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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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Concise Description of the Application of the DeBour Street-Encounter Criteria Leading to the Seizure of a Weapon

The Second Department, in finding the seizure of a gun from the defendant proper, provided a concise application of the DeBour street encounter factors:

The arresting officer testified that he saw, from a distance of “[l]ess than a foot” away, “what looked to be” “two to three inches” of “the butt of a firearm” that was “pulling down” the defendant’s rear pants pocket. These observations gave the officer an objective, credible reason to approach the defendant … . Upon seeing the officer, the defendant immediately turned sideways to obscure his rear pants pockets from the officer’s view, giving the officer a “founded suspicion that criminal activity [was] afoot,” justifying greater intrusion to conduct an inquiry … . At that point, when the defendant lowered his hands in the direction of his waist area, the officer had reason to suspect that he was in danger of physical injury and was authorized to conduct a protective frisk (see CPL 140.50[3]…). Probable cause for the defendant’s arrest arose after the officer grabbed the defendant’s hands for his own safety and, upon “wrestling” with the defendant, saw that the item in the defendant’s back pocket was, in fact, a firearm … . Thus, the record establishes that the officer’s conduct was justified at its inception and reasonably related in scope and intensity to the circumstances of the encounter as it developed … . Moreover, given the legality of the officer’s actions, the defendant’s claim that his post-arrest statement to police should be suppressed as the product of an illegal search or seizure is without merit… . People v Owens, 2015 NY Slip Op 02790, 2nd Dept 4-1-15

 

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Frisk Not Justified Under DeBour Analysis

The Fourth Department determined the police officer did not have reasonable suspicion defendant was committing a crime and had no reasonable basis to suspect he was in danger at the time he frisked the defendant:

It is well established that, in evaluating the legality of police conduct, we “must determine whether the action taken was justified in its inception and at every subsequent stage of the encounter” (…People v De Bour, 40 NY2d 210, 215). In De Bour, the Court of Appeals “set forth a graduated four-level test for evaluating street encounters initiated by the police: level one 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; level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; [and] level four, arrest, requires probable cause to believe that the person to be arrested has committed a crime” (People v Moore, 6 NY3d 496, 498-499).

Here, contrary to defendant’s contention, we conclude that the information provided in the 911 dispatch coupled with the officers’ observations provided the police with “an objective, credible reason for initially approaching defendant and requesting information from him” … . The officers pulled up next to defendant and, without exiting the vehicle, asked to see defendant’s identification and asked defendant where he was going and where he was coming from, which was a permissible level one intrusion … .

Contrary to the further contention of defendant, we conclude that his failure to answer the officers’ questions about where he was going and where he was coming from, when added to the information acquired from the police dispatch and defendant’s heightened interest in the patrol car, created a “founded suspicion that criminality [was] afoot,” justifying a level two intrusion … . The common-law right of inquiry “authorized the police to ask questions of defendant—and to follow defendant while attempting to engage him—but not to seize him in order to do so” … . The police therefore acted lawfully in following defendant for the purpose of obtaining an answer to their valid questions about his whereabouts. The encounter, however, quickly escalated to a level three intrusion when one of the officers grabbed defendant’s hand and patted the outside of his pants pocket. “[A] stop and frisk is a more obtrusive procedure than a mere request for information or a stop invoking the common-law right of inquiry, and as such normally must be founded on a reasonable suspicion that the particular person has committed or is about to commit a crime” … . ” [W]here no more than a common-law right to inquire exists, a frisk must be based upon a reasonable suspicion that the officers are in physical danger and that defendant poses a threat to their safety’ “* * * …[U]nlike in other cases where we have sanctioned a frisk for weapons, there was no evidence in this case that defendant refused to comply with the officers’ directives or that he made any furtive, suspicious, or threatening movements … . Indeed, under the circumstances of this case, the presence of defendant’s hand in his left pants pocket was particularly innocuous and ” readily susceptible of an innocent interpretation’ ” … . Defendant retrieved his identification from his left pants pocket and returned it to that pocket after complying with the officers’ request to produce identification … .

