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Warrantless Search of a Backpack Dropped During a Struggle with Police Was Not a Valid Search Incident to Arrest

The Second Department determined that the search of defendant’s backpack, which turned up a loaded weapon, was not a valid search incident to arrest.  The backpack had been dropped during a struggle with the arresting officer and the arrest took place some distance away from where the backpack was:

“Under the State Constitution, an individual’s right of privacy in his or her effects dictates that a warrantless search incident to arrest be deemed unreasonable unless justified by the presence of exigent circumstances” … . “When an individual subjected to arrest has a privacy interest in property within his or her immediate control or grabbable area’, [the Court of Appeals] has identified two interests that may justify the warrantless search of that property incident to a lawful arrest: the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment” …

Contrary to the Supreme Court’s determination, the search of the backpack was not justified as a search incident to a lawful arrest. The backpack was not within the defendant’s immediate control or “grabbable area” at the time he was arrested … . Moreover, the People failed to present evidence establishing exigent circumstances at the time of the arrest that would justify the search. The detective did not assert that he searched the backpack out of concern for the safety of himself or the public, and the circumstances did not support a reasonable belief that the backpack contained a weapon … . Likewise, the detective did not assert that he searched the backpack to protect against the destruction of evidence, and the facts do not support such an assertion. People v Thompson, 2014 NY Slip Op 04524, 2nd Dept 6-18-14

 

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No Exigent Circumstances to Justify Search of a Closed Container in Defendant’s Possession Upon His Arrest for Minor Non Violent Offenses to Which the Contents of the Bag Could Have Had No Connection

The First Department determined there were no exigent circumstances which justified the search of a plastic bag (closed container0 that was in defendant’s possession at the time of his arrest:

The police detained defendant in a subway station for violating Transit Authority regulations. Because a warrant check revealed that defendant had an active warrant, the police decided to arrest him rather than issue a summons. Defendant was holding a plastic bag in his hand, and put it on the ground next to him before being handcuffed. An officer picked up the bag, which felt heavy, and looked inside to check for weapons or contraband. Inside the bag was another plastic bag, which contained a canvas bag. The officer then noticed a strong odor of marijuana, opened the canvas bag, and found nearly a pound of marijuana.

The People failed to meet their burden of showing exigency. The officers did not testify that they feared for their safety, or that they were concerned that the bag contained evidence that defendant could destroy, and the circumstances did not suggest that any exigency required an immediate search. Defendant was being arrested for minor nonviolent offenses and was not suspected of any crimes, he was handcuffed and guarded by several officers, he was fully cooperative and voluntarily placed the bag on the ground, his demeanor and actions were not threatening, and there was no indication that he might try to grab or kick the bag, which was no longer in his possession. Furthermore, there was no indication that the bag might contain a weapon and, given the nature of the transit violations, there was no possibility that the bag could contain evidence to support those charges. People v Febres, 2014 NY Slip OP 04150, 1st Dept 6-10-14

 

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No Justification for Handcuffing Defendant/Handcuffing Constituted an Arrest Before Officer Had Probable Cause to Arrest

The First Department determined probable cause for defendant’s arrest did not exist when defendant was handcuffed and the act of handcuffing constituted an arrest, not a detention pending information providing probable cause:

During a buy and bust operation, a ghost undercover detective issued a radio transmission identifying defendant as a participant in a drug sale, made to another undercover officer. Based on that radio transmission describing defendant and his location, a third officer approached defendant on the sidewalk, identified himself, and asked defendant to put his hands up. When defendant acted “a little resistant,” the officer attempted to handcuff him. Defendant then resisted, and the police forcibly handcuffed him.

The suppression court [ruled] that although when the officer stopped the defendant, he did not have probable cause to arrest him based on the information that he had received from the radio transmission, the officer obtained probable cause to arrest defendant after the purchasing undercover officer subsequently radioed his confirmatory identification. …[By] finding that there was no probable cause to arrest defendant until the confirmatory identification, the court implicitly found that the initial apprehension, which preceded that identification, was a proper temporary detention based on reasonable suspicion and that the application of handcuffs on defendant did not transform the detention into a full-scale arrest.

