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Police Had “Reasonable Suspicion” Justifying Only Forcible Detention of the Defendant to Conduct a Brief Investigation—Arrest of the Defendant in the Absence of Probable Cause Required Suppression of Defendant’s Statement

The Second Department, over a dissent, determined that defendant’s statement should have been suppressed because the police arrested him in the absence of probable cause.  Two persons for whom the police had probable cause to arrest were in the backseat of a legally parked vehicle.  Defendant was in the driver’s seat, fumbling with the ignition keys when the police first saw him.  The police pulled him from the vehicle and arrested him.  The Second Department found the arrest premature. Because of the presence of the two persons for whom the police had probable cause to arrest, there was only a reasonable suspicion of the defendant’s involvement which justified only forcible detention for a brief investigation:

The hearing testimony established that at approximately 8:00 a.m. on June 10, 2009, the police received a radio transmission regarding a robbery in progress, perpetrated by two black males, at a Queens residence. The police activated their sirens and lights and went to the specified house, arriving within two minutes of receiving the transmission. When the police arrived, two of the complainants, still gagged and partially bound, were on the porch of the house. The complainants used gestures to direct the officers’ attention to two men, Myers and Santos, who were walking on the sidewalk, about four houses away. Myers and Santos, who were the only civilians on the block, started running, and the officers chased them. During the chase, Santos discarded an object, which the police later recovered and found to be a gun. When Myers and Santos turned a corner several blocks from the complainants’ house, the officers lost sight of them briefly. When one of the officers turned the corner, he did not see any people, but saw the rear passenger door on a sport utility vehicle being closed. The vehicle was legally parked and the engine was off. The officer ran to the vehicle and peered inside through the tinted windows. After spotting Myers and Santos in the rear passenger seat, the officer “punched” the driver’s side window to alert the driver not to drive away. The officer pulled the driver’s door open and saw the defendant in the driver’s seat, “fumbling” with the keys and trying to put them in the ignition. The officer pulled the defendant out of the car, placed him face-down on the ground, and handcuffed him. Eventually, the defendant was placed in a police car. People v Delvillartron, 2014 NY Slip Op 06327, 2nd Dept 9-24-14

 

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Police Did Not Have Sufficient Information to Justify Request that 12-Year-Old Lift His Shirt–Weapon Recovered After Juvenile’s Refusal (and a Police Pursuit) Should Have Been Suppressed

The Second Department determined the police did not have sufficient information to justify a request that appellant, who was 12 years old, to lift his shirt.  The weapon found on the appellant’s person should have been suppressed:

At issue here is whether the officers could ask the appellant to lift his shirt, even after he refused, and then pursue him as he fled the scene. Based upon a founded suspicion that criminal activity is afoot, the subject may be asked to produce identification …, may be asked whether he has weapons, and may be asked to remove his hands from his pockets … . However, asking a person to open his or her coat is an “intrusive step” which requires sufficient evidence of criminal activity to permit more than an inquiry by the police … . Here, the police acknowledge they did not see an object until they took their “intrusive step” of demanding that the appellant lift up the front of his shirt after he refused to do so, whereupon a police officer pursued him with his gun drawn.

The appellant had the “right to be let alone” … . The police may lawfully pursue an individual if they have a reasonable suspicion that he or she has committed or is about to commit a crime … . However, in this case, the police only acquired a basis to pursue the appellant after they took the intrusive step of demanding that he raise the front of his shirt and saw the butt of a gun. Since the pursuit of the appellant was unlawful, the gun which he abandoned in response to the pursuit should have been suppressed… . Matter of Shakir J, 2014 NY Slip Op 05336, 2nd Dept 7-16-14

 

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Defendant’s Flight in His Vehicle, Nearly Striking an Officer, Severed Any Connection with the Initial Detention and Evidence Discarded from the Vehicle Was Properly Seized

The Fourth Department determined an anonymous tip coupled with the police officer’s observations justified the officer’s request that defendant get out of his vehicle—a level three encounter.  Defendant’s subsequent flight in the vehicle, nearly striking an officer, severed any connection between the initial detention and the seizure of evidence discarded from the vehicle:

A police officer testified at the suppression hearing that he received an anonymous tip regarding drug activity taking place at a certain location. Upon proceeding to the location, the officer found defendant sitting in a parked vehicle, which was similar to the description of the vehicle given by the anonymous caller. As the officer spoke with defendant, he noticed what appeared to be a pile of cigar tobacco on the ground outside the vehicle, and the officer knew, based on his training and experience, that emptying a cigar was a common method of preparing a marihuana cigar, or a “blunt.” When the officer asked defendant to step out of the vehicle, defendant instead started the vehicle and sped off, almost striking another officer who was approaching the vehicle on foot. During the ensuing chase, defendant discarded a bag out of the passenger-side window. The bag was later recovered by the police and was found to contain a loaded weapon and marihuana.

