THE POLICE STARTED FOLLOWING DEFENDANT BECAUSE THEY THOUGHT HE CROSSED THE STREET TO AVOID THEM; THE POLICE DID NOT HAVE GROUNDS FOR A COMMON-LAW INQUIRY AND NOTHING DEFENDANT DID AFTER THE STREET STOP JUSTIFIED THE LEVEL THREE SEIZURE OF THE DEFENDANT; THE WEAPON FOUND IN DEFENDANT’S POCKET SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined what the police saw did not warrant a common-law inquiry on the street and the subsequent level three seizure of the defendant was not justified. Apparently the police felt defendant crossed the street to avoid them, the police followed him and saw him pass something to a woman, after defendant was stopped he was told to take his hand out of his jacket pocket and did so, the officer testified a heavy object was in the jacket pocket, the defendant was then handcuffed and a handgun was found in the pocket:

Defendant’s suppression motion should have been granted. Although we decline to disturb the court’s credibility determinations … , notwithstanding our concerns about discrepancies between the officers’ testimony and what is shown in the body-worn camera footage, the initial inquiry and subsequent seizure were still unjustified. Even crediting the officers’ testimony that their suspicion was aroused when defendant and the woman crossed the street to avoid their patrol car, and then they later observed him pass a small object to the woman, the totality of the circumstances did not give rise to the level of suspicion required for a common-law inquiry … . Neither officer could identify what object was passed from defendant to the woman — one testified that “it could have been anything” — nor otherwise articulate why, from this innocuous behavior, they had a “founded suspicion that criminality was afoot” to warrant a level two encounter … . The police were not responding to a call, there was ambiguous testimony as to whether the encounter took place in a high crime area, and the woman did not give defendant money in exchange or immediately leave “without any kind social interaction” … .

Similarly, this Court’s review of the record, including the body-worn camera video recording of the encounter, indicates that the police were not justified in their escalation to the level three seizure in restraining defendant’s wrists simply because, after he was detained, and defendant complied with the officers’ request that he show his hands, he turned his body away from one officer, who observed a “shift in weight” in defendant’s jacket pocket … . Even if there had been a bulge in defendant’s pocket, that observation alone does not imply a reasonable conclusion that defendant was armed … . Defendant’s hands were in clear view when the officers seized him, and nothing in the record indicates that defendant was armed or posed a threat to safety to justify him being frisked … . People v Small, 2025 NY Slip Op 06665, First Dept 12-2-25

Practice Point: This decision illustrates the level of suspicion required to justify a common-law inquiry on the street. Here the police thought the defendant crossed the street to avoid them and they saw defendant pass something to a woman, but could not say what it was. That was not enough.

Practice Point: This decision also illustrates the level of suspicion required to justify a level three seizure on the street. Here defendant was told to remove his hand from his pocket and did so. The police testified there was a bulge in the pocket, but defendant’s hands were visible. The police were not justified in handcuffing the defendant and searching his pocket.