…[W]e reject the People’s argument that defendant was not under arrest at the point when he was handcuffed. Although the use of handcuffs is not dispositive of whether an investigatory detention on reasonable suspicion has been elevated to an arrest, handcuffing is permissible in such a detention only when justified by the circumstances … . In this case, the police had no reason to believe that defendant was either armed or dangerous. Nor was there any indication on the record that defendant offered any resistance prior to the handcuffing, or gave the police any reason to believe that he might flee. People v Blanding, 2014 NY Slip Op 02508, 1st Dept 4-10-14

 

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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 Did Not Have Founded Suspicion of Criminal Activity When Path of Parked Car Was Blocked by Police Vehicle/Suppression of Seized Drugs Should Have Been Granted

The Second Department determined defendant’s suppression motion should have been granted.  After seeing a man approach the window of a parked car, but without seeing what was exchanged, the police blocked the parked car with the police vehicle, approached and ultimately arrested defendant.  The Second Department determined blocking the path of the parked car was a “stop” and the police did not have a “founded suspicion” of criminal activity at that point:

Although the detective who stopped the defendant’s car was trained in identifying narcotics transactions and was aware of numerous drug transactions in the neighborhood, including some involving car deliveries of drugs, he did not see what the defendant and the pedestrian exchanged, could not see if one of the men gave the other something in return for something else, and did not see money pass between the two men …. Moreover, the detective saw only one exchange … , did not describe any furtive conduct on the part of the two men …, or, indeed, any other conduct that would give rise to a reasonable suspicion that he was observing a drug transaction …. The detective’s observations supported only a “founded suspicion that criminal activity [was] afoot” …, which is insufficient to justify the stop of the defendant’s car … . Consequently, that branch of the defendant’s omnibus motion which was to suppress the crack cocaine must be granted. People v Loper 2014 NY Slip Opinion 01771, 2nd Dept 3-19-14

 

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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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Police Did Not Have Reasonable Suspicion of Criminal Activity, Defendant Had Right to Ignore Police Command to Stop

In a full-fledged opinion by Justice Richter, the First Department reversed the denial of defendant’s motion to suppress.  After a police officer stopped a vehicle (a Lexus), the officer saw the defendant approach the vehicle on foot, receive a bag from the driver, and walk away.  The defendant was then ordered to stop:

After pulling the driver of the Lexus over for a traffic infraction, Detective Mongelli observed his nervous demeanor, and learned that his license had been revoked. The detective then saw defendant arrive at the Lexus, receive a black bag from the driver, and walk away. These observations provided, at most, a founded suspicion of criminal activity. … In response to this founded suspicion that criminal activity was afoot, Detective Mongelli was permitted to conduct a common-law inquiry. But the police actions here went beyond a level two intrusion and constituted a level three stop and detention.  * * * Furthermore, the detective’s command to “turn the bag over” constituted at least a level three intrusion, requiring reasonable suspicion. * * *

It is well established that a citizen has a right not to respond to law enforcement inquiries and to walk away from the police …[.] [T]he Court of Appeals reaffirmed this principle and described an individual’s “right to be let alone” as the distinguishing factor between the level of intrusion permissible under the common-law right to inquire and the right to make a forcible stop. The Court reasoned that “[i]f merely walking away from the police were sufficient to raise the level of suspicion to reasonable suspicion . . . the common-law right of inquiry would be tantamount to the right to conduct a forcible stop and the suspect would be effectively seized whenever only a common-law right of inquiry was justified” … . The Court concluded that to elevate a level two inquiry to a level three stop, the police must obtain additional information or make additional observations of suspicious behavior sufficient to establish reasonable suspicion … . Because no such additional information or observations existed here, the police lacked reasonable suspicion to justify the seizure that occurred. People v Major, 2014 NY Slip Op 00197, 1st Dept 1-14-14

 

Defendant’s Placement of a Bag in the Engine Compartment Deemed Inconsistent with An Innocent Explanation

The First Department determined the observations made by the officer, including the placement of a bag under the hood of the car, provided reasonable suspicion of criminal activity (justifying the stop):

At a drug-prone intersection, experienced narcotics officers saw an illegally parked car, in which defendant and his passenger were making movements suggesting that something was being transferred. They then saw defendant close a clear plastic bag with his mouth, get out of the car while holding the bag, open the hood of the car, reach into the engine area and return to the car without the bag. Based on those observations, the police had reasonable suspicion that defendant had engaged in criminal activity, most likely a drug transaction … . In particular, it was highly suspicious for defendant to apparently secrete a bag under the hood of the car. This behavior was inconsistent with innocent explanations, such as repairing the car. Accordingly, the police conducted a lawful stop for the purpose of investigating criminal activity, and they properly detained and questioned defendant and the passenger.  People v Smalls, 20134 NY Slip Op 07866, 1st Dept 11-26-13

STREET STOPS, DE BOUR

 

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