The Fourth Department determined asking defendant (who was on a bicycle and properly stopped) why he was so nervous and whether he was carrying drugs was invasive questioning unsupported by an indication of criminal activity. Suppression of defendant’s statements and seized evidence should have been granted:
… [F]ollowing the permissible stop of defendant on his bicycle, the officers improperly escalated the encounter to a level two common-law inquiry by asking defendant why he was so nervous and whether he was carrying drugs. The officers’ inquiries, which involved “invasive questioning” that was “focuse[d] on the possible criminality” of defendant … , were not supported by the requisite founded suspicion of criminality … . The testimony at the suppression hearing establishes that the officers observed nothing indicative of criminality, and we conclude that defendant’s nervousness upon being confronted by the police did not give rise to a founded suspicion that criminal activity was afoot … . Because defendant’s inculpatory oral response to the impermissible accusatory questioning resulted in the seizure of the drugs from defendant’s pocket and a postarrest written statement from defendant, the drugs and the oral and written statements must be suppressed … . People v Freeman, 2016 NY Slip Op 07784, 4th Dept 11-18-16
CRIMINAL LAW (ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED)/SUPPRESSION (ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED)/STREET STOPS (ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED)