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SEARCH OF JACKET POCKET NOT PRECEDED BY PAT DOWN SEARCH; SEIZURE OF WEAPON FROM JACKET POCKET NOT SUPPORTED BY PROBABLE CAUSE.

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress evidence taken during a search of his jacket should have been granted. The searching officer had the right to pat the defendant down for weapons but did not do so. The search of the pockets, which turned up a weapon, was not, therefore, supported by probable cause:

The search of the defendant’s right jacket pocket, from which the police recovered a gun, cannot be upheld as justifiably premised on probable cause, since the defendant had not been placed under arrest prior to the search … . “[A]n officer who reasonably suspects that a detainee is armed may conduct a frisk or take other protective measures even in the absence of probable cause to arrest” … . However, “[a] police officer acting on reasonable suspicion that criminal activity is afoot and on an articulable basis to fear for his own safety may intrude upon the person or personal effects of the suspect only to the extent that is actually necessary to protect himself from harm while he conducts the inquiry” … . “The key question in all cases remains whether the protective measures taken by the officer were reasonable under the circumstances” … .

Here, the police officer searched the defendant’s jacket pocket without any prior visual observations of a weapon and without first conducting a pat down of the outside of the pocket. Thus, even assuming that the officer acted on reasonable suspicion that criminal activity was afoot and an articulable basis to fear for his safety, he failed to confine the scope of his search to an intrusion reasonably necessary to protect himself from harm. Accordingly, the weapon recovered as a result of the unlawful search should have been suppressed. In addition, the drugs and other items thereafter recovered must also be suppressed as fruits of the initial, unlawful search … . People v Graham, 2015 NY Slip Op 09442, 2nd Dept 12-23-15

CRIMINAL LAW (SEARCH OF JACKET POCKET NOT SUPPORTED BY PROBABLE CAUSE)/EVIDENCE (SEARCH OF JACKET POCKET NOT SUPPORTED BY PROBABLE CAUSE)/SUPPRESSION (SEARCH OF JACKET POCKET NOT SUPPORTED BY PROBABLE CAUSE)/SEARCH AND SEIZURE (SEARCH OF JACKET POCKET NOT SUPPORTED BY PROBABLE CAUSE)

Report of a Robbery Five Minutes Before Justified Street Stop, Flight Justified Pursuit

The First Department, in a full-fledged opinion by Justice Friedman, over a two-justice dissent, determined the police were justified in stopping the defendants for a level-two inquiry, and were further justified in pursuing and detaining them. The majority found that the report of a robbery at a country club five minutes before, together with seeing the defendants on the private country club driveway justified a level two street stop and inquiry. When one of the men fled and the others walked away, the police were justified pursuing and detaining them. The dissenters argued that the police knew only that a robbery in the vicinity of the country club had been reported and that seeing the defendants walking on the driveway in broad daylight justified only a level one inquiry and, therefore, did not justify pursuit:

… [D]efendants were first seen on private property where a burglary had just been reported, in a suburban area, with nobody else visible anywhere in the vicinity. This gave rise to a founded suspicion of criminality, justifying a level-two common-law inquiry under the De Bour analysis.

The police did not exceed the bounds of a common-law inquiry when they requested defendants to stop so that the police could “ask them a question,” because such a direction does not constitute a seizure … . Instead of stopping, defendant Nonni immediately ran, and defendant Parker immediately made what officers described as a “hurried” and “evasive” departure … . Under all the circumstances, the record supports the conclusion that both defendants “actively fled from the police,” rather than exercising their “right to be let alone” … . Defendants’ flight elevated the existing level of suspicion to reasonable suspicion, justifying pursuit and an investigative detention … . Here, “[f]light, combined with other specific circumstances indicating that the suspect[s] . . . [might have been] engaged in criminal activity, . . . provide[d] the predicate necessary to justify pursuit”… . People v Nonni, 2015 NY Slip Op 08081, 1st Dept 11-5-15

 

Police Did Not Have Sufficient Information to Justify Pursuit of Defendant; Street Stop (DeBour) Criteria Clearly Explained

