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Detention and Frisk of Juvenile Supported by Reasonable Suspicion

The First Department determined the following scenario provided reasonable suspicion sufficient to justify the detention and frisk of the juvenile:

A police officer testified that she was investigating an unruly crowd when she observed appellant walking towards her with his arm under his shirt, clutching an object held at his waist. Based on the rigidity of his body and how tightly he held the object, she believed it to be a weapon. As he passed by, she heard him say that he was “going to get him.” When she approached with her shield visible around her neck, appellant moved towards her, whereupon she grabbed his hand and felt the handle of a knife. During a brief struggle, the knife fell to the ground. Appellant was placed under arrest and the knife, which had a six-inch blade, was recovered.  Matter of Daquan B, 2013 NY Slip Op 04974 1st Dept 7-2-13

 

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Pat-Down Search After Stop for Traffic Infractions Okay

The Third Department determined the police officer [Negron] properly asked defendant to get out of his car, and properly conducted a pat-down search, after a vehicle-stop for traffic infractions:

…[O]fficers may exercise their discretion to require occupants to exit a vehicle once a lawful traffic stop has been effected, out of a concern for safety and without particularized suspicion….  Furthermore, a pat-down search of a suspect’s outer clothing is reasonable and constitutionally permissible when  an officer observes facts and circumstances that give rise to a reasonable suspicion that a person is armed or poses a threat to his or her safety… .

Here, the entire encounter took place after dark in an area to which Negron had frequently responded to reports of gang activity, drug sales, fights and  shootings. Negron testified that he was familiar with defendant from his prior criminal activity and that defendant had been violent toward police in the past and had twice been charged with resisting arrest. After defendant exited the vehicle, Negron noticed bulges in the pockets in defendant’s “grabbable” area, which Negron defined as the hot zone that defendant’s hands could access quickly from their normal resting position. Defendant subsequently declined to answer the question as to whether he was in possession of any weapons or drugs, prompting Negron to conduct the pat frisk that ultimately revealed a concealed handgun. Thus, considering the circumstances in their totality, we find that the officer possessed a reasonable basis to perform a pat-down search of defendant for the presence of weapons… .  People v Issac, 104854, 3rd Dept, 6-6-13

SUPPRESSION

 

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Confidential Informant Provided Reasonable Suspicion for a Vehicle Stop; Information Vehicle Occupants Were Armed Justified Stop with Guns Drawn

The Third Department determined that information from a confidential informant provided reasonable suspicion sufficient to justify an investigatory vehicle stop and noted that a vehicle stop with guns drawn did not ripen into an arrest where the police had reliable information the occupants of the vehicle were armed:

We reject defendant’s contention that removing him from the vehicle at gunpoint constituted an arrest without probable cause. An investigatory stop will not ripen into an arrest based upon the use of weapons by the police when they have reason to believe that the suspects are armed and dangerous, and here the police had been advised that defendant and the other individual were armed … .  People v Coffey, 104496, 3rd Dept, 6-6-13

SUPPRESSION

 

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Initial Detention at Gun-Point Was Not an Illegal Arrest

The Third Department determined that the initial detention of the defendant by the police, with guns drawn, did not amount to an illegal arrest:

Given the extremely short period of time between the report of the armed robbery and the arrival of the officers on the scene, defendant’s presence alongside the residence and the absence of any other individual in the vicinity, the officers were justified in forcibly detaining defendant in order to quickly confirm or dispel their reasonable suspicion of defendant’s possible involvement in the armed robbery… . Furthermore, defendant was informed that he was being detained, was not questioned during that period of time and was held at the crime scene in order to effectuate showups by the victims of the robbery… . People v Stroman, 103148, 3rd Dept, 6-6-13

SUPPRESSION

 

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No Reasonable Suspicion of Criminal Activity—Frisk of Defendant Improper​

Applying a “DeBour” analysis, the Second Department determined the police did not have the right to frisk the defendant.  The police approached the defendant because he was holding two or three cigarettes and the police thought he may be selling loose cigarettes.  The police noticed evidence of gang membership and defendant acknowledged being a member. The police asked defendant if he had a weapon and defendant did not answer.  At that point, based on seeing a bulge in defendant’s pocket, the defendant was frisked and searched. The Court wrote:

The level one request for information may include ” basic, nonthreatening questions regarding, for instance, identity, address or destination'” …. However, ” [o]nce the officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing . . . the officer is no longer merely seeking information'” … and the encounter has become a level-two common-law inquiry, which must be supported by ” “a founded suspicion that criminal activity is afoot”‘” …”[A] police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot” ….