The officer’s initial approach of defendant and request for identification was a permissible level one encounter under People v De Bour … . Although the officer’s request that defendant exit the parked vehicle elevated the situation to a level three encounter under De Bour …, we conclude that the officer had reasonable suspicion that defendant was engaged in illegal activity based on the anonymous tip and the officer’s observation of drug activity, i.e., the pile of cigar tobacco on the ground … . In any event, even assuming, arguendo, that defendant was unlawfully detained, we conclude that his criminal conduct in speeding off and almost striking the second officer—conduct for which defendant was convicted of reckless endangerment in the second degree—“severed any causal connection between the unlawful detention and the subsequently-acquired evidence” … . People v Wofford, 252, 4th Dept 3-28-14

 

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Police Pursuit Not Justified by Defendant’s “Grabbing of his Waistband Area” or Subsequent Flight/Gun Suppressed

The Second Department affirmed the suppression of a weapon.  After seeing the defendant “grab… his waistband area” the police approached and the defendant ran, ultimately discarding a gun.  The pursuit was not justified by what the police saw prior to the defendant’s flight:

A suspect’s “flight alone . . . even [his or her flight] in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit” … . However, flight, “combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit” … .Under the circumstances of this case, the defendant’s “grabb[ing]” of his “waistband area” in such a way that it “[s]eemed” to the detectives that the defendant “had a bulge or something heavy that he was holding on the outside of his garments,” did not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion that was necessary to lawfully pursue the defendant, even when coupled with the defendant’s having made eye contact with the detectives and his flight from the detectives … . As the detectives’ pursuit of the defendant was unlawful, and the defendant’s disposal of the weapon during the pursuit was precipitated by the illegality and was not attenuated from it …, the Supreme Court properly granted that branch of the defendant’s omnibus motion which was to suppress the weapon. People v Haynes, 2014 NY Slip Op 01462, 2nd Dept 3-5-14

 

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Defendant’s Reaching for Something in His Pocket, Without More, Did Not Justify Police Pursuit

The Fourth Department, over a dissent, determined that the defendant’s reaching for something in his pocket, without more, did not justify police pursuit. Therefore defendant’s suppression motion was properly granted:

Here, although defendant was reaching for his jacket pocket as he walked or ran away from the second officer, neither officer testified that he saw a bulge or the outline of a weapon in defendant’s jacket. Rather, the second officer believed that defendant had a gun only because, in his experience, if an individual pulled vigorously at an object in his or her pocket, but the object did not come out easily, that object usually was a weapon. While we are mindful that an officer may rely on his or her knowledge and experience in determining whether reasonable suspicion exists, we respectfully disagree with our dissenting colleagues that the above circumstances were sufficient to establish the requisite reasonable suspicion “in the absence of other objective indicia of criminality” … . Here, before pursuing defendant, the second officer knew only that defendant was walking across the street in a high-crime area, in the general vicinity of a house where an unnamed person of unestablished reliability claimed to have seen guns, and that, when the police approached, defendant walked or ran away while grabbing at his jacket pocket. We cannot conclude, based on the totality of those circumstances, that the police were justified in pursuing defendant… . People v Ingram, 1115, 4th Dept 2-14-14

 

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Level Three Forcible Stop Not Justified, Convictions Reversed—Prior Arrest of One of the Defendants and the Fact that Both Defendants Were Running While Looking Back Over their Shoulders Was Not Enough to Justify the Forcible Stop

In a two separate full-fledged opinions by Justice Manzanet-Daniels, over dissents, the First Department reversed defendants’ convictions, finding that their motions to suppress should have been granted.  Defendants were stopped after the police observed them running at 4:40 am.  Both men, Thomas and Brown, were looking back over their shoulders as they ran.  Brown (but not Thomas) was known to the police as someone who “engaged in fraudulent accosting in that area…”. The First Department determined the stop was not justified for either defendant:

A level three forcible stop is constitutional only if the police have a “reasonable suspicion that a particular person was involved in a felony or misdemeanor” … . In determining whether the police officers had the requisite reasonable suspicion, only the information known to the officers prior to the forcible stop is relevant … .

The officers’ knowledge of defendant Brown’s prior criminality in the same neighborhood was not sufficient to give rise to reasonable suspicion justifying a level three intrusion as to Brown; perforce, knowledge of Brown’s prior criminality was insufficient to justify a level three intrusion as to [Thomas], who was merely in Brown’s company and was not even known by the officers to have a criminal record. The police sergeant only knew [Thomas] by face, and the officer did not know [Thomas] personally and had never arrested him. … The motion court, in denying [Thomas’] motion to suppress, appears to have endorsed a theory of “guilt by association,” which must vigorously be rejected.

 “[A] stop based on no more than that a suspect has previously been arrested . . . is premature and unlawful and cannot be justified by subsequently acquired information resulting from the stop”… . * * *

The fact that the officers observed [Thomas] and Brown running does not elevate the level of suspicion. Flight, accompanied by equivocal circumstances, does not supply the requisite reasonable suspicion … . The police did not observe conduct indicative of criminality, nor did they even possess information that a crime had occurred in the area. People v Thomas, 2014 NY Slip Op 00291, 1st Dept 1-16-14; same result in People v Brown, 2014 NY Slip Op 00292, 1st Dept 1-16-14

 

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Defendant’s Flight Did Not Justify Police Pursuit and Entry Into Defendant’s Apartment—Evidence Properly Suppressed

The Second Department affirmed Supreme Court’s suppression of evidence.  Based upon a confidential informant’s vague description of a man who was about to be part of a drug sale, a police officer followed the defendant. The defendant started running and threw a small object away.  The defendant then entered an apartment with a key.  The police ultimately broke the door down and saw the defendant throw bags of marijuana and heroin out the window.   A subsequent search warrant turned up more drugs. The Second Department wrote:

“Police pursuit of an individual significantly impede[s]’ the person’s freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed” … . Flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit … . “Flight alone, however, or even in conjunction with equivocal circumstances that might justify a police request for information is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry” … .

Here, there were no specific circumstances indicating that the defendant might be engaged in criminal activity. The fact that the defendant matched the extremely vague description given by the informant of someone who would conduct a drug transaction somewhere in the vicinity, sometime later that day, was not sufficiently indicative of criminal activity … . * * *

Moreover, the detective compounded the unlawful pursuit by entering the apartment without consent or probable cause and exigent circumstances … . While retreat into one’s home cannot thwart an otherwise proper arrest set in motion in a public place, probable cause for the arrest is required … . When the detective entered the apartment, he did not have probable cause to believe that the defendant had committed a crime. Accordingly, all of the physical evidence was properly suppressed.  People v Nunez, 2013 NY Slip Op 07753, 2nd Dept 11-20-13

 

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Suppression Motion Should Have Been Granted—Defendant Arrested Before Police Had Probable Cause

The Fourth Department reversed the suppression court and granted defendant’s motion to suppress and dismissed the indictment. The Fourth Department concluded that the evidence of which the police were aware at the time defendant was handcuffed and placed in the back of a police care did not amount to probable cause.  A baggie containing drugs and a dagger were not found until after the illegal arrest:

…[T]he police were justified in approaching the vehicle outside the bar because they had a “founded suspicion that criminal activity [was] afoot,” rendering the police encounter lawful at its inception … . We further conclude that the police were justified in pursuing the vehicle inasmuch as “defendant’s flight in response to an approach by the police, combined with other specific circumstances indicating that [he] may be engaged in criminal activity, [gave] rise to reasonable suspicion, the necessary predicate for police pursuit” … .  Such reasonable suspicion also gave the police the authority to stop the vehicle … .

…[W]e conclude that an arrest occurred here when defendant was handcuffed and placed in the back of a police car.  Under such circumstances, “a reasonable man innocent of any crime, would have thought” that he was under arrest … .  “[V]arious factors, when combined with the street exchange of a ‘telltale sign’ of narcotics, may give rise to probable cause that a narcotics offense has occurred.  Those factors relevant to assessing probable cause include the exchange of currency; whether the particular community has a high incidence of drug trafficking; the police officer’s experience and training in drug investigations; and any ‘additional evidence of furtive or evasive behavior on the part of the participants’ ” … .  Here, the police observed neither a “ ‘telltale sign’ ” of narcotics, such as a glassine baggie, nor the exchange of currency … .  Thus, despite the observations of the police outside the bar, their experience in drug investigations, and defendant’s flight, we conclude that the police did not have probable cause to arrest defendant before the dagger and first baggie were observed. People v Lee, 1005, 4th Dept 10-4-13

STREET STOPS, SUPPRESSION

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Defendant Was Lawfully Seized by Police Under these Facts

The Fourth Department affirmed Supreme Court’s denial of defendant’s suppression motion, finding that the defendant was not unlawfully seized under the following facts:

At the suppression hearing, a police officer testified that he stopped defendant because defendant was riding the motorbike in the road without a helmet.  When the officer asked defendant whether he had any identification, defendant answered, “no,” and took a step back, whereupon the officer reached toward defendant in an attempt to frisk him.  Before the officer could detain him, however, defendant ran away and, during his flight, punched another officer who had joined in the pursuit. Defendant was soon apprehended and found to be in possession of a loaded firearm, 20 bags of marihuana, and more than $2,000 in cash. People v Bradley, 685, 4th Dept 7-5-13

STREET STOPS, SEARCH AND SEIZURE

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DeBour Criteria Met By Facts Leading to Arrest

The Third Department determined the following scenario legitimately led to the defendant’s arrest under the DeBour criteria:

The officers arrived at the scene and observed approximately eight people sitting on the steps. As the officers approached the group, one of them – later identified as defendant– abruptly stood up and attempted to enter the building, but could not gain entry because the door was apparently locked.  One of the officers followed defendant up the steps, placed a hand on defendant’s shoulder and asked defendant why he was in a hurry. Defendant turned around, shoved the officer, said that he was “past curfew” and, after a brief struggle, ran down the steps and took off running down the street.  People v Morris, 104201, 3rd Dept, 4-4-13

STREET STOPS

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