

Clearly, it is incumbent upon the People in the first instance to show the existence of probable cause to arrest the defendant and to search his automobile. (People v Bouton, 50 NY2d 130, 136.) The end result of today’s decision is that the People can fulfill that burden at a suppression hearing by producing an officer who has no knowledge of and cannot be impeached or even examined concerning the basis for probable cause, but who will testify only that he was told by another officer that the defendant committed a crime and that there is contraband in defendant’s automobile. This new per se rule ignores basic constitutional safeguards.

Judges Jasen, Jones, Meyer and Simons concur with Judge Wachtler; Judge Kaye dissents and votes to affirm in a separate opinion in which Chief Judge Cooke concurs.

Order reversed, etc. 
      
       Several statements made by the dissent must be disclaimed in order to avoid confusion in future cases. First, we are not equating an undercover police officer with a private informant, “in terms of veracity, reliability and basis of knowledge”. It should be evident that we have taken the contrary position that a police officer working undercover is still a police officer and should not be equated with a mere private or civilian informant for the purposes of assessing the reliability of the information he provides. Secondly, the undercover officer’s report, which was included at the hearing in this case, was offered by the defendant in an effort to show that there was no basis, independent of the arrest, for searching the trunk of the car; it was not offered to challenge the legality of the arrest itself and therefore has no bearing on that issue.
     
      
      . Indeed, in Lypka, this court observed that the police bulletin which instigated the search and seizure was “far more reliable than the usual sort of hearsay upon which warrants may issue.” (36 NY2d, at p 214.) Nonetheless, the communication would not suffice for probable cause.
     
      
      . Where, as here, the testifying officer lacks personal knowledge, no other witness is produced, and the defendant is arrested alone, it is hard to imagine the sort of “showing” the majority contemplates in order to require production of the undercover officer, or where there is flexibility in its rule.
     