“[T]o elevate the right of inquiry to the right to forcibly stop and detain, the police must obtain additional information or make additional observations of suspicious conduct sufficient to provide reasonable suspicion of criminal behavior” …. ” [I]nnocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand'” …. Thus, “in order to justify a frisk of a suspect’s outer clothing, a police officer must have “knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety”‘”…. Even assuming that the police were justified in conducting a level-two common-law inquiry, they lacked the reasonable suspicion necessary to support a level-three encounter consisting of a pat-down or “stop-and-frisk” search… .  People v Kennebrew, 2013 NY Slip Op 03854, 2nd Dept, 5-29-13

STREET STOPS

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Suppression Ruling Reversed—Pat Down Search Justified for Officer Safety​

Over two dissents, the Fourth Department reversed the grant of suppression by County Court.  The questioning of the defendant was instigated by the defendant’s staring at the officer as the officer was in his vehicle and the defendant was riding a bicycle.  The defendant ran his bicycle into a porch, fell and ran up the steps. At that point the officer approached him and asked him for identification.  The defendant kept putting his hand in his pocket after the officer asked him not to. The officer grabbed the defendant’s hand as defendant reached into his pocket.  As he did so, the officer touched an object he believed to be a handgun and he reached into the pocket and removed it.  The majority felt the officer was justified in grabbing the defendant’s hand and retrieving the object to protect his safety.  The dissenters felt the information available to the officer did not amount to reasonable suspicion of criminality such that a forcible stop and frisk was justified. People v Sims, KA 12-01247, 324, 4th Dept, 5-3-13

SUPPRESS, SEARCH, STREET STOP

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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

Flight Provided Justification for Pursuit.

Because the defendant resembled a “mug shot” of a wanted person, the police had the right to approach him to request information. Because the defendant was in an area the wanted person was known to frequent, the police had the common-law right to inquire.  The defendant’s flight provided reasonable suspicion to pursue and stop him.  The defendant’s discarding of a gun during the chase, therefore, was not the result of improper police action.  People vs Barrow, 2011-030059, Ind. No. 1356/09 Second Dept. 2-13-13

DeBour, street stops

Frisk of Defendant After a Vehicle Stop Okay, Officer Had Reasonable Suspicion of Criminal Activity and an Articulable Basis to Fear for His Safety.

The Fourth Department determined a police officer had the right to frisk the passengers in a lawfully stopped car to the extent necessary to protect his safety because he was acting on reasonable suspicion that criminal activity was afoot and on an articulable basis to fear for his own safety.   Before the defendant got into the car which was stopped for a traffic infraction, the officer had observed the defendant “engage in a number of ‘handshakes’ “which the officer determined were either hand to hand drug sales or “gang signals.”  When the car was stopped the officer saw the defendant either take something out of or put something into his pocket. People vs Daniels, 9, KA 09-287 Fourth Dept. 2-8-13

DeBour, vehicle stop, street stops, search

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Defendant’s Flight Did Not Justify Police Pursuit.

Flight was not sufficient to justify police pursuit.  A police officer had been shot in the afternoon.  About eight hours after the shooting, uniformed officers approached the defendant as he was walking within a block or two of where the shooting occurred.  The defendant said “What, we can’t go to the store?” turned his back, made a gesture toward his waistband, and ran. The police pursued him and saw him discard a handgun from his pocket as he was being tackled by an officer.  The defendant subsequently pled guilty to criminal possession of a weapon.  The Fourth Department reversed the conviction and vacated the sentence. “Flight alone … is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry …”.  Because there were no “specific circumstances indicating that the suspect [was] engaged in criminal activity,” there was no “reasonable suspicion” of criminal activity, “the necessary predicate for police pursuit…”.  People v Cady, 1427, KA 12-00337 Fourth Dept. 2-1-13

DeBour, street stops

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