Crown Heights

DNA and criminal record ruled enough probable cause for Brooklyn man’s arrest

February 25, 2014 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
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A Brooklyn man who was arrested, charged and acquitted of burglary has been prevented from following through with his suit against the city for false arrest and malicious prosecution.

Given the defendant’s past criminal record and DNA evidence found at the scene of the crime, the police had probable cause to arrest and the prosecutor authority to prosecute a Brooklyn federal judge ruled.

Kevin Thompson was arrested in 2010 in connection with the burglary of an apartment building on Underhill Avenue near Prospect Park. A baseball cap left on the scene contained DNA evidence from an unknown source. Investigators revealed that the cap did not belong to any of the apartment’s residents. A DNA analysis was conducted and indicated that the DNA profile matched defendant Kevin Thompson.

NYPD officers began looking into Thompson’s background and learned that Thompson had a past record of a number of theft-related offenses. In addition, Thompson’s last known address was less than 300 feet away from the victim’s Underhill Avenue apartment. Thompson was arrested and charged but a jury ultimately found him innocent of charges against him.

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Believing that his rights had been violated throughout the investigation and trial, Thompson filed a civil suit against the city alleging false arrest and malicious prosecution.  A Brooklyn federal judge reviewed Thompson’s claims and, finding no basis for the claims in law, dismissed his case.

For a false arrest claim against the NYPD to succeed, it must be proven that the police did not have probable cause for the arrest. In this case, Thompson alleged that the requisite probable cause did not exist.  Brooklyn Federal Court Judge Raymond Dearie acknowledged that the use of Thompson’s arrest record—which showed Thompson’s propensity for theft-related offenses—could not, by itself, establish probable cause. Linking the arrest record with DNA evidence, for example, would like be sufficient incriminating evidence to sustain probable cause.

To refute the DNA evidence, Thompson argued that while his DNA was found on a discarded baseball cap, the police did not rule out “innocent explanations for why his DNA was on the hat” such as “secondary DNA transfer”—a theory that the DNA came to be there without any direct contact between Thompson and the cap.

Unfortunately for Thompson, police investigators are not “required to explore and eliminate every theoretically plausible claim of innocence before making an arrest,” Dearie cited in the decision of the court. In Thompson’s case, Dearie noted, “the DNA evidence directly linked Mr. Thompson to the burglary.”  

That alone would have sufficed as probable cause for an arrest, Dearie appeared to indicate. The police did not solely rely on the DNA evidence. Rather, the DNA evidence was further corroborated by Thompson’s proximity to the victim’s apartment and Thompson’s own criminal record.

“Given this evidence, a reasonable officer could readily conclude that Mr. Thompson had committed the burglary,” Dearie concluded.

Because the police had probable cause for Thompson’s arrest, it followed that the prosecution had probable cause to prosecute. “[H]is DNA evidence, coupled with the officers’ follow-up investigation — which revealed that Mr. Thompson was not authorized to be in the burglarized apartment, had a last known address near to the crime, and had a criminal history involving similar crimes — established probable cause to prosecute Mr. Thompson,” noted Dearie.

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