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Suppression of Police Observations
by Gary Muldoon
Muldoon & Getz
Rochester, New York
www.muldoongetz.com

Suppression of evidence is usually thought of in terms of three types of evidence: statements (of a defendant), identification (of a defendant), and tangible property. But consider a situation where police engage in unconstitutional activity in which the "evidence" acquired is none of these but of their observations. Is this type of intangible evidence subject to suppression, or is it outside the bounds of suppression?
The answer is found in People v Rossi, 80 NY2d 952 (1992); see also, People v Dory, 59 NY2d 121,127 (1983) (dictum). Rossi involved a prosecution for promoting gambling and possession of gambling records. Defendant’s omnibus motion sought suppression of all tangible evidence, statements and other evidence flowing from his unlawful arrest. The defendant’s arrest was illegal. Could the police officers testify about their observations? This "connecting evidence" was all that existed to establish defendant’s criminal liability.

The Court of Appeals in Rossi held that this testimony should have been suppressed, as it resulted from the wrongful arrest.

A Fourth Department case, People v Washburn, 309 AD2d 1270 (4th Dept 2003), concerned a stop of a vehicle in Webster, Monroe County. The stop was based upon less than probable cause but resulted in a charge of DWI. The stop was found to be illegal; the Appellate Division ordered all police observations flowing from that stop suppressed as well.

This is part of the fruit of the poisonous tree doctrine. People v Johnson, 168 Misc 2d 81 (Sup Ct 1995). Cf. People v. Tolentino, 14 NY3d 382 (2010) (defendant's identification is never suppressible).

Rossi
also stands for the proposition that, where all evidence is to be suppressed, the proper remedy is dismissal of the indictment. See also, People v Washburn, supra; People v Richards, 32 AD3d 545 (2d Dept 2006); People v Reyes, 77 AD3d 509 (1st Dept 2010).


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