We therefore conclude that, “[b]ecause the officer lacked reasonable suspicion that defendant was committing a crime and had no reasonable basis to suspect that he was in danger of physical injury, . . . the ensuing pat frisk of defendant was unlawful” … . People v Burnett, 2015 NY Slip Op 02613, 4th Dept 3-27-15

 

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Nervous and Uncooperative Actions by Defendant Justified Search of Area Inside Defendant’s Car After Defendant Was Out of the Car and Had Been Frisked

The First Department, over a dissent, determined the nervous and uncooperative actions of the defendant justified the warrantless search of a bag inside the car defendant was driving, after defendant was outside the car and had been frisked:

The testimony supports the trial court’s finding that the facts available to the officers, including defendant’s furtive behavior, suspicious actions in looking into the back seat on multiple occasions and refusal to follow the officers’ legitimate directions, went beyond mere nervousness. Rather, defendant’s actions both inside and outside of the vehicle created a “perceptible risk” and supported a reasonable conclusion that a weapon that posed an actual and specific danger to their safety was secreted in the area behind the front passenger seat, which justified the limited search of that area, even after defendant had been removed from the car and frisked … . People v Hardee, 2015 NY Slip Op 02573, 1st Dept 3-26-15

 

Escalating Intrusiveness of Police-Encounter with Defendant Justified Under DeBour Criteria—Criteria Explained and Applied

The Second Department, over a dissent, determined the arresting officer, Schwizer, properly escalated the intrusiveness of his encounter with the defendant (under the DeBour criteria) based upon the actions of the defendant:

“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 … .

“Encounters between citizens and the police in public places are of an endless variety with no two being precisely alike” … . Here, Schwizer properly exercised his common-law right of inquiry when he initially encountered the defendant, as the defendant matched the general description of a man with a gun at the subject location … .

At this stage in the encounter, absent reasonable suspicion of criminal activity, Schwizer could not forcibly detain the defendant … . However, during his common-law right of inquiry, Schwizer was permitted to ask the defendant to show or raise his hands as a self-protective measure … .

The defendant’s failure to comply with Schwizer’s request to show his hands, coupled with the nature of the report, and the presence of the defendant’s hands in his waist area, escalated the encounter and justified Schwizer’s conduct in grabbing the defendant’s hands as a self-protective measure … . Once Schwizer felt the firearm in the defendant’s waist area, he was furnished with reasonable suspicion … . People v Abdul-Mateen, 2015 NY Slip Op 02489, 2nd Dept 3-25-15

 

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Observing a “Bulge” Did Not Justify Forcible Detention

The Second Department reversed defendant’s conviction, finding that the police officer’s observation of a bulge did not justify forcible detention:

…[T]he arresting officer did not have reasonable suspicion to believe that the defendant had committed or was about to commit a crime … . The officer briefly observed what he initially characterized only as a “bulge” on the right side of the defendant’s pants. Despite this initial characterization, the officer later testified that he thought he had observed a holster, which turned out to be a buckle attached to the right side of the defendant’s pants. This observation, without more, was not sufficient to permit the officer to forcibly detain the defendant … . Accordingly, the physical evidence recovered from the defendant as a consequence of the unlawful detention and arrest should have been suppressed… . People v Severino, 2015 NY Slip Op 02509, 2nd Dept 3-25-15

 

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Criteria for Strip and Cavity Search Met

The Third Department determined the circumstances justified a strip search and a visual cavity search of the defendant. The court explained the relevant criteria:

…[T]he principles governing strip searches and body cavity examinations are set forth in People v Hall (10 NY3d 303 [2008], cert denied 555 US 938 [2008]). Insofar as is relevant here, “a strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner. To advance to . . . a visual cavity inspection, the police must have a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee [has] secreted evidence inside a body cavity and the [ensuing] visual inspection must be conducted reasonably” … . Although the police cannot routinely subject all drug arrestees to visual cavity inspections, the police are permitted — in the context of formulating the particularized factual basis required for such inspections — “to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person”… . People v Cogdell, 2015 NY Slip Op 106031, 3rd Dept 3-12-15

