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SEARCH INSIDE DEFENDANT’S UNDERWEAR WAS AN ILLEGAL STRIP SEARCH.

The Fourth Department, reversing County Court, determined what amounted to a strip search at a traffic stop was illegal. The officer searched defendant’s underwear and seized drugs which were inside defendant’s underwear:

… [B]ecause the officer intended to transport defendant to the police station to charge him with the traffic infractions, he was justified in conducting a pat search for weapons before placing defendant in the patrol vehicle … . We note that a person’s underwear, “unlike a waistband or even a jacket pocket, is not a common sanctuary for weapons’ ” …  and, in any event, the officer did not pat the outside of defendant’s clothing to determine whether defendant had secreted a weapon in his underwear after defendant leaned forward. Instead, he conducted a strip search by engaging in a visual inspection of the private area of defendant’s body … . …  We conclude that a visual inspection of the private area of defendant’s body on a city street was not based upon reasonable suspicion that defendant was concealing a weapon or evidence underneath his clothing… . People v Smith, 2015 NY Slip Op 09517, 4th Dept 12-23-15

CRIMINAL LAW (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)/SEARCH AND SEIZURE (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)/EVIDENCE (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)/SUPPRESSION (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)

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 Were Justified In Questioning Defendant’s Presence In Lobby of an Apartment Building Enrolled in the “Trespass Affidavit Program (TAP)”

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over an extensive dissenting opinion by Judge Rivera (in which Judge Lippman concurred), determined a police officer had the right to question defendant about his presence in the lobby of an apartment building. After defendant stated he did not live in the building and could not identify a resident who invited him there, he was arrested for trespass and a razor blade was seized from his pocket, The building was enrolled in the “trespass affidavit program (TAP)” which was described as a solicitation of police assistance for dealing with trespassers. The police officers entered the building to conduct a floor by floor search for trespassers:

Our analysis begins with the points “that whether police conduct in any particular case conforms to De Bour is a mixed question of law and fact,” and that, in such circumstances, “our review is limited to whether there is evidence in the record supporting the lower courts’ determinations” … . On the merits, our analysis proceeds under the first of the four levels of De Bour, which sets a low bar for an initial encounter: it “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” … .

Here the record reflects that the encounter occurred in a private space restricted by signage and a lock, and that police assistance in combating trespassing had been sought through enrollment in the TAP. Put simply, the coupling of defendant’s presence in the subject building with the private and protected nature of that location supports the intrusion giving rise to what became the seizure in question. We conclude that there is record support for the determination that the police had an objective credible reason to request information from defendant … .

In so concluding we note that the police patrol at issue here was intended in part to combat trespassing, that is, “knowingly enter[ing] or remain[ing] unlawfully in or upon a premises” (Penal Law § 140.05), that the building at issue was enrolled in the TAP for the purpose of addressing that problem, and that this branch of the TAP is rooted in tenant protection throughout Manhattan. Under these circumstances a police officer could have identified a trespasser only by requesting information. People v Barksdale, 2015 NY Slip Op 07694, CtApp 10-22-15

 

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Police Did Have Sufficient Suspicion to Justify Telling Defendant to Drop a Bag He Was Holding—Suppression Should Have Been Granted

The First Department determined the police did not have a founded suspicion criminal activity was afoot when they directed defendant to drop a bag he was holding. Therefore defendant’s suppression motion should have been granted:

The police officers’ initial approach and their intrusion upon defendant’s freedom by directing that he drop the bag were unsupported by a founded suspicion that criminality was afoot necessary to the exercise of the common-law right to inquire … . The officers approached defendant based solely on their observation of him carrying a shopping bag or gift bag that seemed rigid. While one officer testified that, based on his experience, he thought it might be a “booster bag” used for shoplifting, he essentially described an ordinary shopping bag. Further, it was conceded that defendant was not free to leave at the time he was ordered to drop the bag and its use as a booster bag became apparent. Defendant’s innocuous behavior in walking in and out of a store with the bag and his ensuing behavior did not justify further interference to obtain explanatory information … . People v Ties, 2015 NY Slip Op 07753, 1st Dept 10-22-15

 

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Pat-down Search Pursuant to a Stop for a Traffic Infraction Unlawful—Injury to Officer During Unlawful Search Will Not Support Assault Conviction (Which Requires the Officer Be Injured Performing a Lawful Duty)

The Fourth Department determined the pat-down search of defendant after he was stopped for walking in the street was unlawful. Therefore the assault charge stemming from injury to the police officer during the unlawful search was not supported by legally sufficient evidence. The officer was not performing a “lawful duty” at the time of the injury (a required element of the assault charge):

A person is guilty of assault in the second degree under Penal Law § 120.05 (3) when, “[w]ith intent to prevent . . . a police officer . . . from performing a lawful duty . . . , he or she causes physical injury to such . . . police officer” (id.). Here, a police officer stopped defendant for walking in the middle of a roadway in violation of Vehicle and Traffic Law § 1156 (a), and the suppression court found that the search of defendant’s person by another officer was not lawful … . We have previously held that even the more limited pat-down search of a traffic offender “is not authorized unless, when the [person or] vehicle is stopped, there are reasonable grounds for suspecting that the officer is in danger or there is probable cause for believing that the offender is guilty of a crime rather than merely a simple traffic infraction’ ” (People v Everett, 82 AD3d 1666, 1666, …). Here, as in Everett, the search of defendant was unauthorized, and the officer was injured only after he attempted to perform the unlawful search (see id.). Viewing the evidence in the light most favorable to the People …, we thus conclude that the evidence is legally insufficient to establish that the officer was injured while undertaking a lawful duty … . People v Richardson, 2015 NY Slip Op 07069, 4th Dept 10-2-15

 

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Ornaments Hanging from Rear-View Mirror Justified Vehicle Stop

The Second Department, over a dissent, determined the police officer had probable/reasonable cause to believe defendant had committed a traffic infraction.  Therefore, the vehicle stop and the subsequent search of the vehicle (which turned up a weapon) were proper. There was an ornamental sandal and necklace hanging from the rear-view mirror. The court held the officer had reasonable cause to believe the sandal and necklace obstructed the driver’s view in violation of Vehicle and Traffic Law 375 (30):

Under the Fourth Amendment to the United States Constitution and article I, § 12, of the New York State Constitution, a police officer may stop a vehicle when the officer has probable cause to believe that the driver of the vehicle has committed a traffic infraction … . In this case, the credible evidence adduced at the suppression hearing established that the police had probable cause to stop the Altima. The officer who stopped the Altima testified that when he stopped his patrol car behind the Altima, he saw an ornamental sandal on a string and a necklace hanging from the Altima’s rearview mirror. The officer further testified that the sandal was four to five inches long and “[p]ossibly about [two] inches in width,” and that it was hanging about four to five inches beneath the rearview mirror. Contrary to the defendant’s contention and to our colleague’s dissent, this testimony demonstrated that the officer had reasonable cause to believe that the sandal was hung “in such a manner as to obstruct or interfere with the view of the operator through the windshield” (Vehicle and Traffic Law § 375[30]…). Accordingly, the officer’s stop of the Altima was not improper .. . Probable cause does not require certainty, and the officer’s testimony about the size and location of the ornaments was sufficient to establish probable cause. People v Bookman, 2015 NY Slip Op 07037, 2nd Dept 9-30-15

 

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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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