The Second Department determined defendant’s motion to suppress the weapon he discarded during a police pursuit should have been granted. The police approached defendant after seeing him make several adjustments to his waistband. When defendant ran, the police pursued him. Because the police, based on their observations, could make only a level one inquiry (which the defendant had a right to ignore), the pursuit was not justified. The court offered a clear explanation of the criteria for street stops (DeBour criteria):

“On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance” … , the Court of Appeals established a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity … . The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality … . The second level, known as the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion … . The third level permits a police officer to forcibly stop and detain an individual. Such a detention, however, is not permitted unless there is a reasonable suspicion that an individual is committing, has committed, or is about to commit a crime … . The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime … .

In order to justify police pursuit, the officers must have “reasonable suspicion that a crime has been, is being, or is about to be committed” … . Reasonable suspicion has been defined as “that quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand” … . A suspect’s “[f]light 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” … . People v Clermont, 2015 NY Slip Op 07989, 2nd Dept 11-4-15

 

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Police Officer’s Observations Filtered Through His Experience Justified Stop and Frisk

The Second Department, over a dissent, determined that the street stop of the defendant was justified by reasonable suspicion. Here the officer said he made eye contact with the defendant, saw an outline of a rectangular object under defendant’s clothes and the defendant’s movements were consistent with adjusting a weapon under the waistband. The majority held that was enough, because the officer could rely on his experience to interpret the defendant’s movements. The dissent argued that making eye contact, seeing the outline of a rectangular object, and the defendant’s adjusting his waistband was not enough to justify the stop:

“In determining whether an individual’s actions rise to the level of reasonable suspicion, police officers are permitted to interpret the behavior in light of their training and experience” … . Here, in contrast to the opinion of our dissenting colleague, the factual circumstances described by Mourad, coupled with the officer’s experience and training, were sufficient to permit him to request information from the defendant … . The decision to make inquiry of the defendant did not stem from mere “whim or caprice,” but was objectively based upon observation of the defendant’s actions as filtered through the officer’s experience … . Officer Mourad specifically testified that he believed the shape of the concealed object which he observed under the defendant’s clothing was the outline of a gun … . Mourad explained that the defendant moved in a way that he recognized, from experience, as typical of attempts to adjust a firearm kept in a waistband …, and further testified that the defendant began to increase his pace after the officers exited their vehicle and announced their presence … . Accordingly, there was reasonable suspicion to stop and frisk the defendant … . People v Fletcher, 2015 NY Slip Op 06366, 2nd Dept 7-29-15

 

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The Totality of Circumstances Provided the Police Officer with Reasonable Suspicion of Criminal Activity and Thereby Justified Pursuit of the Defendant

The Second Department determined defendant’s motion to suppress a gun thrown away during a foot pursuit by a police officer was properly denied.  Unusual activity in and around a car (a “Malibu”) in a high crime area gave the police an objective, credible reason to approach the car. Under the totality of the circumstances, when defendant began walking away, the police officer (Detective Tait), having a reasonable suspicion of criminal activity, properly pursued the defendant:

“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” … . Here, Detective Talt had reasonable suspicion of criminal activity based on the defendant’s flight, combined with the unusual activity of the occupants of the Malibu, Detective Talt’s knowledge that that specific location was a high-crime area, and his knowledge that contraband could be hidden under a car hood. Accordingly, the court properly declined to suppress the gun. People v Jennings, 2015 NY Slip Op 05497, 2nd Dept 6-24-15

 

Placing Defendant in the Back of a Patrol Car Did Not Constitute De Facto Arrest

In affirming the conviction, the Fourth Department noted that placing the defendant in the back seat of a patrol car did not, under the circumstances, amount to a de facto arrest. Rather “the temporary detention of defendant was proper as ‘part of a continuum of permissible police intrusions in response to escalating evidence of criminal activity’ ;”

We conclude that “the police action fell short of the level of intrusion upon defendant’s liberty and privacy that constitutes an arrest” … . Here, the brief investigative detention of defendant by the police was “justified by reasonable suspicion that a crime [had] been, [was] being or [was] about to be committed” …, i.e., “that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand” … . Indeed, after the man with defendant displayed the contents of the duffel bag, the officer had reasonable suspicion that defendant and the other man had committed a crime. The established circumstances at that point were that the officer had received a report that suspicious individuals carrying bags had gone behind a residence in an area where burglaries targeting copper pipe had previously occurred; the officer observed two men matching the description coming down a driveway carrying bags; the two men admitted that they were walking around looking for copper plumbing; and the contents of the duffel bag revealed their actual possession of numerous copper pipes of various sizes with no indication of other scrap metals. Under these circumstances, we conclude that the temporary detention of defendant was proper as “part of a continuum of permissible police intrusions in response to escalating evidence of criminal activity” … . Here, “the police diligently pursued a minimally intrusive means of investigation likely to confirm or dispel suspicion quickly, during which time it was necessary to detain the defendant” … , and “a less intrusive means of fulfilling the police investigation was not readily apparent” … . People v Howard, 2015 NY Slip Op 05350, 4th Dept 6-19-15

 

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Revocation of Driver’s License for Refusal of the Chemical Test Reversed—No “Reasonable Suspicion” to Justify Vehicle Stop

Petitioner was arrested for driving while intoxicated and refused the chemical test.  As a result petitioner’s license was revoked by an administrative law judge.  The Second Department annulled the determination of the Department of Motor Vehicles Appeals Board (which upheld the revocation).  The court determined the arresting officer did not have “reasonable suspicion” justifying the initial stop.  Petitioner was in a parked car with the engine running. The officer parked behind petitioner’s car, blocking any exit, and then approached the car. Only then did the officer notice signs of intoxication:

At a hearing held pursuant to Vehicle and Traffic Law § 1194, the hearing officer is required to determine, inter alia, whether the police lawfully arrested the operator of the motor vehicle for operating such vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192 … . In order for an arrest to be lawful, the initial stop must itself be lawful (see People v De Bour, 40 NY2d 210, 222). Under the circumstances of this case, where the officer prevented the petitioner from departing, activated his vehicle’s emergency lights, and shined a light into the petitioner’s parked vehicle, a forcible stop and detention occurred … . The Department of Motor Vehicles, however, failed to establish that there was reasonable suspicion to justify the forcible stop and detention of the petitioner’s person or vehicle … and, accordingly, the challenged determination cannot be sustained. Matter of Stewart v Fiala, 2015 NY Slip Op 04857, 2nd Dept 6-10-15

 

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No “Reasonable Suspicion” Justifying Vehicle Stop—Revocation of License for Refusal of Chemical Test Reversed

Petitioner was arrested for driving while intoxicated and refused the chemical test.  As a result petitioner’s license was revoked by an administrative law judge.  The Second Department annulled the determination of the Department of Motor Vehicles Appeals Board (which upheld the revocation).  The court determined the arresting officer did not have “reasonable suspicion” justifying the initial stop.  Petitioner was in a parked car with the engine running. The officer parked behind petitioner’s car, blocking any exit, and then approached the car. Only then did the officer notice signs of intoxication:

At a hearing held pursuant to Vehicle and Traffic Law § 1194, the hearing officer is required to determine, inter alia, whether the police lawfully arrested the operator of the motor vehicle for operating such vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192 … . In order for an arrest to be lawful, the initial stop must itself be lawful (see People v De Bour, 40 NY2d 210, 222). Under the circumstances of this case, where the officer prevented the petitioner from departing, activated his vehicle’s emergency lights, and shined a light into the petitioner’s parked vehicle, a forcible stop and detention occurred … . The Department of Motor Vehicles, however, failed to establish that there was reasonable suspicion to justify the forcible stop and detention of the petitioner’s person or vehicle … and, accordingly, the challenged determination cannot be sustained. Matter of Stewart v Fiala, 2015 NY Slip Op 04857, 2nd Dept 6-10-15

 

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The Fact that One of Four Men Approached for a Level One Street Inquiry Ran Did Not Provide the Police with Reasonable Suspicion that Defendant, Who Obeyed the Police Commands, Was Involved in a Crime

The First Department determined that the police did not have sufficient cause to detain four men, including the defendant, on the street. The fact that one of the four men subsequently ran did not provide any additional justification for detaining defendant. The police had enough information about a near-by robbery only to justify a “level one” street inquiry of the four men, not detention.  While detained without sufficient cause, defendant was asked by the police to lift up his shirt, revealing a gun.  Absent “reasonable suspicion” of involvement in a crime, the defendant should not have been detained to await the show-up. Absent an indication defendant posed a danger to the police officers, the defendant should not have been asked to lift his shirt:

…[T]he group of men was in a location to which a group of robbers had been reported to have fled only minutes earlier, giving the officers an articulable reason for inquiring into why the men were in the area … . The question, then, is whether the encounter ever escalated to a point that the police would have been justified in holding the men at the scene while the complainant was transported to it.

…[R]easonable suspicion is a necessary predicate to a detention for a showup identification … . Further, a person’s flight is sufficient to create the reasonable suspicion necessary to escalate a level one or level two encounter to a level three detention, so long as other circumstances are attendant, such as a high-crime location and activity suggesting, although not alone creating, reasonable suspicion that the person fleeing the scene may be engaged in criminal conduct … . In all of the cases which discuss flight as the determining factor in creating reasonable suspicion, however, the defendant is the person who fled. Here, of course, defendant did not flee; he obeyed the officers’ direction to stop and to submit to their questioning. People v Thompson, 2015 NY Slip Op 03605 1st Dept 4-30-15

 

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The “Physical Intrusion” by the Police Officer (Tapping the Defendant’s Pocket) Was Not Justified by Reasonable Suspicion of a Crime—The Subsequent Frisk of the Defendant Was Similarly Not Justified—The Arrest Was Therefore Invalid–All Seized Items and Statements Made by the Defendant Should Have Been Suppressed

The First Department determined the police officer’s observations of the defendant’s actions (head turning both ways) in a “high narcotics area” justified his approach of the defendant, who was sitting in a car (founded suspicion/common-law right of inquiry).  Asking the defendant what was in his pocket after the defendant pulled his hand from his jacket was also justified. However, the officer’s “tapping” of an object in defendant’s pocket was not justified.  The intrusion (tapping the pocket) and the subsequent frisk of the defendant were not supported by reasonable suspicion of a crime or by the need to ensure the officer’s safety. The arrest was invalid and the motion to suppress all seized items, as well as the statements made by the defendant, should have been granted:

Defendant was the passenger in a vehicle stopped by the police at approximately 9 p.m. in a “high narcotics area.” As an officer approached the passenger side of the vehicle, he noticed defendant’s “head turning both ways and a lot of . . . movement coming from the area of the front passenger seat.” As he reached the passenger side window, he saw defendant, who appeared nervous, “pulling his hand from his jacket, from the fold of his jacket.” When the officer asked defendant what he “put in [his] jacket,” defendant “mumbled something unintelligible or really didn’t say much.” The officer then reached into the car, “tapped” the pocket of defendant’s jacket with the flashlight he was holding, and felt “something hard.”

The officer’s observations, up until the time he arrived at the passenger window, gave rise to founded suspicion that criminality was afoot, and so justified his question regarding what defendant had put in his pocket, which constituted a common-law inquiry … . However, we find that the physical intrusion of tapping defendant’s pocket was unauthorized. The circumstances did not give rise to the reasonable suspicion required to authorize a frisk. Nor was the officer’s conduct justifiable as a “minimal self-protective measure”…, which is permissible in furtherance of the common-law right of inquiry, where sufficient concerns for personal safety are present … . The circumstances, viewed as a whole, did not suggest any need for the officer to take such a precaution. At the time of the officer’s intrusion, defendant was not reaching for an area where a weapon might be located, there was no suggestion that a weapon was present or that violence was imminent, and there was no other basis for a self-protective intrusion.

Because the ensuing frisk outside the car, and the resulting arrest, depended on the initial improper intrusion, they were invalid as well. In any event, we also find that the search of the plastic bag following defendant’s arrest was not supported by exigent circumstances … . People v Butler, 2015 NY Slip Op 03458, 1st Dept 4-28-15

 

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