NAPO Press Release
PEOPLE OF THE STATE OF NEW YORK v. PATRICIA FEERICK, MAYRA SCHULTZ, JOHN DeVITO and ORLANDO ROSARIO
WASHINGTON, DC - On Saturday, October 10, 1998, NAPO’s National Law Enforcement Rights Center filed an amicus curiae ("friend of the court") brief before the New York Court of Appeals, that state’s highest court. The brief was filed on behalf of four New York City police officers in a criminal case, which involved serious violations of the defendant officers’ Fifth Amendment rights and a serious misapplication of New York criminal provisions to what was basically an unreasonable search and seizure. (The case is People of the State of New York v. Patricia Feerick, Mayra Schultz, John DeVito, and Orlando Rosario.)
Background and Overview: The History of this Case
In this case, a police radio was stolen by members of a gang of drug traffickers in Manhattan, the "Purple Gaps", during a drug arrest. The radio was then used to intercept police transmissions and to broadcast harassing and threatening remarks directed against one of the officers, Lieutenant Feerick.
Because of obvious concerns about officer safety and drug enforcement efforts, Lt. Feerick and three other New York City Police officers knocked on the doors and were given entry into two apartments to find the radio, based on intelligence information. The officers did not have any warrant. They searched for, but did not find the radio. However, they did find and seize hundreds of vials of crack cocaine in one apartment. They pressured the occupants to return the radio, which was then returned within 24 hours, due to the efforts of a drug dealer and gang member.
One of the occupants telephoned the police, and an internal affairs investigation began. Several months later, the criminal investigation was closed, and an assistant district attorney gave permission for internal affairs to compel Garrity-protected statements for possible disciplinary action. (Under Garrity v. State of New Jersey, 385 U.S. 493 (1967), because the officer statements are coerced under threat of job loss, they are considered involuntarily given, and therefore cannot be used against the defendants in any way in a criminal case, under the Fifth Amendment.)
Two of the officers were interviewed and their compelled statements were automatically immunized from any use in any criminal proceeding. Shortly thereafter, the criminal case was reopened, based at least in part on the identification of witnesses from information in those immunized statements. Then the other two officers were interviewed, and they gave Garrity-protected statements. (Conducting these interviews violated the district attorney office’s usual practice of not taking compelled statements when a criminal investigation is open.)
Eventually, the four officers were charged with burglary and other offenses. Much of the testimony against the officers came from drug addicts, including the drug dealer who arranged for the radio’s return. The officers were acquitted of burglary, but were convicted of criminal trespass, unlawful detention of the apartment’s occupants, coercion, and official misconduct (getting the radio back was considered "receipt of a benefit" under this anti-corruption statute). Also, one officer was convicted on perjury and falsification of a document. Upon conviction, all of the defendant officers lost their jobs. The judge’s instructions to the jury translated a Fourth Amendment violation into an unlawful criminal intent and preordained their convictions. The supervisory lieutenant received a sentence of imprisonment of two years, another officer received one year of imprisonment, a third received 1 to 3 years (on a perjury conviction), and the fourth received probation. All were ordered to pay restitution.
It appears that immunized information from the compelled statements taken from the defendant officers:
The use of any tainted evidence was never thoroughly examined by the lower courts in this case, to determine how the immunized material might have been used. Instead these courts relied upon prosecutorial denials.
These searches of the apartments took place 8 years ago, and there is still no justice, while 3 of the defendants wait to find out if they will eventually be sent to prison. Until their convictions, the defendants had solid records of public service prior to the incident giving rise to this case.
NAPO’s Argument on Behalf of These Officer Defendants:
The National Law Enforcement Officers’ Rights Center’s (an affiliate of the National Association of Police Organizations) amicus brief made the following points. First, in its jury instructions on the trespassory offenses the trial court failed to distinguish between unlawful criminal conduct warranting penal sanctions and unreasonable conduct warranting either the application of the Fourth Amendment’s exclusionary rule or, in egregious violations, administrative sanctions, or civil damages, more appropriate remedies. A law enforcement officer’s actions, done under color of law and in good faith performance of duty but falling outside of permissible Fourth Amendment bounds, do not give rise to the presumption that the officer acted with criminal intent. In order to convert unreasonable conduct into unlawful conduct, the officers must have known that their actions were both unlawful and criminal. In addition, the judge erroneously instructed the jury that a police officer may not lawfully detain or search a person in his or her own apartment, even if the police officer has reasonable suspicion to believe that the person is committing, has committed, or is about to commit a crime, a serious mistake by the judge.
NAPO’s brief expressed concern that any police officer conducting an unlawful search in violation of the Fourth Amendment will be placed at risk for a criminal prosecution, which could deter officers from conducting legitimate searches of buildings and residences.
Second, NAPO’s brief contended that the prosecutor failed to prove beyond a reasonable doubt that the defendant officers possessed the requisite criminal intents to sustain their convictions for criminal trespass, unlawful imprisonment, coercion, and official misconduct. This was because the officers were acting under color of law and possessed certain privileges as police officers. For example, the defendants’ actions did not fall within the definition of criminal trespass because police officers have a privilege to enter private premises in order to perform their public duties. A police officer who honestly believes he or she is licensed to enter the premises is not guilty of criminal trespass. Similar reasoning applies to detention of the apartment occupants. Moreover, even if the district attorney had been able to prove that the defendant officers possessed the requisite criminal intents, their actions were lawful under the doctrine of justification.
Third, NAPO’s brief discussed the apparent violations of the defendants’ Fifth Amendment privilege against compelled self-incrimination. It urged the Court of Appeals to protect the rights, privileges, and immunities of police officers who become the subjects or targets of criminal investigations, while being questioned as subjects of departmental employer-employee disciplinary interrogations under Garrity immunity. Officers must have assurance that any immunity conferred on them to compel their testimony fully protects against them any "use and derivative use" in a criminal case.
The brief discussed how the trial court had failed to hold the thorough hearing required by the U.S. Supreme Court’s Kastigar case to establish the following:
Instead, the brief indicated how the lower courts in this case had relied upon general prosecutorial denials and placed serious limitations on and narrowed the scope of the Kastigar hearings. Accordingly, the brief concluded: First that the Kastigar hearings held in this case were totally inadequate, violating the defendant’s rights. Second, the People failed to carry their burden of proof that the defendants’ U.S. Constitution’s Fifth Amendment privilege and the New York Constitution’s similar privilege against self-incrimination were not violated through use or derivative use of their immunized testimony.
NAPO’s brief urged the court to dismiss the charges in this case for the above reasons. It also concluded that these uses of tainted evidence seriously impaired the integrity of the proceedings and prejudiced the Defendants’ rights, allowing for dismissal under New York law. Alternatively, the brief suggested that, at the very least, the Court of Appeals court remand the case for a full Kastigar hearing, with guidance from the Court as to the scope of the hearing.
Oral argument before the Court of Appeals is expected later this year. NAPO will inform you of the outcome.
The National Association of Police Organizations (NAPO) is a coalition of police unions and associations from across the United States that serves in Washington, DC to advance the interests of America’s law enforcement officers through legislative and legal advocacy, political action and education. Founded in 1978, NAPO now represents more than 4,000 police unions and associations, 250,000 sworn law enforcement officers, 3,000 retired officers and more than 100,000 citizens who share a common dedication to fair and effective crime control and law enforcement.
In New York City, NAPO represents the New York City PBA, the Detectives’ Endowment Association of NYPD, the Sergeant’s Benevolent Association of NYPD, the Lieutenants Benevolent Association of NYPD and the Captains Endowment Association of NYPD.
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