 

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Warrantless Search of Defendant’s Jacket Not Justified–Defendant Was Handcuffed Inside a Police Car and Jacket Was Outside the Car

The First Department, in a full-fledged opinion by Justice Richter, over a dissent, determined that the warrantless search of defendant's jacket could not be justified.  The defendant was handcuffed and sitting in the back of a police car when the jacket, which was on the trunk of the police car, was searched:

“[A]ll warrantless searches presumptively are unreasonable per se,” and, “[w]here a warrant has not been obtained, it is the People who have the burden of overcoming” this presumption of unreasonableness … . As the Court of Appeals recently reiterated in Jimenez (22 NY3d at 717), the People must satisfy two separate requirements to justify a warrantless search of a container incident to arrest. “The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest” (Jimenez, 22 NY3d at 721 [internal quotation marks omitted]…). The second requires the People to demonstrate the presence of exigent circumstances (Jimenez, 22 NY3d at 722). The Court of Appeals has recognized two interests underlying the exigency requirement: the safety of the public and the arresting officer, and the protection of evidence from destruction or concealment … .  * * *

Here, the jacket was unquestionably outside defendant's grabbable area at the time of the search, which even the dissent acknowledges. Defendant was sitting handcuffed inside a police car, the jacket was outside lying on the vehicle's trunk, and numerous officers were on the scene. Thus, the jacket had been reduced to the exclusive control of the police and there was no reasonable possibility that defendant could have reached it… .

Further, the People failed to establish the requisite exigent circumstances justifying a warrantless search of the jacket. Although defendant had previously struggled with police, five to six additional officers had arrived on the scene and defendant was subdued and placed in the police car. Thus, the scene at the time of the search was police-controlled … . People v Morales, 2015 NY Slip Op 01190, 1st Dept 2-10-15

 

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Defendant’s Attorney Not Ineffective for Failing to Make a Motion to Suppress—Nature of a Motion Which, If Not Made, Would Constitute Ineffective Assistance Addressed by the Majority and the Dissent

The Fourth Department, over a two-justice dissent, determined that defendant’s attorney was not ineffective for failure to move to suppress a few of the items of stolen property seized after a traffic stop.  The majority and the dissent disagreed about whether the appeal questioned the validity of the traffic stop or the arrest after the stop.  The dissent felt that a motion to suppress all of the evidence based upon the arguable invalidity of the vehicle stop should have been made. The majority felt that the validity of the stop had not been questioned on appeal. The majority noted that, because the defendant testified, even if the evidence had been suppressed, the defendant could have been impeached with the suppressed evidence. The most useful discussion in the decision concerns the general nature of a motion which, if not made, would constitute ineffective assistance:

We respectfully disagree with our dissenting colleagues that the threshold standard to be applied in determining whether an attorney was ineffective for failing to file a particular motion is “whether the motion at issue had more than little or no chance of success.” It is true, as the dissent points out, that the Court of Appeals has repeatedly stated that “[t]here can be no denial of effective assistance of trial counsel arising from counsel’s failure to make a motion or argument that has little or no chance of success’ ” … . By so stating, however, the Court was not articulating the standard for what does constitute ineffective assistance of counsel; instead, the Court was explaining what does not constitute ineffective assistance of counsel. As noted, the Court has made clear in other cases that the standard to be applied is whether defense counsel failed to file a “colorable” motion and, if so, whether counsel had a strategic or legitimate reason for failing to do so … . Although neither the Court of Appeals nor the Appellate Division has defined “colorable” in this context, the term is elsewhere defined as “appearing to be true, valid, or right” (Black’s Law Dictionary 301 [9th ed 2009]). Federal courts have described a colorable claim as one that has ” a fair probability or a likelihood, but not a certitude, of success on the merits’ ” … . Here, for the reasons previously stated, we do not believe that a motion to suppress evidence as the product of an unlawful arrest would likely have been granted. People v Carver, 2015 NY Slip Op 00046, 4th Dept 1-2-15

 

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