Evidence collected against a man charged with patronizing a prostitute as part of Nassau County's "Flush the Johns" sting cannot be used because there was no probable cause to arrest him, a judge has ruled.
The case is ongoing, and prosecutors said they intend to pursue it. The man, Abraham Emanuel, is among 104 men arrested in the sting this past spring, and his case is the first to go to pretrial hearings.
Shams Tarek, a spokesman for Nassau County District Attorney Kathleen Rice, noted that the judge suppressed the evidence gathered "incident" to the arrest. He said that meant evidence gathered after the arrest could not be used. Tarek, said the prosecution would proceed but he declined to say what evidence remained.
Defense lawyer Brian Griffin of Garden City, who sought to suppress the evidence, said the judge's ruling covered evidence "gathered before, during and after the arrest. They had no probable cause to arrest."
Judge Sharon Gianelli of First District Court in Hempstead ruled Tuesday that the undercover officer in the case provided sketchy testimony about the solicitation, and that she identified the man in court after being shown his mug shot before her testimony.
The undercover officer testified at the pretrial hearing before Gianelli that she could not recall the exact words the man used when he called in response to ads that county police had placed on a website, backpage.com, according to a court transcript.
The phone calls were not recorded, the officer said, and that was not important because "we had them on videotape saying it." Tarek said Friday that none of the telephone calls had been recorded.
Prosecutors did not introduce any videotape at the pretrial hearing, the judge said. Also, the undercover officer "acknowledged on cross-examination that she had been shown his [Emanuel's] mug shot prior to testifying," the judge said.
"The court therefore finds that the People have failed to establish probable cause [to arrest] to the court's satisfaction," Gianelli ruled. "Consequently, any evidence recovered, gathered or seized incident to Mr. Emanuel's arrest is hereby suppressed."
Prosecutors said they intend to file a motion for re-argument, and the judge adjourned the case without comment until Nov. 18. Griffin said this week that he will file a motion to dismiss.
Attorney William Petrillo of Rockville Centre, who represents three men caught in the sting, said the language caught on the videotapes does not suggest sex, and he has not been provided any information about the taping of the original telephone solicitation.
"In many of these cases, the men were seeking comfort, companionship, a massage. Sex is never even mentioned," Petrillo said.