THE DEFENDANT’S ACTIONS OBSERVED BY THE POLICE OFFICERS IN THIS STREET STOP DID NOT MEET THE “REASONABLE SUSPICION DEFENDANT HAD COMMITTED A CRIME OR WAS IN POSSESSION OF A WEAPON” STANDARD; THE FRISK WAS THEREFORE ILLEGAL AND THE SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Court of Appeals, reversing the Appellate Division and dismissing the indictment, in a full-fledged opinion by Judge Wilson, and an extensive concurring opinion by Judge Rivera, determined the police did not have reasonable suspicion defendant had committed a crime or was in possession of a weapon at the time defendant was frisked. The drugs found on defendant’s person should have been suppressed:

Mr. Johnson’s [defendant’s] actions, as observed by Officer Pike, do not meet the minimum standard required to justify a stop and frisk under De Bour. Prior to the frisk, Officer Pike observed Mr. Johnson: (1) move from the driver’s seat to the passenger seat of his parked car; (2) move his upper torso back toward the driver’s seat; (3) pull up his pants and attempt to buckle his belt; and (4) appear nervous while being questioned. These circumstances do not support a reasonable view that Mr. Johnson was armed or that he had committed or was about to commit a crime. These actions “constituted [nothing] other than ‘innocuous behavior,’ sole reliance on which would impermissibly reduce the foundation for [this] intrusion to nothing but ‘whim or caprice’ ” … . People v Johnson, 2023 NY Slip Op 02734, CtApp 5-18-23

Practice Point: Here the Court of Appeals determined the defendant’s actions prior to the stop and frisk did not rise to the “reasonable suspicion” standard. The police observed defendant move to the passenger seat in his parked car, move his upper torso back toward the driver’s seat, pull up his pants and attempt to buckle his belt, and appear nervous when questioned. The stop and frisk was illegal and the seized drugs should have been suppressed.